Milford v Taylor & Cook Rentals
[2008] QDC 21
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- Unreported Judgment
- Milford v Taylor & Cook Rentals[2008] QDC 21
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Milford v Taylor & Cook Rentals[2008] QDC 21
Milford v Taylor & Cook Rentals[2008] QDC 21
DISTRICT COURT OF QUEENSLAND
CITATION: | Milford v Taylor & Cook Rentals & Ors [2008] QDC 21 |
PARTIES: | DAVID MILFORD (Plaintiff) v TAYLOR & COOK RENTALS (First defendant) and STEWART BRUCE MCBRIDE (Second defendant) and JANELLE LEE WHITE (Third defendant) |
FILE NO/S: | BD 3304 of 2007 |
DIVISION: | Civil |
PROCEEDING: | Application by defendants in stayed claim for striking out of proceeding or dismissal for want of prosecution |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 22 February 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 January 2008 |
JUDGE: | Robin QC DCJ |
ORDER: | Plaintiff to comply with certain requirements under the Personal Injuries Proceedings Act 2002 within two months failing which proceeding is to be dismissed |
CATCHWORDS: | Personal Injuries Proceedings Act 2002 s 22, s 43 – Uniform Civil Procedure Rules r 171, r 280 – personal injuries claimant not able to be contacted – his solicitor on presumed instructions obtained s 43 leave to commence a proceeding – whether proceeding could be struck out or dismissed for want of prosecution for failure to satisfy s 22 requirements |
COUNSEL: | Telford for applicant defendants M Cooper (solicitor) for respondent plaintiff |
SOLICITORS: | Jensen McConaghy for applicant defendants Michael Cooper Lawyer for respondent plaintiff |
Reasons for Judgment
- [1]These reasons explain what happened in court on 31 January 2008 and my addition to the orders discussed then of liberty to apply.
- [2]The claim and statement of claim which the named defendants apply to have struck out under rule 171 of the UCPR or dismissed for want of prosecution under rule 280 were filed as recently as 19 November 2007. This occurred in relation to a claim within the Personal Injuries Proceedings Act 2002 (PIPA) with the authorisation of an order under s 43. These are reasons for the order made by me on 31 January 2008 in terms of an initialled amended draft to which should be added “Liberty to apply”. It is convenient to adopt the chronology and background set out by the named defendants’ (applicants’) counsel, Mr Telford:
“Chronology
18 November 2004 Date of alleged accident
1 August 2005 Applicant delivers Form 1 Notice under the PIPA
31 January 2006 Solicitors previously acting for the Applicants request particulars of the Respondent’s claim. Despite numerous follow up letters, these particulars have never been provided.
15 November 2007 An Order is made by McGill SC DCJ pursuant to section 43 of the PIPA allowing the Respondent leave to commence an action in the District Court seeking personal injury damages. This was 3 days before the limitation period was due to expire. There was no material sworn directly by the Respondent in support of the Application. Instead, the Affidavit in support was sworn by the Respondent’s solicitor.
29 November 2007 The Applicant’s solicitor was told by the Respondent’s solicitor that the Respondent’s solicitor did not know where the Respondent was and had not had contact with him for some time.
10 December 2007 The Applicant’s solicitor sends a letter to the Respondent’s solicitor pursuant to UCPR 444.
18 January 2008 Application filed herein.
Background
- The Respondent was born on 6 May 1969. He is presently 38 years old.
- The Respondent’s claim is for personal injury damages arising out of an incident which occurred on 18 November 2004 while the Respondent was renting property owned by the Second and Third Respondents. On that date he says that he was attempting to start a pool pump. He touched the plug which was live and he suffered an electric shock and other personal injuries when he jumped into an adjacent garden to “break the circuit”.
- According to his Statement of Claim, the Respondent suffered the following injuries:
(a) An electric shock injury; and
(b) An injury to his left shoulder.
- No particulars of the injuries are contained in the Statement of Claim. It is submitted that the Statement of Claim does not comply with UCPR 150 in that claims for damages including special damages are not particularised.
- According to his Notices delivered pursuant to the PIPA, at the time of the incident, the Respondent:
- (a)Did not call nor receive treatment from the Queensland Ambulance Service;
- (b)Attended the Beaudesert Hospital although was not admitted. No written report was obtained in relation to his treatment. The clinical records indicate that following his examination, the Respondent was told to return the following day if he was not back to normal. There is no evidence of the Respondent returning for further treatment. According to his Medicare claims history, he attended on his GP on only 3 occasions – 19 November, 24 November and 7 December 2004.
- (c)Was employed as a sheet metal worked and required six weeks off work. He estimates his lost income at $4,920 however investigations have showed that the Respondent lost his employment in December 2004 for reasons unrelated to the accident.
- (d)Conceded that he was no longer losing income when he declared his Part 2 Notice on 7 October 2005 (less than 12 months after the date of accident) although seeks future economic loss in his Statement of Claim;
- (e)Had a kidney removed in May 2005 due to a renal cell carcinoma – less than 6 months after the date of the accident.
- The Respondent has not delivered any expert reports in relation to either quantum or liability. Notwithstanding the passage of 3 years and 3 months since the date of the accident, it is not apparent that the Plaintiff has ever sought to be examined by a doctor for medico-legal purposes.
- The Respondent has made no disclosure relevant to his claim for the last 2 years. Solicitors for the Applicants have expressed in correspondence a desire to progress the claim to Compulsory Conference, although cannot do so in the absence of proper disclosure and the provision of full particulars by the Respondent.
- It appears that all attempts to contact the Respondent by his own solicitor have been unsuccessful.”
- [3]Judge McGill’s order authorising the proceeding was made in originating application BD 3234 of 2007. It incorporated the customary stay of the proceeding authorised “until the Applicant complies with Part 1 of Chapter 2 of the Act”. At one point, Mr Cooper, representing Mr Milford, respondent in the current application, contended that that application should not have been made in the stayed proceeding but as a separate originating application. He did not seriously put that up as a basis for refusing it or seek to avoid the contest, in which the defendants seek to be rid of Mr Milford’s claim. It is doubtless bothersome to them (and would be even more so were it not an insurance matter).
- [4]The claim does not appear to be going anywhere so long as there is no contact with Mr Milford possible. His solicitor Mr Cooper last had contact on 15 December 2006 when he took instructions in relation to “particulars” requested in respect of which he prepared a draft. The “particulars” would be “information” within s 22 of PIPA. Mr Milford has never been available to verify them by statutory declaration as may be (and has been) required under subsection (7). The statutory sanction provided in subsection (8) is in terms of costs.
- [5]While it is undesirable for a claimant or plaintiff to disappear for a lengthy period (Mr Telford noted it was inconsistent with the “philosophy” in rule 5), so that a matter cannot be advanced, much depends on the particular circumstances and a court should strive to avoid curtailing or effectively terminating Mr Milford’s rights on the basis of his being uncontactable for a period barely in excess of a year to this point. There is also something odd about dismissing a claim as recent as the present one for want of prosecution, a fortori where it is the subject of a stay. Rule 280 adopts “want of prosecution” as a basis for dismissing a proceeding where a plaintiff or applicant fails to do things within time.
- [6]While I contemplated at the hearing that there might be dismissal for want of prosecution, in the circumstances of this matter, I concluded it was preferable not to adopt that basis expressly. There has not yet been offence to rule 280. There is potential for the proceeding commenced in the name of Mr Milford to be struck out under rule 171(2) by reference to there being a tendency to prejudice a fair trial, under sub-rule (1)(b) or be unnecessary under (c), vexatious under (d) or an abuse of process under (e). This is because in commencing the proceeding (as in commencing and pursuing the originating application before Judge McGill) Mr Cooper acted without instructions. This court is in no position to pronounce on the rights and wrongs of that. As matters now stand, it may be seen as commendable that Mr Cooper, when his strenuous efforts from 14 September 2007 to contact Mr Milford proved unavailing, proceeded to protect the client’s interests by acting on presumed instructions to do what was appropriate to protect Mr Milford’s interests in the circumstances. Mr Cooper would appear to have protected Mr Milford’s interests, and himself against assertions of breach of a duty, at the same time taking a risk that Mr Milford might dispute responsibility for what was done, in relation to the costs, which include significant court filing fees.
- [7]The PIPA claim has not advanced. Mr Cooper is in a position to provide the “particulars” requested, but not verified by statutory declaration. He cannot presume instructions to attend a compulsory PIPA conference or to make or accept any offer for PIPA purposes. It has become vital to locate the client. Invited to nominate a time within which that can be achieved for purposes of the PIPA procedures, which may be the subject of mandatory orders by the court, Mr Cooper modestly (I thought) proposed two months, which I determined to allow, specifically in relation to s 22 requirements. I determined it was appropriate to introduce a “guillotine” aspect if there was non-compliance within that time. Reflection led me to think it in the interests of justice to provide for liberty to apply, perhaps to obtain some extension of time, should the guillotine order prove unexpectedly draconian for some reason. The probabilities of the situation are that, if the professional assistance enlisted by Mr Cooper now does not flush out Mr Milford, it would be reasonable to regard the proceeding, with hindsight, as offending rule 171 in one or more of the respects indicated, because commenced (or kept on foot) without instructions.
- [8]In relation to costs, Mr Cooper tendered correspondence tending to indicate that the present applicants (who have failed in freeing themselves of the proceeding immediately) might have avoided the incurring of certain costs. Exhibit 3 contains an estimate of costs, almost all of which represents counsel’s fees. Invited to fix the costs, I settled on a figure somewhere in the middle of the parties’ suggested figures, which the applicants accepted, rather than face the cost and uncertainties of assessment. The way in which the costs order is intended to work is to give the applicants half of the sum fixed in any event, to give them the other half if the default provisions in A of the order come into effect after two months. Costs have been saved by the applicant’s proceeding in the “stayed” action, which I regard as a permissible and sensible course in the circumstances.
- [9]The order is:
“A: THE ORDER OF THE COURT IS THAT: David Milford comply with the requirements of the letter of Carter Newell Lawyers of 31 January 2006, Exhibit 4 to the affidavit of James Robert O'Brien filed 17 January 2008 including provision of information verified by statutory declaration on or before 1 April 2008, failing which:
- Pursuant to section 36(5) of the Personal Injuries Proceedings Act 2002 (Qld) (“the Act”) the Court dispense with the obligation of the parties to participate in a compulsory conference;
- Pursuant to section 40(9) of the Act the Court dispense with the obligation of the parties to make mandatory final offers;
- Pursuant to section 43(3) of the Act the Court lift the stay which applies to proceeding No 3304/07 filed in the Brisbane District Court Registry on 19 November 2007; and
- The Respondent’s Claim and Statement of Claim in proceeding No 3304/07 filed in the Brisbane District Court Registry on 19 November 2007 be dismissed and the plaintiff pay the defendants’ costs;
B: Fix the costs of the Applicants in the sum of $3,700 and order that the Respondent pay half of those costs in any event, enforcement to be stayed until completion of this proceeding.”
C: Liberty to apply.
(The italicised parts are my work, the balance Mr Telford’s suggested draft.)
- [10]It might be mentioned that Mr Telford submitted the court could be relaxed about striking out the proceeding, even if Mr Milford were at some later stage to appear on the scene wanting to pursue his claim, because s 59(2)(b) of PIPA would be available. It may be doubted whether he would be able to come up with an explanation for delay to satisfy the test in Spencer v Nominal Defendant [2007] QCA 254.