Cenrim Pty Ltd v Suncorp Insurance Finance
[2002] QDC 78
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- Unreported Judgment
- Cenrim Pty Ltd v Suncorp Insurance Finance[2002] QDC 78
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Cenrim Pty Ltd v Suncorp Insurance Finance[2002] QDC 78
Cenrim Pty Ltd v Suncorp Insurance Finance[2002] QDC 78
DISTRICT COURT OF QUEENSLAND
CITATION: | Cenrim Pty Ltd and Anor v. Suncorp Insurance Finance [2002] QDC 078 |
PARTIES: | CENRIM PTY LTD (TRADING AS JOHN SEPOS & SONS AND FRIDGTRANS) AND JAYTRON PTY LTD (Plaintiffs) v. SUNCORP INSURANCE AND FINANCE (Defendant) |
FILE NO/S: | Plaint 1945 of 1993 |
DIVISION: |
|
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 19 April 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 April 2002 |
JUDGE: | McGill D.C.J. |
ORDER: | Application dismissed with costs |
CATCHWORDS: | PRACTICE – leave to proceed – three year delay in 9½ year old claim – claim on insurance policy – reasons for and responsibility for delay – whether prejudice to defendant – Uniform Civil Procedure Rules r.389(2) Tyler v. Custom Credit Corporation Ltd [2000] QCA 178 – applied Cooper v. Hopgood & Ganim [1999] 2 Qd.R. 113 – cited William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 – applied Dempsey v. Dorber [1990] 1 Qd.R. 418 - applied Bazley v. State of Queensland [2001] QSC 476 – cited Quinlan v. Rothwell [2001] QCA 176 - cited Elesanar Constructions Pty Ltd v. Thiess Contractors Pty Ltd [2001] QDC 293 – cited |
COUNSEL: | D.R.M. Murphy for the plaintiff W.D.P. Campbell for the defendant |
SOLICITORS: | King and Co for the plaintiff HBM Lawyers for the defendant |
- [1]This is an application by the plaintiffs pursuant to r.398(2) of the Uniform Civil Procedure Rules for leave to proceed with the action. The application was opposed by the defendant, but there was no cross-application that the action be dismissed for want of prosecution.
History of the action
- [2]By a plaint filed on 1 July 1993 the plaintiffs claimed from the defendant $200,000, together with interest pursuant to s.57 of the Insurance Contracts Act 1984, as money due from the defendant pursuant to a policy of insurance, or alternatively as damages for breach of the policy of insurance. It was alleged in the plaint that on 1 August 1992 three motor vehicles owned by the plaintiffs and insured under a policy of insurance issued by the defendant were accidentally destroyed by fire in circumstances coming within the scope of the policy. It was alleged that accordingly the defendant was liable to pay to the plaintiffs the agreed value of the three vehicles which, after deducting an excess provided for by the policy, left a balance payable of $200,000.
- [3]Evidently the defendant was served promptly because an Entry of Appearance and Defence was filed on 26 July 1993. It was however in the nature of a “holding” defence, because apart from denying that the vehicles were destroyed by fire, that they had the agreed values alleged, and that the defendant had in breach of its obligations of the policy refused to pay the amount due, all of the allegations in the plaint were not admitted, other than the allegation of incorporation of the defendant, but no specific defences were raised. However, on 2 March 1994 an amended Entry of Appearance and Defence was filed which pleaded certain details of a policy alleged to have been issued by the defendant, and that some vehicles were destroyed by fire while at the business premises of a nominated entity, and admitted that demand had been made on the defendant and that the defendant had refused to pay under the policy. It went on to allege that there had been an “interim policy” issued on 28 July 1992 which was the policy under which cover was provided to two but not the third of the vehicles referred to in the plaint at the time alleged, and that the third vehicle was not insured by the defendant.
- [4]It was further alleged that if the defendant was liable to pay any amount, it was the market value of the vehicle which was less than the agreed amount, that the amount of the excess payable under the policy was larger than the excess admitted by the plaintiff, that any relevant event occurred outside the period covered by either of the policies, that the policies had been induced by material misrepresentations on the part of the plaintiff, that the vehicles in question were in an undamaged condition and as to the market value of two of the vehicles, and that the failure to disclose the damaged condition of two of the vehicles amounted to a failure to comply with the duty of disclosure prescribed by s.21 of the Insurance Contracts Act, so as to reduce the liability of the defendant, and there had been a breach of the plaintiffs’ contractual obligations to salvage and preserve damaged insured items and make them available for inspection by the defendant’s representatives. There have been no further amendments to the pleadings, although there have been some particulars provided at different times.
- [5]At the same time as the amended defence was served the defendant sought further particulars, which were not immediately provided, and an application was brought by the defendant on 7 April 1994 seeking further disclosure and further particulars in accordance with that request. On 7 April 1994 an order was made by consent that the plaintiffs file and serve an affidavit of documents and further and better particulars within seven days, and that the plaintiffs pay the defendant’s costs of the application. That order was not complied with, and on 18 April a further summons was filed seeking an order that the plaintiffs’ action be struck out or dismissed because of the failure to comply with the earlier order. On 20 April 1994, McMurdo DCJ (as Her Honour then was) ordered by consent that the affidavit of documents and the further and better particulars be filed and served on or before 27 April 1994 and that in the event of default by the plaintiffs in complying with that order the plaintiffs’ action be dismissed for want of prosecution without any further order, and that the plaintiffs pay the defendant’s costs of the application, and made certain consequential orders. Further and better particulars were filed on 27 April 1994 and served the same day, and on the same day the plaintiffs’ affidavit of documents was served on the solicitors for the defendant, although due to an oversight on the part of the solicitors for the plaintiffs, the affidavit of documents was not filed on that date.
- [6]On 28 April 1994 the solicitors for the plaintiffs advised the solicitors for the defendant that only one invoice for the purchase of the relevant vehicles was available, which had been discovered. On 10 June 1994 the solicitors for the defendant wrote to the solicitors for the plaintiffs seeking further discovery, in particular of log books for the vehicles, ledgers, accounts and bank statements evidencing the purchase price paid or lease payments, repair and maintenance payments in respect of the vehicles, the insurance file held by the plaintiffs’ insurance brokers, and correspondence with a valuer in respect of the valuation of the vehicles. Presumably in response to that letter on 27 October 1994 a further affidavit of documents was served which included documents from the plaintiffs’ insurance broker and one invoice relating to the purchase of one of the vehicles. It does not appear that there was any further issue raised by the defendant at that time about the question of discovery.
- [7]On 30 January 1995 the plaintiffs’ solicitors sought further and better particulars of the amended Entry of Appearance and Defence (which they had then had for almost 11 months). They made 11 specific requests, which appear to be conventional enough, although I have not specifically considered whether all of them were proper requests for particulars. In any case they were not answered by the defendant’s solicitors for some time.
- [8]On 15 March 1995 a follow-up letter was sent, but then nothing was done and no correspondence passed between the solicitors until the plaintiffs’ solicitors gave a notice of intention to proceed on 2 July 1996, and again requested the overdue further and better particulars. There was a follow up letter on 24 July, which elicited a telephone advice that the file had been sent back to the defendant some time ago, and sought an additional week in which to prepare the particulars. Further letters were sent to the defendant’s solicitors in August and September, and in late September there was advice that a barrister who had been briefed to prepare the further and better particulars had been unable to attend to the matter and subsequently another barrister had been briefed. There were then attempts during October and November to obtain some response in relation to the further and better particulars before an application was made on behalf of the plaintiffs by a summons filed on 15 November 1996. The particulars sought were finally provided on 20 November 1996, one day before the return date on which the summons was dismissed, but with an order that the defendant pay the plaintiffs’ costs.
- [9]On 17 December 1996 the plaintiffs served a notice to produce documents for inspection, and they were produced for inspection on 23 January 1997. On 29 April 1997 a brief was sent to a particular barrister to advise on evidence. He was then engaged as counsel assisting a Commission of Inquiry, and did not provide his advice on evidence until 29 June 2001. Why a brief would have been sent to counsel who was engaged in assisting a Commission of Inquiry was not explained in the affidavit, nor was any justification suggested for waiting over four years to receive an advice on evidence. There is no reason to think that there would have been any shortage of suitable alternative counsel who could have provided advice on evidence in this matter reasonably promptly, and insofar as it was necessary to take time to get on top of the matter, any counsel could have achieved that in a tiny fraction of four years. Waiting four years for an advice on evidence is ridiculous, particularly when it is offered as an excuse for a failure to progress the action.
- [10]Nothing further was done by either party until 25 September 1997, when the defendant’s solicitors wrote seeking to inspect the original of a particular invoice which had been discovered, and seeking further discovery in relation to payment for one of the vehicles, and relating to what were said to have been claims on other insurers in respect of damage allegedly suffered by some or all of the vehicles the subject of the present action in accidents prior to the fire. The request to produce the original invoice was repeated in February 1998, and on 3 March 1998 the defendant’s solicitors filed a summons seeking an order for production and inspection of the original invoice, and for further and better discovery, and for an order that in default the plaint be struck out.
- [11]That summons came on before Wylie DCJ on 20 March 1998, but in the course of the hearing it emerged that there had been a failure to file the earlier supplementary affidavit of documents, a copy of which was served on 27 April 1994, and the application was adjourned to a date to be fixed. The plaintiffs then filed a summons on 30 March 1998 seeking to be relieved of the operation of the order of McMurdo DCJ of 20 April 1994 insofar as the order related to the plaintiffs’ having to file the affidavit of documents on or before 27 April 1994. That summons came on before Her Honour on 15 April 1998, when Her Honour acceded to that application, and ordered that the plaintiffs pay the defendant’s costs of the adjournment on 20 March 1998, and the costs of that application. In support of the application before Her Honour there was read an affidavit[1] by a solicitor employed by the solicitors for the plaintiffs who swore inter alia as follows:
“If this court grants the relief which is sought in the summons (filed on 30 March 1998), I am instructed by the plaintiffs to complete all outstanding interlocutory steps in relation to the matter and enter the matter for trial in an expeditious manner”.
- [12]The defendant’s summons of 3 March 1998, which had been adjourned on 20 March 1998, came on again on 19 August 1998 before Trafford-Walker DCJ. His Honour ordered the filing and service of a supplementary affidavit of documents dealing with any documents which had not already been discovered relating to one of the vehicles, and any documents which the plaintiffs had had but no longer had in their possession concerning the purchase of that vehicle, and requiring the plaintiffs to produce for inspection the original invoice within a period of 14 days, and ordered the plaintiffs to pay the defendant’s costs of the application to be taxed.
- [13]On 9 September 1998 a supplementary affidavit of documents (filed the previous day) was served[2] which however disclosed no additional evidentiary documents still in the possession of the plaintiffs, but referred in the second schedule to:
“…documents which may have been relevant, but which are no longer able to be located: -
- cheque butts evidencing payment for the N12 prime mover dated on or about 7 October 1990;
- bank statements issued by the plaintiffs’ bank evidencing the transfer of funds in payment of the N12 prime mover dated on or about 7 October 1990;
- a receipt evidencing payment of invoice number 209 dated on or about 7 October 1990.”
In October 1998, the plaintiffs’ solicitors were asked to provide details of the plaintiffs’ bank account and signed consents so that copies of the bank records could be obtained from the bank; the plaintiffs’ solicitors advised on 30 October 1998 that they had already sought documents from the bank, and enclosed a copy of a letter from the plaintiffs’ bank saying that it was unable to provide copies of the requested bank statements, since they were not held for more than seven years.
- [14]The next step taken was the delivery on 1 March 1999 on behalf of the defendant of interrogatories for the examination of the plaintiffs. Copies of the interrogatories delivered for the examination of the first plaintiff are exhibited to the affidavit of Ms. Inglis; it appears that the interrogatories delivered to the second plaintiff were in identical terms. There were 17, all of which contain a number of parts. The interrogatories were directed to the condition of the vehicles referred to in the plaint prior to the fire and other matters which would be likely to be relevant to their value at that time, and also sought information in relation to the purchase of each of the vehicles. In the course of their answers to those interrogatories, the plaintiffs admit that at the time of the fire one of the vehicles was not in good roadworthy condition and had not been resprayed or repainted, it had not for six months been used other than in the yard, it was in need of respraying and “minor mechanical repairs”, and was not ever registered when in the ownership of either plaintiff.
- [15]Another vehicle subject to the claim had been unregistered for 12 months prior to the fire, it was not in operable condition, the refrigeration units and rear doors had been removed, and it had not been driven for some months prior to that date, it had not been used for a period of about six months before 1 August 1982, and it required “maintenance and repairs that were not urgent” and that “the van was not critical to the day to day operation of the plaintiffs”. The plaintiffs denied various allegations raised in the interrogatories about the condition of the third vehicle. Of the three vehicles referred to in the plaint, two had not been driven since March 1992; that is, for about five months prior to the fire, the third was said to have been used as a yard vehicle and in the process of being prepared for sale, although it had been purchased almost two years earlier.
- [16]The plaintiffs have objected to answering certain questions about whether a director of the companies made various statements to an assessor/investigator acting on behalf of the defendant following 1 August 1992; I have not heard argument on this point, but it seems to me that the objection may be well taken. Preparation of answers to the interrogatories would have involved going over a number of factual matters with some appropriate representative of the plaintiff companies and may have involved some investigations before the answers were finalised, but there was nothing about the extent or content of the interrogatories which provided justification for any significant delay in the provisions of answers.
- [17]In early 1999 the District Court Rules then in force required the affidavit of answers to the interrogatories to be filed within 10 days after their delivery: r.177. In all but the simplest cases that was unrealistically tight, and on 4 March the plaintiffs’ solicitors wrote to the defendant’s solicitors seeking a period of 30 days to answer the interrogatories. That, in my opinion, was realistic, and it does not appear that the solicitors for the defendant dissented. However, the answers to the interrogatories have never been filed, although copies were exhibited to the affidavit of Mr. Sepos filed on 26 May 2002. The affidavits in answer were sworn on 22 March 2002. By the time they were ready to be filed, the plaintiffs required leave to proceed under r.389(2), and were preparing to make an application.
- [18]It does not appear that anything further passed between the solicitors for the plaintiffs and the solicitors for the defendant until November 2001. Nevertheless, there was a good deal passing between the solicitors for the plaintiffs and their principal in New South Wales. On 7 April 1999 that solicitor advised that there had been some delay in taking the interrogatories to the client, but there was a conference with the appropriate person on 4 May 1999 at which time the New South Wales solicitor received comprehensive instructions for the answers to be prepared. Draft answers were prepared, but were not then sworn and sent to Brisbane. It is not clear why this did not occur.
- [19]Between June 1999 and July 2000 several messages were left by the Brisbane solicitors for the New South Wales’s solicitor to call, but they elicited no response. In October 1999 the New South Wales solicitors were advised of the introduction of the Uniform Civil Procedure Rules because the Brisbane solicitor forwarded an example of the new format required for the affidavit in answer, pointed out the answers had not yet been filed, and raised the possibility of an application for an order that they be delivered. There was another letter to the New South Wales solicitor in July 2000 chasing up the interrogatories and advising that there was an intention to service a notice of intention to proceed. That step was done on 10 July 2000, just after the New South Wales solicitor advised that the plaintiffs wished to proceed with the action and that answers to interrogatories had been drafted. That was confirmed in a letter of 20 July 2000 which stated the client was desirous of completing the matter as expeditiously as possible, and that the answers would be sent to the Brisbane solicitor as a matter of urgency. They were not.
- [20]Further letters and messages were sent by the Brisbane solicitor on various occasions until there was further discussion in June 2001, about the effect of r.389, with the New South Wales solicitor stating that he thought he had forwarded the answers or had served them directly on the defendant (which was not the case). There was a follow-up fax from the Brisbane solicitor on 21 June 2001. The long awaited advice on evidence was forthcoming on 29 June 2001. It was promptly forwarded to the New South Wales solicitor. Urgent instructions were sought in July and September 2001 but there was no further contact from the New South Wales solicitor until 5 November 2001 when he advised that he had not done anything in response to the letter and that he would arrange an appointment with his client to discuss the matter. There was some delay in arranging that because his client was interstate, but on 9 November 2001 the New South Wales solicitor advised that he had arranged a conference for 12 November 2001. There was a discussion with him and the client about the advice on evidence on 12 November 2001, when the New South Wales solicitor said that the answers to interrogatories would be provided by the end of that week. In spite of various attempts by the Brisbane solicitors to follow the matter up, the draft answers were not forwarded until 4 December 2001, with a query about having them settled by counsel.
- [21]In the meantime on 29 November 2001 the plaintiffs’ solicitors forwarded to the defendant’s solicitor a copy of a document which had been obtained by non-party disclosure, an invoice relating to the purchase of one of the vehicles. On 7 December 2001 the defendant’s solicitors drew to the attention of the plaintiffs’ solicitors the need for the plaintiffs to obtain leave to proceed under r.389(2). This letter was faxed to the New South Wales solicitor on 10 December 2001. The New South Wales solicitor gave verbal instructions for an application for leave to proceed on 8 January 2002, which were confirmed in writing on 14 January. The application for leave to proceed was not filed until 26 March 2002; some of that time had been occupied in preparing fairly extensive affidavit material in support of the application; some of it was also spent in tracking down the various witnesses to see whether they would still be available to give evidence at the trial.
- [22]The plaintiffs’ solicitor says that, subject to filing and serving the answers to interrogatories which can be done immediately, the matter is ready to go to trial. The defendant did not suggest that there were any other interlocutory steps which were necessary to take before a request for trial date could be signed and filed.
Applicable principles
- [23]A convenient and authoritative summary of most of the factors which were 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 178. The factors listed by Her Honour apply in the circumstances of this case in the following way:
- The relevant events occurred about 9½ years ago, and the litigation was commenced fairly promptly, within 12 months of the date of the fire.
- Litigation was commenced on 1 July 1993, no cause of action has subsequently been added, and there is no suggestion that the plaintiffs are seeking to amend the pleading;
- On the material presently available, it is difficult to say what the prospects of success in the action are. There is a dispute as to whether the incident occurred during the period of the policy, and there is a dispute as to whether a particular vehicle was covered by the policy. Subject to those matters, if the vehicles were destroyed by fire during the term of the policy then there is an entitlement to be paid, subject to a number of defences which are relied on. There does seem to be a real issue about the condition of the vehicles; they had not been in regular use, which suggests that there was some good reason for their not being used, although the plaintiffs claim that nothing very substantial had to be done to them in order to render them fit for use. If the plaintiffs had no need for them, why were they not fixed up and sold? The defendant is evidently very suspicious about this claim, and there is enough material available to suggest that suspicion at least is justified, although the defendant has by no means put forward material to show either that the claim is hopeless or that it has good prospects of succeeding on its defence. Overall this is not a case where the plaintiffs are clearly entitled to succeed, and the only real issue is as to quantum, nor a case where the plaintiffs are quite likely to succeed, nor is it one where the apparent weakness in the plaintiffs’ case would be a factor tending against granting leave to proceed. Overall I think that this factor is neutral in relation to the present application.
- Court orders were twice disobeyed by the plaintiffs, although on the second occasion the disobedience was by way of an oversight from which the plaintiffs were subsequently excused. Both of these orders had been made by consent. It is of some significance that on at least one occasion in the course of the action in the past the plaintiffs were subject to a guillotine order made because of a failure to comply with an earlier order of the court.
- The litigation has been characterised by significant periods of delay, although not all of them have been attributable to the plaintiffs. Until early 1999 the litigation had been proceeding at a slow and if anything decreasing pace, more characteristic of an earlier era, with substantial delays on both sides which had, by and large, been acquiesced in by the other party. Thereafter, from the point of everybody except the plaintiffs’ Brisbane solicitors, it just stopped. Indeed, the action could be described as one where generally the parties acted promptly only when compelled to do so by orders of the court.
- Some delays were attributable to the defendant, in particular the delay of almost two years in providing further and better particulars, but even then the plaintiffs waited for most of that time before applying to the court for an order that they be provided, and apparently did not for most of that period even attempt to chase them up. Most of the delay has been attributable to the plaintiffs, although apart from the flurry of activity in 1994, the defendant has generally also not been concerned to chase the plaintiffs.
- There is no suggestion that any delay was due to any impecuniosity of either plaintiff.
- The litigation between the plaintiffs and the defendant would be concluded by terminating the plaintiffs’ claim.
- The litigation has progressed to the point where it is virtually ready to be put on the call over list.
- As between the plaintiffs and their solicitors, the evidence before me suggests that the delay was essentially the fault of the New South Wales solicitor, but I do not think that this is a case where the plaintiffs are free from personal blame. The plaintiffs’ representative, Mr. Sepos, has sworn that he and the plaintiff companies intended to proceed with the actions and believed the matter was proceeding towards a trial; at no time was he aware of the effect of r.389; had he been aware that his case could have been prejudiced by reason of delay, he would have ensured that his solicitors complied with the Queensland court rules. That suggests that he thought that he could take as long as he liked to bring the case to trial. He does not disclose anything of what passed between himself or any other representative of the plaintiffs and the principal solicitor in New South Wales while that solicitor was failing to carry it forward. Nevertheless it is apparent from the material that he was present at a conference with the solicitor in New South Wales on 4 May 1999 when he gave comprehensive instructions to enable the answers to the interrogatories to be prepared. He must have realised as a result of that conference that he would be given a document to sign in due course once it had been prepared. He must have known thereafter that that had not been done, because he was not presented with an affidavit in answer to the interrogatories to sign. There was no explanation of his failure to do anything about his solicitor’s failure to do anything about those answers until late 2001. Apparently he was next involved in November 2001. That suggests that, although he may have wanted the action to proceed, during a period of over two years he did nothing to see to it that it did proceed. He was apparently content to let it languish in the inactive hands of the plaintiffs’ New South Wales solicitor. There is no evidence that he or anyone else ever chased up that solicitor about the action. I do not consider that this is a case where the plaintiffs personally have no responsibility for the delay.
- There is no satisfactory explanation of the delay after May 1999. The New South Wales solicitor said merely that the reasons for the delays emanating from his office “include pressure of practice and a delay in obtaining an advice from Mr. Wilson of counsel on evidence.” He did not explain why he chose to wait four years for an advice on evidence from counsel, so the latter is no explanation[3]. This was not a case where the action was overlooked; he had been repeatedly reminded of the matter by the Brisbane solicitors for the plaintiffs, who had repeatedly sought action from him. On one occasion there was a promise to them of prompt action from him which was not kept. If he was just so busy that he was incapable of dealing with the plaintiffs’ action for a period of some years, he ought to have advised the plaintiffs to consult a different solicitor. There was also no explanation for the plaintiffs’ failure to pursue the matter.
Prejudice to the defendant
- [24]The remaining issue referred to by Her Honour was whether there had been prejudice to the defendant. The defendant relied on specific prejudice in that an investigator (Mr. Hunter) who made some inquiries into this matter has since disappeared and significant attempts to trace that person have been unsuccessful. Apparently this investigator was engaged by the defendant to conduct inquiries into the circumstances surrounding the claim. He apparently reported that he had seen one of the three vehicles referred to in the plaint and that he was of the opinion that it had been damaged prior to the fire, and that he had interviewed a person involved in valuing the vehicles previously who had said that he had not seen the vehicles but had relied on earlier valuations. The plaintiffs do not admit that any of the vehicles had suffered damage prior to the fire, but the defendant will obviously be seeking to prove at the trial that that was the case.
- [25]It might not necessarily be readily apparent to a person on a casual inspection of the remains of fire damaged vehicles whether there were signs of damage which must have been present prior to the fire, so the fact that other witnesses were available who had seen the vehicles after the fire would not necessarily be of assistance to the defendant. This would be particularly the case if those witnesses had not been spoken to about that time, since I think it could be safely assumed that, unless a person had some particular reason for remembering this incident, that person would not now be able to recall reliably whether or not such damage was present. It is therefore, in my view, essentially unhelpful that there may be a number of firemen who attended the fire who can now be traced. No doubt they saw a lot of fires, and I would not expect them to have the sort of detailed recollection about this one which would be of any real assistance to the court.
- [26]Furthermore, if the plaintiff is seeking to rely on the evidence of Mr. Hyland as to the value of the vehicles at the relevant time[4], and if Mr. Hyland gave evidence at the trial which was inconsistent with what Mr. Hunter reported he had said, that evidence might be relevant to the assessment of any valuation evidence given by Mr. Hyland. If his evidence was inconsistent with that statement he could be cross-examined about his prior statement, but since Mr. Hunter was not able to obtain a written statement from him to that effect, it would be necessary for Mr. Hunter to be present in person in order to be able to prove the prior inconsistent statement of Mr. Hyland. Mr. Hunter may also be able to give evidence in support of the allegation in para. 4I of the amended defence, of a failure to salvage and preserve damaged items and make them available for inspection by the defendant’s representative if required. That could well be an important matter at the trial.
- [27]It is not clear that Mr. Hunter was the only person investigating this claim on behalf of the defendant. Nevertheless, he is referred to by the solicitor for the defendant as “an essential witness for the defendant in the event that this matter proceeds to trial” and there is no reference to any other person who could give the same evidence as Mr. Hunter. Had there been some other person who was available who could give the same evidence, it would not have been right to describe Mr. Hunter as an essential witness, so I infer that there was not. Accordingly, I am satisfied that Mr. Hunter would at a trial have been an important witness for the defendant, and that there is real prejudice to the defendant because he cannot be now be traced.
- [28]The defendant also relied on prejudice arising from an inability to trace a police officer who had investigated the fire, but that police officer (now retired) has been located by the solicitors of the plaintiffs, who were told by him that he recalled the circumstances on which the action was based. He is now living in Queensland. This witness would therefore be in the same position as any other witness, that is, there would be the difficulty associated with the inevitable effect on memory of the passage of time.
- [29]If Mr. Hunter provided a report as to the result of his investigations, it may be that, if he cannot with reasonable diligence be found, his report could be admissible at the trial under s.92 of the Evidence Act 1977. That however will not overcome any prejudice which would be suffered by the defendant as a result of his absence. The weight of evidence in that form would obviously be affected by the inability of the other party to cross-examine Mr. Hunter, and there is no reason to think that any report provided by him at the time would have been properly prepared as a statement for tendering in court under s.92. It may for example contain inadmissible opinion evidence, instead of the facts on which the opinion was based. Accordingly, although it may be that this report could be put before a court under that section, I consider that the defendant would still be prejudiced because of the inability of Mr. Hunter to give evidence in person.
- [30]Reference was also made to the paucity of documents disclosed by the plaintiffs, which could be used to verify various assertions made by the plaintiffs in relation to these vehicles. Although a number of the issues arising in the action would largely turn on the terms and interpretation of various documents which are presumably available to be put in evidence, evidence as to the condition of the vehicles and as to the basis of any valuation of them would be, in the light of the material I have seen, of some importance in this case, and would depend on oral evidence. If the plaintiffs can show that the three vehicles were covered by the policy and the policy was in force at the time of the fire, prima facie they are entitled to recover, and the real issues in the action would arise from the matters raised by the defendant. As to these, the plaintiffs’ case will presumably be based largely on oral evidence, since very few documents have been discovered which would be relevant to any of the matters raised. This can be seen from the plaintiffs’ answers to interrogatories. The absence of documentation to support many of those assertions would confirm and emphasise the importance of oral evidence. This is therefore not a case where oral evidence, and presumably disputes between witnesses, can be seen as of relatively low significance in the resolution of the matters in issue.
- [31]Her Honour in Tyler went on to note:
“The court’s discretion is, however, not fettered by rigid rules but should 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”.
Her Honour then referred to Cooper v. Hopgood & Ganim [1999] 2 Qd.R. 113 where McPherson JA referred at p.124 to the commercial effects of such a state of affairs, as well as to the psychological effects which would not be of any real significance in the present case.
- [32]The test in relation to an application for leave to proceed is whether the plaintiff can show that 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. It is appropriate to identify the factors relevant to whether there is good reason for doing so, assess the weight to be given to each of the factors in the circumstances of the case, and then determine whether, on balance, there is good reason for making the order: Dempsey v. Dorber [1990] 1 Qd.R. 418 at 420; Bazley v. State of Queensland [2001] QSC 476 at para. 22.
- [33]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 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. That judgment also contained some discussion of the facts and decision in Tyler (supra). In Tyler the relevant witnesses were all available, and although their recollections had been dimmed by time, the case was one which would for the most part be determined by contemporaneous documents. Both parties had failed to comply with various court orders in the course of litigation characterised by long periods of delay. Furthermore, and I think significantly, the litigation in that case between the parties would not have been terminated by striking out the plaintiff’s claim. As well, the plaintiff had been attempting to push the action along but had been offered false assurances by his solicitors. All of these features offer some distinction between that case and the present.
- [34]As to Quinlan v. Rothwell (supra), that was a case where the plaintiff did not require leave to proceed, and the action was dismissed for what of prosecution in circumstances where there had been various orders made which had at last been complied with, and the action was virtually ready for trial, with no outstanding orders or obligation under the rules. In such circumstances, the order at first instance that the action be dismissed for want of prosecution could be seen more as a punishment for past defaults of the plaintiff than a recognition that the action had reached a point where a fair trial could no longer be had. There is also the significant difference that in that case the onus was on the defendant to show that proceedings should be terminated, whereas in the present case the onus is on the plaintiffs to show that the proceeding should be allowed to continue. As well, that case was one where the court was satisfied that recollection of past events was not likely to be of great significance in the resolution of the matters in issue, and, although there was some debate about the significance of prejudice, the Court of Appeal ultimately concluded that there was no significant prejudice suffered by the defendant as a result of the delay. Although a witness had died, he was an expert witness, and it was simply a matter of the defendant’s engaging a different expert. There were therefore some differences, of which I am conscious, but it is in my opinion appropriate that I have regard to the general statements in that case by the various members of the court, which I quoted in Elesanar Constructions (supra), to the effect 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.
Conclusion
- [35]There are certainly some factors in the present case to which I have referred earlier which would tend to support granting leave to proceed, particularly the fact that the action is now ready for trial. On the other hand, the action has been considerably delayed, particularly in recent years, and most of the delay has been attributable to the plaintiffs rather than the defendant. In particular there was for about three years nothing constructive done by the plaintiffs’ New South Wales solicitor in spite of numerous reminders by the Brisbane solicitor, and there has been no satisfactory explanation, let alone anything in the way of justification, for this delay. I think it is also of some significance that there was something like a promise to the court in 1998 that, if the plaintiffs were relieved of the consequences of their failure to comply with the earlier order, the plaintiffs would “complete all outstanding interlocutory steps … and enter the matter for trial in an expeditious manner”. That was not done, and I regard that as a serious matter telling against allowing leave to proceed following subsequent lengthy and wholly unjustified delay. There is also some real prejudice to the defendant from the delay, and a number of other factors tending against the grant of leave to which I have referred earlier. Although there are factors both ways, I conclude that the balance is against the grant of leave.
- [36]The rule imposes a general prohibition on continuing proceedings when no step has been taken for two years. It is necessary for a plaintiff to show affirmatively that there is good reason to exempt this proceeding from that general prohibition. 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 of 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 with costs.
Footnotes
[1] Filed 14 April 1998
[2] Affidavit of A.M. Inglis filed 9 April 2002 para. 22 and Exhibit AMI14.
[3] As well that advice was provided at the end of June 2001 and he still did nothing until November 2001.
[4] I infer from the fact that Mr. Hunter reported this conversation that he thought that that would likely to be the case, and there is no evidence from the plaintiffs asserting to the contrary.