DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application on behalf of the plaintiff for orders:

1. (a)
   Pursuant to s. 79 of the District Court Act 1967, that the current Magistrates Court proceedings (Maroochydore No. M810 of 1997) be transferred to the District Court at Maroochydore;

2. (b)
   Pursuant to rule 389(2) of the Uniform Civil Procedure Rules, for leave to take a new step in the proceeding notwithstanding the elapse of two years from the time the last step was taken; and

3. (c)
   Pursuant to rule 69 of the Uniform Civil Procedure Rules, that a company Dolstone Pty Ltd (A.C.N. 010 377 170) be included as a third defendant in the proceedings.

Dolstone Pty Ltd has not been served with notice of this application; hence the plaintiff does not proceed with the application and it is adjourned to a date to be fixed.

Introduction

2. [2]
   The plaintiff issued proceedings in the Maroochydore Magistrates Court on the 20^th June 1997. He alleges that in April 1995 he was engaged to carry out certain electrical work on a building construction site situated at a property owned by the first and second defendants at Montville. The plaint alleges that on the 20^th April 1995 the plaintiff was carrying out certain electrical work on the site, which included the provision of power from a meter box on a power pole to a temporary sub-board on the north eastern corner of the residence then being constructed on the property. The plaintiff alleges that prior to the commencement of work on the site by him, the defendants had caused to be dug two trenches for the provision of services. One trench commenced at the base of the power pole and ran parallel to the eastern boundary of the defendant’s land, and there was another trench which came off the first trench a short distance from the power pole and ran to the north eastern corner of the house under construction. Prior to the 13^th of April 1995, the plaintiff says that he laid electrical cables in the two trenches and required no further access to them, and on that day the South East Queensland Electricity Board connected power to the meter box on the power pole. The plaintiff alleges that whilst carrying out work on the meter box he stepped on the edge of an area where the two trenches met and the wall of the trench collapsed, and he fell into the trench and sustained injuries. He alleges that the injuries were caused by the negligence of the defendant. Essentially the particulars of negligence cover failure to warn, failure to erect barriers and failure to prevent collapse of the trench. At that time the particulars of damage suggested a fairly minor soft tissue injury of the cervical spine with some associated paraesthesia in the plaintiff’s right hand. There is a modest claim for past economic loss and an unparticularised claim for future economic loss which, on the basis of the pleading, would have been nominal only. Essentially the defence pleaded an absence of duty of care to the plaintiff; alternatively if they did owe a duty of care it was not breached; and alternatively if they were negligent or in breach of duty then the plaintiff had contributed to his injuries by his own negligence.

3. [3]
   The action proceeded as follows::

2 July 1997 Defendants served a Notice Requiring Discovery.

23 October 1997 Plaintiff filed and served a Statement of Loss and Damage in the Magistrates Court Action

11 August 1997 Plaintiff served Notice Requiring Discovery on the defendants

August 1997 Plaintiff swears an affidavit of documents in the Magistrates Court action

18 September 1997 Female defendant swears an affidavit of documents on behalf of both defendants in the Magistrates Court action

3 January 2001 Plaintiff served Supplementary Statement of Loss and Damage in the Magistrates Court action.

4. [4]
   It is conceded that this last step by the plaintiff requires the leave of the Court.

Application to Transfer

5. [5]
   The Statement of Loss and Damage filed by the applicant estimates damages at $48,881.89, that is, within the monetary jurisdiction of the Magistrates Court.

6. [6]
   However, Mr Grant-Taylor on behalf of the applicant tendered a report of Dr Don Todman, Neurologist, dated 23^rd of January 2001 in which Dr Todman estimates that the plaintiff has suffered a 15% permanent disability of the whole person related to the cervical spine injury which will continue to restrict his employability. It is clear that if the plaintiff is successful in recovering damages for loss the potential award would exceed the monetary jurisdiction of the Magistrates Court.

7. [7]
   In order to be entitled to a transfer of the action pursuant to s. 79(1), the applicant must satisfy the Court “that there is reasonable grounds for supposing that the relief or remedy sought is not available in the Magistrates Court”. However, once that threshold is negotiated, the applicant is entitled, without more, to an order transferring the proceedings. The Court in that event has no discretion to refuse relief: a transfer “shall” be ordered.

8. [8]
   The “reasonable expectation” that the relief or remedy sought is not available in the inferior court must be “clearly demonstrated”: Stiffel v. Industrial Dwelling Society [1973] 2 All ER 1131; Re Lovell (unreported judgment of the Supreme Court of Queensland, OS No. 587 of 1983, judgment of Master Lee, 5^th August 1983). The transfer from the inferior court to the District Court “will not automatically be made on the mere asking”: Re Timms (unreported judgment of the Supreme Court of Queensland, OS No. 1018 of 1991, Mackenzie J, 30^th October 1992).

9. [9]
   However, the attitude of the Court evidenced by Practice Direction No. 3 of 2001 issued on the 14^th March 2001 demonstrates, in current times, applications of this kind are granted almost as a matter of course. This is clearly a case in which the applicant’s legitimate damages expectations exceed the present upper limit of the Magistrates Court monetary jurisdiction and I order that the current Magistrates Court proceedings be transferred to the District Court at Maroochydore.

Application for leave to proceed

10. [10]
    From the applicant’s point of view this application is far more problematical.

11. [11]
    Mr Grant-Taylor faintly argued that leave to proceed under rule 389(2) was not necessary because steps had been taken in the proceeding within the last two years. In this regard he referred to a Notice of Non-Party Disclosure directed to Dr Tony Blue and filed by the respondent defendants on the 22^nd July 1999. In this regard he relies on a statement in Red Ru Pipeline Construction Company Pty Limited v. State of Queensland [1990] 1 QdR 389. However, the filing of a Notice of Non-Party Disclosure directed to a medical practitioner is not a step in the action. The last step taken in the proceedings prior to the filing of this application on the 23^rd of February 2001 was service by the defendants of an Amended Entry of Appearance and Defence on the 27^th January 1999. As there has been no step in the proceedings for two years the plaintiff requires leave from the Court in order to proceed.

12. [12]
    Mr Grant-Taylor submitted that the approach which should be taken in determining an application for leave to proceed under rule 389 is no different to that developed in the authorities dealing with analogous applications under order 90 rule 9 of the now repealed Rules of the Supreme Court. He did concede properly however that the philosophy of the Uniform Civil Procedure Rules which one finds in rule 5 effects the view which should be taken about what amounts to unacceptable delay in a proceeding: Collins v. Cootes [2000] QSC 332 (29.9.00). I agree with his observation that so much is signalled by the change reflected in rule 389 with effect from 1^st July 2000 that, after a lapse of only two years from the time the last step was taken (as opposed to the previous three years), a new step may not be taken without the order of the Court.

13. [13]
    In an application for leave to proceed “it is for the applicant for leave to show that there is good reason for excepting the particular proceedings from the general prohibition” on the taking of a fresh proceeding without the order of the Court after the requisite 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:

“The question whether there is good reason for making such an order obviously involves a consideration of all relevant matters and the question whether there was reasonable excuse for the delay is unquestionably a relevant matter … In my judgment, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order.

The other factor which will always be relevant where an application is made under O 90 r 9 is whether the defendant is likely to suffer prejudice as a result of the delay.”

14. [14]
    Such an approach was adopted by Atkinson J (with whom McMurdo P and McPherson JA agreed) in Tyler v. Custom Credit Corporation Limited & Ors. [2000] QCA 178 (19.5.00) in relation to an application for leave to proceed under rule 389. I adopt the approach taken by counsel for the respondent in considering the circumstances of this case in light of the factors set out by Justice Atkinson in her judgment.

1. (a)
   How long ago the events alleged in the Statement of Claim occurred, and what delay there was before the litigation commenced.

The plaintiff’s injuries are said to have occurred on the 20^th April 1995. The plaintiff said he was disabled through to May 1995 and then from July to August 1995. Proceedings were not instituted until the 20^th June 1997.

2. (b)
   How long ago the litigation was commenced or causes of action were added.

It is now 3 years 8 months since the litigation was commenced. The plaintiff may seek to add further causes in the Amended Statement of Claim (by adding a further defendant and/or further causes of action) some 5 years 11 months later.

3. (c)
   What prospects the plaintiff has of success in the action.

The plaintiff alleges he fell in a trench that the defendants had caused to be dug. The defendants say the trenches were dug specifically at the request of the plaintiff. He was aware of the trenches and worked in them in accordance with his own Statement of Particulars of Claim. He was a skilled contractor. The defendants owned the land. The respondent submits that the applicant’s prospects of success are not high. Certainly it is not a clear-cut case, even from the point of view of the plaintiff as pleaded in his own Statement of Particulars of Claim. On the basis of the material presently before me it is difficult to make an assessment as to the prospects of success, except to say it is not a clear cut case in which the plaintiff would almost certainly succeed.

4. (d)
   Whether or not the litigation has been characterised by periods of delay.

The last step taken by the plaintiff was on the 23^rd October 1997 when he served the Statement of Loss and Damage. That is some 3 years and 5 months ago. There is an obligation upon a plaintiff to pursue litigation with expedition: see rule 5 Uniform Civil Procedure Rules.

5. (e)
   Whether the delay is attributable to the plaintiff, the defendants or both.

 The delay here is due entirely to the dilatoriness of the plaintiff and/or the plaintiff’s solicitor. The plaintiff places the blame squarely on his solicitor, however he does not explain why he did not pursue the solicitor in the period leading up to the latter part of 2000. It is not suggested that the plaintiff is under any disability. The material discloses that he was born on the 11^th January 1943. I infer that he is a man of average intelligence and given his age I would expect him to understand his basic legal rights. It is a significant factor that he does not give any explanation as to why he did not pursue the solicitor. There is no delay suggested on the part of the respondents.

6. (f)
   Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation.

 This is not alleged by the plaintiff. It is clear from his Statement of Loss and Damage that he has been able to work and earn an income. If his lack of funds were the reason that he could not pursue the solicitor then that should have been sworn in his affidavit in support of this application.

7. (g)
   Whether the litigation between the parties would be concluded by striking out of the plaintiff’s claim.

 This would be the case as the limitation period (but for the Magistrates Court proceeding) expired on the 20^th April 1998.

8. (h)
   How far the litigation has progressed.

 The parties completed disclosure in 1997. The plaintiff’s affidavit in support of this application refers in paragraph 8(h) to a report from Intersafe Group dated 30^th of July 1998 which has not been disclosed. The present application indicates that the applicant wishes to deliver an Amended Statement of Claim.

1. (i)
   Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory.

In his affidavit in support of this application the applicant blames his former solicitor, but as I have noted he took no active steps himself between late 1997 and late 2000 to progress the action.

10. (j)
    Whether there is a satisfactory explanation for the delay.

The only explanation for the delay put forward by the plaintiff is the alleged dilatoriness on the part of his solicitor. He does not explain his own delay in pursuing the litigation.

11. (k)
    Whether or not the delay has resulted in prejudice to the defendants leading to an inability to ensure a fair trial.

The respondent submits that this is the case. The affidavit of the female respondent sworn the 14^th of March 2001 in relation to this application refers to a significant change in financial circumstances of the defendants in the past 12 months. If the action had been pursued expeditiously the defendants would have been in a better financial position to defend the action. They are not insured and are now without adequate funds and means. As such, the respondent submits that they will by virtue of the delay be seriously prejudiced in their ability to have a fair trial in the sense that they may not have the means to instruct lawyers. Mr Grant-Taylor answers this argument by submitting that the impecuniosity of the respondents would have occurred in any event. This submission may certainly apply to the lack of insurance, however it ignores the very important point that had this claim been prosecuted expeditiously in the Magistrates Court in all probability it would have concluded in 1998 at a time when the defendants’ financial position was much better. It is as a direct consequence of the delay that the defendants are now in a difficult financial position and I am satisfied that they would be prejudiced in obtaining a fair trial if the application is granted.

15. [15]
    Importantly, in Tyler v. Custom Credit (supra.), the Court of Appeal also held that another consideration that ought to be taken into account is that “ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them”. In my view that is a factor that is apposite in the circumstances here. The defendants have recently lost their business. They are without funds. They ought not to have the ongoing threat of protracted litigation hanging over them, particularly given their late stage of life.

16. [16]
    As Mr Grant-Taylor concedes the onus is on the plaintiff to show that there is a good reason for accepting the particular proceedings from the general prohibitions: Collins v. Cootes (supra.). For all those reasons the plaintiff applicant has not satisfied the onus upon it in the circumstances of this case. The application is dismissed with costs.