Boyd v State of Queensland[2008] QDC 208

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an application by the plaintiff for leave to proceed pursuant to rule 389(2) of the Uniform Civil Procedure Rules.  The defendants have each applied for an order that the plaintiff's claim against them be dismissed for want of prosecution.  The success of these applications depends on the outcome of the defendants' application for leave to proceed.

The plaintiff's claim is for damages for personal injuries and loss suffered by her when she stepped into a depression in a footpath on the Gold Coast and fell heavily on 9 November 2001.

The limitation period has expired.

The relevant chronology is:

Nothing happened for almost two years between 29 July 2005 and 30 May 2007 and for almost one year preceding the plaintiff's application.  The plaintiff's solicitor explains the situation this way, in his affidavit filed on 1 August 2008:

“12. It was my intention from the close of the pleadings in this matter and the subsequent service of the plaintiffs statement of loss and damage to attempt to resolve this matter through the use of an alternative dispute resolution procedure namely, mediation.  My intent was to attempt to resolve the proceeding on this basis to minimise the incurrence of legal costs to the plaintiff by avoiding trial costs.

Reason for the Delay

13. As a consequence of this desire to proceed to attempt to resolve the matter through mediation I did not take a step in accordance with the UCPR to progress the proceeding within a period of two (2) years.
14. It is the case that is was my inattention to this file, which was due to an administrative oversight on my part in the busy conduct of a personal injury and insurance practice comprising in excess of 700 files that I managed on a daily basis".

Mr Pope, counsel for the plaintiff, puts it this way in his outline of argument:

"5.3 The plaintiff admits that it has been dilatory in its progression of this matter due to the administrative inadvertence of its Solicitor.

5.8 The Plaintiff acknowledges that due to the administrative error of its Solicitors that the litigation has stalled.

5.10 It is clear from the Affidavit of Daniel Osvaldo Meneghello that the Plaintiff did not take a step in the proceeding due to the administrative oversight by the Solicitor conducting the matter due to the fact that he has such a large personal injuries practise comprising 700 files.  Whilst Mr Meneghello acknowledges that it was his administrative error and/or oversight, the fact remains that he still attempted in May 2007 to take an informal step to try and resolve the proceeding through the offer of voluntary mediation.  As can be seen from Mr Meneghello's Affidavit his approach has been to attempt to minimize the party's costs by the use of an ADR procedure, although unfortunately this strategy has not succeeded to the extent of having the parties participate in mediation at this point in time".

The defendants primarily submit that the plaintiff has not satisfactorily explained the delay; that the delay is due solely to dilatoriness on the part of the plaintiff's solicitor and that there is no explanation at all by the plaintiff in relation to what she herself was doing, if anything, to progress the action or keep informed about its progress or monitor what was happening.  No affidavit has been filed by the plaintiff herself.

The plaintiff does not contend that any delay is attributable to the defendants.  The plaintiff submits that her cause of action has reasonable prospects of success, that the matter is well advanced in the litigation process and that the defendants would not be prejudiced were leave granted.

In her written submissions, Ms Philipson, counsel for the first defendant makes the following points which I think are of some substance:

“15. If the plaintiff's solicitor had a busy personal injuries practice he ought to have been aware of the obligations under the UCPRs and his duty to regularly monitor compliance with the Rules and progress of the matter.

16. The plaintiff also had an obligation to keep in touch with her solicitors and enquire about the progress of her matter but there is no affidavit from the plaintiff in relation to the delay.

17. There has clearly been lengthy and unjustifiable delay in prosecuting the matter on behalf of the plaintiff.

Progression of litigation

23. The litigation, in effect, has not progressed past initial pleadings and there has not even been disclosure by the plaintiff and is still at a relatively early stage.  The action is not ready for trial and the plaintiff would have to be examined by independent medical experts for the purposes of expert witness reports.

Prejudice

24. The first defendant cannot specifically point to any prejudice save for the presumption that substantial delay in bringing or prosecuting an action will give rise to prejudice and will substantially reduce the chances of a fair trial (Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 at 551).  That presumption is particularly relevant if liability is in issue as it is here.  That said, whilst the first defendant cannot point to any specific prejudice, there would undoubtedly be a dimming of recollection because of the passage of time".

In his written outline of argument, Mr Howe, counsel for the second defendant, makes similar submissions as follows:

“30. The Second Defendant submits that the delays are entirely attributable to the Plaintiff.

31. It is not for either of the Defendants to pursue the Plaintiff's action.

32. The Second Defendant submits that at no time on or after 16 July 2007 has the Plaintiff made any attempt to take a further formal step to have this matter proceed to trial, or to mediation and it is further submitted that other than one attempt on 30 May 2007 to discuss mediation, the Plaintiff has not taken any significant steps to advance the matter towards a resolution.

36. The Second Defendant has completed disclosure.

37. The Plaintiff has failed to provide disclosure.

38. The Plaintiff's lawyer admits to dilatory practice.

39. The Second Defendant submits that the only explanation for the Plaintiff's delay is the failure by her solicitor to make [sic] any formal step in the action since 29 July 2005, or to take any step whatsoever since that time, other than a single attempt on 30 May 2007. ²⁶

²⁶ As per para. 10 of Mr Meneghello's affidavit filed on 1 August 2008 - the affidavit mentioning no other attempt to progress the matter taken by the Plainfiff.

The Plaintiff has not sworn an affidavit and there is no evidence, direct or indirect, as to the Plaintiff's conduct in the matter.

40. It is the Second Defendant's submission that the Plaintiff has failed to provide a reasonable or satisfactory explanation in [sic]delaying the resolution of this matter and in particular:

1. (a)
   Has failed to provide any explanation as to why the Plaintiff herself has not taken any steps to resolve the matter or to put it another way has failed (given she has given no explanation for the delay or endeavoured to progress the matter or follow up the matter) to give a good reason to except the proceedings from the general prohibition in Hood v. State of Queensland. ²⁷

²⁷ [2003]QCA 408 at 41.

2. (b)
   Has not provided any explanation as to why the Plaintiff has failed in its implied undertaking to the Court to proceed in an expeditious way;

3. (c)
   Has not provided an explanation as to why, after 30 May 2007, the Plaintiff took no steps to satisfy the requests of the Second Defendant to ensure participation of the First Defendant in mediation;

4. (d)
   Has not established what the Plaintiff did herself in regard to having her solicitors pursue resolution of the matter (if anything).

41. In all the cases it is a significant fact that the Plaintiff has taken no steps to ascertain the progress of the action.²⁹

²⁹ Kelly v. The Director, General, Department of Transport & Ors [2004] QSC 177, Murishan Pty Ltd v. Townsville Broadcasters Pty Ltd [2004] QDC 088, Natissia Piazza v. Geary & Ors [2003] QSC 419, Graham Cavanough v. Commonwealth of Australia [2000]QSC 068; Allen Leonard Hall v. RH & CE McColl Pty Ltd [2007] QCA 182; Leeglade Pty Ltd v. Cairns City Council [2007] QSC 260; Hood & Anor. v. State of Queensland & Ors [ 2003] QCA 408 and Hsu & Ors v. Wang & Ors [2004] QSC 324.

46. The Plaintiff has admitted a failure to make disclosure. Disclosure may require the Second Defendant to obtain further evidence - which due to the elapsed time, may now no longer be in existence.

47. The Second Defendant submits that whilst it is aware of the Plaintiff's case, with pleadings having been closed, relevant evidence may now be unavailable, due to the significant delays that have occurred.

48. It is further submitted that whilst the Defendants may be prejudiced by the Plaintiff's delays, the Plaintiff would not necessarily be prejudiced if her action was struck out, noting the admitted failures by her solicitor to progress the matter".

For present purposes I am prepared to accept that the plaintiff's prospects of success are not unreasonable (Ms Philipson said on the material before the Court they couldn't be determined and Mr Howe said that for the purposes of this application it would be difficult to treat this as a decisive factor), that notwithstanding the dilatoriness of the plaintiff's solicitor the action is reasonably well advanced but not ready or virtually ready for trial(it would be ready, Mr Pope submitted, in a short period of time) and that the defendants will suffer no prejudice beyond that associated with the grant of leave should the plaintiff succeed in her application.

Beyond these it is difficult to conclude that a sufficient basis has been established to accede to the application. 

The plaintiff's solicitor's explanation is not satisfactory;  being a busy solicitor with a lot of files is not enough.  To adopt the words of Mr Howe during argument, "the scant explanation here is not enough." 

Mr Pope also conceded during argument that the plaintiff's solicitor's explanation for his dilatoriness is "not really satisfactory other than the fact that he's got 700 files and is doing too much".  He further conceded that "if you accept that he's been dilatory, it's hard to come up with a satisfactory explanation".  In the circumstances these concessions were properly and correctly made.

Just as it is "not good enough" for counsel "simply not to attend to a brief because of pressure of other work" it is not good enough for a solicitor to do likewise (see Hsu v. Wang & Ors at paragraph [38].

The plaintiff herself is silent as to her position.  This is not a case where the plaintiff can point to attempts to progress the matter notwithstanding the dilatoriness of her solicitor.  In this respect I agree with what Wilson J. said in Hsu v Wang & Ors at paragraph [40]:

"A client has a duty to give his legal representatives full instructions, not just at the outset of a proceeding, but as required to progress that proceeding through the interlocutory phases and trial.  He has an obligation to keep in contact with his solicitors and to ask as to the progress of the proceeding where there has been no communication or where there have been other circumstances which would put a reasonable person on inquiry".

The circumstances here are such that it is difficult to absolve the plaintiff of personal responsibility for the delay.  She has apparently sat by and allowed her solicitor to do nothing or very little to carry the action forward, see Bendeich v. Clout [2003] QDC 305 at paragraph [42] per McGill SC DCJ.  In this respect Mr Howe referred to the implied undertaking by a party to proceed in an expeditious way contained in rule 5(3) of the UCPR.

Notwithstanding that her solicitor appears to accept full responsibility for the delay there is still an obligation of the type referred on the plaintiff herself and if she is remiss in satisfying that obligation she must share the blame for what has happened.

For these reasons I am not satisfied that the plaintiff has shown that there is good reason for granting leave to proceed.  The delay has not been satisfactorily explained.

In these circumstances the plaintiff's application for leave to proceed will be dismissed.  The application of each defendant will be granted and the proceeding will be dismissed for want of prosecution.

In the case of each application the plaintiff is to pay the defendants' costs of and incidental to the application to be assessed on the standard basis unless agreed.