Gerring v The Nominal Defendant
[2001] QDC 61
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- Unreported Judgment
- Gerring v The Nominal Defendant[2001] QDC 61
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Gerring v The Nominal Defendant[2001] QDC 61
Gerring v The Nominal Defendant[2001] QDC 61
DISTRICT COURT OF QUEENSLAND
CITATION: | Gerring v The Nominal Defendant [2001] QDC 061 |
PARTIES: | SCOTT GERRING (Plaintiff) And THE NOMINAL DEFENDANT (QUEENSLAND) (Defendant) |
FILE NO/S: | 205 of 1991 |
DIVISION: | Chambers |
PROCEEDING: | Application to dismiss action for want of prosecution Cross-application for leave to proceed |
ORIGINATING COURT: | Maroochydore |
DELIVERED ON: | 27 April 2001 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 23 April 2001 |
JUDGE: | Robertson DCJ |
ORDER: |
|
CATCHWORDS: | PRACTICE – Want of prosecution – application by defendant to dismiss plaintiff’s claim – prospects of success PRACTICE – Leave to Proceed – application by plaintiff to take new step after three years – whether “good reason” – whether delay likely to cause prejudice Cases cited: Tyler v. Custom Credit Corporation Limited & Ors. [2000] QCA 178 Birkett v. James [1978] AC 297 Cooper v. Hopgood and Ganim [1999] 2 QdR 113 Dempsey v. Dorber [1990] 1 QdR 418 Luxton v. Vines (1952) 85 CLR 352 Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 Statutes judicially considered: Uniform Civil Procedure Rules, r 389 |
COUNSEL: | G. Garrick (for the plaintiff) T.P. Sullivan (for the defendant) |
SOLICITORS: | Boyce Garrick Lawyers (for the plaintiff) Biggs & Biggs (for the defendant) |
- [1]The Court has before it two applications. The first in time is the defendant’s application for dismissal of the plaintiff’s action for want of prosecution. The defendant’s application (which was the third in under 12 months) was filed on 23rd November 2000 and was served on the plaintiff personally on the 6th December 2000. He then appeared in person before Judge Dodds on the 19th January 2001. The application was adjourned then by consent to the 16th February 2001 and was adjourned again by consent to the 23rd April 2001. The plaintiff’s present solicitors, Messrs Boyce Garrick Lawyers, filed a notice of appointment of solicitor on the 27th February 2001. The plaintiff’s previous solicitors, Messrs Watling Roche, obtained leave of the court to withdraw on the 21st January 1997. Service of the defendant’s application personally, and no doubt the salutary effect of an adverse costs order made by Judge Dodds on the 19th January 2001, clearly prompted the plaintiff to engage his present solicitors, and the plaintiff’s application for leave to proceed pursuant to Uniform Civil Procedure Rule 389(2) was filed on the 10th April 2001. In his written submissions on behalf of the defendant, Mr Sullivan of counsel has provided a chronology which I reproduce in part:
28.12.1988 Date of alleged accident
1.11.1991 Plaintiff commences action in this court by plaint
10.12.1991 Entry of appearance and defence
10.12.1991 Defendant’s request for particulars
15.4.1992 Plaintiff provides particulars
3.11.1992 Plaintiff’s statement of loss and damage
16.4.1993 Interrogatories of the plaintiff delivered by the defendant
21.6.1993 Answers to interrogatories of the plaintiff
2.8.1996 Plaintiff’s notice of intention to take a step within one month
21.8.1996 Defendant’s second statement of expert and economic evidence
21.1.1997 Notice of withdrawal of solicitors for the plaintiff
7.12.1999 Defendant’s application for dismissal of the action for want of prosecution
26.3.2000 Defendant’s second application for a dismissal of the action for want of prosecution
23.11.2000 Defendant’s third application for dismissal of the action for want of prosecution
6.12.2000 Defendant’s serve the third application
19.1.2001 Defendant’s application adjourned by consent to the 16th February 2001. Plaintiff appeared in person. The Court ordered that the plaintiff pay the defendant’s costs of that day, payment to be deferred until finalisation of the proceedings.
16.2.2001 Application adjourned by consent to 23rd April 2001.
- [2]The plaintiff’s claim is that he was seriously injured when he was struck from behind by an unidentified motor vehicle whilst walking along the David Lowe Highway in a northerly direction in the early hours of the morning of the 28th December 1988.
- [3]The relevant principles in applications of this nature are well established. These are conveniently set out in the judgment Atkinson J (with whom McMurdo P and McPherson JA agreed) in Tyler v. Custom Credit Corporation Limited & Ors. [2000] QCA 178. At pages 2-3 of Her Honour’s judgment she said this:
“When the court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rule 389, there are a number of factors that the court will take into account in determining whether the interests of justice require a case to be dismissed. These include:
- (1)How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
- (2)How long ago the litigation was commenced or causes of action were added;
- (3)What prospects the plaintiff has of success in the action;
- (4)Whether or not there has been disobedience of court orders or directions;
- (5)Whether or not the litigation has been characterised by periods of delay;
- (6)Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
- (7)Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
- (8)Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
- (9)How far the litigation has progressed;
- (10)Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
- (11)Whether there is a satisfactory explanation for the delay, and
- (12)Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.
The Court’s discretion is, however, not fettered by rigid rules which would take into account all of the relevant circumstances of the particular case including the consideration 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.”
- [4]In extracting those principles from the authorities Her Honour has referred to authorities from Birkett v. James [1978] AC 297 at 322-323 to Cooper v. Hopgood and Ganim [1999] 2 QdR 113 at 119. As the authorities establish, the onus is on the defendant in this case to show that the matter should be struck out; and to obtain leave to proceed the plaintiff must “show that there is a good reason for excepting the particular proceedings from the general prohibition”: Dempsey v. Dorber [1990] 1 QdR 418 at 420. At the time of that decision, the rules of the Supreme Court required leave to be obtained in circumstances in which no step had been taken in the proceedings for three years from the time the last step was taken, whereas UCPR r 389(2) requires leave where no step has been taken after the expiration of two years. That significant change read in conjunction with UCPR r 5 suggests that the burden on a dilatory plaintiff is somewhat more onerous now than hitherto.
- [5]There can be little doubt that the plaintiff in this case has been guilty of egregious delay. The plaintiff has provided an explanation for the delay which I do not find convincing. By way of example he alleges that he was told by his former solicitors Watling Roche that the claim would take ten years to prosecute. He offers this as an explanation as to why he did not press the solicitors after 1993. The same solicitors however obtained leave of the court to withdraw in 1997; at which time the solicitor Mr Spinks asserted in a letter to the Legal Aid Office dated the 15th October 1996 (part of Exhibit A to the affidavit of Mr Spinks filed 22nd November 1996):
“We are sick of Mr Gerring’s unreliability and waywardness. This matter should have been to trial long ago. Obviously he is not serious about pursuing his claim …”
- [6]In his affidavit in support of this application the plaintiff asserts that at some time in 1997 (I infer) he instructed new solicitors in Noosa. The plaintiff swears that he signed two pieces of paper, one of which was an authority to transfer the file. Incredibly, in my opinion, he asserts he made no further contact with that solicitor whose name he does not recall. I am therefore satisfied that the plaintiff has been guilty of the most serious delay in prosecuting his claim and has given no satisfactory explanation for that delay.
- [7]Another relevant consideration is the plaintiff’s prospects of success in the action. In many situations it will be difficult for a court to make any meaningful assessment of the prospects of success but in my opinion this is not one of those cases.
- [8]The plaintiff’s claim as set out in the plaint is that he was walking along David Lowe Highway Coolum in a northerly direction in the early hours of the morning of the 28th December 1988 when he was struck from behind by an unidentified motor vehicle being driven in the same direction, as a result of which he sustained significant personal injuries. In his affidavit sworn the 20th April 2001 in support of his application, the plaintiff expands on the factual basis for the claim in paragraph 9. He admits that prior to the incident he had been drinking alcohol with friends at a park in Coolum Beach. As he was attempting to hitchhike along the David Lowe Highway and while walking in a northerly direction he heard a vehicle approaching and the next recollection he has is regaining consciousness on the edge of the road in the bushes. In his answers to interrogatories the plaintiff is unable to give any details about the vehicle or the person or persons in the vehicle.
- [9]The defendant’s ability to properly defend a case is necessarily built around the recollection of members of the public who had oral conversations with the plaintiff immediately following the sustaining of the injury. After receiving notification of the claim the defendant obtained statements from a number of members of the public which if accepted by a court would seriously undermine the plaintiff’s case. The defendant has obtained signed witness statements from a Stewart Sharp, Phillip Johnston and Norman Foster. Mr Sharp and Mr Johnston are available to give evidence. Sgt Ehlers who investigated the incident is no longer a member of the police force but has been located by the defendant. Initially the defendant was unable to locate Mr Sharp, who at the time of the incident was working for the Queensland Ambulance Service, but he has now been located. Mr Foster died in May of 1999 and his statement will be directly admissible of the facts contained therein pursuant to s. 92(2)(a) of the Evidence Act 1977. Mr Sharp will say that when he asked the plaintiff “What happened to you?”, the plaintiff replied “I was hitchhiking to Perigian to see my girlfriend and was picked up by somebody in a car. They belted me up and threw me out onto the road when the car was moving.” Mr Sharp also says in his statement that he carried out a preliminary examination of the plaintiff and found that he was suffering abrasions to the face and acute pain throughout the spinal area. Mr Johnston, who was a cleaner and who was one of the members of the public who first attended at the scene with his business partner, stated that the plaintiff said “I don’t know what I did to deserve this.” Mr Foster says that when he attended the scene with his business partner (Mr Johnston) he recalls the plaintiff saying “They gave me a good hiding”. Also relevant in this regard is the evidence of medical practitioners who have examined the plaintiff in the course of the preparation of the case. The report of the Nambour General Hospital dated the 20th January 1994 states in part:
“Our records show that this patient was admitted on the 28th of December 1988 then aged 21. He was admitted to Nambour General Hospital 112.45am and had been drinking heavily the night before. On arrival he was still felt to be intoxicated. He had no recollection of events other than walking along a road the previous night and walking along a road early on the morning of the incident. He was picked up by a friend and brought to hospital.”
- [10]That report refers to injuries to C4 and C5 of the plaintiff’s cervical spine but does not refer to any abrasions to the face as noted by Mr Sharp. Also annexed to the affidavit of Mr Callow (the plaintiff’s present solicitor) sworn the 20th April 2001, are the hospital records of the Nambour Hospital, but these are extremely difficult to read without hearing from the authors of the report. Also exhibited to Mr Callow’s affidavit in support of this application are a number of reports of Dr David Morgan, Orthopaedic Surgeon. The reports were prepared by Dr Morgan at the request of the defendant’s solicitors. Dr Morgan’s opinion as to the causal relationship between the incident and the plaintiff’s incapacity is clearly dependent on the accuracy of the history provided to Dr Morgan by the plaintiff. As I apprehend the argument made on behalf of the plaintiff before me by Mr Garrick, the plaintiff asserts that the medical reports are supportive of his version of events and undermine the version of events given by the various witnesses to which earlier reference is made.
- [11]This court is in no position to make final determinations of fact which ultimately will depend on credit. Mr Garrick referred to Luxton v. Vines (1952) 85 CLR 352 at 358. I think the passage relied on by Mr Garrick sets out the proper approach to assessing evidence at trial in a circumstantial case, rather than the approach of a court exercising a discretion under this particular rule, when the court takes into account prospects of success as one of many relevant factors. In his statements to Dr Morgan set out in Dr Morgan’s report dated the 20th June 1993 the plaintiff refers only to injuries to his ribs, his spleen and his cervical spine. There is no reference to facial abrasions. As I have noted, none of the medical reports from the Nambour Hospital refer to facial abrasions and yet Mr Sharp, a trained Ambulance officer, observed such abrasions at the time he made a preliminary examination prior to the plaintiff going to hospital. If the claim is to proceed, it will be necessary for these matters to be investigated further. The plaintiff will have the onus of establishing the essential fact that he was struck from behind by an unidentified motor vehicle. Against that will be the witnesses called on behalf of the defendant who are able to give relevant evidence of conversations with the plaintiff immediately after the incident. If accepted, that evidence would have the tendency to seriously undermine the plaintiff’s credibility and reliability. In addition, undoubtedly the court would take into account that the plaintiff was significantly intoxicated at the time. In all those circumstances this is one of those cases which as the evidence presently stands the plaintiff’s prospects of success could not be described as good.
- [12]The defendant asserts that the serious delay by the plaintiff in prosecuting his claim has resulted in significant prejudice to it. As Mr Garrick pointed out in his submissions, this is not one of those cases where the defendant is relying on notes or merely a present recollection of events 12 years ago. The defendant, as a result of its own diligence, has obtained statements from members of the public which are signed and dated and which are taken at a time quite close to the events. I note that in the statements of Mr Sharp and Mr Johnston there is a clear typographical error in that both refer to an incident occurring on the 28th December 1989. Mr Foster’s statement refers correctly to the 28th December 1988. Mr Sullivan for the defendant correctly observed in his written submissions that the ultimate question in this type of case is whether the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial. The court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay. When the application was originally filed, Sgt Ehlers and Mr Sharp could not be contacted. Those witnesses have been located and will be available to give evidence as will Mr Johnston. Mr Foster’s statement as I say will be tendered pursuant to the relevant provision of the Evidence Act. Clearly the long delay of 12½ years between the incident and a possible date for trial will have some adverse effect on the defendant’s witnesses to accurately recall what was said on the date of the incident. In that regard Mr Sullivan referred to statements of McHugh J in Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 at 551. In considering that aspect of his submission it is relevant to take into account the nature of the evidence that is being recalled. The more complex the factual scenario, the more significant the prejudice by long delay. Mr Garrick’s submission shortly put is the prejudice here is more perceived and real as these witnesses will have access to their statements which are signed and dated. At the end of the day the matter is finely balanced. The plaintiff asserts that the matter is ready for trial. The defendant asserts to the contrary referring to the obvious need for a rule 547 statement. Given the identity of the defendant, this is not a case in which it is relevant to consider 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: Cooper v. Hopgood & Ganim, per McPherson JA at 124. After anxious consideration, I have determined that despite the unexplained delay, the prejudice that may be suffered by the defendant is more perceived than real and that it is not such, in any event, as will cause an injustice to the defendant, if the action be permitted to continue: Tyler v. Custom Credit Corporation Limited, per Atkinson J at para 46. In those circumstances I have decided to give leave to the plaintiff to proceed with his claim.
- [13]The defendant seeks it costs. Mr Garrick submits that costs should be reserved to the trial judge. In Tyler (supra.) at para (4) Atkinson J said:
“When proceedings have been prosecuted by a plaintiff in a dilatory way, the court may dismiss a proceeding for want of prosecution or impose a sanction as to costs.”
- [14]This is a very clear case in which the plaintiff should suffer a costs sanction. He will pay the defendant’s costs of both applications on the standard basis; payment to be deferred until the completion of the proceedings. I direct that the plaintiff serve on the defendant an up to date statement pursuant to r 547 within 28 days of today’s date. I will give the parties liberty to apply, and I invite the parties to prepare a consent order as to further directions to ensure that the matter is tried quickly.