Vincent v Temple
[2003] QDC 479
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- Unreported Judgment
- Appeal Determined (QCA)
- Vincent v Temple[2003] QDC 479
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Vincent v Temple[2003] QDC 479
Vincent v Temple[2003] QDC 479
DISTRICT COURT | No 641 of 1995 |
CIVIL JURISDICTION
JUDGE FORDE
PETER VINCENT | Applicant/Defendant |
and
IRMA TEMPLE | Respondent/Plaintiff |
BRISBANE
..DATE 24/10/2003
JUDGMENT
HIS HONOUR: The applicant/defendant, Peter Vincent, seeks to strike out the action for want of prosecution.
The applicant is sued for breach of duty as prosthodontist. The respondent, Irma Temple, retained the applicant in 1984 to carry out work on her teeth. This work was carried out between 1984 and 1989. The applicant relies on rule 5 of the Uniform Civil Procedures Rules or, alternatively, the inherent jurisdiction of the Court.
As referred to Quinlan v. Rothwell (2002) 1 Queensland Reports 647 at 656, the power of dismissal for abuse of process or want of prosecution has been recognised as part of the wider inherent power in the Court.
The applicant also relies upon rule 280(1) and rule 371(1). Reference is made in Quinlan's case as to the alternative grounds for relief. These latter rules concern the failure by a party to comply with the rules and, in particular, time limitations in which to take a step.
Of particular relevance in the present case is that the respondent/plaintiff's solicitors received a report from Dr Ecker on 23rd of June 2003. The report is dated 29th of April 2003. Why it was not received for some two months is a mystery. That report obtained by the respondent's solicitors gave the respondent little chance of success at trial. The respondent's solicitors did not give the report to the applicant's solicitors until the 3rd of October 2003. This in itself is a breach of rule 214(2) (e) of the Uniform Civil Procedure Rules.
The duty of disclosure is a continuing one under rule 211(2) of the rules. That breach in itself would enliven the jurisdiction, but there is the other aspect that the respondent has not proceeded in an expeditious way in this matter, rule 5(3).
The chronology would show that the events giving rise to this action occurred between 1984 and 1989. Leave to proceed, notwithstanding the Limitations of Actions Act was given in the matter in 1997, that is, on the 31st of October 1997 and another six years have now elapsed. In itself that is disturbing as far as the time is concerned.
The matter is perhaps a result of some delay on both sides, but the respondent, by its solicitors, really undertakes to proceed in an expeditious way under these rules. So the jurisdiction is invoked. It is, therefore, not necessary to deal with the alternative argument under the want of prosecution or abuse of power as discussed in Allen v. Against Sir Alfred McAlpine & Sons Ltd (1968) 2 Queens Bench 229 at 268 per Lord Justice Salmon. Lord Justice Salmon at 269 referred to the discretion being enlivened if there were delays as discussed and if serious prejudice occurred as a result of the delay.
Once that jurisdiction is invoked, the principles applicable are set out in Tyler v. Custom Credit Corporation Limited (2000) QCA 178 per Justice Atkinson page 2 and following:
“(1)how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced.”
In relation to this factor, the applicant treated the respondent between 1984 and 1989. The action was commenced on the 17th of March 1995. In a decision of McLauchlan DCJ of the 31st of October 1997, the time was extended in which to commence an action and there was a finding that a material fact was not within the means of the knowledge of the respondent prior to the 15th of August 1994.
“(2) how long ago the litigation was commenced or causes of action were added.”
An application to extend the time for the purposes of avoiding the limitation of actions provisions was made on the 14th of June 1995 and adjourned. On the 23rd of July 1995 that application was adjourned to the 4th of October 1995. On the 4th of October it was adjourned to a date to be fixed. On the 31st of October 1997 an order was made to extend the period of limitation for action to the date of the issue of plaint. The hearing took place on the 23rd of April 1997.
“(3) what prospects the plaintiff has of success in this action.”
The starting point for this is really the last report of the respondent's own expert, Dr Ecker. Dr Ecker has been involved from about 1996 and 1997. In a report of the 29th of April 2003, Dr Ecker no longer supported the case for the respondent. This matter was adjourned until today to allow further evidence to be called because certain models were made available more recently.
In his report, dated the 14th of October 2003, Dr Ecker concluded that, “Negligence on behalf of the applicant, Dr Vincent cannot be confirmed.” In his later report of the 18th of October 2003, following more detailed questions by the solicitors for the respondent/plaintiff, he was complimentary of the protocol used by the applicant.
“(4) whether or not there has been disobedience of Court orders or directions.”
This factor does not seem to be relevant in the present case except for the breach of the rule as discussed.
“(5) whether or not the litigation has been characterised by periods of delay.”
It is convenient to attach to these reasons a chronology. Also relevant is the delay in finalising the application to extend the time in which to commence the action. It might explain why the defence was not filed until the 5th of January 1998.
The respondent statement of loss and damage was filed three months after the pleadings closed. Nothing happened then for five months. After demands for a proper statement of loss and damage, it was not until June 2000 that a particularised statement of loss and damage was delivered by the respondent. A request for trial signed by the respondent was delivered on the 9th of September 1999. The defendant, in response, said thereto asked for a nomination of an expert dentist or other specialist to be nominated from a list. This did not occur until 2000 and reports provided in September 2000. The statement of loss and damage, as mentioned, was not provided until the 14th of June 2000. This was, in effect, 26 months after the rules required that a statement of loss and damage be delivered.
Further particulars of the statement of loss and damage were delivered in July 2001. It is recognised that these statements have to be updated. However, it seems from the Court file, that apart from notices of non-party discovery and particulars provided by the respondent on the 19th July of 2001, nothing occurred from June 1999 to the 4th of September 2003, which is the date the present application was filed. That is only mentioned because neither side seemed to want to progress the action during that period by the appropriate application, although it is noted that there was an earlier application to have the action struck out.
“(6) whether delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant.”
As appears from the chronology, there were periods when nothing was done on the record by either side. The applicant attempted to strike out the action in July 1996. Apart from that comment, the chronology speaks for itself.
“(7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity.”
No submissions were received on this point.
“(8) whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim.”
The short answer is yes.
“(9) how far the litigation has progressed.”
I have made mention previously of the request delivered in 1999. The applicant probably needs to get an opinion on any report from Dr Ecker if the latter takes some more positive response. Apart from that aspect, the matter could proceed to be set down.
As mentioned in argument, as presently advised, the respondent/plaintiff's prospects, based on its own expert's report, would be slight. And, in fact, I make no determination about that because a plaintiff ought not to be shut out merely because at this point expert opinion has not been obtained. However, in this case it has more weight because Dr Ecker has been involved now in this matter for some six or seven years.
“(10) whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than by his or her advisers.”
One particular matter is the respondent's solicitors failed to hand over the April 2003 report of Dr Ecker. This is a disturbing feature of this case. After Mr Wing left the practice of the respondent's solicitors, Mr Harrison took over carriage of the matter. He says that it is a substantial matter and it took time to get on top of same.
If Dr Ecker's report had been read in the first instance, a more robust approach may have been adopted. A prudent solicitor could not advise a client to proceed given the advices from its own expert as perceived from the earlier report.
Then, the models appeared. A full explanation has not been given how this occurred. They were found in Sydney after the respondent attended Dr Peppitt on the 21st of July 2003. They were 1984 models. It is suggested that the models would allow reconstruction of clinical history from 1984 to the present. An adjournment was allowed to enable the respondent's advisers to investigate those matters.
Dr Ecker, in his report of the 18th of October 2003, says that he is unaware of the protocol of prosthodontists in Queensland in the 1980s, and in other respects he does not criticise the treatment by the applicant. He has had access to the models and has attempted to answer all questions by the respondent's solicitors.
“(11) whether there is satisfactory explanation for the delay.”
I find, having had regard to the chronology and the submissions put before me, that looking at this matter as a whole, there has not been a satisfactory explanation for delays in this matter.
“(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.”
The applicant submits there is prejudice to him. The events giving rise to litigation occurred some 19 years ago.
As mentioned in Taylor v. The North Brisbane Hospitals Board per McHugh J, one can infer that in some instances that the delay would cause prejudice.
What was the standard practice in the 1980s might be difficult to determine given the lapse of time, however, the fine detail of the treatment may be difficult to determine or remember.
Many questions raised by Dr Ecker in his recent reports seem to point to what memory Dr Vincent, the applicant, would have in this regard.
The clinical notes, which were available to Dr Ecker, seem to be insufficient. Therefore, the memory of the applicant would loom large to try to deal with some of these matters. After such a lapse of time, one can infer that there would be prejudice.
Conclusions:
- (1)the action was commenced in March 1995;
- (2)the actions of the applicant giving rise to the action occur between 1984 and 1989;
- (3)lengthy delays have not been satisfactorily explained; and
- (4)the respondent has poor prospects of success based on the evidence of her own expert, Dr Ecker.
The action is struck out.
It is ordered that the respondent pay the applicant's costs of the application and the action to be assessed including reserved costs, if any.
-----
DISTRICT COURT OF QUEENSLAND |
REGISTRY: BRISBANE
NUMBER: D641 of 1995
IRMA TEMPLE | Plaintiff: |
AND
PETER F VINCENT | Defendant: |
CHRONOLOGY OF EVENTS
Date | Event |
17.03.1995. | Action commenced by Plaint issued out of the District Court at Brisbane. |
27.06.1995 | Application by Plaintiff to extend limitation period returnable. Plaintiff seeks adjournment of application to enable treatment by specialist in Australia and further report to be obtained. Application hearing is adjourned until 18 September 1995. |
12.07.1995 | Quinn & Scattini (QS) write to Flower & Hart (FH) that report is expected within 2 weeks. |
11.08.1995 | QS write to FH advising that report is not available for a further 14 days and seeking adjournment of hearing of application. |
17.08.1995 | QS write to FH to advise that they are getting a report of Dr. Tay and that Plaintiff is attending upon Dr. Tay on 23 Auqust 1995. |
18.08.1995 | Plaintiff's application adjourned to registry to allow Plaintiff to be examined by Dr Tay and a report to be obtained. |
18.08.1996 - 02.02.1996 | No communications from the Plaintiff |
02.02.1996 | FH writes to QS asking what the Plaintiff intends to do regarding application and invites Plaintiff to discontinue proceedings if she does not proceed with her application. FH foreshadows an application to strike out the claim for want of prosecution. |
08.02.1996 | QS write to FH advising that they are seeking instructions and stating that they do not anticipate any need for the application to strike out. |
03.04.1996 | FH write to QS stating that unless Plaintiff's application is brought on or matter is discontinued by 17 April 1996, application will be made to strike out the claim. |
17.04.1996 | QS write to FH advising that their client is not discontinuing with her claim or bringing on her application by 17 April 1996 and stating that they are obtaining instructions and will oppose a strike out application. |
25.06.1996 | Defendant files application to strike out claim for want of prosecution. |
Chronology of Events | Flower & Hart Solicitors | |
Filed on behalf of the Defendant | Level 19 National Bank House Cnr Creek and | |
Adelaide Streets | ||
Brisbane QLD 4000 | ||
Phone: (07) 3233 1233 | Fax: (07) 32294555 | |
DX 144 BRISBANE | ||
Ref: SAW:951124 |
01.07.1996 | Hearing of strike out application is adjourned at Plaintiff's request until 23 July 1996. |
02.07.1996 | FH write to QS requesting any additional affidavit material by 9 July 1996 to avoid further adjournments. |
18.07.1996 | QS serve summons returnable on 23 July 1996 seeking orders for pre-pleading disclosure and that the limitation issue be resolved at trial. |
23.07.1996 | Applications resolved on the basis that the Defendant provide disclosure, the Plaintiff deliver further material by 20 September 1996 and the Plaintiff's application for an extension of the limitation period be heard on 4 October 1996. Accordingly application to strike out was dismissed. |
25.09.1996 | Plaintiff delivers an unsworn copy of the affidavit of Dr. Ecker. |
04.10.1996 | Application for the extension of the limitation period is adjourned because of the late delivery of the material by the Plaintiff and the need for the Plaintiff to disclose a list of the documentation relied upon by Dr. Ecker in reaching his views expressed in the affidavit material. |
03.12.1996 | Plaintiff delivers further affidavit of Dr. Ecker identifying material relied upon in forming his views and brings application for extension of limitation period back on 5 December 1996. |
03.12.1996 | FH write to QS to obtain a copy of the documents relied upon by Dr. Ecker and to have application hearing adjourned. Application hearing is adjourned until 19 March 1997 to accommodate availability of Counsel. |
06.12.1996 | Plaintiff delivers copy documents briefed to Dr. Ecker. |
19.03.1997 | Application hearing adjourned until 9 April 1997 because of conflict of interest involving Brabazon J. |
03.04.1997 | FH write to QS seeking reports of Dr. Tay and unidentified specialist who examined the Plaintiff in July 1995. |
09.04.1997 | Hearing of application to extend limitation period adjourned until 23 April 1997. |
23.04.1997 | Application for extension of limitation period heard and judgement reserved. |
31.10.1997 | McLauchlan J delivers reserved decision granting extension of the limitation period. |
29.12.1997 | Defendant's entry of appearance and defence served. |
24.04.1998 | Plaintiff delivers first statement of loss and damage. |
05.06.1998 | FH write to QS setting out deficiencies in the statement of loss and damage and requiring a better particularised statement of loss and damage. |
08.07.1998 | QS writes to FH advising that they are addressing matters raised in FH's letter of 5 June 1998. |
03.08.1998 | Defendant delivers statement of expert and economic evidence. |
25.01.1999 | QS writes to FH and requests documents from the statement of expert and economic evidence and follows up a list of documents from the Defendant. |
13.04.1999 | FH send copy documents from the statement of expert and economic evidence, requests a copy of the notice requiring discovery which apparently was never received and querying requirement of disclosure given pre-pleading disclosure made. Defendant seeks disclosure by the Plaintiff. |
14.04.1999 | FH write to QS to follow up particularised statement of loss and damage. |
15.06.1999 | Defendant delivers an affidavit of documents. |
26.07.1999 | QS write to FH requesting an inspection of documents. |
28.07.1999 | FH provide panel of prosthodontists for independent examination of the Plaintiff. |
04.08.1999 | Plaintiff undertakes an inspection of documents. |
05.08.1999 | QS writes to FH requesting certain copy documents from inspection. |
12.08.1999 | FH provide to QS copy documents requested. |
09.09.1999 | QS write to FH seeking date for independent examination by prosthodontist. |
28.09.1999 | FH write to QS advising that examination by prosthodontist cannot proceed until particularised statement of loss and damage and disclosure is made by the Plaintiff. |
14.06.2000 | Plaintiff delivers a particularised statement of loss and damage. |
13.07.2000 | FH write to QS requesting a copy of the hospital and medical reports set out in the statement of loss and damage. |
02.08.2000 | Plaintiff delivers copy of medical and expert reports. |
02.08.2000 | Plaintiff delivers a list of documents, a copy of a further report of Dr Mulholland, psychiatrist and tenders a request for trial date. |
23.08.2000 | FH writes to QS advising that matter is not ready for trial and requesting nomination for independent examination from panel submitted in 1999 |
04.09.2000 | FH writes to QS setting out arrangements for Plaintiff to be examined by Dr. Joyce on 26 September 2000. |
13.09.2000 | QS write to FH advising that Plaintiff now elects to be examined by Dr. Junner and appointment is arranged for 27 September 2000 for that purpose. |
27.09.2000 | Dr. Junner examines the Plaintiff. |
26.10.2000 | QS writes to FH following up Dr. Junner's report and asking whether a psychiatric examination is required. |
13.11.2000 | FH write to QS advising that decision cannot be made about psychiatric examination until Dr. Junner's report is available. |
29.11.2000 | QS write to FH following up return of request for trial date. |
30.11.2000 | FH write to QS advising that matter is not ready for trial, Defendant is still waiting on Dr. Junner's report and nominating a panel of psychiatrists in the event a psychiatrist examination is needed. |
19.12.2000 | FH write to QS setting out first available dates for psychiatric examinations |
20.12.2000 | QS write to FH rejecting delays in the Plaintiff's action pending a psychiatric examination. QS demand the return of the request for trial date or a psychiatric examination by end of January 2001 failing which an application will be made for the action to be allocated trial dates. |
21.12.2000 | FH writes to QS rejecting suggestions of prejudice and delay. |
27.12.2000 | Defendant serves report of Dr. Junner. |
02.01.2001 | QS write to FH advising that they are seeking instructions regarding matters raised in FH's letter of 21 December 2000. |
05.01.2001 | FH arrange for examination of Plaintiff by Dr. Nothling, psychiatrist on 1 February 2001. |
19.01.2001 | FH write to QS to cancel examination by Dr. Nothling as he is personally acquainted with Dr. Vincent and advise a further panel will be submitted and fresh arrangements made. |
19.01.2001 | FH write to QS setting out deficiencies in the Plaintiff's disclosure. |
19.01.2001 | Defendant serves request for particulars of the Plaintiff's claim. |
22.01.2001 | QS write to FH seeking fresh panel of psychiatrists or return of the request for trial date. |
24.01.2001 | FH writes to QS setting out revised panel of psychiatrists. |
24.01.2001 | QS writes to FH disputing Defendant's right to deliver request for particulars. |
01.02.2001 | Plaintiff is examined by Dr. Jill Reddan, Psychiatrist. |
05.02.2001 | FH writes to QS advising that Defendant is not precluded from seeking particulars, stating delay in delivering request due to delay in disclosure by the Plaintiff and pressing for particulars |
05.02.2001 | QS writes to FH demanding Dr. Reddan's report. |
06.02.2001 | QS writes to FH stating that request for particulars is a delaying tactic. |
12.02.2001 | FH writes to QS rejecting suggestions of delay and pressing for particulars. |
14.02.2001 | FH write to QS again raising further queries on disclosure by Plaintiff. |
16.02.2001 | QS advising that they do not have a report of Dr. Dawson and advising that they will obtain instructions on other issues. |
19.02.2001 | FH write to QS seeking particulars again and affirming request for report of Dr. Dawson. |
21.02.2001 | QS writes to FH advising that they will seek instructions about a report of Dr Dawson and again disputing need to answer certain particulars |
26.02.2001 | FH writes to QS advising that an application will be brought if particulars are not provided. |
01.03.2001 | QS write to FH advising that they are collating documents to be further disclosed. |
01.03.2001 | QS write to FH advising that they are seeking instructions about the particulars |
05.03.2001 | FH writes to QS advising that they have no objection to the further disclosure being in a bundle provided the bundle is adequately scheduled and seeking amended statement of loss and damage to account for matters in Parr -v- Bavarian Steak House Pty Ltd. |
12.03.2001 | FH writes to QS following up disclosure. |
15.03.2001 | QS writes to FH stating that further disclosure is voluminous and suggesting inspection occur first. |
22.03.2001 | FH writes to QS stating that they wish to have documents not previously disclosed copied to them at this stage. |
26.04.2001 | FH writes to QS setting out all outstanding issues on disclosure from letters of 19 January 2001 and 14 February 2001 and serving report of Dr. Reddan. |
22.05.2001 | FH writes to QS following up response to letter of 26 April 2001 |
29.05.2001 | QS write to FH making further disclosure and advising that Counsel has been briefed regarding the further and better particulars and advising that they will attend to the filing of an updated statement of loss and damage. |
24.07.2001 | Plaintiff delivers further and better particulars of the claim. |
31.07.2001 | QS write to FH requesting the return of the request for trial date. |
07.08.2001 | FH writes to QS advising that particulars are not adequate and alluding to still outstanding issues regarding disclosure. |
05.02.2002 | Defendant serves a report of Dr. Kevin Joyce |
28.02.2002 | Defendant serves supplementary report of Dr. Kevin Joyce |
21.05.2002 | QS writes to FH seeking a copy of the brief and instructions to Dr. Joyce. |
22.05.2002 | FH writes to QS setting out list of documents provided to Dr. Joyce and questions posed to him. |
03.06.2002 | QS writes to FH With mediation proposal. |
23.12.2002 | FH writes to QS with open invitation to Plaintiff to discontinue claim on the basis that each party bears their own costs |