DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant was a medical practitioner at the Morayfield Medical Clinic on 3 December 2000. That morning, the plaintiff had suffered symptoms of a heart attack and attended at the Clinic. The defendant was busy and suggested that the plaintiff go elsewhere. The timing of the visit and the conversations which occurred at the Clinic are somewhat controversial. Later that morning, the plaintiff attended at the Narangba Clinic and was subsequently taken by ambulance to the Caboolture Hospital.  As a result of what was diagnosed as a heart attack, the plaintiff alleges that he suffered severe injuries and damage to his heart and that those injuries were exacerbated by the delay in getting treatment by the defendant in a timely way.

2. [2]
   Proceedings were commenced on 23 December 2003. An order was made by his Honour Judge McGill on 18 December 2003 pursuant to s 43 of Personal Injuries Proceedings Act 2002 (PIPA) but not served in accordance with the rules.  On 16 May 2008, an order was made to renew the claim for service in accordance with rule 24(2) of the Uniform Civil Procedure Rules 1999 (UCPR).  Also, the plaintiff was given leave to proceed in accordance with rule 389(2) and s 42(b)(ii) of PIPA.  Pursuant to the same order the plaintiff was required to serve the Claim and Statement of Claim by 23 May 2008.  The orders were made ex parte.  It is conceded that the application was properly before a judge pursuant to r 455(2).^[1]  The Claim and Statement of Claim were duly served.  It took some four and a half years to comply with the PIPA procedures, the compulsory conference being held on 17 March 2008 and the mandatory offer was made by the plaintiff on 27 March 2008.^[2]  Until then, the action was stayed^[3] by virtue of PIPA.

3. [3]
   The present application by the defendant seeks (pursuant to r 667(2)) to set aside the orders renewing the claim for service and leave to proceed. Notice was given by the defendant’s solicitors of an application to strike out the proceedings for want of prosecution as two years have passed since the last step was taken in the proceeding.^[4]  The defendant says that s 42(4) of PIPA is of no moment on the present application, as the proceedings were stale under r 24 and leave was required under s 389(2).^[5]  The present application is a hybrid situation as far as PIPA and the UCPR are concerned.  It provides an example of how the procedural rules of court are applied in relation to non-compliance with other legislation.^[6]  This case raises the issue as to whether a party may rely on delay under PIPA for the purposes of avoiding the consequences of non compliance with the UCPR.

The relevant rules

4. [4]
   The UCPR provides as follows:

[r 24]   Duration and renewal of claim

24(1) A claim remains in force for 1 year starting on the day it is filed.

3. (2)
   If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.

3. (3)
   The claim may be renewed whether or not it is in force. 

3. (4)
   …

[r 27]  Service of application

27(1) …

27(4) For an application not served as required by subrule (1) –

1. (a)
   …

2. (b)
   a person affected by the order may apply to the court for it to be set aside.

[r 389]   Continuation of proceeding after delay

389(1) If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.

3. (2)
   If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.

3. (3)
   …

[r 667] Setting aside

667(1) …

3. (2)
   The court may set aside an order at any time if –

1. (a)
   the order was made in the absence of the party; or

2. (b)
   …

Factual background

5. [5]
   Prior to the proceeding being commenced, an application was made pursuant to s 43 of PIPA. Such an application can be made where there is some urgency to commence proceedings notwithstanding the provisions of PIPA have not been complied with. An order was made in December 2003 prior to the expiration of the limitation period. The action was then stayed until there was compliance with the provisions of PIPA.^[7]  It is common ground that for the purposes of the UCPR, no step had been taken in the action by the plaintiff for over two years.  There was some four years and five months between the claim being made and the application to renew the proceedings and for leave to proceed.  A chronology is an exhibit^[8] and annexed to these reasons for convenience.  It is clear that the delay in complying with PIPA has not been adequately explained.^[9] 

6. [6]
   After the compulsory conference on 17 March 2008 and a rejection of the mandatory offer under PIPA, the application to renew the claim was made on 16 May 2008 and the Claim and Statement of Claim served on 21 May 2008. It would be fair to say that there have not been provided any adequate reasons for the significant delays between December 2003 and May 2008. In 2005, for example, the only step taken which moved the proceedings forward, was the provision by the plaintiff’s solicitors of a List of Documents to the defendant. There were other periods of four to seven months where no step was taken. One has to consider also the fact that the proceedings were commenced just within the limitation period. In the written submissions on behalf of the plaintiff, it is conceded that the proceedings have continued “at a relaxed pace with neither party being particularly vigorous in their attempts to expedite the matter”.^[10]

Prejudice

7. [7]
   The defendant contends that prejudice has been suffered. It is summarised in the plaintiff’s submissions^[11] as follows:

1. (a)
   the first is that the defendant has lost an alleged opportunity to obtain telephone records of the plaintiff’s (sic) from Telstra which apparently would have demonstrated that the plaintiff’s wife telephoned the Morayfield Medical Centre at a closer to 8:00 am on 3 December 2000, not about 6:45 am as set out in the Notice of Claim;

2. (b)
   the second is a vague reference to the fading memories of potential witnesses.

8. [8]
   The latter point raises indirectly the issue discussed in Taylor’s case.^[12]  This point has less relevance here as the medical notes allow the defence witnesses to refresh their memories and there is no evidence that they are not available.  It is convenient at this point to look at the factual matrix to test the validity of the prejudice point raised and which relates to the telephone call.  The affidavit of Ms Vanderaa states:^[13]

44. The significant delay by the respondent in progressing the matter has prejudiced the applicant’s defence of the matter.  The applicant sought to obtain a print out from Telstra of the outgoing local calls made by the respondent on the day of the incident.  On 16 January 2006 the respondent advised that these records were not available.  It is my experience that Telstra does keep records of outgoing local calls made for a period of time but they will not release these records without being served with a subpoena.

45. (sic) As the proceedings were delayed so extensively under the Act prior to court proceedings being commenced, the applicant has been unable to obtain these records and the respondent has now advised that the records are no longer available.

46. The telephone records are significant to the applicant’s case and it is anticipated they would have shown that the respondent did not call the clinic until after 8 am.  This is material to the applicant’s case as the respondent claims that he lost the opportunity to take advantage of earlier treatment.  

47. The applicant has also suffered prejudice with respect to the accuracy of witnesses’ recollection of events which would have faded over the course of the past seven and a half years.

9. [9]
   The last paragraph relates to the general delay aspect referred to in Taylor’s case.^[14]   As is conceded by the defendant,^[15] a request for this information was not made until later.  A subpoena could not be issued until the proceedings were commenced in court.  It is open to find that the delays by the plaintiff were likely to have contributed to the late application for the telephone records.  The plaintiff objects to the last sentence in paragraph 44 and all of paragraph 45 to “the respondent has now advised…”.  Those objections are allowed.  Any evidence should be obtained from Telstra to make it admissible.  In any event, the plaintiff says that the defendant’s solicitors had knowledge of the telephone call from the statement made 15 February 2001. 

10. [10]
    The plaintiff had not arranged to attend before 7:00 am on one version.^[16]  The plaintiff says that the defendant told him to go to a private hospital or call an ambulance at 8:10 or 8:14 am after his wife had told the doctor of his symptoms between the latter seeing patients.  In a statutory declaration dated 20 May 2004^[17] the plaintiff states that he arrived home from work between 6:35 and 7:00 am and arrived at the clinic at approximately 8:00 am.  The telephone call has some relevance in establishing what the defendant contends is that the appointment was not made until around 8:00 am.  The defendant’s case is that upon arrival at the clinic and interrupting a consultation, the plaintiff and his wife were told to go to the Caboolture Hospital which was 5 minutes away.  A note from the defendant^[18] states that the plaintiff arrived an hour early, barged in with his wife and told the defendant of the symptoms.  They were told to go to the Caboolture Hospital emergency section.  Given that the plaintiff’s case is that he was told to go to a private hospital at around 8.10, an hour before his appointment, it is of less relevant as to when the call was made.  The record of the call becomes less important.

11. [11]
    The present application is therefore, to be dealt with upon the premise that there has not been shown any such prejudice which prevents the defendant from running its case in an effective manner. It can be clearly distinguished from cases such as Muirhead v Uniting Church in Australian Property Trust.^[19]  However, some prejudice may flow from the lapse of time for the witnesses involved who may have to recall the detail which may not be discernible from medical notes or files.

Principles to be applied 

12. [12]
    In dealing with an application pursuant to r 24 of the UCPR, the court in Muirhead ^[20] stated:

3. (1)
   There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.

3. (2)
   The discretion may be exercised although the statutory limitation period has expired.

3. (3)
   Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.

3. (4)
   There is a wide and unfettered discretion and there is “no better reason for granting relief than to see that justice is done”.

13. [13]
    A point made in the IMB Group case ^[21] was that the discretion conferred by r 24(2) of the UCPR falls to be exercised in a context which includes r 5 which states the philosophy of the UCPR and which provides in effect that a party impliedly undertakes to proceed in an expeditious way.  That case referred to the public interest issue as to the timely disposition of litigation reflected in r 5(3).^[22]  Also, an application to set aside a renewal is “not an occasion for a determination of the merits of a claim”.^[23]  As Keane JA said:

Often, it will be difficult to come to a reliable view that a plaintiff’s claim is so strong that a serious injustice would result if it were not allowed to proceed.

As in the IMB case, that situation exists in the present case.  There was an observation by Williams JA after speaking of r 24 and prejudice^[24] in IMB that:

[24] Particularly where the limitation period has expired the relevant principles when considering whether or not to renew the plaint are no different from those which are relevant to an application to extend the limitation period or for leave to proceed when no step has been taken in the action for 12 months and the limitation period has expired.

In the present case, the application to strike out for want of prosecution raises the issue of the merits of the case as well as other factors required to be considered.  As was observed by the Chief Justice in Quinlan v Rothwell,^[25] where his Honour gave support to the decision in Taylor’s case,^[26] a more robust approach is taken in appropriate cases in exercising a discretion to strike out, particularly in light of r 5 of the UCPR.  Notwithstanding those comments, in that case there was limited prejudice and the action was ready to proceed to trial, an application to strike out was refused.  In the present case, the pleadings have not been finalised.  Over seven and a half years have elapsed since the plaintiff attended at the Clinic and spoke to the defendant.

Plaintiff’s prospects of success in the action

14. [14]
    There is a serious doubt that any delay by the defendant was a cause of the plaintiff’s ongoing medical problems. In the first instance, there was no delay at the surgery for which the defendant could be held culpable. On one view, which has considerable weight, the plaintiff was sent away soon after arriving at the clinic. The Caboolture Hospital was five minutes down the road.  The plaintiff elected to go to the Narangba Clinic which sent him by ambulance to the hospital.  In the second instance, the medical evidence is equivocal as to the cause of the plaintiff’s condition being exacerbated.

15. [15]
    The plaintiff’s history shows that his symptoms started at about 6:30 am. He arrived at the hospital at about 10:00 am. Dr Johnson, an expert cardiothoracic surgeon relied upon by the plaintiff, assumed that the plaintiff arrived at the clinic at 7:00 am. Taking that version which is most favourable to the plaintiff, Dr Johnson opined that:

In fairness your client’s heart condition was a serious one, not favourable for treatment because of extensive distal disease due to atherosclerosis in a number of his coronary arteries.  There can be no certainty that if fibrinolytic therapy had been administered within 2 hours of the onset of chest pain, lisis of the coronary blood clot would have occurred and reperfusion of the heart muscle would have been accomplished, but the chances would have been very much greater than when the fibrinolysis was administered 4 hours after chest pain onset.

Even if the fibinolysis had been successful, it is likely that the claimant would have had some recurrent chest pain and may well have still required either angioplasty or coronary surgery, but this would have been on an elective basis.

16. [16]
    Mr Diehm in his submissions^[27] attacks the factual matrix relied upon by Dr Johnson.  Another version is that the plaintiff did not arrive at the clinic until 8:00 am and that the chest pain started at 6:00 am.  The hospital record^[28] shows that chest pain started at 3:00 am and was woken by shoulder pain moving to the central chest at 8:00 am.  This accords with the defendant’s diary note referred to earlier.^[29]  The defendant’s first appointment was at 8:10 am and she was seeing a patient when the plaintiff and his wife entered her room.  The plaintiff had an appointment with a doctor at the clinic for 9:40 am.^[30]  He arrived at 8:29 am.  The defendant’s case is that had the plaintiff gone to the Caboolture Hospital immediately, it would have been a shorter time than taking an ambulance to Prince Charles Hospital. 

17. [17]
    Dr Galea, a cardiologist, expressed the opinion that the plaintiff’s condition would not have been materially different if he had gone straight from his workplace to the Prince Charles Hospital at 6:30 am.  A further report from Dr Johnson was to be obtained.  The defence contend that even if the evidence of Dr Johnson were to be accepted, it would be difficult to determine what loss the plaintiff has suffered as a result of any alleged negligence on the part of the defendant.  That submission has a strong basis in law and fact.  The plaintiff’s case is beset with difficulties.

Application to strike out

18. [18]
    The defendant relies upon the case of Quinlan v Rothwell ^[31] where Chesterman J refers to the decision of Keane JA in Page v The Central Queensland University:^[32] The latter stated that:

…the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial of his … claim.

Chesterman J added:

The reluctance is less where the claim is shown to be doubtful or proof of it beset with difficulties.  It is not possible, nor desirable, to reach any conclusion as to the probable outcome of the claim, should it proceed to trial.  Nevertheless the apparent strength, or weakness of a claim is a factor in the balancing exercise called for in the determination of an application to strike out an action for want of prosecution.  In those cases where the claim is, as I think this one is, doubtful, the factor assumes significance.

Even on the facts which are more favourable to the plaintiff, the likelihood of the plaintiff succeeding is somewhat doubtful.  Any assessment of damages would be beset with difficulties.

19. [19]
    Other factors to be considered were reviewed in Tyler v Custom Credit Corp Limited:^[33]

3. (1)
   How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced – the medical treatment complained of occurred in December 2000 and the proceedings were commenced in December 2003;

3. (2)
   …

3. (3)
   What prospects the plaintiff has of success in the action – the plaintiff’s case is beset with difficulties;

3. (4)
   …

3. (5)
   Whether or not there has been disobedience of Court orders or directions – the plaintiff was given leave to proceed under s 43 of PIPA in December 2003.  The action was stayed under s 43(3).  The requirements of the Act were not met until March 2008;

3. 6)
   Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant – the onus was on the plaintiff to comply with the requirements of PIPA; 

3. (7)
   …

3. (8)
   Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim – it would be concluded;

3. (9)
   How far the litigation has progressed – a conditional notice of intention to defend was filed on 17 June 2008;

3. (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 be.  Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers – there is no affidavit from the plaintiff.  One might assume that the action has proceeded at the leisurely pace due to his solicitors’ indolence.  However, absent an explanation by the plaintiff for the delay, it is a factor to be taken into account;^[34]

3. (11)
   Whether there is a satisfactory explanation for the delay – there is no satisfactory explanation for the delay;

3. (12)
   Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial – there has been no prejudice established other than the type of prejudice referred to in Taylor’s case:^[35]

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions.  But it is not the only one.  Courts and commentators have perceived four broad rationales for the enactment of limitation periods.  First, as time goes by, relevant evidence is likely to be lost.  Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which give rise to it have past.  Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.  Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liability beyond a definite period.^[36]

The threat of litigation hanging over the head of a professional person cannot be underestimated.  The requirements of the professional indemnity policies relating to disclosure have to be met.  It will be relevant to the risk under the policy and can be reflected in premium levels.^[37].

20. [20]
    The plaintiff may have his rights against his solicitor for the delay. That is a factor to be taken into account. If the plaintiff’s conduct has not contributed to or caused the delay, he may well have a cause of action against his solicitors. In Allen v Sir Alfred McAlpine & Sons Limited,^[38] Diplock LJ stated:

As regards the position of the plaintiff it is of course unfortunate that he, though personally blameless should suffer for the default of his agent.  But if he does, he is not without a remedy, for unless he himself has caused or consented to the delay which has resulted in his action being dismissed for want of prosecution, he will have a right of action against his solicitor for negligence.  Liability for professional negligence is a risk against which most solicitors insure.  Delay which justifies dismissal of an action for want of prosecution, as distinct from dismissal for disobedience to a peremptory order of the court is ex-hypothesi so prolonged that it involves a serious risk that there will not be a fair trial of the issues.  If the action nevertheless proceeds to trial, injustice may be done to the plaintiff as a result of the solicitor’s default but there will be no practicable remedy available to him.  On the other hand if the action is dismissed, the plaintiff in a subsequent action for negligence against his solicitor can recover in addition to the costs of the action which has been dismissed, compensation for the loss of his chances of recovering damages against the defendant in the dismissed action had it been properly conducted on his behalf by the solicitor (emphasis added).  It is true that if the action for professional negligence were fought, the court which tried it would have to assess what those chances were.  But on this issue the plaintiff would be in a much more advantageous position than if he had sought, despite the inordinate delay, to establish liability against the defendant in the action which had been dismissed.  

This principle was referred to in Tricon Industries Pty Ltd v Abel Lemon & Co Pty Ltd ^[39] as was the passage from Taylor’s case.^[40]

Conclusions

21. [21]
    The plaintiff has failed to show any good reason why he should be given leave to proceed under r 24. There has now been compliance with PIPA but after the lapse of some four years and three months after leave was given to proceed under s 43. The long periods of delay in taking steps under PIPA have not been adequately explained. It has resulted in a need to renew the claim. It has also resulted in the need for leave to proceed. In relation to the latter, the prospects of success loom large. The plaintiff’s claim is beset with difficulties, both on liability and quantum.

22. [22]
    Some effect should be given to s 4 of PIPA and r 5 of the UCPR that actions proceed expeditiously. This has not occurred in the present case. Any prejudice due to the delay is probably limited to the general statements in Taylor’s case.^[41]  Some effect has to be given to that principle in the appropriate case.  In my view, this is one of them.  The plaintiff may seek further redress against his solicitors if there is some basis for the delay being peculiar to them.

Orders

1. The ex parte orders of her Honour Judge O'Sullivan made on 16 May 2008 are set aside.

2. The proceedings are dismissed for want of prosecution.

3. Liberty to apply on costs.

Annexure A

Chronology