Preston v Ready
[1999] QDC 158
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- Unreported Judgment
- Preston v Ready[1999] QDC 158
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Preston v Ready[1999] QDC 158
Preston v Ready[1999] QDC 158
DISTRICT COURT | Appeal No 4206 of 1998 |
APPELLATE JURISDICTION
JUDGE BOYCE QC
RONALD JAMES PRESTON | Appellant |
and
MARK CHARLES READY and KATHERINE JUDITH READY | Respondents |
BRISBANE
DATE 01/06/99
JUDGMENT
HIS HONOUR: This is an appeal from the decision in the Magistrates Court dismissing an action for want of prosecution. I propose to give reasons for judgment extempore. I reserve the right to revise these reasons for judgment in due course.
The action arises out of an accident that is said to have occurred on 23 October 1991 in a residence at 45 Pullford Street, West Chermside. The allegation in the plaint is as follows, that the plaintiff at the request of the defendants attended upon the residence of the defendants for the purpose of furnishing a quotation in respect of wallpapering in the residence.
It is alleged that whilst the plaintiff was measuring up to put wallpaper on the walls, the plaintiff fell through a hole that had been cut in the floor of the house. It is alleged the hole had been cut in the floor by or at the request of the defendants for the purpose of installing a spiral staircase. It is then alleged that the plaintiff suffered injury to the left shoulder and soft tissue injuries to the left side of the neck, his left shoulder, upper arm and elbow and the right knee.
The plaintiff's solicitors filed the plaint in the Magistrates Court on 25 March 1993. There was an entry of appearance and defence filed on 5 May 1993. The sequence of events thereafter shows gross delay on the part of the plaintiff or the plaintiff's solicitors in the prosecution of the action.
On 12 May 1993 there was a letter from the defendants' solicitors to the plaintiff's solicitors requesting copies of the plaintiff's medical reports. On 31 May 1993 there was a notice of change of solicitor filed by the defendants. On 2 June 1993 there was a letter from the defendants' solicitors to the plaintiff's solicitors requesting details of the plaintiff's claim.
On 20 July 1993 there was a further letter from the defendants' solicitors to the plaintiff's solicitors requesting details of the plaintiff's claim. On 19 August 1993 there was a letter from the plaintiff's solicitors to the defendants' solicitors indicating that they would shortly be sending copies of the medical reports to the defendants' solicitors.
I should say that in the letter of 12 May 1993 the defendants' solicitors advised the plaintiff's solicitors that the insurer of the defendants would not be providing indemnity.
After a huge delay, the plaintiff's solicitors on 24 March 1998 sent a certificate of readiness to the defendants' solicitors. It is hardly surprising that that was not executed. On 27 May 1998 the plaintiff's solicitors forwarded a further certificate of readiness for trial to the defendants' solicitors. On 2 June 1998 in a letter from the defendants' solicitors to the plaintiff's solicitors surprise was expressed as to the sequence of events.
There were further letters from the defendants' solicitors to the plaintiff's solicitors on 22 June 1998 and again on 29 June 1998. These letters were not responded to. Ultimately on 24 August 1998 the defendants applied to have the matter dismissed for want of prosecution.
It is necessary, I think, to refer to rule 156 in the Magistrates Court Rules. It is in somewhat different form to Supreme Court Order 90 Rule 9 and Rule 377 in the District Court Rules.
Rule 156 provides that if the plaintiff does not, after receiving notice of the entry of appearance and defence, within one month take out a judgment summons or give notice of trial, the defendant may upon filing with the Registrar an affidavit as to the delivery of the entry of appearance and defence issue a summons calling upon the plaintiff to show cause before the Court why the action should not be dismissed for want or prosecution.
There is an affidavit on behalf of the plaintiff deposing as to what happened on the hearing before the learned Magistrate on 24 August 1998. It appears that the reasons have not been recorded on the Magistrates Court file, however, to the best of the recollection of the barrister for the plaintiff, the learned Magistrate gave the following reasons for Judgment:
“There has been inordinate and inexcusable delay on behalf of the plaintiff or the plaintiff's solicitors. The delay gives rise to the risk that there will be no fair trial and that the defendant will be clearly prejudiced in the lack of opportunity in having the plaintiff investigated by medical practitioners. Medical reports provided by the plaintiff's solicitors were not activated until after the expiration of a couple of years. There has been no explanation given as to why the reports were not provided earlier.”
I turn now to the material that was before the learned Magistrate. It seems to me that there is much substance in the submission made on behalf of the defendants to the effect that no attempt was made to explain or excuse the very considerable delay on the part of the plaintiff.
Ms Harvey, the solicitor for the defendants in paragraphs 14 and 15 of her affidavit that:
“A period of almost seven years had passed since the accident and due to this period of time memories of the details of the accident are no longer clear. The defendants' recollection of dealings with both the plaintiff and the defendants' insurer are no longer clear. Further, employees of either the plaintiff or the defendants' insurer, who dealt with the matter, may no longer be in the employ of the respective persons and other relevant witnesses may no longer be available.”
I turn now to the affidavit of Mr Watts, the solicitor for the plaintiff, filed before the learned Magistrate. In his affidavit Mr Watts did not offer any explanation of the huge delay in the matter. He stated that copies of the plaintiff's medical reports had been furnished to the defendants' solicitors by way of a letter dated 20 August 1998. He did not explain in any way why approximately five years had elapsed without any attempt to proceed with the matter or any attempt to make these medical reports available to the defendants' solicitors.
Mr Watts commented that so far as he was instructed:
“The female defendant was, or may have been, a witness to the incident of which the plaintiff complains or was in or about the first and second defendants' residence at 45 Pullford Street Chermside West when the incident occurred.”
I note the phraseology used is very unhappy. It is not clear whether the female defendant did witness the incident or was simply in the residence at the time the incident occurred.
For the defendants, it is urged that the plaintiff failed to put its cards on the table before the learned Magistrate. That there was no attempt made to explain or excuse the delay. Further, negligence and contributory negligence were in issue and the Court had no material upon which it could make an assessment of the plaintiff's prospects of success on liability.
It is urged further that there is no evidence upon which an opinion could be formed as to the quantum of the plaintiff's claim and that the plaintiff had suffered other injuries and falls referred to in the medical reports.
I note that amongst the medical reports there is a report from a general practitioner, Dr D Marshall, date 29 November 1991 which notes that the plaintiff consulted him on 23 October 1991. A report details the injuries. There is a report from a specialist neurosurgeon, Dr Coroneos, dated 10 September 1993. Under the heading “Past medical history”, it, refers to “previous accident, falls at work, two episodes of whiplash - DES long term sequelae”. I note that there is no explanation of the meaning of that phrase “DES”. It is not clear when these falls at work occurred.
The appeal is from the exercise of a judicial discretion. In the circumstances the onus is on the appellant to show some error on the part of the learned Magistrate in the exercise of a judicial discretion. House v. The Queen, (1936) 55 Commonwealth Law Reports 499.
I refer at this stage to two unreported decisions of the Queensland Court of Appeal. I refer first to Cooper v. Hopgood & Ganim, appeal number 8424 of 1997, judgment delivered on 2 June 1998.
In the judgment of Mr Justice Pincus His Honour pointed out that inordinate delay has become a consideration of increasing significance and that when prejudice is being considered it ought to be considered also in relation to other litigants and the due administration of justice.
He noted that a wholesale disregard of the rules might be taken to be an abuse of process. He noted further that the exercise of the Court's discretion should not be fettered by rigid rules but required a decision to be reached upon a balance of the relevant circumstances. He noted that default in compliance with the rules might be so substantial and persistent that it was of potent consideration in favour of striking an action out.
In the judgment of Mr Justice McPherson, His Honour noted:
“Ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of liquidation and its consequences hanging over them. The psychological, as well as the commercial effects, of such a state of affairs ought not to be underestimated.”
I refer also to the unreported decision of the Court of Appeal in Smith against Harvey-Sutton, Appeal No 6188 of 1997, judgment delivered 21 August 1998. Comment was made in that judgment upon the recent decision of the High Court in Brisbane South Regional Health Authority against Taylor, 1996, Volume 186 of the Commonwealth Law Reports, page 541.
Comment was made on the fact that there are subtle ways in which a fair trial may be prejudiced by the passage of time and comment was further made that since that decision Courts are more prone to uphold a submission of prejudice on the ground of delay and the deterioration in memories over time. In all the circumstances I am not satisfied that any error has been demonstrated on the part of the learned Magistrate and I dismiss the appeal.
...
HIS HONOUR: Well, the order I will make is that I dismiss the appeal and I order the appellant to pay the respondent's costs of and incidental to the appeal to be taxed.