Hemmings v Suncorp Metway Insurance Ltd
[2010] QDC 305
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- Unreported Judgment
- Hemmings v Suncorp Metway Insurance Ltd[2010] QDC 305
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Hemmings v Suncorp Metway Insurance Ltd[2010] QDC 305
Hemmings v Suncorp Metway Insurance Ltd[2010] QDC 305
DISTRICT COURT OF QUEENSLAND
CITATION: | Hemmings v Suncorp Metway Insurance Ltd [2010] QDC 305 |
PARTIES: | KAREN LOUISE HEMMINGS (plaintiff/respondent) V SUNCORP METWAY INSURANCE LTD (defendant/applicant) |
FILE NO/S: | BD522/2004 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 22 July 2010 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 July 2010 |
JUDGE: | Irwin DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – DISTRICT COURT PROCEDURE –QUEENSLAND – PRACTICE UNDER RULES OF COURT – OTHER MATTERS – where the defendant filed an application to have a trial date set down without a request document – where the plaintiff’s claim was for damages for personal injuries from a motor vehicle accident on 16 February 2001 – where proceedings were commenced on 13 February 2004 – where the plaintiff’s solicitor signed a certificate of readiness for compulsory conference stating all investigative material required for trial had been obtained – where the plaintiff’s solicitor advised the defendant’s solicitor on 3 April 2009 that statements on the defendant’s behalf at the compulsory conference prompted further investigations – where as a result of those investigations the plaintiff’s solicitor was advised that documents were located at the Office of the State Coroner, the disclosure of which was believed to assist in determining liability – where disclosure of the documents was refused on public interest grounds – where the pleadings subsequently closed on 3 June 2010 – where following the closure of pleadings the plaintiff’s solicitor caused a notice of non party disclosure to be prepared and forwarded to the court – where the plaintiff opposed the defendant’s application because of the ongoing investigation – exercise of the court’s discretion as to whether to dispense with the request for trial date Evidence Act 1977 (Qld), s 134A Motor Vehicle Accident Insurance Act 1994 (Qld), s 3, s 51B Uniform Civil Procedure Rules 1999 (Qld), r 5, r 242, r 396, r 466, r 467 AON Risk Services Aust Ltd v ANU (2009) 83 ALJR 951, applied Knight v Kulver and The Medical Superintendent, Pindara Hospital [2001] QCA 254, applied Mid Australia Pty Ltd v Around Australia Pty Ltd & Ors [2004] QSC 374, cited Naskam Security Services v Adarm Security Pty Ltd [2000] QDC 441, applied Queensland v JL Holdings (1997) 189 CLR 146, cited |
COUNSEL: | R. B. Dickson for the applicant/defendant C. K. Copley for the respondent/plaintiff |
SOLICITORS: | Jensen McConaghy for the applicant/defendant South Burnett Lawyers for the respondent/plaintiff |
HIS HONOUR: The applicant, who is the defendant in these proceedings filed an application that the request for trial date be dispensed with, that the matter be listed for a liability only trial, or alternatively, the matter be listed for a liability and quantum trial and the defendant have leave to call evidence from Drs Fraser and Bourke who have examined the plaintiff, that evidence being given by telephone.
The applicant, whom I will for convenience describe as the defendant for the purpose of these reasons, relies upon UCPR 467(2) to have a trial date set down without a request document.
The rule works in conjunction with UCPR 466 which provides that a date of trial may be set by a Judge or by a Registrar at the discretion of a Judge. UCPR 467 has the effect that unless the Court under subrule (2) otherwise orders, where proceedings have been commenced by claim the action cannot be set down for trial unless all parties have signed a request for trial date in the approved form.
The application is brought in relation to the plaintiff's claim for damages for personal injuries from a motor vehicle incident which happened on 6 February 2001. The claim is made under the Motor Accident Insurance Act 1994. The incident involved two vehicles, each proceeding in the opposite direction from the other on the D'Aguilar Highway at Blackbutt. The defendant was the CTP insurer of one vehicle. The driver of that vehicle was killed in the incident.
The plaintiff, who was the driver of the other vehicle has no recollection of the incident. The effect of the statement of Mr Bray, who was following the deceased's vehicle and who was nominated as a witness in the plaintiff's notice of accident claim, is that the plaintiff's vehicle was about a third of the way on its incorrect side of the road immediately before the "head on" collision between the vehicles.
There is a statement from the investigating police officer, Sergeant Wendt, which comes to the conclusion that the point of impact was just over the centre line on the side of the highway on which the deceased was driving. An expert report from Mr Ruller, which I am told was obtained for the plaintiff, supports Sergeant Wendt's conclusion. The relevant portion of this report states:
"The damage to the road and the vehicles involved shows that the [deceased's vehicle] was travelling either on or next to the centre line at impact. The [plaintiff's vehicle] was just over the centre line with the right side wheels on the opposing side of the road."
The plaintiff claims substantial damages in the order of $400,000 as can be seen from the current Statement of Loss and Damage. In fact, it has been suggested her damages are close to $750,000 as will be reflected in an amended Statement of Loss and Damage to be filed. This Court has jurisdiction by consent of the parties under section 72 of the District Court of Queensland Act 1967. I have made necessary orders requested by the parties in relation to this.
The application is opposed by the plaintiff who is the respondent to these proceedings, because it is investigating whether, and if so to what extent there was alcohol in the deceased's blood at the time of the collision. This is an ongoing investigation.
On the other hand, the defendant submits that nothing has ever been raised or pleaded about alcohol and there is not a skerrick of evidence about it. Mr Dickson labels the plaintiff's investigative efforts as a fishing expedition.
In order to appreciate the respective arguments and to resolve the first issue of whether to dispense with the request for trial date, it is relevant to appreciate the chronology of events since the incident which is the subject of these proceedings up until the present date.
As I have said, on 16 February 2001 the incident occurred on the D'Aguilar Highway in which the motor vehicles driven by the plaintiff and the deceased insured came into contact as a result of which the plaintiff suffered injuries.
On 9 April 2002 the plaintiff signed the notice of accident claim form (non-fatal injury). This is the document which, as Mr Dickson puts it, "Gets the claim going."
On 28 May 2002 the plaintiff's solicitor forwarded the claim form to Suncorp Metway explaining that it was lodged late because of delays experienced with obtaining a signature for the medical report. I note the plaintiff was unable to state what caused the accident and why, saying that it is "unknown" and she has "no recollection."
On 13 February 2004 the claim and Statement of Claim were filed on behalf of the plaintiff just inside the three year limitation period. The claim was made against the defendant as the deceased's compulsory third party insurer. The claim was for damages for personal injuries occasioned by the negligence of the deceased. Particulars of the claim include:
. Driving without due care and attention;
. Driving on to the wrong side of the road when it was unsafe to do so;
. Failing to maintain control of his vehicle.
The claim states the plaintiff gave notice in compliance with sections 34 and 37 of the Motor Accident Insurance Act prior to commencing the proceedings and had otherwise complied with part 4 division 3 of the Act. The claim also states that on 13 February 2004, the date it was filed, it was ordered by the District Court that the Act's requirements for a compulsory conference and an exchange of final written offers be dispensed with.
The matter then remained in abeyance with no party taking any action for approximately four and three quarter years until 7 November 2008 when the Statement of Loss and Damage was signed.
According to the affidavit of the plaintiff's solicitor both this and a list of documents were filed. According to this affidavit, affirmed on 16 July 2010, the plaintiff's solicitor was then preparing a supplementary Statement of Loss and Damage.
On 10 November 2008 a change of the plaintiff's solicitor was filed however, in reality, this was simply a change in the name of the firm.
On 16 March 2009, about five years and one month after the Statement of Claim was filed, and eight years and one month after the incident, the plaintiff's solicitors signed a certificate of readiness for a compulsory conference under section 51B of the Motor Accident Insurance Act which was regenerated despite the earlier dispensation. It certified:
. The plaintiffs were in all respects ready for trial;
. All investigative material required for the trial had been obtained (including witness statements from persons other than expert witnesses), the party intended to call as witnesses at the trial;
. Medical or expert reports had been obtained from all persons the plaintiff proposed to call as expert witnesses at the trial.
On 3 April 2009, based on the letter of 26 June 2009 from the plaintiff's solicitor to the then solicitor for the defendant, exhibited to the affidavit from the plaintiff's solicitor, the compulsory conference was held.
In April 2009, following this conference, the plaintiff's solicitor engaged MYI Freemans to locate witnesses and obtain further evidence. According to the 26th of June 2009 letter
"Statements on your client's behalf at the....conference...prompted further investigations."
At that time the investigations were ongoing and they were hoped to be finalised in the near future. In this letter the plaintiff's solicitor also advised that he anticipated to be in a position to amend and/or up lift the claim and/or Statement of Claim shortly after the investigations were done. It was observed that while the defendant was free to file a defence to the pleadings as they stood, this would seem to be wasteful given the foreshadowed amendment, the fact investigations were being made, and that the plaintiffs would not, without reference to the defendant, seek orders in default.
On 11 October 2009 Mr Ruller, who describes himself as a collision analyst completed his crash analysis report.
On 21 December 2009 the investigations were still ongoing when the plaintiff's solicitor, on request from MYI Freemans wrote to the Department of Justice and Attorney-General and, in particular, to the manager of the Right to Information and Privacy Unit advising he had asked MYI Freemans to contact the John Tonge Centre to inquire whether there was any alcohol in the deceased's blood at the time of the accident and, if so, the level of blood alcohol found. It was made clear in that letter that the solicitor was writing on behalf of the plaintiff.
On 19 February 2010, without the investigation being completed, an amended Statement of Claim was filed on behalf of the plaintiff. Although this involved greater particularisation it did not significantly alter the nature of the claim.
On 22 February 2010, according to a letter of 16 March 2010 from the acting manager of the Department of Justice and Attorney-General unit, MYI Freemans applied under the Right to Information Act 2009 for access to:
"The post-mortem and toxicology report of the deceased [in this case] undertaken on 17 February 2001 as a result of a motor vehicle accident involving [the plaintiff]."
The letter of 16 March 2010 advised that searches were conducted at the office of the State Coroner and three documents were located in response to this request. These were pages 1 and 2 of the post-mortem and page 3 which was the toxicology report. Although disclosure was refused because it would be contrary to public interest, a factor was identified as favouring disclosure in the following terms:
"One factor that favours disclosure is the public interest in insurance companies obtaining information to enable them to determine liability. If insurers were not able to determine liability of claims the cost of insurance premium would become prohibitive. I believe that the disclosure of some of the information held on this Coroner's file will assist you in determining liability but not at the expense of the personal information privacy rights of the deceased."
On 16 April 2010 the plaintiff's solicitor wrote to the defendant's then solicitor seeking copies of these documents. This letter enclosed the Department of Justice and Attorney-General response and expressly sought pursuant to section 47 of the Motor Accident Insurance Act within one month the Coroner's file for the deceased, the post-mortem for the deceased and the deceased's toxicology report.
On 29 April 2010 the defendant's then solicitor wrote to the plaintiff's solicitor supplying certain documents but advising that the firm did not hold any other documents that would meet the description of the documents sought.
On 20 May 2010 the notice of intention to defend and a defence was filed denying that the deceased was negligent as alleged, or at all. A positive assertion was made that the cause of the incident was the plaintiff driving her car over the centre line of the highway. Further, it was asserted that if there was any negligence on the part of the deceased which caused or contributed to the collision, there was contributory negligence on behalf of the plaintiff.
On 3 June 2010 the plaintiff's reply was filed denying the allegation that the plaintiff caused the collision and denying the allegations of contributory negligence. The pleadings closed on this date.
According to the affidavit of the solicitor for the defendant sworn on 12 July 2010, the defendant has completed disclosure and a statement of expert and economic evidence. It accepted that the plaintiff has also completed disclosure.
On 22 June 2010 the change of the defendant's solicitor to its current solicitor was noted with advice that both quantum and liability were disputed 100 per cent.
On 24 June 2010 the notice of change of solicitor on behalf of the defendant was filed. I note that in the plaintiff's solicitor's affidavit of 16 July 2010 he deposes that following the closure of pleadings he recently caused a Notice of Non-Party Disclosure under UCPR 242 to be prepared and forwarded to the Court. It is directed to the Office of the State Coroner and the Department of Justice and Attorney-General and requires within seven and 14 days after the service of the notice the production of the post-mortem examination report and the toxicology report of the deceased in relation to the accident the subject of these proceedings.
The allegation in the pleadings to which these documents are alleged to be relevant is said to be, as set out in paragraph 5 of the statements of claim:
"The said collision and the plaintiff's injuries, loss and damage, sustained consequent thereupon were occasioned by the negligence of the deceased...for whose negligence the defendant is liable."
Against the background of the recent communications with the Department of Justice and Attorney-General, and in particular the statement from the acting manager of the Right to Information and Privacy Unit that the disclosure of some of the information held on the Coroner's file will assist in determining liability, Mr Copley says in his written submission that given investigations have proceeded to the point of finalising a Notice of Non-Party Disclosure, it may be inferred the receipt of the documents from the department would occur in the near future. Nonetheless, he accepts they may prompt further investigation by either party. He submits that accession to the present application would have the very real potential to exclude important evidence on the issue of liability.
In his oral submissions before me he accepts that while there is no evidence of alcohol in the deceased's system to hand, this continuing investigation is not purely speculative because of the admitted existence of the post-mortem and toxicology reports that the Department of Justice and Attorney-General is refusing to release but about which it has been said they would assist in determining liability. He submits this is evidence which is highly cogent with particular reference to the deceased's behaviour, particularised in paragraph 5 of the Statement of Claim.
He also argues that the plaintiff's signing of a certificate of readiness pursuant to the requirements of the Motor Accident Insurance Act as a prerequisite to the compulsory conference is of small moment. He asserts it does not preclude a party from undertaking further investigation. He argues this is consistent with the notion that the Motor Accident Insurance Act certificate is no substitute for a request for trial date under the UCPR.
In support of the application Mr Dickson responded to my inquiry about it being brought under UCPR 467 rather than UCPR 469 by giving the reason that the matter is going nowhere and nothing is happening after nine years. He refers me to the terms of the certificate of readiness signed approximately 16 months ago and submits for the reasons to which I have referred that the current investigations about the blood alcohol level, if any, of the deceased is a red herring.
In addition to what I have already summarised concerning this submission he refers to paragraph 21 of Mr Ruller's report which states: "There is no evidence to suggest that liquor or drugs affected either driver at the time of the incident." That report is dated on 11 October 2009 as I have said.
Of course, Mr Ruller in making that statement would base it on the information which was then available to him. There is no suggestion, for example, that he had access to any of the documentation which is currently available to the state Coroner such as the post-mortem report or the toxicology report.
Mr Dickson refers to the fact that the plaintiff made no reference to inquiring about the deceased's blood alcohol level at the time of the incident until it wrote to the Department of Justice and Attorney-General on 21 December 2009, almost eight years after the incident. He points to the fact that the response from the Department of Justice and Attorney-General on 22 February 2010 does not say that there is any evidence of alcohol in the blood of the deceased. He argues that the UCPR 242 Notice of Non-Party Disclosure is not available because it is speculative and the need to certify under subrule (2) that there is not another reasonably simple and inexpensive way of proving the matter sought to be proved by the document. In this regard he refers me to the procedure available in section 134A of the Evidence Act 1977 for the production of documents by agencies in relation to civil proceedings. In Evidence Law in Queensland (fourth edition) Dr Forbes observes that the purpose of this provision is to provide a relatively cheap and speedy alternative to applications for non-party discovery in relation to agencies.
Mr Dickson also argues that the UCPR 242 procedure is not available because the notice is only for the purpose of a fishing expedition in the present case.
Against this background he says that what the defendant has come to Court about is the dilatory manner concerning this claim on behalf of the plaintiff, which exhibits no sense of expedition or urgency to get the matter on for trial.
He also supports this application by reference to the problems of memory which he submits are likely to affect the evidence of the two witnesses other than experts who are likely to be required to give evidence. These are Mr Bray and Sergeant Wendt.
As Mr Dickson puts it, any delay will inevitably compromise the quality of Mr Bray's evidence. A further complication to which he refers is that Sergeant Wendt has cancer and is on extended sick leave. Prior to the hearing of the application Sergeant Wendt had told the defendant's solicitor that if he were back on deck when the matter went to trial he would be happy to give evidence and would be available. He was happy in any event to be called when the matter was set down for trial to see if, at that time, he would be well enough to give evidence.
I allowed Sergeant Wendt to give telephone evidence during the course of the application to clarify his state of health, memory and future availability. His evidence was that his cancer was a brain tumour which was progressively getting worse. In all probability he will not go back to work. He had two operations in November 2009 which involved craniotomies to remove the tumour. A recent consultation has picked up a small lesion in the front of his brain. He will be seeing Dr Redmond, his neurosurgeon, about this in a couple of weeks to see if an invasive procedure will be required in the future. He gave the impression of not being optimistic on this account.
He remembered the motor vehicle incident the subject of these proceedings and preparing and signing a police statement about it. In general, he found things hard to remember all the time. He considered it would be better to give his evidence later rather than sooner. My impression was that this was due to his expectation that the result of his forthcoming consultation with Dr Redmond would be a further operation.
Mr Copley responded that a further relatively short period while the investigation identified was completed will be unlikely to further affect the memory of Mr Bray. With reference to Sergeant Wendt he emphasised the evidence that it would be better if the trial took place later and observed the evidence was silent as to whether it was his long or short term memory that was affected. He also submitted that the evidence was silent as to whether medical opinion is that Sergeant Wendt's memory will get better or worse.
He also referred me to UCPR 396 where the Court may order the examination of a witness for the purpose of taking evidence before the actual trial of the proceeding. I responded that I was not attracted to such a course at this stage.
In relation to the argument about the use of section 134A of the Evidence Act as the procedure for obtaining non-party disclosure, Mr Copley's submission was that although it had not previously been adverted to, this was an alternative procedure which would be examined for use if appropriate. It was at least implied in that submission that the prospect of using that section had not previously been adverted to.
Mr Dickson also emphasises that one of the objects of the Motor Accident Insurance Act is the encouragement of speedy resolution of claims and UCPR 5 requires expeditious resolution, avoidance of undue delay, and an undertaking of a party to proceed in an expeditious way. He asserts that these proceedings do not appear to have been prosecuted in accordance with this rule.
To emphasise this and to counter Mr Copley's reliance by way of example to the decision of White J on a UCPR 469 application in Mid Australia Pty Ltd v Around Australia Pty Ltd and Ors [2004] QSC 374, Mr Dickson refers me to the decision of the High Court of Australia in Aon Risk Services Australia Limited v ANU [2009] HCA 27; [2009] 83 ALJR 951. As he observed, the decision of White J was made at the time Queensland v J L Holdings [1997] 189 CLR 146 was regarded as authoritative in determining an application to amend.
In Aon, the High Court stated that to the extent statements in J L Holdings about the discretion to amend pleadings suggest that case management considerations and proper use of Court resources are to be discounted or given little weight, it should not be regarded as authoritative. Although neither the decision of White J or the issues in this proceeding relate to applications to amend and adjourn, I apply, with necessary adaptions what the High Court said in Aon about the interpretation of rule 5 and its equivalent provisions in other States and Territories to the exercise of my discretion in this case.
As French CJ observed in Aon, matters of relevance include inefficiencies in the use of the Court arising from the vacation or adjournment of trials, the need for public confidence in the legal system and the lack of a satisfactory explanation for an application for amendment or adjournment. As his Honour said at paragraph 31 of his judgment:
"Also to be considered is the potential for loss of public confidence in the legal system which arises where a Court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment or for vacation of fixed trial dates resulting in the resetting of interlocutory processes."
The plurality in that case (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said at paragraph 90:
"The overriding purpose of rules such as UCPR 5 was to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense."
At paragraph 92 they said: "These purposes reflect principles of case management by the Courts."
At paragraph 93 they stated that rules of this nature concerning civil litigation are no longer to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just, timely and cost-effective resolution of a dispute has an effect upon the Court and upon the litigants.
Therefore, what may be just when amendment is sought requires account to be taken of other litigants, not just to the parties to the proceedings in question (paragraph 95).
Their Honours said the purposes stated in this rule cannot be ignored (paragraph 97) and at paragraph 98 observed:
"Of course, a just resolution of proceedings remains the paramount purpose of rule 21 but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency in the sense of minimum delay and expense are seen as essential to a just resolution of proceedings."
Rule 21 was the equivalent rule in that case to UCPR 5.
At paragraphs 100 and 101 they said that a Judge is entitled to weigh in the balance the strain the litigation imposed on litigants, including commercial litigants and extending to corporations, and that those effects extend to other litigants who are also seeking a resolution in their proceedings. However, their Honours also stated that rules of this nature do not require every application for amendment should be refused because it involves a waste of some costs and some degree of delay as it inevitably will.
In particular their Honours said about the equivalent rule in that case:
"Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. While rule 21 assumes some ill-effects will flow from the fact of the delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the cost associated with it, together with the prejudice which might reasonably be assumed to follow, and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. This may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and cost are to be regarded as important considerations in the exercise of the Court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment."
Their Honours concluded at paragraph 111:
"All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management will assume importance on an application for leave to amend."
I adapt these principles to the exercise of my discretion under UCPR 467 to determine the different question of whether a trial, not having commenced or not being listed to commence, the request for a trial date should be dispensed with in this case. It is not in dispute that liability is a live issue in these proceedings. The defendants dispute it 100 per cent.
In response to the plaintiff's application through MYI Freemans under the Right to Information Act for access to the post-mortem and toxicology reports of the deceased as a result of the motor vehicle incident which is the subject of these proceedings, as I have noted the acting manager of the relevant Department of Justice and Attorney-General unit responded: "I believe that the disclosure of some information on this Coroner's file will assist you in determining liability."
Specific reference was then made to three pages of that file involving the reports I have referred to. This is in the context of advice by the plaintiff's solicitor when previously writing on 21 December 2009 to the manager of that unit, that he had asked MYI Freemans to inquire whether there was any blood alcohol in the deceased's blood at the time of the incident and, if so, the level of blood alcohol found. It is reasonable to conclude that this information would have been available to the acting manager at the time he made his decision which was communicated in the letter of 16 March 2010 and that he would have had regard to it in making that decision.
Therefore, I conclude that when he stated as part of the balancing exercise in coming to that decision he believed disclosure of information in the Coroner's file would assist in determining liability, he would have used those words advisedly. After all, this is a decision which may subsequently be subject to review, including judicial review.
Mr Dickson said in his argument that the response was in terms which suggested the decision maker may have believed the request by MYI Freemans was on behalf of an insurance company. However, such a conclusion is contrary to the 21 December 2009 letter in which the plaintiff's solicitor confirms acting for the plaintiff, Mrs Hemmings in relation to District Court proceedings against Suncorp which have been brought by her to recover compensation for her injuries suffered in the motor vehicle accident in which the other motor vehicle was driven by the deceased.
This letter also confirms that the solicitor had asked MYI Freemans to contact the John Tonge Centre on behalf of the plaintiff, Mrs Hemmings to inquire about the results of the deceased's post-mortem. Although the acting manager of the unit may not be an expert in areas relevant to civil litigation of this nature, I consider that in light of the response, the plaintiff is bona fide entitled to rely on the assessment of a public official making a decision under an enactment that pages of the post-mortem and toxicology reports concerning the deceased which are held by the state Coroner will assist "you" in determining liability. In context, the reference to "you", as I have said, must be to the plaintiff's solicitor for whom MYI Freemans was acting as an agent and not to the defendant insurance company.
Although there is no express reference to blood alcohol, it is a commonsense inference that the most likely information in such a report which will assist in determining liability in circumstances such as these, is information about blood alcohol or a legal drug which may have some side effects either alone or together with alcohol on the abilities required to drive a motor vehicle. I do not consider this to be mere speculation.
Even if other information is being referred to, I proceed on the basis of the report that it is information relevant to the determination of liability from the position of the plaintiff. Therefore, I do not consider that the opposition to this application or the proposed UCPR 242 notice is only for the purpose of a fishing expedition for documents which may have been in possession of a party not a party to the action. As such, the UCPR 242 notice would not fall foul of the decision of Dodds DCJ in Naskam Security Services v Adarm Security Pty Ltd [2000] QDC 44 at 11. In my view the documents are in possession of the Office of the State Coroner who is not a party to the action and are probably directly relevant for the reasons I have given to an allegation in issue in the proceedings.
However, as Aon determines, while a just resolution of proceedings that the continuation of the investigation to obtain these documents remains a paramount purpose of UCPR 5, speed and efficiency in the sense of minimum delay and expense are also essential to such a resolution. Therefore, this must be considered in determining whether to grant the current application.
As Mr Copley concedes, there will inevitably be some delay involved in obtaining these documents. As Aon makes clear, in these circumstances the extent of the delay and the costs associated with it are important considerations in the exercise of the Court's discretion. As their Honours also say, much may depend upon the point the litigation has reached relative to the trial.
Therefore, it is relevant for me to consider these questions in the context of the history of these proceedings which I have outlined. It is a relevant factor that the incident of the collision which is the subject of the proceedings occurred approximately nine and a-half years ago, the Notice of Accident Claim Form was lodged late with the defendant, about one year and two months after the accident (although a reason was given for this) and the claim and Statement of Claim to commence these proceedings was filed just inside the three year limitation period.
Nonetheless the proceedings were commenced within this period and despite the complaints of dilatory conduct on behalf of the plaintiff, the defendant took no steps to progress the proceedings in the four and three-quarter years before the Statement of Loss and Damage was signed on 7 November 2008. There may have been good reason for this. However if there was this was not explained to me.
It is since the filing of the amended claim and Statement of Claim on 19 February 2010 that the case has proceeded with some expedition. Following this, the Notice of Intention to Defend and Defence were filed on 20 May 2010. These are the first documents filed on behalf of the defendant in these proceedings. This was approximately two months ago.
Following this, the plaintiff's reply was filed as required on the last day of the following 14 day period, 3 June 2010. It was at this point that the pleadings closed and about five weeks later the defendant filed this application.
In this case, as I have observed, unlike Aon where the application for an adjournment to amend the pleadings was made on the third day of a period of four weeks set down for trial, allowing the adjournment will not jeopardise an allocated trial date or jeopardise trial dates in other cases. Further, no request from the defendant or its solicitors have been made to the plaintiff or its solicitors to file a request for trial date.
The application is made in circumstances where well before the pleadings closed the solicitor for the plaintiff advised the solicitor for the defendant that as a result of statements on the defendant's behalf at the compulsory conference, further investigations were being conducted. This was on 3 April 2009. When the plaintiff's solicitor wrote to the defendant's solicitor again on 16 April 2010 about five weeks before the defence was filed they were made aware of what those investigations involved.
Although it is regrettable that these investigations have been ongoing for over 15 months I have no reason to conclude that they were not proceeding bona fide during that time. I have no reason to conclude that they have been instituted simply to delay proceedings which it is in the interests of the plaintiff to resolve as soon as possible.
Now that the existence of the relevant information has been identified a relatively short period should be required to complete them. The UCPR 242 notice has been drafted and according to the plaintiff's solicitor's affidavit it has been forwarded to the Court. If due to UCPR 242(2) the appropriate procedure for the production of these documents is that provided under section 134A of the Evidence Act I have reason to believe this will proceed expeditiously from what Mr Copley has said now that procedure has been adverted to.
I am satisfied the reason this section was not utilised is because it was genuinely overlooked.
The plaintiffs are not to be criticised for waiting until the close of the pleadings to issue the UCPR 242 notice because in accordance with Knight v Kulver and the Medical Superintendent, Pindara Hospital [2001] QCA 254, a non-party is not obliged to respond to such a notice before the close of proceedings. As stated by Williams JA (with whom Davies and Thomas JJA agreed):
"Rule 242 requires the document which is to be produced pursuant to the order to be 'directly relevant' to an allegation in issue in the proceedings.
In my view, that can only be established where a Statement of Claim and defence have been delivered and there is an issue raised by those pleadings to which the document sought to be obtained is relevant.
The simplest and quickest way of identifying what is in issue and obtaining documents relevant to that issue is for the pleadings to close and for the parties to obtain discovery in the ordinary way."
Thomas JA additionally said:
"Rule 242 seems designed to avoid premature discovery from non-parties. That is to say before the issues are finalised between the actual parties. It is also, no doubt, designed to deter fishing raids on the documents of persons who are not parties to the litigation."
As I have said, I do not consider a fishing raid is being undertaken in this case by the plaintiff.
In this case a certificate of readiness was signed on behalf of the plaintiff in the terms I have referred to. However I agree this does not preclude a party from undertaking further investigation, particularly where it is bona fide prompted by statements on behalf of the defendant at the conference which was after the certificate of readiness was signed.
In circumstances where proceedings were commenced approximately six and a-half years ago, the notice of intention to defend and the defence was filed two months ago, pleadings closed six weeks ago, the defendant was notified of the ongoing investigation before it filed its defence, no request has been made by the defendant to the plaintiff to sign a request for trial date, a trial date has not been allocated and one step is required in the form of adopting the procedure under either UCPR 242 or section 134A of the Evidence Act to obtain the relevant information which the plaintiff has been advised would assist in determining liability, I do not consider that the extent of delay and the costs associated with it are such as to reject the plaintiff's argument that the application should at least be adjourned for some period to allow the completion of this investigation.
It follows from what I have said that a satisfactory explanation has been given for the delay in this case.
I do not consider that an adjournment of the application in these circumstances will prejudice public confidence in the judicial system. The case is far removed from what happened in Aon.
I appreciate in coming to this conclusion that it cannot be assumed there will be no resistance to the disclosure by the non-party on public interest grounds, just as the request for access to this information was declined on these grounds. Further, under section 134A(5) of the Evidence Act this provision expressly does not affect the laws of privilege or the Right to Information Act. As Mr Copley also concedes, if the documents are made available this may prompt further investigation by either party. However, I consider the consequences of such circumstances arising can be properly addressed so as to ensure that the principles under UCPR 5 and section 3 of the Motor Accident Insurance Act are not violated by the orders I propose.
I am also conscious of the position in relation to the witnesses, Mr Bray and Sergeant Wendt. As far as Mr Bray is concerned, I agree with Mr Copley that after this length of time since the incident the further time which will elapse in resolving this issue is unlikely to further affect his memory. Additionally, he will undoubtedly have the opportunity to refresh his memory from his statement before he gives evidence. This can also be expected in the case of Sergeant Wendt. As a police officer he is also likely to have his notes and other records of investigation to assist him in giving evidence.
Sergeant Wendt suffers from the additional problem of having been operated on for brain tumours with the prospect of further invasive surgery of this nature in the near future. Although he says he generally finds things hard to remember, he remembers the motor vehicle incident the subject of the proceedings and signing the police statement about it. As Mr Copley says, there no evidence that his long term memory, as opposed to his short term memory is affected and there is no expert medical testimony about whether his memory is likely to get better or worse. For that matter, there is no such evidence about any aspect of his condition, including his prognosis for the future.
For these reasons, I exercise my discretion not to accede to the application. However, in order to ensure that the objects of UCPR 5, in particular those identified by Mr Dickson's submissions, are not violated I do not dismiss the application. Instead, I propose to adjourn it to an appropriate date to ensure that the investigation identified in the material filed on behalf of the plaintiff and emphasised in Mr Copley's submissions is undertaken expeditiously or, to adopt other language from UCPR 5, without undue delay.
In these circumstances it is not necessary for me to address the other issues which are the subject of this application. It would be premature to do so.
As far as the issue that the matter be listed for a liability trial only, Mr Copley says this may be appropriate in due course. In oral submissions he said there was no opposition to this course per se but it was not appropriate to make an order at this stage.
In relation to the issue as to how the evidence of Drs Fraser and Bourke is to be given, which I understand would involve their giving oral evidence by telephone, Mr Copley also does not oppose this per se. But, again, argues that it is not appropriate to make the order now. In his written submissions he says, in any event Dr Fairburn's evidence should be dealt with in the same way.
I agree with Mr Copley's position about those matters. I simply indicate that on the basis of the submissions advanced by Mr Dickson on these issues I find them prima facie persuasive on the issue of a separate determination of liability and quantum and if it becomes necessary for the doctors to give evidence that it be dealt with in the proposed manner.
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HIS HONOUR: The formal order of the Court in relation to this application is:
1. The application is adjourned to the registry to be relisted by either party giving seven clear business days' notice in writing to the other party.
2. Subject to further order the application is not to be relisted before 2 September 2010.
3. The costs of and incidental to this application be each party's costs in the cause.