McEnearney v Coggin[2006] QDC 33

[2006] QDC 033

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 6067 of 2001

BRISBANE

DATE 02/02/2006

ORDER

CATCHWORDS:  Uniform Civil Procedure Rules r 389 - plaintiff granted leave to proceed after delay, notwithstanding defendant's possibly being prejudiced by failing recall of conversations about 1998 regarding risks of orthodontic treatment - defendant's files still available.

HIS HONOUR:  There are before the Court the now customary cross-applications whereby the plaintiff seeks leave to proceed after delay of more than two years under rule 389, and the defendant seeks the striking out of the claim for want of prosecution. The plaintiff's application came first, being filed on the 7th of December 2005. The leading case is the Court of Appeal decision in Tyler v Custom Credit Corporation Limited, [2000] QCA 178, in which the leading judgment, at paragraph [5] is as follows: 

"The onus is on the applicant for striking out the plaintiff's action for want of prosecution to show that the matter should be struck out. On an application for leave to proceed, the applicant for leave must 'show that there is good reason for excepting the particular proceedings from the general prohibition' in a case in which three years have elapsed from the time when the last proceeding was taken. The rationale of the rule requiring leave to proceed after a long delay is to prevent abuse of process. The Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay." 

The quote within a quote comes from a judgment delivered in relation to other rules and at a time when the benchmark for delay necessitating leave for a new step to be taken was three years - it is now reduced to two (which from one point of view shows the importance which is, in the modern era, attached to plaintiffs pursuing their claims diligently).

The consequences of delay for the unfortunate defendant should not be overlooked and Ms McClymont, in the course of her submissions, has drawn attention to what McPherson JA said in Cooper v Hopgood and Ganim, [1999] 2 Queensland Reports 113, at 124 in relation to the entitlement of people in the community to get on with their lives and "plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated."

Mr Coggin's difficulties are exacerbated by his being uninsured. The complaint made against him relates to a course of orthodontic treatment over a period in excess of a year leading up to the 8th of December 1999. The plaintiff instituted her claim on the 20th of December 2001, at a stage when she was still undergoing protracted further treatment which, from her point of view, was corrective treatment. The ultimate result was then unknown and, indeed, may still be unknown.

The defendant was not served with the proceeding until the 2nd of May 2002. Thereafter, the plaintiff has done little. A request for further and better particulars of the statement of claim, delivered within a month of service, was not responded to until September 2002, after a "rule 444 letter". There was delay of greater proportions - nearly a year - in the provision of documents which had been relied on by Dr Squires, an expert in the field, who provided a medico-legal opinion. There remained a failure to make available to the defendant dental moulds which the plaintiff had in her possession.

In June 2003, the defendant filed an application seeking provision of those moulds and also requested provision by the plaintiff of a statement of loss and damage, and a list of documents. A consent order was made in the Court on the 1st of July 2003 for production of the moulds. Three days later, the defendant renewed its request for a statement of loss and damage, and four days after that he served his list of documents. That is the last step taken in the proceeding for purposes of rule 389.

There followed within the month an exchange of correspondence about the statement of loss and damage, and lists of documents, the plaintiff's solicitors advising on the 30th of July 2003 that within 28 days the statement would be forthcoming. It was not forthcoming. On the 8th of July 2005, notice was given on behalf of the plaintiff of intention to take a step in the action. The defendant's response was that leave of the Court was required, given the dimensions of the delay. This application was filed some months later. The filing appears to have been a reaction to the defendant's declining to accept the statement of loss and damage proffered at that time because of its lateness.

The factors for consideration by the Court appear in Tyler in paragraph [2]. There are a dozen of them. As Cullinan J said in Costello, [2005] QSC 160, the Court is required to undertake a balancing exercise. Mr Egan for the plaintiff takes comfort from that case, which has factual similarities with the present; the plaintiff was successful.

Ms McClymont contends that the outcome should be the one indicated by Judge McGill's decision in Gilbert v. Minister for Emergency Services, [2002] QDC 32, where there had been a four and a-half year delay in a seven and a-half year old claim for damages for personal injuries. The Judge noted considerable efforts by the defendant to push the action along which had been ignored. The plaintiff's rule 389 application failed. Of course, there is no such thing as a governing or even indicative precedent in a context like the present. The case has to be decided on its own merits.

Any attempts by the defendant to advance the matter came to an end in July 2003. Of course, it is not the defendant who bears responsibility to keep the proceeding progressing. He was entitled, as any defendant is, to sit back and hope that things might develop or fail to develop in such a way that the claim would go away. The defendant has never sought to inspect the dental moulds, notwithstanding the consent order made in the Court in that regard on the 1st of July 2003.

Mr Egan says that, if the defendant had done something about that or anything else to advance the action, it may well be that the plaintiff would have been more active herself. That is possibly correct enough, but should not distract one from the proposition that the responsibility for advancing her proceeding is the plaintiff's. She accepts personal responsibility for the delay which has happened and does not seek to blame her legal advisors. She concedes that she has been dilatory in response to requests for instructions, documents and information from her.

She presents a lay self-diagnosis of depression, owing much to the protracted orthodontic treatment she has been undergoing which, she says, has involved in excess of 100 attendances. The costs of it has produced financial pressures for her, making it more difficult to fund her claim. She is on her own in life and in meeting her financial obligations, and says that her psychological state is much influenced by unhappiness at the appearance of her teeth which, in her appreciation of things, impairs her ability to earn in her chosen sphere and to attract a life partner.

Ms McClymont was dismissive of the plaintiff's assertions. I am less inclined to be so. Dr Squires' reports indicate that, from the orthodontic point of view, there is not only a case which is fit for consideration by the Court, but a basis for her concerns.

She offers, through Mr Egan, an undertaking to pursue her claim expeditiously from now on if she gets leave to proceed. I think the Court ought to note such undertaking - which would assist the defendant's situation, should leave to proceed be granted, by offering the possibility of use of Rule 374 as a disciplinary measure. It may lead to the claim being struck out if the plaintiff fails to comply with orders that things be done within particular times. So far as it may be up to me, I think the plaintiff, in these circumstances, ought to be subjected to strict time limits and held to them, barring extraordinary circumstances.

Apropos the dozen factors listed in Tyler the question of prejudice to the defendant is highly important. It is accepted that he remains possessed of all his files. The potential difficulty that is pointed to relates to the recall which will be available to him of conversations with the plaintiff in the late 1990's. In his defence, which has not attracted a reply, the defendant asserts that contrary to the plaintiff's claim he gave her appropriate warnings of the risks attending the treatment he was proposing to supply. In the absence of a reply the plaintiff may find herself saddled with some kind of admission of the defendant's assertions. A reply, according to Mr Egan, is desired to be delivered. He says seven days will be sufficient to prepare it. That information indicates that the defendant is faced with some change in the parameters of the case, and it may be productive of delay and take some of the force out of the plaintiff's assertion that the matter is now ready for trial.

The balancing exercise which I have referred to leads me to the conclusion that the plaintiff ought to have the leave which she seeks. In my opinion the effect of Rule 389 is not to apply a more or less, automatic striking-out to a proceeding which is attended with unacceptable delay. The purpose of it is to ensure that where there is delay of concerning proportions the claim is not allowed to proceed unless the Court, having devoted appropriate consideration to the matter, thinks that it ought to be.

There's a hurdle placed in the plaintiff's way which a plaintiff may or may not be able to surmount. The prejudice which Ms McClymont mentions is a theoretical concern but I am not persuaded that the Court should give effect to it. I propose the following order, as to which I invite the parties' comments, particularly Mr Egan's, in relation to the terms of the undertaking incorporated in it.

On the plaintiff, by her counsel, undertaking to prosecute her claim expeditiously and without limitation to comply with all relevant times in the Rules, and to co-operate with reasonable and proper requests from the defendant or his solicitors, order that the plaintiff have leave to proceed under Rule 389 notwithstanding delay. Order that the plaintiff file and serve a reply on or before the 9th of February 2006. Order that the plaintiff pay the defendant's costs of the application.

It would seem to follow that on the defendant's application the order should be that it be dismissed. Mr Egan concedes that the proper order for costs is that the plaintiff pay the defendant's costs of his application.

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There is a change to the undertaking. The plaintiff undertakes to prosecute her claim expeditiously and will, in particular, use her best efforts to comply with the Rules and with the reasonable requests, etc.

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