Pesudovs v Interchase Corporation Limited (in liquidation)
[1998] QDC 78
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- Pesudovs v Interchase Corporation Limited (in liquidation)[1998] QDC 78
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Pesudovs v Interchase Corporation Limited (in liquidation)[1998] QDC 78
Pesudovs v Interchase Corporation Limited (in liquidation)[1998] QDC 78
DISTRICT COURT | Plaint No 4723 of 1990 |
CIVIL JURISDICTION
JUDGE O'SULLIVAN
ZOYA PESUDOVS | Plaintiff |
and
INTERCHASE CORPORATION LIMITED (IN LIQUIDATION) | Defendant |
and
TEMPO SERVICES PTY LTD | Third Party |
BRISBANE
DATE 20/02/98
JUDGMENT
HER HONOUR: The defendant seeks an order that the plaintiff's action be dismissed for want of prosecution. The action is a claim by the plaintiff for damages for personal injury in May 1989 when she “slipped on a food substance on the floor” of the premises occupied by the defendant. The third party notice was issued on 21 January 1994. It claims that the third party was contracted to provide cleaning services to the defendant at the Myer Centre and failed in its obligations.
The last step in the action taken by the plaintiff was answers to interrogatories on 8 February 1994. The plaintiff directed interrogatories to the third party on 17 January 1995 which were answered on 4 April 1995. The plaintiff died on 17 March 1997 following a diagnosis of cancer in May 1996.
At the hearing of this summons, counsel for the defendant and the solicitor for the third party each advised the Court that their respective clients were not informed of the plaintiff's illness. No application was ever made to the Court for a speedy trial.
The plaintiff's personal representative engaged the plaintiff's current solicitors in December 1987. They are now solicitors on the record and filed a notice of intention to proceed on 16 January 1998. By order made on 12 February 1998 the plaintiff's personal representative was substituted as the plaintiff in the action.
The explanation for the delay in prosecuting the action includes the following: (1) Amalgamation of the plaintiff's former solicitors with another firm during 1994; (2) the deterioration in the plaintiff's health from 1996, The plaintiff's medical problems are outlined in the report from Dr Brunello dated 23 July 1996; (3) delay on the part of the defendant in the action including a delay from July 1991 to October 1993 to answer interrogatories; (4) an action on the part of the plaintiff's former solicitors, particularly from September 1996 when they were informed of the plaintiff's diagnosis of cancer. The plaintiff's personal representative sought assistance from the Queensland Law Society.
In October 1993, a certificate of readiness was forwarded to the defendant's solicitors which they did not sign and after some delay a third party notice was filed and served in January 1994 and an entry of appearance and defence was filed in May 1994. Interrogatories were directed by the plaintiff to the third party in January 1995 and answered in April 1995.
During 1995 the plaintiff's solicitors and the defendant's solicitors corresponded about the delay in the third party proceedings and about the pleadings. In Dempsey v. Dorber [1990] 1 Qd.R 418, the Full Court held that an action should only be dismissed for want of prosecution where the Court is satisfied either that the default had been intentional and contumelious or that there had been inordinate and inexcusable delay and such delay would give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff of between each other or between them and a third party.
An examination of the chronology of steps in the proceeding reveals that some of the delay is attributable to the defendant. I accept the analysis set out in (i) (ii) (iii) and (iv) on page 4 and the first and second bullet points on page 5 of the written submissions on behalf of the respondent plaintiff.
In so far as the delay is attributable to the plaintiff, I consider that it has been satisfactorily explained so that it cannot be seen as “inordinate and inexcusable delay” on the part of the plaintiff or her lawyers.
Turning then to prejudice. The plaintiff is unable to give evidence or to be cross-examined at trial. There is no material to suggest that a statement has been obtained from the plaintiff and is available. These facts are therefore quite distinguishable from those in White v. The Northern Territory (1989) 9 MVR 306.
The plaintiff swore answers to interrogatories which I have perused. They include interrogatories concerning how the accident occurred, but they do not canvass all of the issues which are usually raised at trials involving “slipping cases” and occupier's liability. It is more probable than not that the plaintiff would have been asked at trial about the nature of the substance and her possible failure to keep an adequate lookout (among other things).
The affidavit of David Peter Janinski filed 9 February 1998 deposes to the plaintiff providing particulars about the point where the plaintiff fell. These particulars have not been filed so I have been unable to check what they say. There would seem to be a contradiction between the information referred to by Mr Janinski and the plaintiff's answers to interrogatories on the same issue.
The relevance of this is that clause 4.10 of the defendant's lease requires it to clean “any common area immediately adjacent to the devised premises for a distance of at least one metre from the devised premises”. As Asche J did in White v. The Northern Territory (supra) it may be reasonable to infer that the plaintiff would not have altered her version. However, which version? On either of the current versions, the distance is more than the one metre stipulated in the lease. However is it possible that yet another version might emerge from cross-examination? The defendant is prejudiced by the lack of opportunity to clarify this aspect. Answers to interrogatories are by their very nature different from a witness statement as to what happened.
It also seems to me that there is an important difference between the unavailability of a witness and of a plaintiff. I am not saying that it would always be impossible to have a fair trial following the death of a witness or a party. As is repeatedly pointed out in the authorities, it is necessary to consider prejudice in the particular circumstances and to focus on the specific issues to be determined at trial. Having done this, I consider that without the plaintiff, and in the absence of any other witnesses, the issue of liability cannot be fairly determined.
In looking at the question of prejudice, it is necessary to look at the whole of the time since the cause of action arose: Hoy & McCormack v. Honan and Honan (Unreported - Court of Appeal - delivered 19 August - 1997).
A helpful illustration of the correct approach to be adopted when considering prejudice is contained in Baylin Pty Ltd & Tricon Industries Pty Ltd v. Abel Lemon & Company Pty. Ltd (Unreported - Court of Appeal - delivered 24 October 1997) which includes a review of the relevant authorities and references to the leading judgment of McHugh J in Brisbane South Regional Health Authority v. Taylor (1996) 70 ALJR 866.
I consider that the unavailability of the plaintiff to give evidence at trial makes it not possible to have a fair trial of the issues in the action. I find that on the balance of probabilities the death of the plaintiff is such as to make the chance of a fair trial unlikely or is such as is likely to cause or to have caused serious prejudice to the defendant vis-a-vis the plaintiff or as between the defendant and the third party.
...
HER HONOUR: The formal order then will be the action is dismissed for want of prosecution. On the question of costs of the application and costs of the action a draft order, and written submissions (if any) to be filed within 14 days.