Gilbert v The Minister for Emergency Services
[2002] QDC 32
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Gilbert v The Minister for Emergency Services[2002] QDC 32
- Add to List
Gilbert v The Minister for Emergency Services[2002] QDC 32
Gilbert v The Minister for Emergency Services[2002] QDC 32
DISTRICT COURT OF QUEENSLAND
CITATION: | Gilbert v. The Minister for Emergency Services [2002] QDC 032 |
PARTIES: | BARRY JOHN GILBERT (Plaintiff) v. THE MINISTER FOR EMERGENCY SERVICES (Defendant) |
FILE NO/S: | Plaint 2016 of 1997 |
DIVISION: |
|
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 13 March 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 January 2002 |
JUDGE: | McGill D.C.J. |
ORDER: | Application dismissed with costs |
CATCHWORDS: | PRACTICE – leave to proceed – 4½ year delay in 7½ year old claim – damages for personal injuries – considerable efforts by defendant to push action along ignored – leave refused – Uniform Civil Procedure Rules r. 389(2) Cooper v. Hopgood and Ganim [1999] 2 Qd.R. 113 - considered Elesanar Constructions Pty Ltd v. Thiess Contractors Pty Ltd [2001] QDC 293 – cited Schiliro v. Peppercorn Child Care Centres Pty Ltd (2001) 1 Qd.R. 518 - cited Quinlan v. Rothwell [2001] QCA 176 - applied Tyler v. Custom Credit Corporation Ltd [2000] QCA 179 - applied William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 – followed |
COUNSEL: | K R Geraghty for the plaintiff A M Musgrave for the defendant |
SOLICITORS: | Palella Humphries and Venardos for the plaintiff Crown Solicitor for the defendant |
- [1]This is an application by the plaintiff pursuant to r. 398(2) of the Uniform Civil Procedure Rules for leave to proceed with the action. There is a dependent application to substitute a new party as defendant in lieu of the present defendant. The application was opposed by the existing defendant, but there was no cross-application for the action to be dismissed for want of prosecution.
History of the action
- [2]By a plaint filed on 19 May 1997, the plaintiff claimed from the defendant $200,000 damages in respect of injuries alleged to have been caused to him by negligence or breach of contract or breach of statutory duty in the course of his employment with the defendant. The plaint alleged that the defendant was a corporation sole under The Ambulance Service Act 1991 (“the Act”) responsible for the conduct of the Queensland Ambulance Service, and that the plaintiff was employed by the defendant as an ambulance officer, presumably within the Queensland Ambulance Service. It alleged that on 20 May 1994 the plaintiff, in the course of his employment, was required to assist in the lifting of a disabled man of considerable weight, in the course of which he suffered an injury to his back.
- [3]Evidently the defendant was served promptly, because an Entry of Appearance and Defence was filed on 18 June 1997. The defendant admitted that it was a corporation sole constituted under the Act, and that the plaintiff was employed by Queensland Ambulance Service, but denied that the plaintiff was employed by the defendant. Negligence, breach of contract or breach of statutory duty were also denied, but otherwise the claim was not admitted. It was not alleged that the plaintiff was guilty of contributory negligence. The pleading plainly denies that it was the defendant who was the employer of the plaintiff, a point which was also made in correspondence from the defendant’s solicitor.
- [4]On 17 July 1997 the Crown Solicitor as solicitor for the defendant wrote to the plaintiff’s solicitors confirming a statement by telephone that:
“Pursuant to s. 7 of the Ambulance Service Act 1991 your client’s action ought to be proceeding against Queensland Ambulance Service in that name. … I remain of the view that the wrong defendant has been sued.”
The letter went on to explain that, although the existing defendant was a corporation sole under the Act, its function was defined exclusively in s. 21 and did not include operating the Queensland Ambulance Service.
Statutory provisions
- [5]As at May 1994 s. 7(3) of the Ambulance Service Act 1991 provided that a claim or proceeding against the Queensland Ambulance Service might be made and enforced by a proceeding against the Queensland Ambulance Service in that name. Section 13 provided for the Commissioner (that is, the Commissioner of the Queensland Ambulance Service appointed under s. 4: s. 2) to employ persons as ambulance officers. The employment was by s. 13(1) made by the Commissioner “on behalf of the Queensland Ambulance Service”. Section 7(1) provided that the Commissioner, all ambulance officers and other staff employed under s. 13 were to be known as the Queensland Ambulance Service. Those provisions looked at together suggest that the plaintiff was (along with others) employing himself, but s. 15(2) provided that officers of the Queensland Ambulance Service were public sector employees within the meaning of the Public Sector Management Commission Act 1990, so that possibly the true employer was the State of Queensland. Section 19 constituted “Minister for Emergency Services” as a corporation sole, which by s. 21 had the function of holding certain property specified in the section. No other function was nominated in that section.
- [6]By the Ambulance Service Amendment Act 1997, which commenced on 13 July 1997, (after the action was commenced) the Queensland Ambulance Service was established as a corporation which could be sued in its corporate name: ss. 3A, 3B. The effect of s. 13 of the Act as amended was that ambulance officers were thereafter employed by that corporation. By s. 60 of the Act, legal proceedings that could have been started against the former Queensland Ambulance Service might be started against the new corporation, and a legal proceeding could have been continued against the former corporation sole (that is, Minister for Emergency Services) might be continued against the new corporation. In view of this section, and ss. 58 and 59, it appears that on the commencement of the 1997 amending Act the new corporation was by statute substituted as defendant in the proceeding, and since it is also the correct defendant if, at the time of the incident alleged in the plaint, the former “Queensland Ambulance Service” was the employer of the plaintiff (as now appears to be common ground between the parties) it follows that there is no need for anything to be done, other than correct the name of the defendant, to overcome the difficulty identified in 1997[1].
Further history of the action
- [7]Whether or not as a result of the complexity of the statutory provisions, the plaintiff’s solicitors did not respond to the letter of 17 July 1997, or indeed do anything else to carry the action forward until 25 May 2001 when they forwarded a draft Statement of Loss and Damage to the Crown Solicitor, something which in my opinion did not amount to a step in the action. In September 2001, the plaintiff’s present solicitors took over conduct of the action on his behalf. Before then the Crown Solicitor had written on numerous occasions to the plaintiff’s former solicitors complaining about the delay in prosecuting the action.
- [8]On 25 February 1999 a letter was sent which referred to a telephone conversation of 8 February 1999 during which there was advice that an application would be brought on behalf of the plaintiff to obtain orders to proceed with the action. No such application was made at that time; indeed at that time no leave was required to proceed. On 25 October 2000, the Crown Solicitor wrote noting that no Statement of Loss and Damage had been provided and no step had been taken for at least two years, and drawing attention to the need to seek leave pursuant to r. 389. A similar letter was forwarded on 8 November 2001, and there was a follow up letter on 12 December 2000. A letter of 8 January 2001 referred to a telephone conversation the same day which was interpreted by the Crown Solicitor as an indication that an application for leave to proceed and a Statement of Loss and Damage would be provided that week. That was not done.
- [9]On 16 January 2001, a letter pursuant to r.444 was sent, in which the relief sought was a direction that the plaintiff seek leave to proceed in accordance with r. 389 and provide his Statement of Loss and Damage. On 22 January 2001 the then solicitors for the plaintiff advised that an eight page Statement of Loss and Damage had now been settled, indicating that they should be able to provide a copy within the next two days[2]. In response the Crown Solicitor again drew attention to the need to make an application for leave to proceed. On 30 January 2001 the plaintiff’s solicitors advised that the plaintiff had asked[3] that there be a number of substantial changes made to the Statement of Loss and Damage, and they were seeking further information from WorkCover, and that they believed they would be able to provide a statement by 6 February 2001, although again no mention was made of any application for leave to proceed.
- [10]On 13 February 2001 the Crown Solicitor wrote complaining about the failure of the plaintiff either to forward the Statement of Loss and Damage or to make application for leave to proceed, and on 9 March 2001 the Crown Solicitor again sought advice of what the plaintiff was doing, or, if the plaintiff wished to no longer pursue this matter, advice of that. Even that letter did not prompt a response, and a further letter under r. 444 was sent on 23 May 2001, seeking a direction to have the plaintiff take some step in the action otherwise the defendant would apply to have the action struck out for want of prosecution[4].
- [11]On 25 May 2001 the plaintiff’s solicitors advised that they were unable to continue acting for the plaintiff[5], but forwarded what was said to be a copy of the plaintiff’s Statement of Loss and Damage, although that was subsequently described by the plaintiff’s current solicitors as a draft Statement of Loss and Damage. The statement was promptly returned by the Crown Solicitor, who drew attention to the need first to obtain leave in accordance with r. 389: letter 13 May 2001. A further letter under r. 444 was sent on 14 September 2001 to the former solicitors for the plaintiff, with a copy to the plaintiff personally, and on 19 September the new solicitors for the plaintiff wrote to the Crown Solicitor foreshadowing an application for leave to proceed pursuant to r. 389. That application was filed on 7 December 2001.
- [12]The plaintiff swore that following the injury in May 1994 he made application for workers' compensation, and that the former solicitors subsequently acted for him in connection with workers' compensation matters prior to his consulting them at some time before August 1995 and instructing them to act on his behalf in claiming damages for the personal injury from his employer. He deposes to his having been told by the solicitor that actions for damages for personal injuries could sometimes carry on for up to seven years before they were determined, and he was advised to be patient[6]. On 18 September 1995 the solicitors wrote to the Queensland Ambulance Service setting out details of the injury and stating that the plaintiff held the department responsible, and requesting the department to negotiate. There was further correspondence including advice that the matter had been referred to WorkCover.
- [13]In January 1996 the plaintiff was advised of an appointment with Dr. Boys for the purposes of a report in March 1996, and in May 1996 the solicitors asked the plaintiff for funds to enable the report to be obtained, which funds were forwarded promptly by the plaintiff. The solicitors advised the plaintiff on 19 June that the report had been received, and asked him to contact the solicitors to discuss the matter further. The plaintiff had on 19 April 1996 provided a copy of an MRI scan report to the solicitors. There was correspondence between the solicitors and the Workers’ Compensation Board with regard to an orthopaedic assessment tribunal hearing in August 1996 and during that year the solicitors obtained a copy of a report from a different orthopaedic surgeon, and forwarded it to the plaintiff with a request that he contact the solicitors to discuss it. In March 1997 the solicitors sought from the Workers’ Compensation Board the file relating to the injury and again issued an invitation to negotiate the claim. The WorkCover file was forthcoming in March 1997 and the following month the plaintiff sent a number of faxes concerning pay details. On 18 March 1997 the solicitors advised the plaintiff that he had received a lump sum payment from the Board, but that he could still pursue common law damages prior to 20 May 1997 and asked him to contact the solicitors.
- [14]A plaint was settled and filed, and a copy was sent to the plaintiff together with the request that he provide them with a written statement of his recollection of the incident together with photographs of the scene if possible. The plaintiff forwarded a WorkCover letter in July 1997, rejecting an application for compensation made in October 1996, and there was correspondence in relation to that matter from the solicitors. There was also correspondence in relation to proposed examination by an orthopaedic surgeon on behalf of the Queensland Ambulance Service, and in September 1997 the solicitors threatened WorkCover that they would commence proceedings in the Industrial Magistrates Court in relation to the workers' compensation claim[7].
- [15]The plaintiff remained an employee of the Queensland Ambulance Service, but did little work as two attempts to work were unsuccessful. He did not actually work after April 1996[8]. He was finally retired on medical grounds effective from 3 August 2001 as indicated in a letter of that date from the Commissioner which states that the retirement was in accordance with his request. According to the plaintiff he next heard about the action when he received the Crown Solicitor’s letter dated 14 September 2001. He subsequently spoke to the Crown Law Office, then to his solicitors, who told him (for the first time) that they had arranged for new solicitors to take over his case, and he subsequently gave instructions to the new solicitors.
- [16]The plaintiff swears that he had never previously been involved in a court action and had no knowledge of court procedures. He also swears that it appeared to him that the action was proceeding unnecessarily slowly[9]. The new solicitors deposed to there having been nothing on the file they received from the former solicitors to indicate why steps were not taken in the action after delivery of the defence, or in response to the letter of 6 June 1997[10]. There was no indication of a statement having been obtained from the plaintiff, although there were various documents which had apparently been forwarded by him. Most of the documents referred to in the affidavit date from 1997 or earlier.
- [17]Overall, the position seems to be that nothing was done by the solicitors to carry the action forward after the letter from the Crown Solicitor of 6 June 1997 until January 2001. There is nothing to indicate that the plaintiff was told that anything was happening with the action during this period, and nothing to indicate that the plaintiff made any inquiries of the solicitors during this period to find out what, if anything, was going on. There is nothing in the plaintiff’s affidavits to suggest that he ever made any inquiries of the solicitors as to the progress of the action, or took any step to find out what was happening. This was notwithstanding that there had been a certain amount of correspondence from the solicitors up to mid 1997, keeping him informed of such progress as had been occurring, and that it appeared to him that the action was proceeding unnecessarily slowly. He did not chase them to get on with the case[11]. He was told in Easter 2001 that he would be called in to sign a Statement of Loss and Damage, but he never was, and when he rang the once to speak to the solicitor he was not there and did not return the call. It is suggested in his affidavit that medication he was receiving for depression may have contributed to his failure to contact his solicitors.
Applicable principles
- [18]A convenient and authoritative summary of most of the factors which are relevant to the determination of whether to give leave to proceed under r.389 may be found in the judgment of Atkinson J, with whom the other members of the court agreed, in Tyler v. Custom Credit Corporation Ltd [2000] QCA 179. The factors listed by Her Honour apply in the circumstances of this case in the following way:
- The relevant events occurred almost eight years ago, and litigation was commenced just before the limitation period expired.
- Litigation was commenced in May 1997; there is no indication of any intention to seek to join a new cause of action.
- On the material presently available, all that can be said about the prospects of success is that the plaintiff is relying on an allegation of breach of statutory duty under the Workplace Health and Safety Act 1995. A breach of s.28 of that Act does give a civil cause of action: Schiliro v. Peppercorn Child Care Centres Pty Ltd [2001] 1 Qd.R. 518, which decision also illustrates how the assessment of whether there was a breach of statutory duty may be made by reference to a manual handling code, and certain statutory defences. The court held that statutory defences were made out in that case, and the action failed. An employer may be in a position of having to establish a defence in circumstances where a plaintiff has not proved very much to establish a prima facie entitlement to recover damages for breach of statutory duty. That is shown by the decision of the Court of Appeal in Rogers v. Brambles Australia Ltd [1998] 1 Qd.R. 212, a case concerning a breach of s.9 of the Workplace Health and Safety Act 1989, which was said by the Court of Appeal in Schiliro to be in some ways comparable to s.28 of the 1995 Act: p.522. In these circumstances, where a defendant has not pleaded a defence to a claim for breach of statutory duty[12], it is appropriate to assume that the plaintiff has reasonable prospects of success in the action on liability, although it is necessary to remember that the defence was put in at a time when it appeared that the action had been brought against the wrong defendant. Whether that difficulty has been fortuitously removed by the 1997 Amendment Act, or whether it would be appropriate to remove it by substituting some other party, I would expect that any new defendant would put in a new defence, or that the existing defence could be amended by the present defendant, as it is entitled to do without leave under r.378. This is not a case where the plaintiff is clearly entitled to succeed and the only issue is quantum, nor is it a case where the apparent weakness in the plaintiff’s case would be a factor tending against granting leave to proceed.
- There has been no disobedience of court orders or directions by the parties.
- The litigation has been characterised by periods of delay on the part of the plaintiff. There was a long period where nothing was done, and even after the need to do something was repeatedly drawn to the attention of the plaintiff’s then solicitors, nothing was done for a long time before they finally handed over the plaintiff to other solicitors in September 2001. Even then it took almost three months for the application for leave to proceed to be filed.
- As between the plaintiff and the defendant, the delays in my opinion are wholly attributable to the plaintiff; not only is there no indication of any delay on the part of the defendant, the defendant made numerous attempts to prompt some action from the plaintiff’s former solicitors, which apparently fell on deaf ears.
- It is not suggested that any delay was due to any impecuniosity of the plaintiff.
- The litigation between the plaintiff and the defendant would be concluded by dismissing the action for want of prosecution.
- The litigation has not proceeded very far at all; it may be that the plaintiff has not yet reached the point of suing the correct defendant, but assuming he has, I think it likely that there will have to be some amendments to the pleadings, and certainly nothing else has been done to carry the action forward; there was never a proper Statement of Loss and Damage served. It is still at a very early stage. Given the state of the court list it could come to trial this year, but the same would apply to an action commenced now.
- As between the plaintiff and his former solicitors, the evidence before me suggests that the delay was essentially the fault of those solicitors, although it does also seem to me that, in the light of the matters to which I have referred, the plaintiff has not been taking reasonable steps to keep aware of what his solicitors were doing, or not doing. This is not a case where a plaintiff has been regularly chasing up dilatory solicitors and being fobbed off, or given false accounts of progress. When things had earlier been happening, the plaintiff was kept informed. In any case, the analysis in Tyler demonstrates that a plaintiff will not necessarily obtain leave to proceed simply by putting the blame on a former solicitor.
- There is no satisfactory explanation for the delay.
- There is no particular prejudice to the defendant arising out of the delay as alleged, although the fact that an extra 4½ years have elapsed since the time when the cause of action arose will make it that much more difficult for the witnesses to recollect events. This is likely to impact more on witnesses who have no particular reason to be concerned to remember the events. On the other hand, there was fairly early notice given of an intention to make the claim, and the plaintiff will also face the difficulty that apparently there was no proper proof of his evidence prepared prior to September 2001. There may well be difficulties for both sides therefore because of the delay. This is not a case where the passage of time has been such as to render it unjust to allow the trial to continue. Nevertheless, I do not think it necessarily follows that leave to proceed must be given.
- [19]The test in relation to an application for leave to proceed is whether the plaintiff can show there is good reason for excepting this particular proceeding from the general prohibition imposed by the rule: William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 at 496, Tyler (supra) para. 5.
- [20]In Cooper v. Hopgood and Ganim [1999] 2 Qd.R. 113, McPherson JA noted the existence of another fact which was often likely to be material:
“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. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated” (p.124).
That, in my opinion, is not as significant a factor in the present case, given that in substance the plaintiff’s claim is against WorkCover or against a self insurer in respect of an injury alleged to have been suffered in the course of employment, where any actual defendant is not likely to feel any great emotional involvement in the proceeding, or to be directly concerned about its continuance or otherwise.
- [21]More recently, the Court of Appeal allowed an appeal from an order dismissing an action for want of prosecution, in Quinlan v. Rothwell [2001] QCA 176. There was a discussion of the facts of that particular case, and certain significant passages from the judgment were quoted, in my judgment in Elesanar Constructions Pty Ltd v. Thiess Contractors Pty Ltd [2001] QDC 293, and I will not set out again what I said there. I would point out however that the comparison between the facts of that case and the facts in Elesanar is somewhat different from a comparison of those facts to the present. Points of distinction include that in that case the action was substantially ready for trial (which was regarded by the Chief Justice, for example, as a powerful residual circumstance); in that case the defendants had been content to allow the action to go to sleep, and the court in that case was affirmatively satisfied that the case was one where recollection of past events was not likely to be of great significance in the resolution of the matters in issue. None of those features apply in the present case. One other point of distinction is that in that case the onus was on the defendants to show that proceedings ought to be dismissed, in circumstances where the plaintiff did not need leave to proceed, whereas here the onus is on the plaintiff to show there are circumstances justifying the grant of leave to proceed. On the other hand, it is appropriate that I have regard to the general statements by the court that the former laissez faire attitude towards the leisurely conduct of actions at the will of the parties has ended, and that courts in this general area will be more robust than they were in the past.
Analysis
- [22]In the present case two significant features are the extent of the delay after the point where the defendant’s solicitors began to write to the plaintiff’s solicitors, in effect complaining about the delay and urging the plaintiff to get on with it, and the extent of the efforts by the solicitors for the defendant to get the plaintiff’s solicitors moving. The first of those letters was on 25 February 1999, yet no application for leave to proceed was actually filed until 7 December 2001, by which time there had been a further period of delay in excess of the two year period in r.389. In February 1999 the plaintiff was in a position to proceed without leave. This stands as a marked contrast to the position in a number of the other cases where the defendant has either acquiesced in the delay or contributed to it[13]. This is a case where the remarkable period of inactivity of the plaintiff’s solicitors was largely matched by a period of inactivity on the part of the plaintiff, notwithstanding that there had earlier been a good deal of communication both ways between the plaintiff and the solicitors, so a lengthy period of silence about the action ought to have prompted some inquiry by the plaintiff personally. This is not a case where the plaintiff might have thought for a time that the action was of no great significance because the plaintiff’s injuries were not all that severe; during the relevant period the plaintiff, although still in employment, was unable to work, and it must have been obvious to him that it was only a matter of time before his employment came to an end.
- [23]I should say that I proceed on the basis that if it is necessary to substitute a new defendant (other than make an amendment which gives effect to a statutory transfer of the proceedings from one defendant to another) that would readily be done pursuant to r.69(2)(a)(iii). It is clear from the pleading that the plaintiff’s intention always was to sue his employer, and any failure properly to constitute the action was due to a mistake as to the identity of the real employer, not a matter of great significance anyway given the nature of the action and the factors referred to earlier.
- [24]The principal significance of the delay is the fact that the rule imposes a general prohibition on proceedings when no step has been taken for two years. It is necessary for the plaintiff to show affirmatively that there is good reason to exempt this proceeding from that general prohibition. There has been substantial unexplained delay by the solicitors, despite numerous reminders, and there has been a lack of reasonable supervision of them and the action by the plaintiff personally. The various factors to which I have referred do not, on balance, provide a justification for allowing the matter to proceed. Ultimately, in the light of all the factors to which I have referred, I am not persuaded that there is good reason to do so in the present case, and the application for leave to proceed is dismissed.
- [25]It follows that it is unnecessary to give further consideration to the application for leave to amend; had I granted leave to proceed, I would have listed the matter for further hearing because the considerations referred to earlier as to the operation of the statute and the effect of the 1997 amendments were not ventilated in the course of the hearing before me. In the circumstances however, it is unnecessary to do that. There was no cross-application to dismiss for want of prosecution, although where a court refuses leave to proceed the ordinary consequence is that the action is dismissed for want of prosecution. Costs of the application follow the event, although I will reserve to both parties leave to apply for an order that the costs be paid by the former solicitors of the plaintiff.
Footnotes
[1] If in fact the employer was the State of Queensland, an application to substitute the defendant might still be appropriate. There is no such application before me and it is unnecessary for me to consider that further.
[2] In fact no copy was provided until something was sent under the cover of a letter of 25 May 2001. It seems extraordinary that an eight page Statement of Loss and Damage should take so long to be produced.
[3] There is nothing in the affidavit of the plaintiff, or the file of the former solicitor, to confirm that there was in fact any contact with the plaintiff about this at about this time. The plaintiff said he attended around Easter (13-16 April) 2001 about the Statement of Loss and Damage but it was not then finalised.
[4] In my opinion, so far as the letter gave warning of an application to dismiss for want of prosecution, it was unnecessary to send a letter under r.444, if that relief was to be sought simply on the basis of delay; it was only necessary to give a warning letter under that rule if the intention is to apply to dismiss for want of prosecution because of a failure to comply with an order or direction of the court, or a provision of the rules, which was not the case here. However, insofar as the defendant was threatening to apply to the court for a direction that the plaintiff take a particular step (make an application under r. 389) it was necessary first to forward a letter under r.444.
[5] Although apparently they did not do anything to give effect to that decision until September 2001, and did not tell the plaintiff.
[6] Affidavit of the plaintiff filed 7 December 2001, para. 6.
[7] It is a little difficult to reconcile this with the statement that there had earlier been a lump sum payout in respect to the workers' compensation claim, but perhaps this related to a period prior to the date of the lump sum payment. Nothing else appears in the solicitors’ file until 18 January 2001 when the solicitors requested that WorkCover provide payment details of the claim, which was attended to promptly: affidavit of Humphries filed 19 December 2001, para. 3.
[8] Affidavit filed 19 December 2001, para. 9.
[9] Affidavit of the plaintiff filed 7 December 2001, para. 10, 6.
[10] Affidavit of Humphries filed 19 December 2001, para 5.
[11] Affidavit of the plaintiff filed 19 December 2001, para. 14.
[12] That is unsurprising because the current defence predates the decision in Rogers v. Brambles.
[13] For example, In Elesanar the delay occurred during a period when it was for the defendant to take the next step.