Mattiuzzi v Padua College Limited
[2011] QDC 187
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- Unreported Judgment
- Mattiuzzi v Padua College Limited[2011] QDC 187
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Mattiuzzi v Padua College Limited[2011] QDC 187
Mattiuzzi v Padua College Limited[2011] QDC 187
[2011] QDC 187 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 2268 of 2005 | |
MICHELE ANTONIO MATTIUZZI | Plaintiff |
and | |
PADUA COLLEGE LIMITED ACN 072 693 700 | First Defendant |
and | |
SCOTT MAGUIRE | Second Defendant |
BRISBANE | |
DATE 11/08/2011 | |
ORDER |
CATCHWORDS | Uniform Civil Procedure Rules r 381, r 389 Leave to proceed granted after delay exceeding 2 years since last step - claim had come on for trial in 2008 when the parties agreed that trial dates should be vacated and plaintiff should have leave to amend statement of claim to frame his claim in an alternative way based on assertions in the defence - main reason for delay appeared to be inaction by the plaintiff's former solicitors |
HIS HONOUR: This is a plaintiff's application for leave to proceed with his claim after more than two years' delay. The application is made pursuant to Rule 389(2).
There has been some difference between the parties in identifying the last step. Curiously Mr Dawson, for the defendants/respondents who resist the application, suggests the last step was on 14th of November 2008 when disclosable documents along with some information about the plaintiff's changing his employment were sent by his solicitors to the defendants' solicitors.
Mr Wiltshire, for the plaintiff, took the approach that the last step was Judge McGill's order on 11th of June 2008 on what would have been day 2 of the trial which had been listed for the previous day when his Honour was available, but the parties were not wishing to have a trial. That order granted leave to amend the statement of claim in accordance with a document attached, vacated trial dates and struck out the request for trial date. The court hears from counsel, who happen to be those briefed on the trial, that those orders were made by consent.
There was a certain amount of correspondence between the parties in the following months but the plaintiff apparently lost his entitlement to amend pursuant to Rule 381 because nothing was done within the 14 days allowed. The correspondence between the parties, in the latter part of 2008, included "without prejudice" offers to settle, one from each side.
The proceeding went to sleep until the middle of March 2011 when new solicitors who had been engaged by the plaintiff the previous July communicated their involvement and sought consent to an order for leave to proceed. Future steps were proposed including the filing and serving of the amended statement of claim which retains the form it had in 2008, the obtaining of updated medical reports, the preparing and serving of an updated statement of loss and damage and the serving of a request for trial date.
Notice of change of solicitors was filed in the court on the 29th of April 2011. Doubtless, some trouble had to be taken by the plaintiff's new solicitors in obtaining the file from their predecessors. The court has been told from the Bar table that difficulties of a medical nature within MrsWalker's family, she being the employed solicitor running the matter, caused the loss of a couple of months last summer. From the defendants' point of view, however, with nothing happening until March this year there's been delay which is the responsibility of the plaintiff's side. They're certainly under no obligation to take the initiative in advancing the proceeding.
The court is satisfied on the basis of the plaintiff’s and certain corroborating evidence that the former solicitors bear responsibility for the troubling inaction. The court's satisfied that the plaintiff and his mother periodically contacted the solicitors, although Mr Dawson's right that they could have done more rather than allow themselves to be fobbed off with statements to the effect that these things take time and the like. There are a couple of file notes made by the lawyers which corroborate those assertions from the plaintiff.
The incident underlying the claim is an old one, having occurred in 2000 when the plaintiff was a 15 year old boy participating in a PE class in the first respondent college's swimming pool being conducted by the second respondent who was a teacher. While he was swimming he was struck from above by a fellow student who, according to the original statement of claim, was pushed into the pool by the teacher.
The proposed amendment picks up assertions in the defendants' pleading denying pushing but asserting that Mr Maguire had approached the second student, placed his hand on his shoulder from behind and instructed him to get back in the pool. The amended defence alleged that that boy "of his own volition and by his own motion propelled himself back into the pool".
The plaintiff seeks to pick up that version of events as an alternative and contend it still bespeaks negligence of the teacher for which the school bears responsibility. Although MrDawson submits that's a new cause of action sought to be added after the expiration of the limitation period, I'm not persuaded of that at all. There's something unsatisfactory about rejecting the amendment, in any event, the defendants having agreed to the amendment of the plaintiff's pleading at the time of the trial. Mr Dawson submits that "that was then, this is now".
Factors for the court's consideration have been conveniently listed in Tyler -v- The Custom Credit Corporation Ltd [2000] QCA 178. The list of 12 is not necessarily exhaustive but it's frequently consulted by courts faced with applications like the present one. It's appropriate to say something about each of those factors;
- (1)How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced?
I take the approach that once the context becomes one of delay what is to be looked at is the delay since the occurrence of relevant events rather than the delay which creates the necessity for the plaintiff to make the application which typically, as here, will be a shorter period. The events here occurred in 2000 which is a long time ago.
However, as one would expect, investigations occurred within the school in 2000 and statements were taken from Mr Maguire and students who could say anything relevant. Those have been preserved, at least, the contrary is not shown, and the relevant people are still all available. This being a civil proceeding their statements can be introduced in evidence.
- (2)How long ago litigation was commenced or causes of action were added?.
That consideration is part of the general picture here. The plaintiff had the advantage of his youth which entitled him to longer to commence his claim than would otherwise have been available.
- (3)What prospects the plaintiff has of success in the action?
Perhaps contrary to Mr Dawson's submission which was supported by reference to a High Court authority according a degree of respect to allowing students in schools to find ways of getting on in the world without excessive supervision from authorities, I take the view that the plaintiff's prospects of success in a claim for personal injury based on his being in collision with another student while inoffensively swimming in the course of a lesson are good.
The claim was for the limit of the court's monetary jurisdiction at the time, $250,000. There's nothing to suggest that the plaintiff is extremely disabled or would suffer some crushing reverse in his life because deprived of the fruits of this proceeding. Nonetheless, as I say, I count his prospect of success as good.
- (4)Whether or not there's been disobedience of court orders or directions?
This is not the case in respect of the plaintiff, who has done no more than fail to take advantage of leave. That doesn't constitute disobedience. If there had been disobedience to any court order or direction the defendants would have been in a position to seek relief under Rule 280.
- (5)Whether or not the litigation has been characterised by periods of delay?
I take that to refer to the litigation having, from its inception, been recognisable as proceeding in a particularly leisurely fashion which might be thought to justify delay within Rule 389 on the plaintiff's part. The proceeding can't be so characterised.
- (6)Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendants,
In this case nothing can be said against the defendant given my view that it was not their responsibility to ensure that the matter progressed as the court and the community in our modern era insist that litigation should.
- (7)Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity?
That has no relevance here on the evidence before the court.
- (8)Whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim?
That is the case.
- (9)How far the litigation has progressed?
This application is relatively unusual in that the proceeding was not only set down for trial but reached the stage of trial only to go off, as I understand it, because it was considered appropriate for the defendants to look into certain matters regarding the plaintiff's employment and also because of the change to the statement of claim. In my opinion the listing of this matter for trial is something in favour of the court’s allowing the plaintiff to have it set down for trial again.
- (10)Whether or not the delay has been caused by the plaintiff's lawyers being dilatory?
Such dilatoriness will not be necessarily be sheeted home to the client but, maybe delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers.
In this regard everything is against the plaintiff's side but my assessment of the evidence is that it's the lawyer's branch rather than the plaintiff himself who bears the responsibility. Although as Mr Dawson says he's a young and presumably reasonably intelligent person, one would not expect him to be aware of the risks to his position of the delay that was occurring and, indeed, occurring to his consternation.
- (11)Whether there's a satisfactory explanation for the delay? There really is not, except to the extent that the finger points at the former solicitors.
- (12)Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial?
In that regard I've already made some comments about the availability of the evidence that has been available more or less from the beginning and then at the aborted 2008 trial.
It's true the people's memories fail and delay of itself causes problems and perhaps verging on unfairness. Those general considerations were referred to by McPherson JA in Cooper -v- Hopgood and Ganim [1999] 2Queensland Reports 113 at 124, which I had occasion to refer to in a decision of which I have been reminded this morning from the Bar table, McEnearney -v- Coggins [2006] QDC 33. To similar effect is what five Judges of the High Court said in Aon Risk Services Australia Ltd -v- ANU 239 CLR 175 at paragraph 101 where their Honours said:
"It should not be thought that corporations are not subject to pressures imposed by litigation. The corporation in the position of a defendant may be required to carry contingent liability in its books of account for some years with consequent effects upon its ability to plan financially depending on the magnitude of the claim.
Its resources may be diverted to deal with the litigation and whilst corporations have no feelings their employees and officers who maybe crucial witnesses have to bear the strain of impending litigation and the disappointment when it is not brought to an end.
The stated object in the Court Procedures Rules of minimising delay may be taken to recognise the ill effects of delay upon the parties to proceedings and such effects will extend to other litigants who are also seeking a resolution in their proceedings."
There is an affidavit from Mr Keegan, on behalf of the defendant school, which deposes to financial provision having been made to cover possible outcomes of this proceeding and there is reference, albeit without any detail, to the conclusion having been drawn from inaction, that provision need no longer be carried. Examples were given of financial obligations that the school has undertaken in respect of various projects which may lead to embarrassment should provision to protect MrMattiuzzi's situation have to be made afresh.
I observed during hearing that should he find that he recovers a judgment in this proceeding it might be appropriate in the circumstances that the defendant have indulgence in respect of satisfying the judgment. As was Mr Coggin, the school is without insurance thanks to the collapse of HIH which occurred early in this century to the best of the recollections of those in court today, and not long after the subject accident. That would seem to be an irrelevant factor to me; even had there been no delay at all the school was likely to be without that insurance cover.
The situation of the second defendant, he being an individual, commands more sympathy. To this stage he's been supported by the school. They have common representation. The reasonable basis to proceed upon is that that situation will continue.
The court’s has the luxury of a considerable amount of time to debate considerations with counsel and a number of cases have been referred to.
Tyler establishes the proposition, see paragraph 5, that on an application for leave to proceed the applicant must show that there is good reason for excepting a particular proceedings from the general prohibition in a case in which the relevant number of years, now reduced from three to two, have elapsed from the time when the last proceeding was taken.
That proposition's taken from William Crosby and Co Pty Ltd -v- Commonwealth [1963] 109 CLR 490 which concerned a delay of more than 10 years against a rule which required permission of the court to take a new step after six. The High Court rule was indistinguishable, I think, from Rule 389 relevantly. Likewise the rule considered in Cooper -v- Hopgood and Ganim which was RSC Order 90 Rule 9.
In William Crosby the High Court embarked on a familiar exercise of considering prejudice to the parties. The defendants placed before the court affidavit evidence in which specific instances were given of the death or disappearance of persons who could have given material evidence.
The conclusion of the court at page 499 was that the plaintiffs had failed to show the case was one in which would be proper to grant leave to take a further step. Their Honours differed from Windeyer J, at first instance, specifically disapproving his approach that the purpose of the rule was not to stop actions or to destroy rights of action, but rather intended to enable the court to insist that the action be brought on and disposed of and not remain in the state of inaction and to this end to take control of the proceedings by fixing anew the times within which steps which had not been taken are to be taken.
In McEnearney, I refer to the balancing exercise that a court in the court’s position today has to undertake as acknowledged in Tyler and in another case referred to by Cullinane J. I expressed a view to which I adhere that the effect of Rule 389 is not to apply a more or less automatic striking out to a proceeding which is attended with unacceptable delay. The purpose of it is to ensure that where there is delay of concerning proportions the claim is not allowed to proceed unless the court, having devoted appropriate consideration to the matter, thinks that it ought to be.
Balancing all the considerations I'm of the view that this claim ought to be allowed to proceed. It's appropriate for directions to be given to ensure that it proceed expeditiously now, that being in the interests of all parties one would think as well as the court and other litigants.
The applicant plaintiff somewhat optimistically seeks costs. It appears to me clear that the plaintiff needs an indulgence. It's not sufficient to entitle him to costs that the defendant was given an opportunity to consent to leave under Rule 389 being granted.
I might mention another Court of Appeal matter which was the subject of submissions, that's Basha -v- Basha [2010] QCA 123, a case unlike the present but like William Crosby where there had been a loss of evidence.
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