DISTRICT COURT OF QUEENSLAND

1. [1]
   Kyle Gibb was injured in a motor vehicle accident which occurred two days short of his fourth birthday. He was the passenger in a motor vehicle driven by his father when, it is collided with a taxi. In 1993, through his mother, then his next friend, he commenced proceedings against the driver and the insurer claiming damages for personal injuries caused by the driver’s negligence. By early 1999 the proceedings had fallen into abeyance. The defendant applied to strike out the proceedings for want of prosecution. The application was adjourned without argument and Mr Gibb, then still a child, was ordered to attend upon Dr Reed for examination. No further step was taken in those proceedings.

2. [2]
   On the 15^th July 2008, five days before Mr Gibbs turned 21 and the limitation period expired for his cause of action expired, a second action was commenced (1917/08). The first proceedings were extant, although Mr Gibb, his mother and Mr Gibb’s solicitors (or at least some of the firm’s employees) thought they had been terminated.

3. [3]
   After filing its defence, the defendant applied to strike out the second proceedings on the ground that it is an abuse of the process of the Court. This prompted an application by Mr Gibbs for leave to proceed in the 1993 proceedings. At the hearing counsel for the parties engaged in a skirmish about which application should be heard first, both perceiving a tactical advantage for their client if it were dealt with first. I heard argument on both applications and they are dealt with here together. To do otherwise would ignore the fact that substance of each party’s argument is the same for each. Mr Gibb wants to be able to prosecute his claim in this court. The defendant seeks to hold him out due to his inordinate delay and non-compliance with a court order. The questions these reasons address are:

1. Given the history of litigation between the parties, should Mr Gibb be able to proceed with his claim for damages for personal injuries? And

2. Given the existence of two proceedings claiming the same relief, what orders should be made to give effect to that decision?

Should Mr Gibb be able to proceed with a claim for damages for personal injuries?

4. [4]
   There is no controversy about the considerations that bear upon the exercise by the court of its discretion under r381 to strike out proceedings for want of prosecution. These are usefully compiled in Justice Atkinson’s reasons in Tyler v Custom Credit Corp Ltd and Others [2000] QCA 178 and do not need to be enumerated here. I have turned my mind to each of the factors there identified in making this decision.

5. [5]
   The parties do not agree what test applies to the application to strike out the second proceedings as an abuse of process. For the defendant, Mr Matthews argued the mere commencement of a second proceeding between the same parties on the same cause of action claiming the same relief constitutes an abuse of the process. He relied on the decision in Von Schultz v Morriello [1999] QCA 436 as authority for that proposition. That case, however, involved a compromise earlier reached between the parties in the first proceedings. Whilst the merits were not adjudicated, where a final agreement disposing of all issues had been reached, it was an abuse of process to seek to re-litigate the claim.  It is not authority for the proposition asserted and I am not persuaded the mere existence of a second set of proceedings while another remains on foot constitutes an abuse of process.

6. [6]
   The categories of conduct which may constitute an abuse of process were considered by the High Court in Batistatos v Roads and Traffic Authority New South Wales (2006) 227 ALR 425. Those identified were:

7. [7]
   The power of the Court to save proceedings is not simply there to punish a party but also to prevent conduct that is fundamentally unfair, for example, because of serious delay.^[2]

8. [8]
   It seems to me that broadly similar considerations are raised by both applications. Factors relevant to the court’s exercise of its discretion on both applications are addressed under the topics of:

• the circumstances in which the decision to take further action was made;
• prejudice to the defendant if Mr Gibb can proceed with his claim;
• non-compliance with a previous order of the court;
• the length of delay, any explanation for it and the extent to which the delay is attributable to Mr Gibb;
• any other factor relevant to the exercise of discretion.

The circumstances in which the decision to take further action was made

9. [9]
   The circumstances in which the second proceedings were instituted have been explained. Mr Gibb and his mother both believed the first proceedings had terminated. His mother did not explain why she held that view but confirmed she told as much to Mr Gibb while he was growing up. In 1998 and 1999, Mr Gibb’s solicitors sent a number letters to both his parents urging them to attend to their son’s litigation lest the proceedings be dismissed for want of prosecution. Those letters may well provide the foundation for the family’s belief about the status of the proceedings. Neither was challenged about their evidence

10. [10]
    The confusion in the minds of at least some of the solicitors who undertook work on Mr Gibb’s file is less capable of explanation. A simple check of either the court file index or the firm’s own records would have put the matter beyond doubt. Counsel for the defendant placed a sinister complexion upon the correspondence with his instructing solicitors, which he did not clearly articulate. He appeared to hint at the firm having been motivated for their own purposes, rather than any genuine interest in their client’s rights. The matter was not put to me squarely and, for reasons addressed below, it is not a matter which should bear upon the outcome in any case.

11. [11]
    Certainly the error they made was entirely avoidable and does not reflect well on the professionalism of those involved. It does not establish, however, that any of those solicitors or other employees had an improper purpose. When Mr Gibb’s solicitors became aware the original action was extant, they notified the defendant’s solicitors that Mr Gibb did not intend to pursue both claims.

12. [12]
    In any case, even if I was persuaded that his solicitors were improperly motivated, this does not establish Mr Gibb had an improper purpose. His assertion he did not know he could pursue a claim until shortly before proceedings were issued and that he now intends, on his own behalf, to prosecute the claim with diligence were not tested by cross-examination. I accept his evidence in that regard.

Prejudice to the defendant if Mr Gibb can proceed with his claim

13. [13]
    The defendant complains of prejudice caused by the substantial delay since the accident occurred in 1991. Counsel for Mr Gibbs argued there was no force in complaints of prejudice. Because of the first proceedings, the defendant had early notice, and had already substantially investigated issues of liability and quantum.

14. [14]
    The defendant did lead some evidence of prejudice. Mr Gibbs consulted a physiotherapist, Celia Reid and a chiropractor, Dr Russell Brady. Ms Reid sold her practice and is now in New Zealand. While her records may still be accessible, there is some question about their quality. It appears that Dr Brady records may have been destroyed.

15. [15]
    If the records of neither Ms Reid nor Dr Brady can be secured, the defendant may well be disadvantaged in meeting Mr Gibb’s allegation that he continued to suffer symptoms attributable to injuries sustained in the accident. That said, Mr Gibb will also labour under that prejudice.

16. [16]
    The complaint of prejudice needs to be viewed in the context of the extent to which Mr Gibb’s medical condition was previously explored. The defendant did obtain an expert assessment of Mr Gibb’s condition from Dr Cameron. Worthy of note is that he recorded that he had been provided with a medical report from Dr Brady, who, it is reasonable to assume, is the chiropractor earlier referred to. Dr Cameron concluded Mr Gibb sustained a mild strain injury to his cervical spine and had no residual symptoms attributable to the accident.

17. [17]
    In light of that assessment, I am not satisfied the prejudice to the defendant occasioned by the potential lack of records of his therapeutic treatment is a factor of particular significance.

Non-compliance with a previous order of the court

18. [18]
    There is, also, Mr Gibb’s failure to attend an examination by Dr Reed as ordered by the court. That should, fairly, be regarded as a technical breach. Mr Gibb was examined by Dr Cameron within the time fixed by the court. Dr Reed refused to see him because a number of prior appointments with her had been cancelled, apparently because Mr Gibb’s parents failed to maintain contact with his solicitors.

19. [19]
    The order was not a peremptory order of the court in the sense that the proceedings were to be dismissed if it were not complied with.^[3]  While a different doctor was consulted, the court’s time frame for medical assessment was met. 

The length of delay, any explanation for it and the extent to which the delay is attributable to Mr Gibb

20. [20]
    The Plaintiff argues that the second proceedings were commenced within time and, therefore, any prejudice to the Defendant caused by the delays since 1999 is of no relevance. If the first proceedings had not been instituted and proceedings were only commenced at the time the second proceedings were, he contended, there could have been no complaint about delay. I am not persuaded by that submission. The fact the limitation period has not expired does not advantage a plaintiff when the question of stay is being considered, it simply means that a potential defence is not available to the defendant.^[4]

21. [21]
    It is abundantly clear the very lengthy history of neglect of the first proceedings is attributable, in large part, to the dilatoriness of Mr Gibb’s parents. Initially Mr Gibb’s mother was his litigation guardian. In or about 1999 she and her husband were in the process of separating and there was a dispute about custody of their children. In that context, the Plaintiff’s solicitors lost contact with Mrs Gibb. Mr Gibb’s father informed the solicitors he had custody and signed an authority to be named as Mr Gibb’s next friend. He did take the Plaintiff to attend Dr Cameron’s surgery for examination, but that appears to have been his last involvement in the matter.

22. [22]
    Mr Matthews speculated subsequent inaction may be attributable to Dr Cameron’s negative assessment. That may well explain the actions of Mr Gibb senior, although I do not think it is a matter this court can or should conclude on the material before it. In any case, that says little about Mr Gibb himself. I accept the court should consider the actions of Mr Gibb’s parents in the same way it would those of Mr Gibb’s solicitors were dilatoriness attributed to them.

23. [23]
    Not all the delay can be attributed to his parents. Mr Gibb turned 18 in 2005 and took no action to prosecute his claim. By January 2008 it is clear that his solicitors, alive to looming limitation deadline, renewed their efforts to obtain Mr Gibb’s instructions. Once contact was made in late January 2008, it appears, he was advised there were still legal avenues he could explore, steps were taken to press Mr Gibb’s claim.

Any other factor relevant to the exercise of discretion

24. [24]
    There is another matter of significance in considering whether Mr Gibb should be allowed to pursue his claim for damages. In its defence in the second proceedings, the defendant has made a number of important admissions which considerably reduce the scope of disputed issues:

• That there was a collision which occurred due to the negligence of the driver of the taxi insured by the defendant;
• That Mr Gibb was injured in the accident; and
• That he is entitled to receive an award for general damages, past gratuitous care and services and special damages, although the quantum claimed is disputed.

25. [25]
    Mr Gibb is seeking orders which will allow him to pursue a claim where liability is admitted and only quantum is in dispute. Matters relevant to quantum have been substantially investigated, although some therapeutic treatment records have been lost. The delay is substantial and, if Mr Gibb had been of age throughout, it would be inexcusable. However, the delay is largely attributable to the dilatoriness of his parents, something over which he had no control. As an adult, he took action once advised he could. I am persuaded that, in those circumstances I should exercise the court’s discretion to allow Mr Gibb to proceed with his claim.

Given the existence of two proceedings claiming the same relief, what orders should be made to give effect to that decision?

26. [26]
    An option not explored by either counsel in argument, but which may well provide the simplest path forward is to consolidate the two actions under r78 Uniform Civil Procedure Rules 1999 and make directions about the conduct of the proceedings under r80.  This may best achieve the object of facilitating the just and expeditious resolution of the real issues at a minimum of expense.

27. [27]
    I have grave concerns about the costs already expended on a claim unlikely to sound in a large award of damages. Given the substantial work already done by the parties and the limited scope of the issues in dispute, this seems to me to be a case that may well be resolved with the assistance of a mediator. I have decided I will refer both proceedings to be mediated and invite the parties to consult now to agree upon the terms of a referring order that meets the requirements of r323. I will mention the matter again at 2.15pm so that the terms of the order can be provided.

28. [28]
    Otherwise, I will adjourn both applications, with costs reserved, until Monday 27 April at 10am. If all matters are not then resolved, including any outstanding costs orders, I will hear from the parties about directions for the consolidation of the two proceedings and the further conduct of Mr Gibb’s claim.