Clausen v Miotti & Anor[2001] QDC 210

CITATION: Clausen v. Miotti & Anor [2001] QDC 210

PARTIES:

and

and

FILE NO/S: 1340 of 1997

DIVISION: Civil

PROCEEDING: Application

ORIGINATING COURT: Brisbane

DELIVERED ON: 13 July 2001

DELIVERED AT: Brisbane

HEARING DATE: 8 June 2001

JUDGE: Judge Boulton

ORDER: Irregularity as to service waived. Plaint renewed to 7 April 2000. Leave to proceed.

CATCHWORDS:

1. [1]
   This is an application for renewal of the plaint and leave to proceed pursuant to Rule 389(2) of the Uniform Civil Procedure Rules.

1. [2]
   The matter has had a complicated history. On 27 April 1994 the plaintiff was injured in a head-on collision in Wharf Street Brisbane with a vehicle driven by the first defendant and owned by the second defendant. The CTP licensed insurer of the defendants' vehicle was FAI General Insurance Company Limited. FAI Allianz Limited is now the managing insurer for the Nominal Defendant which has become the insurer in respect of the policies formerly issued by FAI.

1. [3]
   The lengthy history is principally set out in affidavits of solicitors, Stephen Joseph Pearson, filed on behalf of the applicant plaintiff on 11 April 2001 and Terrence Robert McCormack, filed 7 June 2001 on behalf of the abovementioned insurers.

1. [4]
   The then insurer, FAI, received a letter dated 19 November 1996 from the solicitors for the plaintiff holding its insured responsible for the accident. On 6 December 1996 the same solicitors sent to FAI a motor accident personal injury notice of claim and copy of the traffic accident report.

1. [5]
   It is worth noting that the traffic accident report contained a version from the first defendant which referred to an unidentified vehicle:

1. [6]
   The letter of the plaintiff's solicitors of 6 December 1996 took issue with the version of there being another car involved stating that the plaintiff was adamant that such a version was incorrect.

1. [7]
   On 20 January 1997 the plaintiff's solicitors again wrote to FAI concerning the prospect of admitting or denying liability and noted:—

1. [8]
   By letter of 6 February 1997 FAI indicated a readiness to admit liability conditioned that the matter would proceed by way of an assessment of damages and by a letter of 17 February 1997 the plaintiff's solicitors accepted that offer.

1. [9]
   The matter then proceeded to settlement mode with FAI requesting a specialist psychiatric examination of the plaintiff by one of a panel of three nominated by FAI. That request was accepted by the plaintiff's solicitors on 15 April 1997 and importantly in the same letter they said:—

1. [10]
   The plaintiff was examined by Dr Jill Reddan on 2 July 1997 and the report received by the plaintiff's solicitors from FAI on 13 October 1997. The progress of the matter then slowed. Apart from the letter of FAI in early 1998 regarding possible settlement, there was no progress.

1. [11]
   An FAI file note of 21 July 1999 refers to movement towards a conference with the comment:—

1. [12]
   On 7 March 2000 there is the further notation:—

1. [13]
   On 7 April 2000 following a request from the plaintiff's solicitors for settlement negotiations, FAI replied:—

1. [14]
   On 10 April 2000 the plaintiff's solicitors provided a sealed photocopy of the plaint. As the file note referred to above indicates, FAI had previously obtained a copy of the plaint from the defendants' solicitors. In the same letter the plaintiff's solicitors gave notice of an intention to apply to the court for an order to renew the plaint.

1. [15]
   At this stage the current solicitors for the insurers would seem to have become involved. They noted also the need for leave to proceed. They also suggested that the plaintiff's remedy lay against the Nominal Defendant in respect of the unidentified vehicle.

1. [16]
   There followed correspondence principally from the insurer's solicitors enquiring about progress. On 24 August 2000 the plaintiff's solicitors notified that the client was on long service leave in Victoria and that they were having difficulty with instructions. On 17 October 2000 they had received a telephone contact. What then occurred is contained in the affidavit of Stephen Joseph Pearson. There were further delays in obtaining instructions from the plaintiff, delay caused by the intervention of the Christmas holidays, and the absence overseas of the solicitor handling the matter.

1. [17]
   The considerable personal and psychiatric problems of the plaintiff are documented in the report of Dr Jill Reddan and in the reports of Dr Leggett and Denis Britton, exhibited to the affidavit of Rodney Jeffrey Kenneth Mugford, sworn 8 June 1002 as well as the plaintiff's own affidavit filed 11 April 2001.

1. [18]
   In an application for leave to proceed, “it is for the applicant for leave to show that there is good reason for accepting the particular proceedings from the general prohibition” on the taking of the first proceeding without the order of the court after the lapse in time: William Crosby & Co. Pty Ltd v. Commonwealth (1963) 109 CLR 490 at 496 and Dempsey v. Dorber [1990] 1 QdR 418 at 420 where Connolly J. said:—

1. [19]
   The issues to be considered on an application for leave to proceed were dealt with by the Court of Appeal in Tyler v. Custom Credit Corporation Limited & Ors [2000] QCA 178 (19500). There Atkinson J. set out a number of factors that might be considered.

1. [20]
   It appears relevant in the present case that the then insurer was notified as early as 19 November 1996, prior to proceedings being issued and was provided with the accident report which mentioned the circumstances of the accident, including the allegation by the first defendant of an unidentified vehicle.

1. [21]
   On the plaintiff's case it would have been pointless to sue the nominal defendant. The then insurer had an opportunity to involve the nominal defendant but did not. It seems unlikely that such a course would have been fruitful. The suggestion that the plaintiff should now be pursuing the nominal defendant seems rather fanciful and suggestions of prejudice on that score are unconvincing.

1. [22]
   The then insurer had an opportunity to consider the issue of liability and chose to admit liability. The case then devolved into one of possible settlement and both sides would seem to have lost a sense of urgency.

1. [23]
   There was then the delay of approximately 12 months in bringing the present application.

1. [24]
   The plaintiff would seem to have an assurance of success in the action when and if it comes to trial.

1. [25]
   The delay is largely explicable by the severe personal problems experienced by the plaintiff since the accident which are in part attributable to the accident. There has also been some impecuniosity on the part of the plaintiff demonstrated by the attempts of her solicitors to gain treatment for her at the expense of the insurer.

1. [26]
   Really the present insurer is not able to point to significant prejudice, relying on the general presumption of prejudice as a result of long delay.

1. [27]
   There is good reason in the present case to allow renewal of the process and to give leave to proceed.

1. [28]
   Service of stale process was made on 6 April 2000. Such service is an irregularity. It seems appropriate that I order that the irregularity be waived see F. Gillies v. Dibbetts (2001) 1 QdR 596 at 603 per Wilson J.

1. [29]
   I order that the plaint be renewed until 7 April 2000 and that the plaintiff have leave to proceed. I order the plaintiff pay the costs of and incidental to the application to be assessed. It may be appropriate in the present case that assessment of such costs await the determination of the action or earlier order of the court.