Pickering v McArthur (No 2)[2010] QDC 90

DISTRICT COURT OF QUEENSLAND

1. [1]
   In these three matters there are cross-applications, by the respective plaintiffs for leave to proceed under r 389(2), and by the defendant, who is the same defendant in each of the three actions, to dismiss the action for want of prosecution.  The six applications were heard together, with the same counsel appearing for each plaintiff, and for the defendant in each matter.

2. [2]
   I have had some involvement in these and related proceedings in the past, and in the circumstances I should say that it was fortuitous that these applications came to be heard by me. They were set down for hearing in a week when another judge was listed to hear applications, but that judge had been presiding in a criminal trial which continued into that week, and on the previous Friday the Chief Judge asked me to take over the applications list until his jury retired to deliberate. That situation was not reached until after I had embarked on the hearing of these applications on 10 November.

Preliminary matter – a step in the action

3. [3]
   In D1938/01 it was submitted on behalf of the plaintiff that in fact no leave to proceed under the rules was necessary because two years had not passed since the last step in the action. The relevant chronology is as follows:^[1]

4. [4]
   The plaintiff submitted that there had been two earlier steps within the two year period: first, the letter of 18 May 2009 disclosing the tax returns and notices of assessment; second, the provision on 28 October 2008 by way of further disclosure of copies of notices of non-party disclosure which had previously been filed and served by the defendant’s solicitors.^[2]  No objection was taken to either step.

5. [5]
   In response it was submitted that neither what was done by the defendant’s solicitors nor what was done by the plaintiff’s solicitors amounted to a step in the proceeding for the purposes of r 389, so that the two-year period had expired prior to 23 June 2009.^[3]  In the alternative, it was submitted that if the further disclosure by the plaintiff did amount to a step in the action, it was also irregular on the basis that two years had elapsed since the previous step, and the objection in July 2009 stood as an objection to that step as well, so that the irregularity involved in that step was also not waived.

6. [6]
   The term “step” in r 389(2) is not defined in the UCPR.  This rule is similar to the former O 90 r 9 of the Rules of the Supreme Court, although that rule used the term “proceeding” instead of the term “step”.  I have already expressed elsewhere the view, to which I adhere, that the change in terminology in the new rule was not intended to effect a change in meaning.^[4]  I note that courts including the Court of Appeal have referred generally to authorities on the term “proceeding” in determining whether something is a “step” for the purposes of r 389, and consider that that approach is appropriate.

7. [7]
   In Kaats v Caelers [1966] Qd R 482 Stable J, with whom Mack CJ agreed, said that a proceeding was “something in the nature of a formal step, at least a step taken by the litigant in the prosecution of the action, being a step required by the rules”:  p 499.  Part of this passage was cited with apparent approval by McPherson SPJ, with whom the other members of the court agreed, in Citicorp Australia Ltd v Metropolitan Public Abbatoir Board [1992] 1 Qd R 592 at 594, although his Honour did not make express reference to the requirement that the step be one required under the rules.  Nevertheless, his Honour in that matter went on to analyse the question of whether the inspection of discovered documents was a step in the action by reference to whether it was a step required by the rules, and concluded that it was production for inspection rather than inspection which was the proceeding because it was the former that was required by the rules.^[5]

8. [8]
   Turning to the rules on disclosure in Chapter 7 of the UCPR, the obligation is to disclose documents in the possession or under the control of a party directly relevant to an allegation in issue in the pleadings:  r 211(1).  The duty is performed by delivering a list of documents and at a party’s request delivering copies of the documents mentioned in the list under r 214(1), or by producing the documents for inspection under r 216.  Rule 214(2) provides the times for the delivery of lists of documents and copies of documents requested; relevantly, if a document first comes into the possession or control of a party after one of the ordinary times for making disclosure, within seven days after that occurs:  r 214(2)(e).  It can be seen therefore that the rules do not provide for disclosure of documents simply by delivering copies; the obligation is to deliver a list of documents, and copies need be provided only upon request.  There was no evidence of any request here.

9. [9]
   On the other hand, if there is an obligation to disclose a document and a copy of the document is provided directly then the document has been disclosed, albeit not in the way provided by r 214 or r 216.  In such circumstances, there was an obligation created by the rules which has been performed other than in accordance with the rules, which is an irregularity:  r 371(1).  Such an irregularity does not render the step taken a nullity.  It is a matter for the other party to object to the irregularity, otherwise the irregularity is taken to have been waived:  Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444 at 452.  No doubt in practice it is commonplace for documents which come into the possession of a party after disclosure has been provided to be disclosed in this informal way, particularly it the case of documents where it can reasonably be anticipated that the other party is likely to want a copy anyway.  Accordingly the fact that any duty of disclosure was performed by providing copies of the documents rather than providing a list is not in my view a matter of any consequence.^[6]  The real issue is whether the documents were required to be disclosed under the rules.

10. [10]
    Two sets of documents were relied on: first, the plaintiff’s tax returns, and notices of assessment, copies of which were provided on 18 May 2009.  In relation to these, one would expect that such documents would be relevant only to the assessment of quantum; the contrary was not argued on behalf of the plaintiff.  Rule 221 provides that a party may disclose to another party a document relating only to damages only if the other party asks for its disclosure.  Assuming that the tax returns and notices of assessment are documents directly relevant to an allegation in issue in the pleadings, it is not apparent that they would be relevant to an allegation other than as to damages, and no basis for any such relevance was established on behalf of the plaintiff.  Nor was there any evidence of the defendant’s having asked for the disclosure of these documents.  Accordingly it seems to me that the effect of r 221 is that there was no obligation on the plaintiff to disclose the documents, and their disclosure was therefore not a step required by the rules.

11. [11]
    Apart from this, it is difficult to see how the mere disclosure of a tax return and a notice of assessment satisfies the other requirement of the test of a step in the action, namely that it progress the action towards a conclusion. The fact that there is another tax return and notice of assessment to be disclosed is simply a consequence of the passage of time, a consequence of the delay rather than something which tends to counter it. A plaintiff who does nothing except, each year, provide copies of a tax return and notice of assessment for that year could not be said to be doing anything which in any practical sense carried the action towards a conclusion.^[7]  I doubt therefore whether, even if there were an obligation under the rules to provide copies of these documents, the provision of copies could be seen as a step in the action.  But since there was no obligation under the rules to disclose the documents (or at least the material before me does not establish that there was any such obligation), the provision of such copies was not a step in the action so as to defeat the argument that no step has been taken for two years.

12. [12]
    With regard to the copies of notices of non-party disclosure, there is nothing in Part 2 of Chapter 7, the rules relating to non-party disclosure, which requires a copy of the notice to be served on the other party to the proceeding.^[8]  Traditionally documents generated in the course of the proceeding, including something of this nature, have been disclosed or discovered, though that may be because such documents were subject to discovery under the former rules of court.  The UCPR follows the amended disclosure rules introduced on 1 May 1994 to the Rules of the Supreme Court.  Under the rules in force prior to that change, the obligation was to discover documents “relating to any matters in question in the action”.

13. [13]
    Under the former rules, the traditional approach was that any document which may, not must, either directly or indirectly enable a party to either advance his own case or damage the case of his adversary was subject to discovery; it was sometimes described as a train of inquiry test, on the basis that the document was subject to discovery if it may lead to a train of inquiry which may in turn enable the other party to advance his case or damage his opponent’s case. This was also known as the Peruvian Guano test.^[9]  Under that test copies of notices of third party disclosure would have been subject to discovery.

14. [14]
    The test, however, is now different; the expression now in r 211(1) appeared in O 35 r 4(1) after 1994, and was said by Demack J in Robson v Rev Engineering Pty Ltd [1997] 2 Qd R 102 at 105 to require disclosure of something which tends to prove or disprove an allegation in issue, though it may do so by constituting circumstantial evidence as well as direct evidence.  I do not know that this test has been directly approved by the Court of Appeal,^[10] but it has been routinely applied in relation to the obligation under r 211.^[11]  Plainly notices of non-party disclosure would not satisfy the “directly relevant” test.  There was therefore no obligation to disclose the copies of the notices of non-party disclosure, and therefore providing copies of them to the solicitors for the plaintiff was not a step in the proceeding.

15. [15]
    It follows that neither of the matters that are relied on by the plaintiff as rendering this application unnecessary were actually steps in the proceeding, so that it is strictly unnecessary for me to decide the alternative argument for the defendant, that the irregularity of the earlier step by the plaintiff had not been waived by failing to object promptly to it, so that it was not, as submitted by the plaintiff, now too late to take that objection.

16. [16]
    The difficulty with the plaintiff’s argument is that it is based on the proposition that the waiver arises in this case by inactivity alone, and inactivity extending over a period of about two months; the first thing that the defendant’s solicitor did after the copies of the material were provided on 18 May 2009 was write the letter in late July objecting that more than two years had elapsed since the last step and saying that the plaintiff required leave to proceed.  Ordinarily mere inactivity is not regarded as waiving a right to object to something, though it may well be that persisted inactivity could be seen as impliedly waiving the right to object.

17. [17]
    That was the approach in Perez (supra), but the reasoning there was based on the terms of O 93 of the then rules, which expressly provided in r 18 that “an application to set aside for irregularity … any step taken in any proceedings … shall not be allowed unless it is made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.”  There is, however, no equivalent in the UCPR to O 93 r 18.  Ordinary principles of waiver would probably produce the effect that taking a step with knowledge of the irregularity, or even simply proceeding with the action with knowledge of the irregularity even if what was done did not amount to the taking of a “step” for the purpose of r 389, would amount to a waiver of an irregularity, but I think it is more difficult to characterise mere inactivity as such a waiver.^[12]

18. [18]
    It is an unattractive argument, from a party who has delayed for over two years, to say that the other party cannot object to that delay because it delayed for about two months before raising the objection. I do not think it is necessary for me to make a precautionary finding in relation to this matter; if the point becomes important later, the Court of Appeal will be in just as good a position as I am to make a finding. It follows from my earlier reasons that the preliminary issue, as to whether leave to proceed is required under r 389 in D 1938/01, is resolved in favour of the defendant.

History of proceeding – D1533/01

19. [19]
    It is relevant in each of these matters to consider the history of the proceeding, and there is I think sufficient difference between them to make it appropriate to consider each separately. I will deal with them in the order in which they were commenced. By a claim and statement of claim filed 30 March 2001 Carlyle Pickering claimed damages and interest because he developed a generalised anxiety disorder, as a result of counselling alleged to have been negligently provided to him by the defendant in the course of massage therapy provided by the defendant to the plaintiff between about late 1996 and 1999.^[13]  A notice of intention to defend and defence were filed on 8 May 2001, and a reply filed on 28 May.  Further particulars were sought by the defendant on 2 November 2001 and provided by the plaintiff on 17 December 2002.

20. [20]
    The plaintiff served a list of documents on 26 June 2003^[14] and a statement of loss and damage on 14 November 2003.^[15]  The total amount claimed was $137,180.72.  An amended claim and statement of claim were filed on 17 December 2003, and the following day the plaintiff applied for an order that the defendant provide a list of three psychiatrists from which the plaintiff could choose a psychiatrist by whom to be examined on behalf of the defendant.  A cross-application by the defendant sought a stay of the action until the plaintiff was examined by a particular psychiatrist.  On 16 January 2004, another judge ordered that the plaintiff’s action be stayed until he had attended on a particular psychiatrist for the purposes of an examination for a report.  The affidavit does not say whether that happened, but presumably it did^[16] because there have been things done in the action since then.

21. [21]
    In April 2004 an application to have the amended statement of claim struck out was filed by the defendant. On 11 May 2004 I struck out part of the statement of claim and ordered that unless a further amended statement of claim was filed within 14 days, the action be struck out; however, a further amended statement of claim was filed.  A further application by the defendant to strike out that statement of claim was heard on 11 June 2004, again by me, and on 20 April 2005, I struck out part of one paragraph of the statement of claim and gave leave to make further amendments but otherwise dismissed the defendant’s application:  [2005] QDC 81.  The pleading was tidied up by a further amended statement of claim filed on 18 May 2005.  An application by the defendant for leave to appeal from my order was dismissed by the Court of Appeal on 16 August 2005:  [2005] QCA 294.

22. [22]
    On 23 November 2005 a defence to the further further amended statement of claim was filed, and a reply to that defence was filed on 7 December 2005.  The defendant sought particulars of the statement of claim in January 2006, which were provided (expeditiously) on 8 February 2006.  From May 2006 there was some discussion about the possibility of mediation; this continued until July 2006, when the idea of mediation was abandoned.^[17]  On 3 August 2006 the plaintiff’s solicitors sent a draft statement of loss and damage to the plaintiff for perusal and updating; additional information was provided by the plaintiff up to 7 January 2007.  The revised statement was sent to the plaintiff on 9 January 2007, but it took him until 5 April 2007 to sign it, after a number of reminders from his solicitors.^[18]  The statement was served on the defendant’s solicitors on 16 April 2007.  The total amount claimed had grown to $167,960.86.

23. [23]
    Prior to this, however, on 8 March 2007 the solicitors received instructions from the plaintiff to request a trial date, and the following day a request for trial date was forwarded to the solicitors for the defendant.^[19]  On 23 March 2007 the defendant’s solicitors advised that they were not prepared to sign a request for trial date until the conclusion of criminal proceedings brought against the defendant in respect of matters raised in the statements of claim of the other two plaintiffs.

24. [24]
    Two indictments against the defendant were presented in the District Court during 2007, and on 25 June 2007, after a further indictment was presented incorporating the same charges and those two indictments were nolleed, the defendant pleaded not guilty to each of the charges and a jury was empanelled.^[20]  The Crown prosecutor opened evidence from each of the other two plaintiffs, who were the complainants, and that Carlyle Pickering would be called as a preliminary complaint witness.  The plaintiff, Ms Turnbull, gave evidence and was cross-examined.  The following day, while Ms Turnbull was under cross-examination, the Crown prosecutor decided to nolle the indictment in respect of the charges involving her and as a result to seek the discharge of the jury.^[21]  Later that same day, the Crown prosecutor also decided not to proceed further with the charges involving the other plaintiff, and the jury was discharged.^[22]  After 26 June 2007, therefore, there was no criminal proceeding to be an obstacle to carrying forward the civil proceeding.

25. [25]
    In any event, in the context of this application any delay due to the criminal trial is not of great significance, in view of the defendant’s understandable attitude that if there were going to be criminal proceedings brought against him they should be dealt with first. What is of importance is the delay after that time, although it is notable that there is no evidence that anything useful was done to prepare the plaintiff’s action for trial after the abandonment of the proposed mediation in July 2006, indeed after particulars were provided in February 2006, apart from updating the statement of loss and damage, which as discussed below, was almost trivial and provided in response to a request for updating from the defendant’s solicitors.^[23]

26. [26]
    The plaintiff’s solicitors deposed to there being unsuccessful negotiations to settle the plaintiff’s claim between the solicitors in July and August 2007.^[24]  I am not persuaded that anything the defendant’s solicitor did or said at this time provided any justification for failing to ready the matter for trial.  The solicitor for the plaintiff spoke to a psychiatrist on 22 October 2007 in relation to the plaintiff’s claim, and the plaintiff had a conference with his solicitors and counsel on 21 February 2008.  In April 2008 a different solicitor took over carriage of the matter and “commenced preparations to brief counsel to provide an advice on evidence in respect of the … matter”.^[25]  In approximately December 2008 the plaintiff advised that he would attend a particular psychiatrist to obtain a further psychiatric report.

27. [27]
    The plaintiff’s solicitor said that in December 2008 further unsuccessful attempts to negotiate a settlement between the parties took place; this was specifically disputed by the solicitors for the defendant,^[26] and ultimately counsel for the plaintiff did not allege other than that in December 2008 there was an attempt made by the solicitor for the plaintiff to investigate the possibility of settlement negotiations, but the matter went nowhere.  In about January 2009 the plaintiff advised that he wanted to be seen by the psychiatrist in Brisbane, and arrangements were made for the psychiatrist to fly to Brisbane, where the plaintiff saw her on 12 March 2009; a report from the psychiatrist was received by the solicitor on 22 June 2009, and a copy was sent to the solicitors for the defendant the following day.

28. [28]
    The plaintiff’s solicitor deposed that after receiving this report “I commenced preparations to brief counsel with respect to obtaining their advices on prospects, quantum and evidence, as well as how long trial will take and costs. In effect, I have been actively working towards moving the plaintiff’s action to trial.” Apart from arranging for the further report from the psychiatrist,^[27] and forwarding a copy when it was obtained to the defendant’s solicitors, it is not apparent that the plaintiff’s solicitor did anything by way of “actively working” in the period between April 2008 and October 2009.  I infer from paragraph 66 of the affidavit that counsel was not in fact briefed to advise on evidence, nor was a brief to counsel for that purpose prepared, despite the commencement of preparations in April 2008, and there is no evidence that anything else of value in carrying the action forward was undertaken on behalf of the plaintiff during that period.  The initiative to obtain the further report from the psychiatrist appears to have come from the plaintiff.  At no time after the conclusion of the criminal proceeding was a request for trial date signed and forwarded to the solicitors for the defendant, nor were those solicitors asked to sign and return the one that had been forwarded in March 2007.

29. [29]
    The report of the psychiatrist dated 16 June 2009 was exhibited to the affidavit.^[28]  The psychiatrist diagnosed a mixed depressive and anxiety condition, perhaps best described as chronic depression.  She described the plaintiff as intensely preoccupied with his issues with the defendant, at a level that might be described as obsessive rumination.  The report noted that the plaintiff feels especially angry about what the defendant did to his daughter and also to his relationship with her, that is the plaintiff’s relationship with his daughter; he complained that at the time of their involvement with the defendant the daughter became hostile towards him and alien to him.^[29]

30. [30]
    The report revealed that the plaintiff has had numerous significant problems apart from any difficulty with the defendant. In view of this, bearing in mind that there is no claim for economic loss, on the basis of this report any award of damages would be relatively modest. The report noted that the plaintiff does not have much energy (p 4) and that he presents as humourless and intense with a grim and brooding quality, withdrawn interpersonally and with a pervasive sense of pessimism:  p 7.  Reference was also made to his despairing attitude, and his ongoing depression, despair and bitterness:  p 9.  Both the plaintiff in his affidavit^[30] and Ms Neil in her affidavit speak of his symptoms as including a reduced capacity to concentrate and ongoing indecisiveness, but I cannot find reference to either of these matters in the psychiatrist’s report.^[31]

31. [31]
    The plaintiff in his affidavit said that his diminished ability to think and concentrate have made it very difficult to gather and produce the information required in order to progress the claim.^[32]  He also complained about suffering distress from having to relive his experiences with the defendant for the purpose of gathering information required by the solicitors, and that this provoked intense feelings of guilt over having introduced his daughter to the defendant.  He said that as a result he has often been unable to respond to requests for information from the solicitors as promptly as he could have but for this condition.  It is difficult to reconcile what was said in this affidavit with the psychiatrist’s statement that he is intensely preoccupied with his dispute with the defendant.  However, the plaintiff was not cross-examined on his affidavit.

32. [32]
    In any case, the only occasion when it appears from the material that there was any real delay on the part of the plaintiff in providing information was the delay between August 2006 when the solicitor sought information about updating the statement of loss and damage and January 2007 which is the last of the three dates on which it was said information was provided. That was a period of five months, during which the statement shows that not much information was gathered, and it was a long time for a plaintiff to gather information for a statement of loss and damage. As well, it took the plaintiff over three months to sign and return the statement of loss and damage after it was finalised and provided to him for signature. There is nothing to suggest that any part of the subsequent delay was attributable to any difficulty in obtaining instructions from the plaintiff. There is no evidence that at any time after June 2007 the plaintiff’s solicitors were awaiting instructions or further information from the plaintiff.

Statements of loss and damage – D1533/01

33. [33]
    The statements of loss and damage^[33] are curious documents, and both are quite inadequate.  In each under the heading “medical expenses” an amount paid by the plaintiff is said to be set out in Schedule D, but none of the material in Schedule D relates to medical expenses.  In the earlier Schedule D what was claimed was 18 months of cleaning expenses at $20 a month, massage expenses related to the condition in both shoulders for a period of three years and garden maintenance, producing a total of $8,240 said to be up to date to September 2003.  The more recent Schedule D includes a claim for physiotherapy, a claim for a massage therapist,^[34] and a claim for reimbursement for lost wages for the former de facto referred to in the statement of claim, though the major amount claimed is said to be paid to “Home Instead Senior Care” for “personal care”.  There is no allegation in the current pleading that as a result of the plaintiff’s psychological injury, the only injury relied on in the pleading, the plaintiff has been unable to care for himself.

34. [34]
    The explanation may be found in the report of the psychiatrist, which said that the plaintiff had a stroke three years ago which led to some months' hospitalisation, problems with coordination of the right hand and difficulty in speaking and eating. He spent two months in rehabilitation, although the report stated that mostly he can cope with self-care at present. The report also referred to an accident to his shoulders. The report also stated that “evidently his physical problems and his disabilities are major and the recent stroke has greatly exacerbated them.” Obviously he had significant medical problems even apart from the stroke. In these circumstances it seems that most if not all of the matters referred to in Schedule D relate to things which are not the subject of the claim.  On the other hand, there does not seem to be anything identified which obviously is related to the matters the subject of the claim.

35. [35]
    Travel expenses are claimed in each document by reference to Schedule A.  In the earlier document this included visits to Dr Mina, identified as a general practitioner in the second document; Dr Walters, an orthopaedic surgeon; Dr Fairburn, another orthopaedic surgeon; Dr Duke, yet another orthopaedic surgeon; the Mater Private Hospital; the Holy Spirit Hospital; Ellen Lake, a physiotherapist; Mary Mitchell, a physiotherapist; and Greg Madden.  Mr Madden is not otherwise mentioned in the statement of loss and damage, which seems curious since one would expect that if the cost of travelling to see him was recoverable then the cost of the treatment received would also have been recoverable.  On the face of it, so far as I can tell, all of this was concerned with physical problems rather than any psychiatric injuries.  Curiously Schedule A in the second document does not include any of these claims, but includes a number of visits to Renee Jansen, the massage therapist; visits to “Body Mechanics”, physiotherapist; some visits to the Greenslopes Hospital outpatients department; and to the GP.

36. [36]
    There was no reference to any documents about out of pocket expenses, or indeed any documents at all relating to the plaintiff’s injury, loss or treatment apart from a string of medical reports. The 2007 statement revealed that at that time no additional reports had been obtained from the time of the 2003 statement, and indeed one medical report listed in the 2003 statement was omitted from the later statement. This report was identified as “Dr B. Lawbond dated 21 December 1998”, possibly a reference to the report of “Dr Bruce Lawford November 1998”, apparently a psychiatric report to the Department of Veterans’ Affairs, referred to in the report of the psychiatrist of June 2009, in which case it ought to have been referred to in the later document as well.

37. [37]
    The most remarkable deficiency, however, in both documents is that there has been a complete failure to satisfy the requirements of r 547(3)(g), requiring details of any accident, injury or illness suffered by the plaintiff in the three years immediately before the injury the subject of the action, and since the injury.  Both forms simply said “nil” to both, despite the fact that it is apparent from the psychiatrist’s report that the plaintiff has had major problems, including an injury to his shoulders, a stroke, high blood pressure, a neurological condition and a joint problem.  Yet none of this has been disclosed.  This part of the statements strikes me as prima facie dishonest, although the plaintiff was not cross-examined about this.  Overall, both statements are hopelessly inadequate as statements of loss and damage, and it is impossible to believe that either was the product of any serious attempt to get this matter ready for trial.^[35]

38. [38]
    There may indeed be some doubt as to whether the updated statement of loss and damage was a step in the action. The requirement of r 547 is that the statement of loss and damage must be served within 28 days after the close of pleading.  Rule 549(2) provides “if there is a significant change in information given in the statement of loss and damage after it has been served and before a trial date is set, the plaintiff must serve on the defendant a supplement to the statement.”  That rule has not been complied with; the more recent document does not reveal any significant change in the information given in the earlier statement, and it is not a supplement to the statement but purports to be a replacement.  It is difficult to see that the provision of this document was of any real use in carrying the action further towards trial.  It seems to me, frankly, that in this matter there has been no real step in the action, that is to say, nothing done which could actually be said to be something which in a practical sense was carrying the action forward, since further particulars were provided on 8 February 2006.

History of proceeding – D1882/01

39. [39]
    By a claim and statement of claim filed 20 April 2001, Sheenah Turnbull claimed damages because she developed a psychiatric disorder as a result of the way (alleged to have been negligent) the defendant conducted himself in the course of massage therapy provided by the defendant to the plaintiff between about 1996 and March 1999.^[36]  A notice of intention to defend and defence were filed on 21 May 2001, and a reply filed 29 May.  On the same day, the plaintiff’s solicitors requested further and better particulars of the defence, which were provided promptly on 21 June 2001.  On 24 October 2001 the defendant requested particulars of the statement of claim, which were provided on 17 December 2002.  The solicitor and the plaintiff deposed to the plaintiff’s having a great deal of distress when involved in gathering information and providing instructions to the solicitors and that this was the explanation for this delay.^[37]  The plaintiff served a list of documents on 17 January 2002; the defendant served a list of documents on 21 December 2002.  A statement of loss and damage was served on 18 July 2003; neither the plaintiff’s list of documents nor statement of loss and damage are exhibits to the affidavit, so I cannot comment on their content, but they were both late.

40. [40]
    The plaintiff filed an amended statement of claim on 29 September 2003, to which a defence was filed on 21 November 2003.^[38]  There was a further amended statement of claim filed on 17 December 2003.  Following the order that I made in D1533/01 on 11 May 2004, an application was made to strike out the further amended statement of claim, or part of it, which came before me on 20 April 2005, when I struck out the pleading but gave leave to file and serve an amended statement of claim.  Following that, a further amended statement of claim was filed on 18 May 2005.  A defence to this pleading was filed by the defendant on 23 November 2005, and a reply on 7 December 2005.  The defendant sought particulars in January 2006, which were provided (expeditiously) on 8 February 2006.

41. [41]
    In the latest statement of claim, it is alleged that the defendant (negligently) counselled the plaintiff to engage in a sexual relationship with a former partner with whom she had broken up, and that as a result of her having done so, and as a result of the defendant’s having massaged her in intimate ways, she suffered psychological injury. The pleading also alleges, somewhat obliquely, that the intimate massage (or some of it) amounted to “sexual battery”, although she claims only damages for negligence and not damages for trespass to the person, the modern term for assault and battery.^[39]  The defendant denied that he provided any counselling, or that he engaged in “inappropriate sexual and intimate behaviour towards the plaintiff”:  para 5.

42. [42]
    From May 2006 until July 2006 there was some discussion about the possibility of mediation as discussed in relation to D1533/01. On 9 March 2007 a request for trial date was forwarded to the solicitors for the defendant, as in the other matter, and the solicitors for the defendant refused to sign it for the reasons already discussed.  I have already said something about the criminal proceeding; this plaintiff was one of the complainants, and gave evidence at that criminal trial.  Indeed, it seems she was the only witness who gave evidence before the Crown abandoned the prosecution.

43. [43]
    In evidence in the criminal trial the plaintiff said that on 29 September 1998 the defendant during the massage rubbed her near the top of the left leg and the groin.^[40] On another occasion between 5 November and 10 December 1998, he put some lavender oil on a sore near her vagina.^[41]  In January or early February 1999 he had, while massaging her chest, run his hands over her breasts.^[42]  She said that each time she did not agree to what he did, but she did not at the time do anything to indicate that she objected, and she subsequently attended other massages, including at least two after the third occasion, without complaint, and had not raised any objection to this behaviour until some years later.^[43]  She was at the time about 40 years of age, and a qualified and practicing psychologist.^[44]

44. [44]
    In response to a letter of 19 July 2006 from the defendant’s solicitors requesting an updated statement of loss and damage, such a statement was served under cover of a letter dated 10 April 2007.  A copy of this document was not put in evidence.  There was no evidence of any particular difficulty on this occasion on obtaining instructions or a signature from the plaintiff.  Again, it was deposed that there were unsuccessful negotiations to settle in July and August 2007; I am not persuaded that anything the defendant’s solicitors did or said at this time provided any justification for failing to ready the matter for trial.  There was a teleconference with a psychiatrist on 22 October 2007, but no evidence that anything of use came from that; the same applies to a meeting with the plaintiff on 21 February 2008.

45. [45]
    The current solicitor took over the conduct of the claim in April 2008 and “commenced preparations to brief counsel to provide an advice on evidence in respect of the plaintiff’s matter.”^[45]  She deposed to having briefed counsel to obtain advice on prospects, quantum and evidence, as well as on how long a trial will take and costs, but does not say when.^[46]  She said that during 2008 she regularly received instructions and information from the plaintiff or attendance on the plaintiff, but does not say what if anything of use in progressing the matter occurred as a result.  On 1 December 2008 she requested a report from the plaintiff’s treating psychiatrist, said by the plaintiff to have been treating her since at least 2003.^[47]  As at the date of swearing the affidavit (13 October 2009), the report had not been provided.  Again, there was a claim that there were unsuccessful attempts at negotiation in December 2008; again, I am not persuaded that anything the defendant’s solicitor did or said at this time provided any justification for failing to proceed the matter.  Again, the plaintiff’s solicitor said (para 57):  “I have been actively working towards moving the plaintiff’s claim to trial.”

46. [46]
    It is not apparent that anything of any real use to that end has been achieved, at least since the serving of the updated statement of loss and damage in April 2007. This is not the case where any of the delay since then is attributable to any difficulties being experienced by the plaintiff. The solicitor said that she received instructions and information on at least five occasions during 2008, though it is not apparent that anything very useful happened as a result of this. One wonders what the instructions given were; to do nothing? That seems to have been the effect of them.

47. [47]
    It was also said that the delays associated with the applications by the defendant in relation to the pleadings in 2004 and 2005 caused delay in this matter as well. It may well have been the case that this matter was reasonably not progressed while my judgment in the other matter was reserved, and that nothing very much was done subsequently until the decision of the Court of Appeal was delivered in August 2005. However, it seems that the only matter of significance undertaken on the initiative of the plaintiff thereafter was the filing of the reply in December 2005; the further and better particulars were in response to a request and the updating of the statement of loss and damage were in response to a letter seeking such an updating, and I do not regard the signing and forwarding of the request for trial date in March 2007 as a serious attempt to carry the action forward, in view of the fact that the updated statement of loss and damage had not been provided,^[48] and after the criminal proceeding was resolved in June 2007 the request for trial date was not followed up.  Overall, the picture is one where the plaintiff has done very little to carry this action forward since 2002.

History of proceeding – D1938/01

48. [48]
    By claim and statement of claim filed 26 April 2001 Maily Pickering claimed damages and interest because she suffered a psychiatric injury as a result of her having become emotionally dependent on the defendant, the defendant having assaulted the plaintiff, and counselling alleged to have been provided by the defendant in the course of massage therapy he provided to the plaintiff from mid 1996.^[49]  A notice of intention to defend and defence were filed on 28 May 2001, and a reply filed 14 June 2001.  The previous day the plaintiff requested further and better particulars of the defence, which were provided on 18 March 2002; in the meantime the defendant had sought further and better particulars of the statement of claim on 2 November 2001, which were provided on 17 December 2002.  The solicitor and the plaintiff deposed to the plaintiff’s having struggled to provide answers to the request for particulars due to the distress that considering the circumstances of the defendant’s contact in such detail produced to the plaintiff.^[50]  On 15 January 2002 the plaintiff served a list of documents; the only relevant document disclosed was a medical report dated 23 November 2000.^[51]  Either disclosure was a singularly undemanding process in the circumstances of this matter, or it has not been done properly.

49. [49]
    A statement of loss and damage was served on behalf of the plaintiff on 8 April 2003.^[52]  The statement was due within 28 days after the close of pleadings (r 547), which closed on 14 June 2001 (r 169), so the statement was one year, eight months and twenty-seven days late.  The next step was on 29 September 2003 when an amended statement of claim was filed, to which a defence was filed on 21 November 2003.  A further amended statement of claim was filed on 17 December 2003, and the following day there was an application filed similar to that filed in the matter of Carlyle Pickering, which produced the same result:  on 15 January 2004 another judge stayed the plaintiff’s action until she attended upon a particular psychiatrist.  Again, I will assume that that has occurred.

50. [50]
    The next step was on 18 May 2005 when yet another version of the statement of claim was filed, to which a defence was filed on 23 November 2005.  A reply was filed on 7 December 2005.  The defendant sought further and better particulars of the latest version of the statement of claim on 9 January 2006; these were provided expeditiously on 10 February 2006.^[53]  The affidavit does not reveal when the defendant served his list of documents, but says that in February 2006 the plaintiff sought disclosure of some diaries, which disclosure was apparently provided reasonably promptly.^[54]  In 2006, as with the other matters, there was some discussion about the prospect of mediation but in July 2006 the defendant indicated that he would not mediate while the criminal proceedings were pending.

51. [51]
    In its current form, the statement of claim seeks damages for negligence on the basis that the plaintiff has suffered psychiatric injury as a result of her having acted on counselling alleged to have been negligently provided, by alienating herself from her father and leaving premises shared with a flatmate. The pleading also alleges that the defendant engaged in inappropriate sexual and intimate behaviour towards the plaintiff, by saying that he loved her and in late 1998 running his hand over her breast 3-5 times, but this is relied on only as something which made the plaintiff unable to extricate herself from the defendant’s influence, or not follow the counselling: para 13(b)(iv), (c).  Both the provision of counselling and the inappropriate behaviour are denied:  defence filed 23 November 2005 paras 4, 5.

52. [52]
    At the prompting of the defendant’s solicitors, a draft updated statement of loss and damage was sent to the plaintiff on 3 August 2006.  On 21 August 2006 a report of Mr Geoff Waldren was disclosed to the defendant.  Nothing further seems to have been done until, as with the other matters, on 9 March 2007 a request for trial date was forwarded to the solicitors for the defendant, which the defendant refused to sign because the criminal charges were still pending against him.  That I consider was a reasonable approach, and in any event the matter was plainly not ready for trial at that stage.  The criminal charges ceased to be an excuse for delay in June 2007. 

53. [53]
    The draft statement was chased up by the plaintiff’s solicitors on 28 March 2007, and information was provided intermittently up to 22 May 2007; again, according to the affidavit, this delay in providing the information was due to the distress dealing with this matter caused the plaintiff.  The amended statement of loss and damage was finally served on 24 May 2007.^[55]

54. [54]
    It was said that in July and August 2007 there were unsuccessful negotiations to settle the plaintiff’s claim; I am not persuaded that anything the defendant did at that time provided any justification for any delay in bringing the matter on to trial. On 12 September 2007, the plaintiff asked the solicitors to communicate with a particular psychiatrist, to whom the solicitor spoke in a teleconference on 22 October 2007; nothing seems to have come of that.  There was a conference with counsel and the plaintiff on 21 February 2008.  Again, nothing seems to have come of that.  In March 2008 there was some discussion with the plaintiff about making an offer to settle, but again nothing seems to have come of that.

55. [55]
    The present solicitor handling the matter took over in April 2008 and “commenced preparations to brief counsel to provide advice on evidence …” (para 57).  Nothing useful seems to have been done as a result, however.  In December 2008 the plaintiff gave instructions to obtain a psychiatric report from Dr Quadrio.  The plaintiff saw that psychiatrist on 12 March 2009, the report was received on 22 June 2009 and provided the next day to the solicitors for the defendant.  The solicitor said that on 29 July 2009 she received instructions to proceed with obtaining an advice on evidence from counsel.  In the final paragraph, the affidavit says that the solicitor has “commenced preparations to brief counsel with respect to obtaining their advices on prospects of quantum and evidence as well as on how long the trial will take and costs.  I have been actively working towards moving the plaintiff’s action to trial.”  What I said in relation to the matter of Carlyle Picking applies here too.

Position of the defendant

56. [56]
    The defendant said^[56] that he was previously married to a person who operated the “Inner Energy Centre”, a body referred to in the pleadings.  The plaintiffs in these three matters, and the plaintiffs in four other matters which were commenced in 2001 against the defendant, were people who attended the Inner Energy Centre to receive spiritual healing and to undertake meditation.  The three plaintiffs involved in these applications were also, he admits, regular clients of his massage therapy business.  He says he separated from his then wife in about February 1999 and that month she wrote to those who attended the Inner Energy Centre complaining about him.^[57]  The defendant said that shortly afterwards there was a hostile confrontation from Carlyle Pickering, who complained about the way the defendant had treated his then wife.  A few days later the plaintiff and a number of other clients, including the plaintiffs in the other two applications, cancelled their massage appointments.

57. [57]
    The defendant said he closed down his massage business in 1999, and put his business records, including patient record cards, into boxes stored in a shed in his backyard. These suffered extensive water damage following a heavy storm that caused the shed to flood, with the result that he had thrown out most of his business records prior to the commencement of these proceedings. This proceeding and others were commenced in 2001, since which time the defendant and his new wife have moved to Canada and have made a new life for themselves there, where they have a son.  The defendant says he has no insurance that covers the cost of this litigation or any amount awarded, and he is funding his defence from his own income; he has incurred legal costs of over half a million dollars in defending these proceedings, and other matters including the criminal proceedings.  He is understandably unhappy about having the litigation hanging over his head.

58. [58]
    The defendant’s affidavit also contains material which if true suggests that these three plaintiffs and others have been conspiring to persecute him, and his new wife, presumably in support of his former wife or in retaliation for his treatment of her. He referred to the formation in December 2000 of a company Justice Through Integrity Pty Ltd, of which the plaintiffs in these three matters are shareholders and which in view of documents that he has seen including during the criminal proceedings, and in the light of the evidence of the criminal proceedings, was apparently formed with a view to taking action to attack the defendant through various legal means.^[58]  Apart from these actions, and the others commenced in 2001 and not currently before me,^[59] in December 2001 the members of the company filed defamation proceedings in the District Court against some friends of the defendant, arising out of conversations allegedly occurring between those friends and one Bob Munt, said by the defendant to be a private investigator engaged by his former wife to investigate him.

59. [59]
    In March 2001 the shareholders of Justice Through Integrity commenced Supreme Court proceedings against the defendant and his new wife alleging misleading and deceptive conduct in breach of the Fair Trading Act 1989 in relation to representations allegedly contained in advertising material.  Subsequently an application must have been made to the court which led to an undertaking being given by the defendant not to publish in oral, written or electronic form certain matters alleged to overstate the defendant’s qualifications or experience.  Justice Through Integrity Pty Ltd then published an advertisement in The Courier Mail on 20 April 2002 under the heading “A matter of public concern” publicising that the defendant (and his new wife) had given an undertaking and setting out the terms of the undertaking.^[60]  In about September 2001 a group of women, including two plaintiffs in these matters, filed complaints in the Anti-Discrimination Commission alleging sexual harassment, which complaints were rejected as out of time.

60. [60]
    The defendant also complained of having received hostile statements from persons associated with the Inner Energy Centre, and said that complaints were made about him to the National Federation of Spiritual Healers and the Australian Psychologists Press, which led to his being expelled from those organisations, and a complaint was made to the Public Relations Institute of Australia concerning his new wife’s membership which led to her being asked to resign from that organisation. Complaints were made to his new wife’s then employer, and to a former employer, about her involvement with the defendant. After he moved to Canada complaints were made to the Canadian authorities about him.

61. [61]
    The plaintiff, Ms Turnbull, was cross-examined about Justice Through Integrity Pty Ltd and the activities of that organisation in the course of the criminal trial.^[61]  It was put to her that the company had provided a submission by senior counsel seeking the reversal of a decision by the police (vindicated by what happened at the trial) not to pursue charges against the defendant.^[62]  It may be that the suggestion that the two complainants had “put their heads together” against the defendant (p 98) was associated with the decision of the Crown prosecutor to abandon the charges; the trial judge in that matter commented that he could understand clearly the Crown’s attitude and the reasons for it, though he did not put them into words.^[63]

62. [62]
    The significance of much of this material was not apparent. If these proceedings were being pursued for a collateral purpose, namely as an act of revenge on the part of the supporters of the defendant’s former wife for his treatment of her, then it was not necessary to be concerned about dismissing the actions for want of prosecution, as that would mean that the proceedings were an abuse of process of the court, having been brought for a collateral purpose, and should be struck out or stayed no matter how expeditiously they were being pursued.^[64]  Ultimately counsel for the defendant did not put the matter in those terms.

63. [63]
    That this particular plaintiff may have been involved in other proceedings against the defendant may in theory be of some relevance in relation to the progress of this matter, since sometimes when there are multiple legal proceedings on foot one is advanced at the expense of others. But no argument was advanced on either side that that was a relevant consideration here. That the defendant feels that the proceedings are motivated by a desire to persecute and harass him is not I think a relevant consideration. Insofar as the defendant complains of stress, concern and hardship associated with the continuation of these proceedings, that is understandable and a relevant consideration in relation to applications of this nature,^[65] but otherwise what has happened in relation to other proceedings brought by these plaintiffs and other people against him, or other matters which he seeks to characterise as harassment, are really irrelevant to anything I have to decide.

64. [64]
    One other matter I should mention. It emerged during the hearing that the plaintiffs have been proceeding in the basis that these three matters would be tried together, and together with another matter against the same defendant.^[66]  Apparently the plaintiffs were proposing to submit that the evidence of all plaintiffs would be admissible in all matters.^[67]  Nevertheless, the plaintiffs’ counsel argued each matter separately, and no argument was advanced on the basis that the explanation for any part of the delay was the need to wait for one or others of the matters to catch up, so that all could proceed together.  Presumably more has been done in the fourth matter, where there is no application for leave to proceed, but neither side has put evidence before me of the course of that matter,  so I cannot find that any or all of these matters were delayed by what happened in that matter.  For what it is worth, apart from some delay arising from applications about the pleadings in D1533/01, where it was reasonable for all matters to await the outcome, there is nothing in the material that I have seen about the three matters before me to suggest that any delay in any of them has been caused by waiting for another matter. 

Analysis – D1533/01

65. [65]
    A number of matters relevant for an application of this nature were identified by the Court of Appeal in Tyler v Custom Credit Corporation Ltd [2000] QCA 178.  These apply in the present matter in the following way.  The events alleged in the statement of claim occurred between late 1996 and 1999, between 13 years ago and 10 years ago.  The litigation commenced on 30 March 2001.  This was comfortably within the limitation period, but not particularly close to the time when the relevant events occurred.  It is also I think relevant to consider the nature of the matters in dispute in the action.  The plaintiff’s case depends on the proposition that the defendant said various things to him at undefined times during that period when presumably the plaintiff and the defendant were the only persons present.  The plaintiff alleges that things were said; the defendant denies that.^[68]

66. [66]
    Apart from that crucial issue, there are other factual issues raised on the current pleadings:

1. (a)
   Whether the defendant, from about 1993 to about 1999, was or held himself out to the plaintiff as being a counsellor, which involves an issue as to whether the defendant informed the plaintiff that he was, or conducted himself as, a “spiritual healer” at the Inner Energy Centre and what he  understood that to connote, and what he had informed the defendant about that position.

2. (b)
   how regularly the plaintiff attended the defendant’s premises for massage therapy.

3. (c)
   whether the defendant, at a material time, knew or ought reasonably to have known that the plaintiff was a person susceptible to psychological or psychiatric injury.

4. (d)
   whether the defendant knew or ought to have known that the plaintiff would rely on the defendant to exercise care and skill in providing the alleged counselling.

5. (e)
   whether and why the plaintiff terminated his relationship with a named person in about April 1999.^[69]

All of these matters will depend on oral evidence from the plaintiff, and perhaps others; the plaintiff has disclosed no documents relevant to any of these issues.  These are not all the issues in the case, but show that the matter will depend upon details of what occurred on a number of occasions over a long period of time in respect of which the oral evidence is likely to be in conflict.

67. [67]
    Any records the defendant kept of any matter relevant to the plaintiff are presumably no longer in existence, though it is doubtful whether those records would have recorded anything of direct relevance to these issues. This is not a matter which would turn largely on the interpretation of facts not in dispute, or on the inferences to be drawn from, or interpretation of, documents which have been preserved.^[70]  It is not a matter where the factual situation was investigated at a time closer to the relevant events.^[71]  This strikes me as the sort of matter where an extended period of delay is going to make it difficult to have a fair trial.  This is recognised as prejudicial to the defendant.^[72]

68. [68]
    The next matter referred to is the prospects the plaintiff has of success in the action. I have already said something about the factual disputes. Apart from that, there are issues about the extent of the duty owed, and difficult issues in relation to causation, given the numerous other problems that have beset the plaintiff, and his complaints about matters which are not the subject of allegations in the statement of claim in respect of which there is apparently a conflict of expert opinion. The plaintiff has physical problems which as far as I can see could not rationally be attributed to anything the subject of complaint in the statement of claim, and seem to be the principal source of interference with his life. There is no claim for economic loss, and on the basis of the report in evidence the damages assessed would be relatively modest.

69. [69]
    When the matter was in the Court of Appeal, the President said of the plaintiff’s case that it was “not without its difficulties”. Keane JA, who delivered the principal judgment, said at [13]-[15]:

“In my opinion, if it be the fact that the respondent was persuaded by the applicant’s claims of competence in the field of relationship counselling to act in reliance upon his advice, and such reliance was reasonable, then, if that advice was given without the reasonable care that might be expected of a person holding themselves out as qualified to give that advice, the respondent may have a good claim for damages for negligence if he suffered psychiatric harm as a result of acting upon the applicant’s advice.

The respondent’s case may be said to involve a claim to remarkable gullibility and susceptibility on his part.  It may also be said that the respondent’s allegations of assumption of responsibility and reliance tend to strain credulity.  But, of course, the law of negligence protects the gullible as well as those who are astute to conserve their own interest.  And these are arguments about whether the respondent’s allegations are true as a matter of fact.

Similarly, arguments about whether the alleged consequences of the respondent’s acting upon the applicant’s advice were truly caused by the applicant’s advice rather than manifestations of problems which the respondent suffered from, or would have suffered from in any event, are arguments about proof of facts.  They are not arguments which demonstrate that, as a matter of law, the respondent’s claim cannot succeed.”

70. [70]
    This involves a large number of “ifs” and his Honour was not aware of the difficulties of causation revealed by the psychiatrist’s report.  It also does not seem to me to provide any particular encouragement in relation to the plaintiff’s prospects on the factual case, although his Honour was making the point that these difficulties do not mean that the pleading did not disclose a cause of action in law.  Counsel for the plaintiff referred to an earlier passage at [10], where it was said that the case pleaded for the recognition of a duty to exercise reasonable care to avoid inflicting psychiatric injury was at least as strong, if not stronger, than the case of a successful plaintiffs in Tame v New South Wales, Annetts and Anor v Australian Stations Pty Ltd (2002) 211 CLR 317.  Presumably the reference was to Mr and Mrs Annetts; Mrs Tame failed before the High Court, and all the passages cited by his Honour from that decision appear in discussion about Mr and Mrs Annetts.

71. [71]
    Their claim succeeded essentially because there had been some contact between them and the defendant prior to the incident which gave rise to the psychiatric injury, the death of the plaintiffs’ son, in connection with which it was alleged that the defendant had expressly assumed responsibility for the son and undertook specifically to act to minimise the risk of harm to him. In that way, the defendant was treated as undertaking responsibility to minimise the risk of psychiatric injury to the plaintiffs, which in the circumstances gave rise to a duty to them to take reasonable care to avoid causing them psychiatric injury. That case, like the decision in the Court of Appeal, involved the issue of whether the pleaded case was sound in law, rather than the question of whether particular facts proved at a trial gave rise to a duty of care.

72. [72]
    This case is certainly an unusual one, and the matters to which I have referred provide I consider ample support for the views expressed in the Court of Appeal to the effect that the plaintiff faces difficulties in relation to this claim, even if he was able to obtain a finding that it is more likely than not that the defendant said the things attributed to him. There must be serious doubt as to whether, and to what extent, any psychiatric problems the plaintiff subsequently displayed were attributable to the matters complained of, rather than other difficulties referred to in the psychiatrist’s report, or to a hostility to the defendant because of other matters. The termination of the relationship, which is crucial to the case as pleaded, seems to have occurred after the plaintiff became hostile to the defendant, at which time he would hardly have been relying on any counselling he had been given by the defendant. This is certainly not a case where it can be said that the plaintiff is going to succeed to some extent, or even quite likely to succeed, and the real question is as to quantum. It may be going too far on the present evidence to characterise the claim as speculative, but it certainly faces significant difficulties. The plaintiff’s affidavit did not touch on the prospects of success.^[73]

73. [73]
    There has been no disobedience of court orders or directions on the part of either party. The litigation has been characterised by significant periods of delay. There was little progress in 2002 or 2003, and 2004 was largely occupied by arguments about pleadings, which spilled into 2005. The pleadings seem to have been finalised in 2005, and after particulars were provided in February 2006 and the abortive mediation nothing very much seems to have occurred until after the conclusion of the criminal proceedings in June 2007. That delay was not particularly the fault of either party, and as I have already indicated, it was reasonable for the civil trials to be delayed until after this criminal trial. This delay provided an opportunity for the plaintiff to get his case in order for a trial, though it appears in practice to have been used as an excuse for doing nothing.

74. [74]
    Thereafter, little has been done to carry the action forward; an updated statement of loss and damage was prepared and eventually served, and an updated report from a psychiatrist who had been retained previously was obtained. It seems to me that essentially nothing else of any use has been done by way of preparing this matter for trial since the conclusion of the criminal proceedings, or indeed since February 2006. Overall, the litigation has been characterised by significant delay, particularly in recent years.

75. [75]
    One remarkable feature is that, although a request for trial date was forwarded by the plaintiff’s solicitors in March 2007, no attempt has been made since the conclusion of the criminal proceedings to press that issue. I have a suspicion that the request was a tactical one, forwarded in circumstances where the plaintiff’s solicitors knew that the criminal proceedings were coming on,^[74] and expected that the defendant would for that reason refuse to sign, as he did.  That I think is shown by the fact that no attempt has been made following the collapse of the criminal trial shortly thereafter to raise the question of the request for trial date any further, and the fact that at that time the plaintiff was obviously not ready for trial.  The fact that on a couple of occasions the solicitor handling the matter has “commenced preparations to brief counsel” to advise on evidence also suggests that it has not been regarded subsequently as being ready for trial.

76. [76]
    Some of the delay has been due to unsuccessful attempts on the part of the defendant to have the matter resolved on the pleadings, although I think it would be correct to say that on each occasion an application was made the defendant had some success in relation to the pleadings; the final (or at least the latest) version of the statement of claim did not emerge until May 2005. Only the appeal could be said to have been a complete waste of time from the defendant’s point of view. Certainly the defendant was raising issues about the plaintiff’s pleadings; on the other hand, it took the plaintiff a long time to get the statement of claim in order. My distinct impression is that overall the great bulk of the delay has been attributable to the plaintiff rather than the defendant.

77. [77]
    It was not submitted that the impecuniosity of the plaintiff was responsible for the pace of litigation, or that the defendant was responsible for the plaintiff’s impecuniosity. The litigation would be concluded by dismissing the plaintiff’s claim for want of prosecution. As to how far the litigation has progressed, it was submitted that from the plaintiff’s perspective the claim was ready to be tried, but that is not supported by the evidence. Apart from the failure prior to the making of the application to sign and forward a request for trial date, the affidavit from the plaintiff’s solicitor ended with the proposition that she had commenced preparation to brief counsel with respect to obtaining their advice on prospects, quantum and evidence. There was no evidence that that advice on evidence has been obtained, or that it is to the effect that nothing further needs to be done by way of preparation of the matter for trial.

78. [78]
    One matter which has been left dangling by the affidavit from the plaintiff’s solicitor is that in June 2006 the firm briefed someone of the Australian Association of Massage Therapists to provide an expert report in support of the plaintiff’s claim.^[75]  There is no reference in the affidavit to the report ever having been provided.  The updated statement of loss and damage signed in April 2007 refers to three reports by massage therapists under Item 5 “Examining experts”, but none of these is the person referred to in paragraph 43 of the affidavit.  If the report were concerned with questions of liability, however, it would not be disclosed in a statement of loss and damage, though it still ought to have been disclosed under r 214 if it was obtained by the plaintiff’s solicitors.

79. [79]
    The inadequacy of the statement of loss and damage is another reason why it cannot be said that this matter is, as far as the plaintiff is concerned, ready for trial. On the contrary, the material before me strongly suggests that the plaintiff’s solicitors have not ever made any serious attempt to get this matter ready for trial and were not doing so at the time when the issue about delay was pointed out by the defendant’s solicitors.

80. [80]
    In the light of the evidence of the plaintiff’s difficulties in bringing himself to do anything useful to carry the action forward, if there is anything further which needs to be done to bring the action to trial which involves the plaintiff personally doing anything, there may well be significant further delay. There is no evidence that the matter is ready for trial as far as the defendant is concerned, though there is no evidence of any particular additional steps which the defendant seeks to take. In the circumstances therefore I am by no means confident that if the matter were allowed to proceed it would proceed to trial in the near future.

81. [81]
    As to whether or not the delay was caused by the plaintiff’s lawyers being dilatory, it was submitted for the plaintiff that this was not relevant to this application. Whether there was a satisfactory explanation for the delay is I think more difficult. Much of the delay in the earlier years is unexplained, although some of it no doubt was attributable to arguments over the pleadings and some 10 months was attributable to my writing a reserved judgment delivered in April 2005, for which neither party can be blamed.  Some delay could be attributed to the possibility of mediation in 2006, but it seems that that was really a live possibility only for a period of about two months, and therefore not much delay is explained by that.  No other delay was excusable because of settlement negotiations.  The delay while the criminal proceedings were dealt with is explained, though not the failure on the part of the plaintiff to prepare the matter for trial so that it was ready to go once the criminal proceedings were out of the way.  There has I think been no satisfactory explanation for the delay since June 2007.  Overall the picture presented is that since June 2007 there has not been any serious attempt to move the matter towards trial and it has never been properly prepared for trial, despite the years that have passed; all that has happened is that there has been a desultory attempt from time to time to do something which could be of some use if the matter ever came to trial.

82. [82]
    As to whether the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial, I have already said something about the significance of oral testimony of events long ago, a matter which is generally regarded as leading to prejudice if there is significant delay involved. It is true that nothing specific has happened which would produce additional prejudice as a result of the delay, like the death of a witness. My impression is that from the defendant’s perspective real prejudice has been suffered by him as a result of having these actions hanging over his head over this extended period. Apart from the question of how fair a trial held now or at some undefined time in the future can really be, another factor which has been said to be material is that “ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated.”^[76]  That I think is of greater significance in circumstances where the defendant is an individual funding litigation out of his own pocket.

Analysis – D1882/01

83. [83]
    The matters referred to in Tyler (supra) apply in this action in the following way.  The events alleged in the statement of claim occurred between about October 1996 and 1999, between 13 years ago and 10 years ago.  The litigation commenced on 20 April 2001, within the limitation period but not particularly close to the relevant events.  The plaintiff’s case depends on the proposition that the defendant said various things to her at undefined times during that period when presumably the plaintiff and the defendant were the only persons present, and that he did various things to her during that period.  The plaintiff alleges that things were said and done; the defendant denies that.^[77] 

84. [84]
    Apart from those crucial issues, there are other factual issues raised on the current pleadings:

1. (a)
   Whether the defendant held himself out to the plaintiff as being a counsellor, which involves an issue as to whether the defendant informed the plaintiff that he was, or conducted himself as, a “spiritual healer” at the Inner Energy Centre and what he understood that to connote, and what he informed the defendant about that position.

2. (b)
   how regularly the plaintiff attended the defendant’s premises for massage therapy.

3. (c)
   whether the defendant, at a material time, knew or ought reasonably to have known that the plaintiff was a person susceptible to psychological or psychiatric injury, as a result of what she had told him during massage sessions.

4. (d)
   whether the defendant knew or ought to have known that the plaintiff would rely on the defendant to exercise care and skill in providing the alleged counselling.

5. (e)
   whether and why the plaintiff re-engaged in a sexual relationship with a former partner.

All of these matters will depend on oral evidence from the plaintiff, and perhaps others.  These are not all the issues in the case, but show that the matter will depend upon details of what occurred on a number of occasions over a long period of time in respect of which the oral evidence is likely to be in conflict.

85. [85]
    Any records that the defendant kept of the matter relevant to the plaintiff are presumably no longer in existence, though it is doubtful whether those records would have been of assistance anyway. This is not a matter which would turn largely on the interpretation of facts not in dispute, or on the inferences to be drawn from or the interpretation of documents which have been preserved. There was some investigation of aspects of the factual situation in connection with the criminal trial, when the plaintiff gave evidence and was to some extent cross-examined. That, however, did not touch on the question of counselling, which is the focus of the plaintiff’s case, given that the plaintiff claims damages for negligence and it is the provision of the counselling which is alleged in paragraph 12 of the statement of claim to have been negligent.  What occurred during the criminal trial will have rehearsed the plaintiff’s evidence, and some cross-examination, about some of the factual matters in issue in the action, but did not involve any meaningful investigation of what the plaintiff alleges as the central issue in this action.  This also strikes me as the sort of matter where an extended period of delay is going to make it difficult to have a fair trial.

86. [86]
    As to the prospects of success in the action, the essential structure of the current pleading is that the defendant owed a duty to take reasonable care to avoid psychological or psychiatric harm, for various reasons set out in some detail in the pleading which involve a consideration that what had passed between the parties during and perhaps prior to that period, that the defendant had counselled the plaintiff to resume a sexual relationship which had previously come to an end, that that counselling was negligent, that as a result of that counselling the plaintiff did resume the sexual relationship and as a result suffered psychiatric injury, causing the plaintiff loss and damage. That does not depend simply on the factual question of whether particular advice was given, or the more complex question of whether in the circumstances the provision of that advice was negligent; it involves issues as to the existence of a duty to take reasonable care to avoid psychiatric injury, which as shown by recent High Court authority can be potentially quite a complicated issue,^[78] as well as issues in relation to causation.

87. [87]
    As to the latter, there is in evidence a copy of a report by a psychiatrist, Dr Quadrio, prepared following an interview with the plaintiff on 19 April 2004.^[79]  This was not the first report provided by Dr Quadrio, and may well not be a comprehensive analysis of the issues of causation, but it makes no mention of any adverse effect of re-engaging in a previously discontinued sexual relationship.  What Dr Quadrio said in the report (p 3) about the plaintiff was:

“Ms Turnbull’s current psychiatric condition is chiefly related to the trauma of her relationship with Mr McArthur and the subsequent shock and grief once the exploitative nature of that relationship became known to her.”

88. [88]
    That is somewhat difficult to reconcile with the basis on which the plaintiff’s case is pleaded. It does seem to me therefore that the question of liability in this matter would be complex and difficult, and one which would turn on a fairly detailed examination of just what happened between the parties over an extended period of time. In my view the case as currently pleaded involves significant difficulties, and I note that the plaintiff’s affidavit does not touch on the prospects of success.^[80]

89. [89]
    The significance of the inappropriate conduct in the context of the present pleading appears to lie in paragraph 12(b)(iv) and (c), which are some of the particulars of the allegation that the provision of the counselling to the plaintiff was negligent.  It is alleged that the inappropriate behaviour was either designed to or had the effect of rendering the plaintiff unable to not follow the counselling.  The double negative is I think in this case of some significance.  If I understand this allegation correctly, it is that the defendant made sure that the plaintiff would follow the advice that he was giving her by indecently touching her.  Leaving aside the dispute about whether there was indecent touching, it is not immediately obvious to me that indecently touching someone would be a way of ensuring that that person followed advice which was being given at about the same time as to that person’s relationship.  It may be that this is not an essential part of the plaintiff’s case, or it may be that the plaintiff would be able to lead expert evidence to show that there is in fact force in this proposition, which appears counterintuitive, though if the plaintiff were proposing to rely on such evidence it should have been exchanged long ago.  Otherwise, this strikes me as a weakness in the plaintiff’s case.

90. [90]
    There is also the consideration that the report of the psychiatrist suggests that the effects of the plaintiff’s psychiatric condition, at least in terms of impairment of the plaintiff, are quite minor; the result of a PIRS assessment was given showing a total class score of 8 and a median class score of 1, which produces a 1% impairment by the application of the table for that rating system.^[81]  If damages were to be assessed under the Civil Liability Regulation, this would produce an ISV of 0-1 (Item 13 in Schedule 4), so that under the Civil Liability Act the maximum amount of general damages would be $1,000:  s 62(a).  This claim is so old that that restriction does not apply, but this does suggest that any assessment of damages in this matter is likely to be quite modest.  No economic loss is alleged in the statement of claim.

91. [91]
    There are two other matters arising from the psychiatrist’s report which I think are of some relevance. The first is that the report reveals that both her treating psychiatrist and her general practitioner had recommended that she take anti-depressants, which she has refused to do, preferring to rely instead on herbal remedies, which suggests a failure to mitigate, although that is not raised in the defence.  The other matter is that the report indicates that the plaintiff is intensely preoccupied with her experiences with the defendant.  The psychiatrist commented:

“Because these proceedings are continuing over such a long period of time and Ms Turnbull is so intensely preoccupied with them and with thoughts and memories regarding Mr McArthur (reflecting trauma) she is unable to move forward in terms of rehabilitation.  In spite of being in psychiatric treatment, it is my view that Ms Turnbull is unlikely to make a recovery and return to a normal life until this process is finished.”

92. [92]
    That was written in 2004, and suggests that the long delay in the proceeding has had a detrimental effect on the plaintiff’s rehabilitation, and that it would be in the interests of the plaintiff’s psychiatric wellbeing for these proceedings to be brought to an end as quickly as possible.

93. [93]
    There has been no disobedience of court orders or directions on the part of either party. The litigation has been characterised by significant periods of delay. It seems that not much was achieved in 2002 except the preparation of particulars in response to a request in late 2001, and the statement of loss and damage took a further seven months. For some time thereafter, all that seems to have happened were various steps taken with a view to tidying up the pleadings, which were not finalised until 2005. Further particulars were sought and provided early in 2006. Not much occurred then until after the conclusion of the criminal proceedings in June 2007; it was reasonable for the civil trial to be delayed until that matter was over, but it does not appear that the time was usefully occupied in getting this matter ready for trial.

94. [94]
    Forwarding the request for trial date in March 2007 was, I suspect, tactical, and in any event is of no significance since nothing further was done about that after the conclusion of the criminal proceeding. My comments about the request for trial date made in relation to D1533/01 apply here too. Indeed, from that point on it does not appear that anything has been done on the plaintiff’s initiative to bring this matter to trial. The updated statement of loss and damage was provided in response to a request from the defendant’s solicitors, and it does not seem that anything else of any real use has been done by or on behalf of the plaintiff since the middle of 2007, indeed since the reply was filed in December 2005 since the particulars were also in response to a request. Although some of the delay was due to the attempts on the part of the defendant to have the matters resolved on the pleading, and there were some brief delays associated with the criminal proceedings and the proposed mediation, my distinct impression is that overall the great bulk of the delay has been attributable to the plaintiff rather than the defendant.

95. [95]
    It was not submitted that the impecuniosity of the plaintiff was responsible for the pace of litigation, or that the defendant was responsible for any such impecuniosity. The litigation would be concluded by dismissing the plaintiff’s claim for want of prosecution. As to how far the litigation has progressed, the position is similar to that in D1533/01, except that here counsel has been briefed to advise inter alia on evidence, but at the time when the affidavit was sworn the advice had not been received.  I am not in a position to comment on the adequacy of disclosure or the statement of loss and damage.  There is the consideration here as well that on the face of the affidavit material, if anything further is required from the plaintiff personally, it is likely that she will again have difficulty in attending to it which may well be productive of further delay.  Again, there is no evidence of any particular additional steps which the defendant seeks to take.  Overall, I am not confident that if the matter were allowed to proceed it would go to trial in the near future.

96. [96]
    It was not submitted that the delay was caused by the plaintiff’s lawyers being dilatory. As to the explanation for the delay, there are periods where the delay is explained on the basis of the plaintiff’s psychiatric difficulties, but most of the delay that has occurred cannot be explained in this way. There is a reasonable explanation for the delay while the criminal matter was proceeding, though not for the failure to continue preparation of the matter for trial during that period, and there was a period of a few months where preparation might be said to have been reasonably intercepted by the prospects of mediation in the matter. Some of the delay is explained by arguments over the pleadings, as discussed in relation to the other matter. Most of the delay, however, is unexplained. In particular, the failure to do anything useful since April 2007 is unexplained. The explanation for most of the delay seems to be simply that over an extended period of time, in particular over the last three years, there has been no serious attempt to bring this matter on for trial.

97. [97]
    As to whether the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial, the situation is essentially the same as in D1533/01.

Analysis – D1938/01

98. [98]
    The matters referred to in Tyler (supra) apply in this action in the following way.  The events alleged in the statement of claim occurred between about mid 1996 and 1999, between 13 years ago and 10 years ago.  The litigation commenced on 26 April 2001, within the limitation period but not particularly close to the relevant events.  The plaintiff’s case depends on the proposition that the defendant said various things to her at undefined times during that period when presumably the plaintiff and the defendant were the only persons present, and that he did various things to her during that period.  The plaintiff alleges that things were said and done; the defendant denies that.^[82] 

99. [99]
    Apart from that crucial issue, there are other factual issues raised on the current pleadings:

1. (a)
   Whether the defendant, from mid 1993 to 1999, held himself out to the plaintiff as being a counsellor, which involves an issue as to whether the defendant informed the plaintiff that he was, or conducted himself as, a “spiritual healer” at the Inner Energy Centre and what he understood that to connote, and what he informed the plaintiff about that position.

2. (b)
   how regularly the plaintiff attended the defendant’s premises for massage therapy.

3. (c)
   whether the defendant, at a material time, knew or ought reasonably to have known that the plaintiff was a person susceptible to psychological or psychiatric injury.

4. (d)
   whether the defendant knew or ought to have known that the plaintiff would rely on the defendant to exercise care and skill in providing the alleged counselling.

5. (e)
   whether and why the plaintiff alienated herself from her father and left premises shared with a flatmate.

All of these matters will depend on oral evidence from the plaintiff, and perhaps others; the plaintiff has disclosed no documents relevant to any of these issues.  These are not all the issues in the case, but show that the matter will depend upon details of what occurred on a number of occasions over a long period of time in respect of which the oral evidence is likely to be in conflict.

100. [100]
     Any records that the defendant kept of the matter relevant to the plaintiff are presumably no longer in existence, though it is doubtful whether those records would have been of assistance anyway. This is not a matter which would turn largely on the interpretation of facts not in dispute, or on the inferences to be drawn from or the interpretation of documents which have been preserved. There was I expect some investigation of aspects of the factual situation in preparation for the criminal trial, but it is likely that that did not touch on the question of counselling, which is the focus of the plaintiff’s case. The plaintiff claims damages for negligence and it is the provision of the counselling which is alleged in paragraph 13 of the statement of claim to have been negligent.  In these circumstances preparation for the criminal trial did not involve any meaningful investigation of what the plaintiff alleges as the central issue in this action.  This also strikes me as the sort of matter where an extended period of delay is going to make it difficult to have a fair trial.

101. [101]
     As to the prospects of success in the action, the eventual structure of the current pleading is that the defendant owed a duty to take reasonable care to avoid psychological or psychiatric harm, for various reasons set out in some detail in the pleading which involves a consideration of what passed between the parties during and perhaps prior to that period, that there was counselling which was negligent, that the plaintiff accepted the counselling and acted on it by alienating herself from her father and leaving premises she shared with a flatmate, and as a result suffered psychiatric injury, causing the plaintiff loss and damage. That does not depend simply on the factual question of whether particular advice was given, or the more complex question of whether in the circumstances the provision of that advice was negligent; it involves issues as to the existence of a duty to take reasonable care to avoid psychiatric injury, which as shown by recent High Court authority can be potentially quite a complicated issue,^[83] as well as issues in relation to causation.

102. [102]
     As to the latter, there is in evidence a copy of a report by a psychiatrist, Dr Quadrio, prepared following an interview with the plaintiff on 12 March 2009.^[84]  This was not the first report provided by Dr Quadrio, and may well not be a comprehensive analysis of the issues of causation.  What Dr Quadrio said in the report (p 8) about this was:

“Premorbidly, Ms Pickering was a highly vulnerable young woman who had been deprived of maternal affection and as a consequence of this developed a powerful transferential relationship to McArthur; she was profoundly influenced by him to the extent that her relationship with her father deteriorated, as did that with a longstanding friend and flatmate.  For some years thereafter, Ms Pickering had difficulty re-establishing herself but has slowly done so.”

103. [103]
     It seems to me that the issue of liability in this matter would be complex and difficult, and one which would turn on a fairly detailed examination of just what happened between the parties over an extended period of time, as well as expert evidence which will apparently be in conflict: Dr Quadrio referred to a report of Dr Reddan in 2004 in a way which suggests that that report was to the effect that the plaintiff had no psychiatric disorder, and that she had been heavily influenced by the attitudes of others. It seems to me that the case as currently pleaded involves significant difficulties, and I note that the plaintiff’s affidavit does not touch on the prospects of success.^[85]

104. [104]
     The significance of the inappropriate conduct in the context of the present pleading appears to lie in paragraph 13(b)(iv) and (c), which are some of the particulars of the allegation that the provision of the counselling to the plaintiff was negligent.  The comments I made in relation to D1882/01 apply here too.

105. [105]
     There is also the consideration that the report of the psychiatrist suggests that the effect of the plaintiff’s psychiatric condition, at least in terms of impairment of the plaintiff, are quite minor; the result of a PIRS assessment was given showing a total class score of 7 and a median class score of 1, which produces a 1% impairment by the application of the table for that rating system.^[86]  If damages were to be assessed under the Civil Liability Regulation, this would produce an ISV of 0-1 (Item 13 in Schedule 4), so that under the Civil Liability Act the maximum amount of general damages would be $1,000:  s 62(a).  This claim is so old that that restriction does not apply, but this does suggest that any assessment of damages in this matter is likely to be quite modest.

106. [106]
     There are other matters arising from the psychiatrist’s report which I think are of some relevance. It shows that the plaintiff has had a successful career with which she is coping, as is also shown by details of her post-accident income in her statement of loss and damage. This suggests that the claim for substantial past and future economic loss based on an inability to practice as a massage therapist is unrealistic. The report reveals that she saw a psychiatrist for about a year in about 2007 but did not find it helpful. Her major problem at the time of the report seemed to be trouble sleeping. The report reveals problems with neck and back pain for which she has received treatment from a chiropractor, a matter not referred to as an illness in the statement of loss and damage.^[87]  As well, the psychiatrist said (p.9):

“While there is the likelihood of improvement in function with further maturation and with the assistance of psychotherapy, it is my view that a continuation of these legal proceedings would impede that process and that it would be in Ms Pickering’s best interests if a speedy resolution of these issues could be attained.”

107. [107]
     That suggests that the long delay in the proceeding has had a detrimental effect on the plaintiff’s rehabilitation, and that it would be in the interests of her psychiatric wellbeing for these proceedings to be brought to an end as quickly as possible. Elsewhere she said (p.5): “The legal process has been very stressful because it has been ongoing for so long … . For her a resolution to it would be ‘for McArthur to take responsibility that he did this’.” There is nothing in the material I have seen to suggest that there is any prospect of that happening, whatever findings may be made by a court following a trial, a process which may itself re-traumatise the plaintiff.^[88]

108. [108]
     There has been no disobedience of court orders or directions on the part of either party. The litigation has been characterised by significant periods of delay. It seems that not much was achieved in 2002 except the preparation of particulars in response to a request in late 2001, and the statement of loss and damage took a further four months. Thereafter, for some time all that happened was a dispute over psychiatric examination as in D1533/01 and various steps taken to tidy up the pleadings, which were not finalised until 2005. Further particulars were sought and provided early in 2006. One item of disclosure was pursued, and there was the same discussion about mediation, but otherwise nothing much occurred until after the conclusion of the criminal proceedings in June 2007; it was reasonable for the civil trial to be delayed until that matter was over, but it does not appear that the time was usefully occupied in getting this matter ready for trial.

109. [109]
     Forwarding the request for trial date in March 2007 was, I suspect, tactical, and in any event was of no significance since nothing further was done about it after the conclusion of the criminal proceeding. What I said about the request for trial date made in relation to D1533/01 apply here too. Indeed, from that point it does not appear that anything has been done of the plaintiff’s initiative to bring this matter to trial except obtaining an updated psychiatric report. The updated statement of loss and damage was provided in response to a request from the defendant’s solicitors, and nothing else of any real use has been done by or on behalf of the plaintiff since the middle of 2007, indeed since the particulars were provided in February 2006. Although some of the delay was due to the unsuccessful attempts on the part of the defendant to have these matters resolved on the pleading, and there were some brief delays associated with the criminal proceedings and the proposal for mediation, my distinct impression is that overall the great bulk of the delay has been attributable to the plaintiff rather than the defendant.

110. [110]
     It was not submitted that the impecuniosity of the plaintiff was responsible for the pace of litigation, or that the defendant was responsible for any such impecuniosity. The litigation would be concluded by dismissing the plaintiff’s claim for want of prosecution. As to how far the litigation has progressed, the position is similar to that in D1533/01, again the solicitor has deposed to no more that having commenced preparations to brief counsel. The statement of loss and damage seems to have a number of anomalies, as mentioned earlier. There is the consideration here as well that on the face of the affidavit material, if anything further is required from the plaintiff personally, it is likely that she will again have difficulty in attending to it which may well be productive of further delay. Again, there is no evidence of any particular additional steps which the defendant seeks to take. Overall, I am not confident that if the matter were allowed to proceed it would go to trial in the near future.

111. [111]
     It was not submitted that the delay was caused by the plaintiff’s lawyers being dilatory. As to the explanation for the delay, there were periods where the delay is explained on the basis of the plaintiff’s psychiatric difficulties, but most of the delay that has occurred cannot be explained in this way. There is a reasonable explanation for the delay while the criminal matter was proceeding, though not for the failure to continue preparation of this matter for trial during that period, and there was a period of a few months where preparation might be said to have been reasonably intercepted by the prospects of mediation in the matter. Some of the delay is explained by arguments over the pleadings, as discussed in relation to the other matter. Most of the delay, however, is unexplained. In particular, the failure to do anything useful since the last step is unexplained. The explanation for most of the delay seems to be simply that over an extended period of time, in particular since May 2007, there has been no serious attempt to bring this matter on for trial.

112. [112]
     As to whether the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial, the situation is essentially the same as in D1533/01.

Authorities

113. [113]
     It is for the plaintiff to show that there is good reason for excepting this particular proceeding from the general prohibition imposed by the Rules: William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 at 496; Tyler (supra) at para 5.  It is appropriate to identify the factors relevant to whether there is good reason for doing so, assess the weight to be given to each of the factors in the circumstances of the case, and then determine whether, on balance, there is good reason for making the order:  Dempsey v Dorber [1990] 1 Qd R. 418 at 420; Bazley v State of Queensland [2001] QSC 476 at para 22.  I analysed the facts in Tyler, and the later decision of the Court of Appeal in Quinlan v Rothwell [2001] QCA 176, in Elesanar Constructions Pty Ltd v Thiess Contractors Pty Ltd [2001] QDC 293.  I will not repeat what I said there.  The facts in Quinlan were quite different from the facts of the present matters, but I am conscious of the general statements of principle from the Court of Appeal in giving that judgment.

114. [114]
     The Chief Justice said:

“The discretion to dismiss for want of prosecution may these days confidently be exercised, in appropriate cases, with more robustness than would previously have been considered appropriate”.

He referred to the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and the terms of r 5, and added:

“None of this, however, justifies an unduly broad brush approach to identifying and balancing considerations relevant to the question whether the interests of justice require the proceeding to be dismissed”.

All members of the Court expressed the view that the effect of the decision in Taylor was not that the proceeding must automatically be dismissed with the passing of a particularly lengthy period.

115. [115]
     Thomas JA said at para 29:

“There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource.  That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended.  At the same time the rules of court are not an end in themselves.  They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences.”

116. [116]
     If anything, the emphasis on efficiency on litigation has increased in more recent years. In Arc Holdings Pty Ltd v Riana Pty Ltd [2008] QSC 191 Atkinson J said at [4]: “The days of litigating at leisure are over.”  That was said in the context of a case management regime which exists in the Supreme Court by Practice Direction and is not duplicated in the District Court, but to some extent the comment is of general application, and reflects an approach to the efficiency of litigation expected in an age when courts are judged on how quickly proceedings are terminated rather than on the quality of their judgments.  Nine years without a trial in sight is too long for an action in the twenty-first century.

Conclusion – D1533/01

117. [117]
     Broadly speaking the factors favouring allowing the matter to proceed are as follows:

1. If leave is refused, the plaintiff will lose any prospect of recovering damages in respect of the matters claimed.  I acknowledge that this is a factor of some importance.

2. There have been no breaches of court orders or directions.

3. Some, though not very much, of the delay has been attributable to factors beyond the plaintiff’s control. 

On the other hand, there are a number of factors weighing against allowing the matter to proceed:

4. The delay overall has been quite substantial, that is to say, there has been a long time elapsed since the events giving rise to the litigation.

5. The proceeding depends on the resolution of conflicts of oral testimony, about a number of matters extending over a significant period of time.  In such circumstances, a delay of this length has made it difficult to conduct a fair trial.

6. There are a number of significant difficulties facing the plaintiff in relation to liability, and if he were successful it appears unlikely that more than a moderate award of damages would be made.

7. There have been lengthy periods when nothing has been done by or on behalf of the plaintiff to carry the proceeding forward, most of this delay being unexplained.

8. For most of the period since the action was commenced the things the plaintiff did were in response to steps taken, requests from or prompting by the defendant.

9. There is no indication that there has ever been any serious attempt properly to prepare the matter for trial or to bring it on for trial.  The plaintiff appears willing to wound but reluctant to strike.

10. There has been a clear and prolonged breach of the implied undertaking in r 5(3).

11. It is unreasonable that the defendant has had the continuing threat of this litigation hanging over his head for so long, and he should be entitled to get on with his life and plan his affairs without it.

118. [118]
     With regard to the plaintiff’s psychiatric problems, accepting at face value what is said in his affidavit, those problems do not explain the great bulk of the delay that has occurred, unless it is because those problems also lead him to be reluctant actually to bring the matter on for trial. I suppose that if he finds it distressing to think about the matter for the purpose of gathering information for, or even just putting his signature on, a statement of loss and damage, it is going to be very difficult for him actually to go into the witness box and expose himself to cross-examination. Perhaps his hope was that if the matter dragged on long enough, the defendant would in effect pay him some money to go away. In any event, I do not accept that this is a case where the plaintiff’s psychiatric state has meant that the very slow pace of the litigation so far has been the best he could reasonably achieve. On the contrary, I regard the conclusion as irresistible that over an extended period of time there has been no serious attempt to bring the matter to trial or to prepare it properly for trial.

119. [119]
     In the light of the history of the matter and the various factors referred to and discussed in my earlier analysis, I consider that, notwithstanding the significance of the first factor listed above, on balance there is not good reason for exempting this particular proceeding from the general prohibition imposed by the rules. It follows that the plaintiff’s application for leave to proceed is dismissed. In those circumstances, it is appropriate on the defendant’s application to dismiss the plaintiff’s action for want of prosecution. I order the plaintiff to pay the defendant’s costs of the proceeding, including the costs of the applications, to be assessed.

Conclusion – D1882/01

120. [120]
     Broadly speaking the factors favouring allowing the matter to proceed are as follows:

1. If leave is refused, the plaintiff will lose any prospect of recovering damages in respect of the matters claimed.  I acknowledge that this is a factor of some importance.

2. There have been no breaches of court orders or directions.

3. Some, though not very much, of the delay has been attributable to factors beyond the plaintiff’s control. 

On the other hand, there are a number of factors weighing against allowing the matter to proceed:

4. The delay overall has been quite substantial, that is to say, there has been a long time elapsed since the events giving rise to the litigation.

5. The proceeding depends on the resolution of conflicts of oral testimony, about a number of matters extending over a significant period of time.  In such circumstances, a delay of this length has made it difficult to conduct a fair trial.

6. There are difficulties facing the plaintiff in relation to liability, and if she were successful it appears likely that only a very moderate award of damages would be made.

7. There have been lengthy periods when nothing has been done by or on behalf of the plaintiff to carry the proceeding forward, most of this delay being unexplained.

8. For most of the period since the action was commenced the things the plaintiff did were in response to steps taken, requests from or prompting by the defendant.

9. It is not clear that there has ever been any serious attempt properly to prepare the matter for trial or to bring it on for trial. 

10. There has been a clear and prolonged breach of the implied undertaking in r 5(3).

11. It is unreasonable that the defendant has had the continuing threat of this litigation hanging over his head for so long, and he should be entitled to get on with his life and plan his affairs without it. 

12. The plaintiff’s rehabilitation has been impeded by the delay in the action, and would probably be further affected by allowing it to continue.

121. [121]
     With regard to the plaintiff’s psychiatric problems, the comments made in relation to D1533/01 also apply. In the light of the history of the matter and the various factors referred to and discussed in my earlier analysis, I consider that, notwithstanding the significance of the first factor listed above, on balance there is not good reason for exempting this particular proceeding from the general prohibition imposed by the rules. It follows that the plaintiff’s application for leave to proceed is dismissed. In those circumstances, it is appropriate on the defendant’s application to dismiss the plaintiff’s action for want of prosecution. I order the plaintiff to pay the defendant’s costs of the proceeding, including the costs of the applications, to be assessed.

Conclusion – D1938/01

122. [122]
     Broadly speaking the factors favouring allowing the matter to proceed are as follows:

1. If leave is refused, the plaintiff will lose any prospect of recovering damages in respect of the matters claimed.  I acknowledge that this is a factor of some importance.

2. There have been no breaches of court orders or directions.

3. Some, though not very much, of the delay has been attributable to factors beyond the plaintiff’s control. 

On the other hand, there are a number of factors weighing against allowing the matter to proceed:

4. The delay overall has been quite substantial, that is to say, there has been a long time elapsed since the events giving rise to the litigation.

5. The proceeding depends on the resolution of conflicts of oral testimony, about a number of matters extending over a significant period of time.  In such circumstances, a delay of this length has made it difficult to conduct a fair trial.

6. There are difficulties facing the plaintiff in relation to liability, and if she were successful it appears likely that only a very moderate award of damages would be made.

7. There have been lengthy periods when nothing has been done by or on behalf of the plaintiff to carry the proceeding forward, most of this delay being unexplained.

8. For most of the period since the action was commenced the things the plaintiff did were in response to steps taken, requests from or prompting by the defendant.

9. It is not clear that there has ever been any serious attempt properly to prepare the matter for trial or to bring it on for trial.

10. There has been a clear and prolonged breach of the implied undertaking in r 5(3).

11. It is unreasonable that the defendant has had the continuing threat of this litigation hanging over his head for so long, and he should be entitled to get on with his life and plan his affairs without it.

12. The plaintiff’s rehabilitation has been impeded by the delay in the action, and would probably be further affected by allowing it to continue.

123. [123]
     With regard to the plaintiff’s psychiatric problems, the comments made in relation to D1533/01 apply here too. In the light of the history of the matter and the various factors referred to and discussed in my earlier analysis, I consider that, notwithstanding the significance of the first factor listed above, on balance there is not good reason for exempting this particular proceeding from the general prohibition imposed by the rules. It follows that the plaintiff’s application for leave to proceed is dismissed. In those circumstances, it is appropriate on the defendant’s application to dismiss the plaintiff’s action for want of prosecution. I order the plaintiff to pay the defendant’s costs of the proceeding, including the costs of the applications, to be assessed.