Piazza v Geary[2003] QDC 419

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the plaintiff for leave to proceed, no step having been taken in the proceeding for upwards of two years: r 389(2).  There is a cross-application by the third defendant to dismiss the action for want of prosecution under s 85 of the Supreme Court of Queensland Act 1991.  The last step in the action was taken on 11 August 2000, when the solicitors for the third defendant provided, at the request of the solicitors for the plaintiff, copies of certain documents in the third defendant’s list of documents, in compliance with r 214(1)(b).^[1]  If making a request for copies of documents in a list of documents is a step in the proceeding, the last step taken by or on behalf of the plaintiff was on 1 August 2000;  if not, the plaintiff’s last step was service of the claim and statement of claim on the third defendant on 28 April 2000.

2. [2]
   There have been some things done since August 2000. There was correspondence about a statement of loss and damage, but no such statement was provided. On 30 January 2001 the solicitor for the third defendant sent a letter pursuant to r 444 pressing for a statement of loss and damage within 14 days.  If there had been an application made for that relief, that would not be a step unless an order was made on that application:  r 389(3).  In my opinion it follows a fortiori that a letter under r 444 is not a step in the action.  On 22 February 2001 another judge made an order under r 591(1) giving the then solicitor for the plaintiff leave to withdraw.  Although that was an application on which there was an order made, in my opinion it was not a step for the purposes of r 389 because it was not something which carried the plaintiff’s action forward, or a step required to be taken by the Rules before the matter could be said to be ready for trial:  Smiley v Watson [2001] QCA 269 at [12], [18].^[2]  It also follows that other steps associated with the withdrawal of the first solicitors for the plaintiff do not amount to steps in the action.  There was a further r 444 letter sent by the solicitor for the third defendant direct to the plaintiff on 3 July 2001;  for the reasons given earlier, this was also not a step in the action.

The nature of the claim

3. [3]
   It is common ground on the pleadings that on or about 19 February 1997 the first defendant, who was then a police officer and was purportedly acting in the course of his duties, attended the plaintiff’s residence and searched both the residence and the person of the plaintiff.  The search of the plaintiff’s person was contrary to s 15(2) and s 16 of the Drugs Misuse Act 1986.  It was also alleged that the search of the residence was in breach of s 18 of that Act, and the search of her person was in breach of s 15(1) of that Act, but the defendants allege that the first defendant had reasonable grounds to search the premises and did locate an item that could be used in connection with smoking a dangerous drug.  The plaintiff alleges that in the course of the search of her person the first defendant dealt with her in ways particularised in paragraph 7 of the statement of claim;  the first defendant denied that allegation although he admitted that he did conduct a “pat down search” of the plaintiff;  the third defendant did not admit that allegation.  The plaintiff alleged that the search of the person amounted to an actionable assault, indeed sexual assault, which caused her psychiatric injury, shock, pain and discomfort, embarrassment and injury to her dignity and pride:  paragraph 12. 

4. [4]
   The plaintiff alleged that the third defendant is vicariously liable for the first defendant’s tort; the third defendant admits that it is vicariously liable for a tort committed by an officer acting or purporting to act in the execution of duty, but pleaded (defence para 2(a)) that if there was a tort committed by the first defendant it was not committed by him while acting or purporting to act in the execution of his duty, so that the third defendant is not vicariously liable for it.

5. [5]
   The plaintiff also alleged that the third defendant was negligent, because as a result of some earlier complaint by another woman the Police Service ought not to have allowed the first defendant to perform police duties unaccompanied, without taking other appropriate precautions to prevent the first defendant from assaulting women, such as the plaintiff. The third defendant has denied that it was aware of any circumstances justifying the taking of special precautions in relation to the first defendant.

History of the action

6. [6]
   A claim and statement of claim were filed on 17 February 2000, a couple of days before the limitation period for the action expired;  there is no suggestion that at any relevant time the plaintiff lacked capacity.  I do not know when the first defendant was served, but a notice of intention to defend and defence on his behalf were filed on 18 April 2000.  The third defendant was served on 28 April 2000, and filed a notice of intention to defend and defence on 26 June 2000.  That was about one month outside the period permitted by the Rules, but the plaintiff’s then solicitor had agreed to some extension of the time limited by the Rules.  The third defendant served a list of documents on 26 July 2000, but it does not appear that disclosure has ever been provided by the plaintiff or by the first defendant.

7. [7]
   The claim and statement of claim name as second defendant “Commissioner of the Queensland Police Service”. The third defendant has asserted in its pleading there is no such entity known to law; in any case, no notice of intention to defend or defence has been filed on behalf of the second defendant.

8. [8]
   In August 2000 as referred to earlier there was a request for copies of some of the disclosed documents, and they were provided. There was then correspondence from the solicitor for the third defendant chasing up the statement of loss and damage, which eventually produced a response on 19 December 2000 that the then solicitors on the record for the plaintiff were no longer acting for her.

9. [9]
   Those solicitors applied on 15 February 2001 for leave to withdraw, and that leave was granted on 22 February 2001.  The notice of withdrawal was then filed on 12 March 2001 and served on 7 March 2001.  On 3 July 2001 the solicitor for the third defendant sent a letter under r 444 directly to the plaintiff seeking a statement of loss and damage within 14 days.  There was however no subsequent application for an order.  Nothing else happened between the parties for two years, until the solicitor for the third defendant wrote again to the plaintiff on 10 July 2003 pointing out that it was necessary for the plaintiff to make an application under r 389.

10. [10]
    The plaintiff in an affidavit^[3] in support of the application for leave to proceed said that after the initial solicitors she went to another solicitor “where I repeatedly raised this matter.”  She said she left that solicitor in no doubt whatever that she was still very keen to continue and pursue her action, and she directly expressed this to him several times.  She also said that that solicitor was always telling her things about the case when she enquired and she thought that he was being honest with her and was continuing the action on her behalf.  That suggests that he was telling her in effect that the matter was proceeding, when it was not, but elsewhere in her affidavit she said that she took the solicitor at his word “and believed him when he always had a reason why he wasn’t making progress on my case.” 

11. [11]
    There is a difference between a situation where the client is being told by an inactive solicitor, falsely, that progress is being made, and a situation where the client is being told that progress is not being made, albeit given an excuse for this. The affidavit is perhaps inconsistent in relation to this, but in the absence of cross-examination of the plaintiff I should proceed on the view of the affidavit more favourable to the plaintiff, that is, that the second solicitor was telling her falsely that progress was being made. Of course, I have not heard from that solicitor, and do not know whether he would agree with that interpretation of events; he may well not.

12. [12]
    She does say that eventually she became suspicious because her matter had not proceeded anywhere in such a long time, but it is not clear at what time this occurred.

13. [13]
    It appears that the plaintiff was only stirred into changing solicitors again by the letter of 10 July 2003.  Her third solicitor contacted the third defendant’s solicitor soon afterwards, indicating that the plaintiff wished to pursue the claim, and that they were investigating the matter.^[4]  There was further correspondence and a threat on 23 July 2003 to apply to strike out the proceedings, but the application on behalf of the plaintiff was not filed until 7 November 2003.  I think it is of some significance that it took from July until November for that application to be made, although the need for it ought to have been readily apparent immediately.

Relevant considerations

14. [14]
    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 facts from which the litigation arises occurred six years and nine months ago, and there was a delay of almost three years before the action was commenced.  That occurred three years and nine months ago, and no causes of action have since been added. 

15. [15]
    With regard to the plaintiff’s prospects of success, there was some evidence to suggest that at one point before the action was commenced this incident was the subject of an enquiry before the CJC, as a result of which the first defendant ceased to be a police officer. I do not have very much evidence about that, and it may well be that even what I have said is an overstatement, but it seemed to be accepted that there was some sort of enquiry in which there was some investigation of what occurred in relation to this incident. That may suggest that the plaintiff has reasonable prospects so far as the claim against the first defendant is concerned, although there are additional issues in relation to the claim against the third defendant, and on the material presently available I am not in any position to draw any conclusion one way or the other about the prospects of the plaintiff’s success against the third defendant.

16. [16]
    There has been no disobedience of court orders or directions. I have already referred to the lengthy delay after the litigation commenced; with the possible exception of the extra month before the third defendant filed and served a notice of intention to defend and defence, all of the delay in the action is attributable to the plaintiff rather than either defendant. The plaintiff claimed that her impecuniosity had impaired the litigation because of a difficulty in obtaining a solicitor who would appear for her on a speculative basis, and that the actions of the first defendant had contributed to that impecuniosity because of the psychiatric injury suffered by her. The plaintiff’s impecuniosity may well be an explanation for the delay, but there is no material upon which I would be prepared to draw a conclusion that either defendant was responsible for that impecuniosity.

17. [17]
    The litigation between the parties would be concluded by striking out the plaintiff’s claim. Although reference is made to the possibility of criminal prosecution of the first defendant, I do not consider that that is a relevant consideration. It was submitted that the matter is now virtually ready for trial, but plainly that is not the case. The plaintiff has never given disclosure, nor has there been any statement of loss and damage served. I do not know whether the first defendant has completed disclosure. I do not know whether any party proposes to seek leave to deliver interrogatories. One or other defendant may well want to have the plaintiff independently examined. There are other steps by way of preparation for trial which undoubtedly have not yet been completed.

18. [18]
    In all the circumstances, the matter is obviously well short of being ready for trial. With regard to responsibility for the delay, the plaintiff alleges that this was attributable to her lawyers rather than herself, and on the material presently available to me I accept that that was the case, and that indeed it was a matter where she believed the second solicitor was making progress that was not in fact being made. There was no material from that solicitor, and there is no excuse for the delay.

19. [19]
    There was no specific evidence of prejudice before me, although the third defendant relied on the general proposition that any delay is likely to increase prejudice because of the fading of memories. The basic claim on the part of the plaintiff against the first defendant is likely to depend heavily on the plaintiff’s oral evidence, and I would expect the first defendant’s oral evidence in response. It is not entirely clear whether any other and what witnesses would be relevant to that claim, although there may well be other aspects of the matter in respect of which other witnesses would be called. The fact that there was the earlier enquiry may well mean that the evidence of anybody who could say anything relevant to this has already been investigated, and perhaps tested, and there may well be statements and transcripts of evidence available which could be used by witnesses to refresh their memories. Any findings or conclusions or reasons of the CJC would of course not be admissible in evidence. Nevertheless, the fact that there was such an enquiry means that there is likely to be less prejudice as a result of the passage of time than would otherwise have been the case.

Authorities

20. [20]
    It is for the plaintiff to show that there is good reason for excepting this particular proceeding from the general prohibition imposed by the Rules: William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 at 496;  Tyler (supra) at para 5.  I analysed the facts in Tyler, and the later decision of the Court of Appeal in Quinlan v Rothwell [2001] QCA 176, in Elesanar Constructions Pty Ltd v Thiess Contractors Pty Ltd [2001] QDC 293.  I will not repeat what I said there, except to note that the facts in the latter appeal are quite different from the facts of the present, but I am conscious of the general statements of principle from the Court of Appeal in giving that judgment.  I am also conscious of the statements of principle in Cooper v Hopgood & Ganim [1999] 2 Qd R 113, particularly in the judgment of McPherson JA at p.124.  With regard to the last of the matters referred to by his Honour, I do not think this consideration applies with the same force in relation to a claim against the State of Queensland.  The determination of whether or not to grant leave in a particular case involves the balancing of the various relevant factors.

Conclusion

21. [21]
    In my opinion it is appropriate to exempt this proceeding from the general prohibition in r 389, in view of the following particular matters:  the responsibility for the delay is on the evidence before me that of the plaintiff’s various solicitors rather than the plaintiff herself.  Although aspects of the plaintiff’s claim will involve matters which will have to be proved by oral evidence, and the pleadings suggest a conflict of oral evidence, matters such as the question of whether the third defendant is vicariously liable for any tort by the first defendant, or whether the third defendant was negligent, are I think less likely to be dependent upon oral testimony.  In addition, the position of the parties has already to some extent been examined in connection with the enquiry to which I have referred.  The plaintiff has not been in breach of any order of the court, although there was a failure to deliver the statement of loss and damage within the time limited by the Rules. 

22. [22]
    In my opinion, notwithstanding the lapse of time since the dispute arose, a fair trial on the issues can still be held. No particular prejudice to the third defendant as a result of the delay has been shown. Although the action is at a relatively early stage, it ought to be able to be prepared for trial within the next six to twelve months. There is now little delay in having matters tried in this Court once they are ready for trial. Directions can be made which will have the effect of getting the matter in order quickly, and I intend to give directions when the parties are before me to receive this judgment. If the plaintiff fails to comply with directions or other orders of the court, there will be jurisdiction to dismiss the action: r. 374(5)(a). The fact that there has been undue delay up until now would put the plaintiff under a particular obligation to be expeditious in the future. Bearing in mind in particular these matters, and being cognisant of the other matters to which I have referred, I think on balance the plaintiff should be given leave to proceed.

23. [23]
    On the plaintiff’s application therefore I give the plaintiff leave to proceed pursuant to r 389(2).  I order the plaintiff pay the defendants’ costs of that application to be assessed in any event;  because the plaintiff was seeking an indulgence from the Court, the plaintiff should pay the costs of the application.  There was no unreasonable resistance to the application on the part of the first^[5] or third defendants.  I am not at present concerned with whether the plaintiff might be entitled to recover those costs from any of her legal advisers.  The third defendant’s application is dismissed, but it was I think a reasonable response so that, had leave to proceed been refused, the action could have been thereupon dismissed.  The only additional costs associated with that application would be the cost of filing and serving the application, and those costs should also be paid by the plaintiff in any event.