Labaj v Collins[2005] QDC 28

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the plaintiff for summary judgment under the UCPR r 292, which provides:

292(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

 (2) If the court is satisfied —

1. (a)
   the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and

2. (b)
   there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.

2. [2]
   The application for summary judgment was, the court file shows, filed on 25 January 2005. It also seeks “… Summary Judgement be entered for the plaintiff against the defendant in pursuance of r 280 …”.  The application under r 280 and supporting affidavits from Mr Labaj apparently refer to an earlier application he filed on 10 December 2004 for an order that the “… defendant enters a plea and proper defence, taking in consideration the Court of Appeal’s orders”, and for directions.  Rule 280 confirms the court’s jurisdiction to dismiss an action for want of prosecution where a plaintiff, or applicant is required to take a step under the rules or an order of the court and does not do so. The rule is inappropriate here, and it appears the plaintiff’s complaint is, instead, of the kind envisaged by r 374 (Failure to comply with order).

3. [3]
   The background circumstances to the application, and the action, are set out in the reasons of Cullinane J in Labaj v Collins [2004] QCA 334, in which Mr Labaj successfully appealed against an award of summary judgment in this matter to the defendant.  He had made a claim for workers’ compensation to WorkCover Queensland in respect of what is described as psychiatric/psychological injuries alleged to arise out of his former employment with Lollo Plumbing Pty Ltd.  The respondent is a psychologist who was engaged by WorkCover in May 2003 to report to it in relation to the claim.

4. [4]
   Under his amended statement of claim filed 21 April 2004 the plaintiff asserts the defendant owed him a duty of care in the preparation of that report, and that she negligently breached that duty causing him loss in the form of mental stress, pain and suffering, loss of enjoyment of a personal relationship and loss, or a reduced likelihood of success in his WorkCover claim. He also claims damages for pain and suffering, and medical expenses and other “monetary losses”.

5. [5]
   In an amended defence filed 13 April 2004 (ie, before delivery of the amended statement of claim) the defendant relevantly denied causing the plaintiff any damage but, otherwise, the pleading is primarily directed to an earlier pleading, which included a claim for damages for defamation. On 14 February 2005 the defendant delivered a further amended defence denying she owed the plaintiff a duty of care or, if she did, that she acted negligently and in breach of it. In particular, the defence contains positive assertions that the defendant carried out her assessment in accordance with the requirements of WorkCover Queensland, and in a way which met the standards of a reasonably competent psychologist.

6. [6]
   The appeal was primarily concerned with the question whether provisions of the WorkCover Queensland Act 1996 or the Workers Compensation and Rehabilitation Act 2003 barred the action, a question this court had originally determined in the defendant’s favour.  The Court of Appeal unanimously^[1] rejected that contention and, otherwise, only briefly touched upon the primary issues in the action; Cullinane J said, at p 4:

[27] The respondent raised an alternative argument that the judgment should stand on the basis that no cause of action could arise in the circumstances pleaded.

[28] I do not think it can be said that this proposition is so clear as a matter of law that the action must necessarily fail.  This area of the law of tortious responsibility is notoriously unsettled and it would not be appropriate to grant judgment against the defendant (sic) on this basis.

7. [7]
   Mr Lebaj filed two affidavits in support of this application. In the first^[2] he referred to an application for directions he filed on 10 December 2004 and which was listed for hearing on 10 January 2005 at which time the defendant failed to appear – as occurred again, he alleged, on a new adjourned date, 21 January.  In para 3, he said because his claim remained unsatisfied and because of the “… defendant’s flagrant disregard of court’s processes”, he was applying for summary judgment.  In his further affidavit filed 9 February 2004 he recites some of the history of the matter and asserts that the defendant’s pleadings do not disclose any credible defence, and had been repudiated by the judgment in the Court of Appeal.

8. [8]
   It is convenient to dispose, firstly, of the plaintiff’s nominal application under UCPR r 280 which, for the reasons mentioned earlier, may conveniently be dealt with as an application under r 374 (Effect of failure to comply with order).  The decision of the Court of Appeal does not contain any further directions about the conduct of the matter nor, in particular, any direction that the defendant file and serve an amended defence.  The plaintiff’s application filed 10 December 2004 came before this court on 10 January 2005.  The defendant did not appear and the matter was simply adjourned to 21 January, with costs reserved.  On the latter date there was, again, no appearance from the defendant and the application was adjourned to a date to be fixed.  Shortly prior to the hearing of this matter the defendant’s solicitor Ms Dyer sent the court, by facsimile, a copy of an affidavit she apparently intended filing, but it does not deal with the earlier application nor explain the delay until 14 February 2005 in filing a further amended defence to the plaintiff’s amended Statement of Claim.  There is, however, no evidence of any order by this court, or the Court of Appeal, requiring an amended pleading from the defendant and nothing suggesting an immediate basis, then, for an order against her under r 374.

9. [9]
   For the sake of completeness, reference should also be made to r 385 (Pleading to amendment).  There has been a long delay in the defendant’s delivery of its further amended defence to the plaintiff’s amended Statement of Claim filed 21 April 2004.  Some attempt is made to explain this in the defendant’s submissions which contain an assertion that the plaintiff “… has not properly pleaded his Statement of Claim, making it difficult to plead a proper defence”, and, although the defendant has never sought to strike out the plaintiff’s pleading, the complaint is not without substance^[3].

10. [10]
    There is, it must be noted, nothing surprising in the defendant’s new pleading. The amended Statement of Claim shortly recites circumstances alleged to give rise to a duty of care on the part of the defendant, and those said to constitute a breach. The plaintiff’s earlier pleading contained assertions to the same effect and the defendant’s previous defence filed 13 April 2004, while primarily addressing allegations said to give rise to a right, in the plaintiff, to damages for defamation also traversed (and denied) allegations relating to a breach of duty of care.

11. [11]
    Even if the plaintiff’s application is dealt with as one which seeks relief under r 371 (Effect or failure to comply with rules), the circumstances are not such as to warrant the kind of relief allowed under r 371(2), ie the setting aside of the further amended defence, or other orders.  The delay on the defendant’s part is fairly categorised as understandable; even taking the most unkind view of it, the delay falls short of suggesting a contumelious disregard of the rules of court, to a degree warranting draconian relief.

12. [12]
    As to the application for summary judgment, the defendant’s written submissions are terse, simply asserting the plaintiff has failed to reveal particulars which establish the defendant does not have a credible defence. Mr Labaj’s written submissions run to 42 pages, single spaced, much of it taken up with lengthy quotes from the judgments in Perre v Apand Pty Ltd (1999) 198 CLR 180, and from some proceedings of a Disciplinary Committee of the Psychologists Board of Queensland concerning the defendant’s conduct in this matter.

13. [13]
    Perre’s case illustrates the point made by Williams JA in the appeal in this matter:

[9] The next question is whether or not the general law recognises a cause of action against the respondent in the alleged circumstances.  The contractual relationship was between the respondent and WorkCover, but the report, as was known to the respondent, was with respect to a claim made by the appellant.  In those circumstances I would not be prepared to hold on a summary application that a duty relationship did not exist between the respondent and the appellant.  Further, I would not be prepared to hold on a summary application that public policy would preclude the appellant recovering damages from the respondent if it was ultimately held that the report was prepared either not in good faith or negligently.  Such question should only be answered after a trial. (emphasis added)

14. [14]
    As I understood his written submissions, Mr Labaj contends that the judgment of the High Court in Perre, read in combination with findings of the Psychologists Board mean a duty of care has plainly been established and the defendant’s denials of that duty, or a breach of it, cannot succeed.  Much of the information about the latter is contained not in affidavit material but in Mr Labaj’s written submissions including, in particular, particulars of a decision of the Disciplinary Committee of the Board reached in July 2004 after a hearing instigated pursuant to a complaint to it from Mr Labaj.  What appears to be the entire decision is set out in para 5.1 of those submissions and suggests the findings of the Disciplinary Committee were that the defendant’s conduct concerning the report about the plaintiff warranted disciplinary action against her because:

1. Ms Collins had behaved in a way that constituted unsatisfactory professional conduct.  The particulars of which were that:

2. The report was inadequate in its scope and utilisation of contemporary investigative psychological procedures.

3. There was no direct statement about the limitations of the report, and therefore the following shortcomings of the report were unexplained:

• people being interviewed together, when they should have been interviewed separately;
• methodology used for the reporting was not discussed sufficiently;
• insufficient explanation of methodology was used in assessing workplace stress;
• the psychological methods used did not sufficiently address the breadth or depth of potential stressors in the organisation; and
• that insufficient analysis was given to “information merely reported” which was generally accepted on face value.

According to the report, the Committee resolved to reprimand the defendant, and directed that she seek “professional mentoring assistance”.

15. [15]
    So far as it can be discerned from the documents referred to in Mr Labaj’s submissions, the proceedings which led to these findings occurred under the Health Practitioner’s (Professional Standards) Act 1999, Pt 6.  The Tribunal which heard them was a Disciplinary Committee constituted under s 128.  The Committee is obliged to keep a record of evidence given to it, but not a transcript: s 151.  It has powers to advise, caution or reprimand the “registrant” (here, the defendant).  At the highest, it involves a finding by a professional tribunal about the professional competence of the respondent.  It cannot be said to constitute a judgment about the matters raised in this action.  The proceedings before the Committee may have involved something of a judicial nature, but that is unclear:  for example, it is not apparent whether the plaintiff or the defendant were cross-examined.  In any event, on no view did the proceedings or the Committee’s decision address the question of duty of care or breach in the way described by Gummow J in Perre v Apand Pty Ltd (supra, at 253):

The question in the present case is whether the salient features of the matter gave rise to a duty of care owed by Apand.  In determining whether the relationship is so close that the duty of care arises, attention is to be paid to the particular connections between the parties.  Hence what McHugh J has called the “inherent indeterminacy” of the law of negligence in relation to the recovery of damages for purely economic loss.  There is no simple formula which can mask the necessity for examination of the particular facts.  That this is so is not a problem to be solved; rather, as Priestley JA put in Avenhouse v Hornsby Shire Council, “it is a situation to be recognised” (emphasis added).

16. [16]
    In the circumstances it cannot be said that the findings of the Disciplinary Committee mean questions arising in connection with an alleged duty of care owed by the defendant to the plaintiff, or breach of it, have been addressed and determined in those proceedings or the Committee’s findings in a way which might be categorised, for the purposes of this action, as creating an issue estoppel, or attracting the doctrine of res judicata in the manner discussed by Dixon J (as he then was) in Blair v Curran (1939) 62 CLR 464 at 531-2, or more recently by the NSW Court of Appeal in Lambidis v Commissioner for Police (1995) 37 NSWLR 225^[4].  As McHugh JA (as he then was) said in Cacchia v Isaacs (1985) 3 NSWLR 366 at 386:

A final decision on an issue, once given by a competent tribunal, forever binds the parties to the determination… But the decision is only binding in which respect of an issue which was directly, and not collaterally or incidentally, involved in the proceedings. (emphasis added)

17. [17]
    On no view can the Board’s findings about the defendant’s professional competence be said to have addressed elements arising around questions whether a duty of care existed under ordinary principles of the law of negligence, or was breached.

18. [18]
    The question whether summary judgment is now more readily given (since the introduction of the UCPR) has been addressed in a number of recent decisions.  I respectfully adopt what was said by Chesterman and McMurdo JJ in Gray v Morris [2004] QCA 5, the former saying, at p 7:

[23] … in my opinion summary judgment is not to be given, either to defendant or plaintiff, except where it is just to do so and it will not be just to deprive a party of a trial unless it can be seen that their case is hopeless, or bound to fail.  Unless that can be said of it, the conclusion cannot be reached that a claim or defence has no “real” prospects of success.

and by McMurdo J at pp 13-14:

[46] … in the application of the plain words of rules 292 and 293, and in particular the consideration of whether there is a need for a trial, the court must keep in mind why the interests of justice usually require the issues to be investigated at a trial.  In my view it surely remains the case, as Mason, Murphy, Wilson, Deane and Dawson JJ said in Fancourt at 99, that “The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”.  That remains a forceful and authoritative guidance and is in no way in tension with the application of these rules according to their own terms.

19. [19]
    It is possible – no more can be said – the applicant may establish that the respondent owed him a duty of care in the preparation of her report; and, that she acted in breach of that duty in circumstances causing him loss and entitling him to damages. None of these issues have been resolved by the determination of the Psychologists Disciplinary Committee and in her most recent pleading both the duty and the breach are denied by the defendant. The question of loss and damage, if any, and their causation are also, as in Gray v Morris, something about which evidence will be necessary^[5].  This is not, on any view, a clear case.  It is simply impossible for the court to be satisfied of the matters postulated in r 292(2) and the plaintiff’s application must be dismissed.