DISTRICT COURT OF QUEENSLAND

1. [1]
   In this proceeding, which was commenced by a claim filed on 3 December 2001, the plaintiff seeks damages for personal injury suffered as a result of an incident on 22 December 1999, when he was struck by a vehicle driven by the first defendant, and insured by the second defendant. The plaintiff was a pedestrian and claims to have been standing on a median strip. His claim includes a claim against the first defendant for aggravated and exemplary damages on the basis that the first defendant deliberately collided with him.

2. [2]
   There are three applications before the court. The plaintiff’s application, filed on 13 September 2005, seeks leave to proceed pursuant to r 389(2). That application is opposed by each of the defendants. The first defendant’s application, filed on 25 November 2005, is for the proceeding to be dismissed for want of prosecution. The second defendant’s application, filed on 13 September 2005, seeks leave to issue a third party notice to the first defendant.

3. [3]
   The second defendant’s application was not opposed and I am satisfied, for the reasons contained in the written outline of counsel for the second defendant, that the application should be granted in the event that the plaintiff obtains leave to proceed and the action is not dismissed for want of prosecution.

4. [4]
   The first defendant’s application was said to be a “tidying up” exercise to bring the proceedings to an end in the event that the plaintiff was not successful in obtaining leave to proceed.

5. [5]
   The argument focussed on the plaintiff’s application for leave to proceed.

6. [6]
   A helpful checklist of relevant considerations in determining whether to grant leave is set out in the reasons of Atkinson J in Tyler v Custom Credit Corporation [2000] QCA 178.  As Atkinson J observed however, the court’s discretion is not fettered by rigid rules, but should take into account all of the relevant circumstances of a particular case.

7. [7]
   The action was brought without undue delay. The collision occurred on 22 December 1999. The plaintiff complied with the requirements of the Motor Accidents Insurance Act 1994 (Qld).  Proceedings were commenced proceedings within two years of the incident.  The matter then progressed, with reasonable expedition, to mid 2002.  During that period, the following occurred:

08/12/2001Statement of Claim filed

22/02/2002Amended Claim, Amended Statement of Claim, and Statement of Loss and Damage filed

22/03/2002The second defendant’s Notice of Intention to Defend and Defence filed

12/04/2002Notices of Non-Party Disclosure issued

18/04/2002The plaintiff’s reply to the defence of the second defendant and the plaintiff’s list of documents filed

29/05/2002The first defendant’s Notice of Intention to Defend and Defence filed

28/06/2002The plaintiff’s reply to the defence of the first defendant and his amended list of documents filed

8. [8]
   The case was conducted on the basis that there was no subsequent relevant step taken by the plaintiff prior to the subject application being filed on 13 September 2005.

9. [9]
   Counsel for the plaintiff initially submitted that a Notice of Non-Party Disclosure, issued on 2 April 2004, was a step in the proceeding, but withdrew that submission once the respective Counsel for each of the defendants drew the court’s attention to the decision in Smiley v Watson [2002] 1 Qd.R. 560. 

10. [10]
    The affidavit material also refers to the filing of a Statement of Loss and Damage on 30 June 2003^[1].  The only such statement on the court file has a filing date of          22 February 2002.  It is unnecessary to dwell on this matter however, because I am satisfied, for the reasons which follow, that the plaintiff should be granted leave to proceed in any event.

11. [11]
    The delay in progressing the matter is sought to be explained by reference to attempts to resolve the matter, including a mediation in which the plaintiff and the second defendant participated on 5 October 2004. The first defendant had prior notice of the mediation, but elected not to participate. The affidavit of the solicitor for the plaintiff refers to “attempts to resolve this matter by correspondence” but gives no further details. The solicitor for the second defendant deposed that “from October 2004 to August 2005 attempts were made on behalf of the parties to resolve the matter on an informal basis, but were unsuccessful”. It would appear that the first defendant was not involved in those attempts at resolution.

12. [12]
    In a letter dated 16 September 2004 (prompted by an invitation to attend the mediation), the solicitors for the first defendant wrote to the solicitors for the plaintiff expressing surprise “to learn that your client wished to proceed with this claim” and raising the need for the plaintiff to obtain leave to proceed. The application for leave was not brought until after the solicitors for the second defendant wrote to the solicitors for the plaintiff on 8 August 2005 (when the matter had not resolved) advising of the intention to bring their client’s application and enquiring when the plaintiff’s application for leave to proceed would be brought.

13. [13]
    A decision to delay taking formal steps in an action while prospects of settlement are explored, including by mediation, can provide some explanation for delay. It is also understandable that the plaintiff might delay progressing the matter while negotiating with the insurer, even though the first defendant was not participating in the negotiations. In this case, there is some explanation of delay for part of the period (particularly from the latter part of 2004), but I am not satisfied that the whole of the period of delay has been fully explained. A satisfactory explanation for delay, while relevant, is not however, a condition precedent to the granting of leave to proceed^[2].

14. [14]
    Some six years have now passed since the incident in question. The events were investigated at the time, pre-litigation steps were followed and the litigation was commenced reasonably promptly.

15. [15]
    The plaintiff has an apparently good cause of action, if the events occurred as alleged. Counsel for the first defendant pointed to difficulties in proving that the collision was intentioned, but I do not accept his submission that the plaintiff’s prospects in that regard are as bad as “somewhere between very poor and futile.” I also note that, while intent is relevant to the pleading against the first defendant, in relation to aggravated and exemplary damages, the particulars of the negligence of the first defendant for which the second defendant is said to be liable, as pleaded in paragraph 8 of the Amended Statement of Claim, do not rely on proof of intent to collide with the plaintiff.

16. [16]
    While there has been a relatively long period of delay, the plaintiff has not disobeyed any court orders or directions. The litigation is not otherwise characterised by periods of delay.

17. [17]
    The litigation is substantially progressed, and could be brought to trial relatively quickly, if leave were granted. The refusal of leave would bring the litigation to an end.

18. [18]
    The delay could not be blamed on the other parties to the litigation. The material does not disclose whether the delay, to the extent it is unexplained, was caused by the plaintiff’s lawyers being dilatory or by reason of the plaintiff’s instructions.

19. [19]
    In opposing leave to proceed, the defendants placed particular reliance on the recently made suggestion, that they would now be prejudiced in terms of the evidence available to them at trial.

20. [20]
    Liability is in issue in the proceeding. Broadly stated, the contest of fact relates to whether the first defendant deliberately drove his vehicle into the plaintiff or whether the plaintiff suddenly, and without warning, stepped off the median strip and into the first defendant’s path of travel. The evidence of witnesses to the collision and the events leading up to it, will be of relevance. The defendants claim that they are no longer in contact with relevant witnesses.

21. [21]
    In considering prejudice, the total passage of time since the cause of action arose is relevant^[3].  It is the plaintiff who bears the onus of proof that prejudice, such as to produce injustice, would not be suffered.  Where, as here, a respondent alleges prejudice by reason of the effluxion of time, it is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned.  It is then for the applicant to show that these facts do not amount to material prejudice^[4].

22. [22]
    The respondent in Hoy v Honan (supra) claimed prejudice on the basis that the whereabouts of the witness (Mr Mauriasi) was unknown and the records of another (Mr Waleilia) had been destroyed.  Investigation of Mr Mauriasi’s whereabouts had however, been “inadequate to support any finding of loss of this witness, and the claim in this respect should be disregarded^[5]”.  The loss of Mr Waleilia’s file was the result of the respondent’s failure to take reasonable steps to preserve it.  In that regard, Derrington J said, at p 8:

“The effect of prejudice flowing from delay in the case where the defendant has no knowledge or expectation of the basis of an action and consequently cannot preserve evidence is plainly different from its effect where the defendant knows of this but takes no steps to preserve it … If there is no injustice or unfairness to the appellants because any prejudice resulting from delay has come substantially from their own default, then there cannot be said to be injustice of unfairness to them.”

Fitzgerald P, at p 4, said:

“Whether or not the appellants could have entirely avoided the prejudice of which they complain, it could have been substantially reduced by prudent conduct on their part.  They have been aware of the existence of the claim, the transaction to which it relates and considerable detail concerning the respondent’s allegations since July 1991, but did not take obvious steps to obtain and preserve evidence.”

23. [23]
    In this case, both the basis of the plaintiff’s claim and the identity of relevant witnesses was known relatively early. One would expect, in those circumstances, that reasonable steps would be taken to obtain statements, inform witnesses of the prospect of their being required to give evidence at a later time and maintain contact, so as to be able to call them at trial. Of course, it is possible, with the passage of time, to lose a witness, notwithstanding reasonable steps, but that does not appear to be the case here.

24. [24]
    The solicitor for the second respondent deposed that, during the course of investigating the claim, the second defendant obtained investigative reports from its internal investigator and signed statements of evidence from a Mr McDonald and Mr James Fotu.  Each of those statements is dated 6 July 2000.  Four other persons were interviewed and the Traffic Incident Report listed two other witnesses.  There is no explanation as to why statements were not obtained from all witnesses, nor does the second respondent’s material indicate what the witnesses, other than Mr McDonald and Mr Fotu, might be expected to say. 

25. [25]
    The only attempt, on behalf of the second respondent, to subsequently contact any of those witnesses, which is deposed to in the material, is an attempt by a claims management officer to contact them by telephone in a single one hour period on 23 November 2005, prompted by instructions given by the second defendant’s solicitor on the previous day. Two of the telephone numbers (including that of McDonald) were disconnected, but others simply rang out, were switched off, or had incoming call restrictions at the time. There is no evidence of follow up calls. There was no telephone number for Mr Fotu (although his statement gives an address). Another witness indicated that he was not prepared to provide a statement and another, who was living at North Burleigh Surf Life Saving Club, left no contact details. No further attempts appear to have been taken to contact the witnesses or identify their whereabouts.

26. [26]
    The first defendant, for his part, claims to have lost contact with two witnesses, namely Mr McDonald and Mr Hemming, who were, at an earlier time, his employees. His attempts to find Mr Mcdonald has been limited to very recent enquiries of two other tow truck operators as to their knowledge of his whereabouts. Mr Hemming appears to be the same person for whom the second defendant has a telephone number^[6], but whose phone was switched off during the one hour period in which the second defendant’s claims management officer endeavoured to contact him.  Mr Maxwell admitted he has made no inquiries about Mr Hemming “at this stage.”^[7]

27. [27]
    The recent efforts of the defendants to contact witnesses have been limited and inadequate to support a finding that they cannot be found. The claim of prejudice fails at that point, but the defendants also do not appear to have taken reasonable steps to maintain contact with the witnesses it alleges are lost.

28. [28]
    The evidence of the first defendant, who was cross-examined on his affidavit, was that he lost contact with his previous employees soon after they left his employment in the first half of 2002. There does not appear to have been any arrangements made by him, at the time, to maintain contact for the purposes of their giving evidence at trial, even though, at the time, he could have had no basis for assuming that the mater would not proceed to trial or that their evidence would not be relevant.

29. [29]
    The second defendant’s affidavit material does not depose to any attempt to maintain contact beyond the 1-hour ‘ring around’ on one day, years after the initial investigations.

30. [30]
    I consider that the defendants have failed to place in evidence sufficient facts to lead me to the view that prejudice would be occasioned. I am also satisfied that if prejudice is suffered, by reason of an inability to call relevant witnesses, that is likely to be at least largely due to their apparent failure to take reasonable steps to maintain contact. In those circumstances there is no injustice or unfairness.

31. [31]
    I accept that the passage of time may have some effect upon the recollection of those witnesses who are called. That is perhaps more so in respect of those from whom the defendants did not take statements at an earlier time (but again, that is a matter to which they may have contributed by failing to take statements). The effect of the passage of time on recollection is relevant but not necessarily determinative.

32. [32]
    On the material, I am satisfied that any prejudice the defendants may suffer, by reason of the plaintiff’s delay, is not such as to cause injustice to them, should the action be permitted to continue.

33. [33]
    I am satisfied, on balance, having regard to all of the circumstances, that leave to proceed should be granted.