Harding v Boulton & Anor[2013] QDC 85

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the applicant/plaintiff pursuant to r 469 of the Uniform Civil Procedure Rules for an order dispensing with the signature of the respondent/defendants on a request for trial date.

2. [2]
   There is no dispute between the parties that the request for trial date was served by the plaintiff’s solicitors on the defendant’s solicitors under Rule 467 (2) and that the request was not signed and returned within 21 days.

3. [3]
   The issue is whether the court in the exercise of its discretion should make the order sought.

4. [4]
   The plaintiff submits the order should be made and that the matter should be listed for trial in the sittings commencing 25 November 2013.

5. [5]
   The defendant on the other hand submits that it is not ready for trial because the defendants wish to investigate the Medicare claims history of the plaintiff.

6. [6]
   In August v GJ Glass and Aluminium (QLD) Pty Ltd [2001] QDC 84 McGill DCJ held at [12]:

“It does not follow that as long as the other party is seeking any further disclosure the matter will not be ready for trial; it may be that one party takes the view that there has been proper disclosure and on that view the party will be ready for trial (so far as disclosure is concerned) even if the other party asserts that proper disclosure has not been made.”

7. [7]
   Leaving aside this consideration, to my mind the rules contemplate that two sorts of applications can be brought in this area.

8. [8]
   Firstly, an order can be made pursuant to r 467(2) if a defendant declines to sign certificate of readiness. Such an application would bring into play the various requirements of r 467.

9. [9]
   On the other hand, an application under r 469 may be brought as an alternative to an application to r 467(2) (see for example, Yarrum Equities Pty Ltd v McConville and Anor [2011] QDC 287).

10. [10]
    To my mind, three important relevant considerations when considering an application under r 469 are whether:

1. (a)
   There is any significant reason as to why the matter should not be listed for trial; and

2. (b)
   The conduct of the parties;

3. (c)
   Any prejudice which may be suffered by the party opposing the application if the order is made.

11. [11]
    Bearing in mind the above I now turn to the history of the matter.

12. [12]
    The plaintiff was injured in a motor vehicle accident on 28 September 2010.

13. [13]
    The plaintiff instructs her solicitor that she sustained injuries to her neck, thoracic spine, left shoulder, left elbow, right elbow and chest.

14. [14]
    A Notice of Accident Claim form was provided to the second defendant on 24 November 2010.

15. [15]
    By letter dated 3 December 2010, the second defendant confirmed that the Notice of Accident Claim form complied with the Motor Accident Insurance Act 1984.

16. [16]
    On 2 February 2011, the second defendant admitted liability for the circumstances of the motor vehicle accident.

17. [17]
    A compulsory conference was conducted pursuant to that Act between the parties on 12 September 2012. The matter was not resolved and final written offers were exchanged.

18. [18]
    Prior to Jensen McConaghy Lawyers commencing to act for the second defendant (this occurred on 16 November 2012), the insurer acted for itself.

19. [19]
    On 18 May 2012 at about 10.41 pm there was a fax from the Department of Human Services to a fax server (the full document has not been disclosed to the court only pages 13 to 22) which apparently is a Centrelink report.

20. [20]
    The Centrelink report noted there was a meeting on 4 June 2009 at Centrelink between the Plaintiff and an officer of Centrelink.

21. [21]
    It was noted that Ms Harding’s GP confirmed that she had been diagnosed with supraventricular tachycardia.

22. [22]
    It was noted: “Janelle reported that she was diagnosed three years ago and despite medication, continues to experience mild daily symptoms and intermittent periods of irregular/racing heart beat which have resulted in her being hospitalised 4/5 times in the past three years. Past cardiologist specialists review and treatment, now monitored by a GP. Cardiac medication – Verapamil”.

23. [23]
    At page two of the report it was noted that her GP Dr Pilla reported that Ms. Harding had experienced stress and anxiety following a recent relationship breakdown and this may be contributing to symptoms that she reported as associated with her SVT condition.

24. [24]
    Further, it was noted at page 2: “Janelle reported that she experiences ongoing mild symptoms and severe intermittent episodic symptoms associated with her SVT condition which reduces her endurance and capacity to maintain work.”  This was repeated with the respect to an anxiety disorder (page 3.3).

25. [25]
    With respect to work capacity it was noted: “Janelle is suffering from a temporary condition – Anxiety that is impacting on her functional capacity and Dr Pilla reported that it is also likely to be exacerbating (sic) her SVT condition and associated symptoms. Janelle is given a temporary work capacity of 8-14hrs per week until 4 May 2010 WHE (sic) it is anticipated that Janelle will have been reviewed, received treatment and this condition will have been resolved or stabilised.”

26. [26]
    I infer that this report was provided to the insurer.

27. [27]
    The report is exhibit PRB1 to Mr Birkett’s affidavit, the solicitor from Jensen McConaghy. It is likely he obtained the report from the insurer.

28. [28]
    Further, he must have been aware of it, because as I will discuss later, issues relating to these medical conditions were pleaded by the defendant in its defence.

29. [29]
    It seems clear that the insurer (the second defendant) was aware of these other issues (including dermatitis) as at the date of the compulsory conference on 12 September 2012.

30. [30]
    The claim and statement of claim was issued in the Rockhampton Registry on 1 November 2012.

31. [31]
    The statement of claim alleges that as a result of the collision, the plaintiff sustained personal injuries including,

1. (a)
   A soft tissue injury to the cervical spine;

2. (b)
   A soft tissue injury to the thoracic spine;

3. (c)
   A soft tissue injury to the left shoulder;

4. (d)
   A soft tissue injury to the left elbow;

5. (e)
   A soft tissue injury to the right elbow; and

6. (f)
   A soft tissue injury to the chest.

32. [32]
    It is alleged in the pleadings that prior to the accident, the plaintiff was employed as a cleaner but as a result of the injuries she was permanently unable to perform work as a cleaner or in any other manual occupation.

33. [33]
    A significant amount is sought for economic loss.

34. [34]
    The defendants lodged a defence on 17 January 2013 alleging inter alia that the injuries from the motor vehicle collision had resolved and any injuries sustained by the plaintiff as a result of a the motor vehicle collision have not impacted on the plaintiff’s earning capacity which have been impaired by the plaintiff’s unrelated medical conditions including:

1. (a)
   Supraventricular tachycardia;

2. (b)
   Severe degenerative change in the cervical spine;

3. (c)
   Severe eczema/dermatitis on both feet;

4. (d)
   Anxiety/depression;

5. (e)
   Left should (sic) difficulties.

35. [35]
    It seems clear then that the defendants’ lawyers relied upon the information contained in the Centrelink report.

36. [36]
    It also seems clear that no attempt has been made at any earlier point in time to obtain the plaintiff’s Medicare claims history.

37. [37]
    The plaintiff delivered a Statement of Loss and Damage on 19 December 2012.

38. [38]
    In the Statement of Loss and Damage it is said “prior to her accident the plaintiff had a heart condition. The condition was controlled by taking medication each day. The plaintiff also suffers from chronic dermatitis of her feet. She has some arthritis in her thumbs. In 2012 she temporarily strained her lower back.”

39. [39]
    It would seem that the reference to the heart condition was a reference to the supraventricular tachycardia. There was no reference to anxiety/depression, although, such a condition may relate at least in part to the tachycardia.

40. [40]
    On 4 September 2012 the second defendant certified it was ready for the compulsory conference (MAE1).

41. [41]
    On 7 January 2013 the defendant’s lawyers wrote to the plaintiff’s lawyers (PRB3) enclosing a Medicare and PBS authority for signature by the plaintiff.

42. [42]
    Ms Esdale, the plaintiff’s solicitor, deposes she has no record of receiving this correspondence.

43. [43]
    On 26 February 2013 the plaintiff’s solicitors forwarded the request for trial date to the defendant’s solicitors requesting its return.

44. [44]
    On 18 March 2013, the solicitors for the second defendant wrote indicating they were waiting for the signed Medicare authority before signing the request for trial date.

45. [45]
    On 21 March 2013 the plaintiff’s solicitor advised the solicitor for the second defendant they had not received the authority, but they now forwarded the authority to the plaintiff to sign.

46. [46]
    On 4 April 2013, the plaintiff’s solicitors wrote to the defendants’ solicitors advising that their client had provided instructions to bring an application dispensing the signature on the request for trial date. An original request for trial date was enclosed. It was noted they expected the signed Medicare authority to be received from the Plaintiff in the coming days.

47. [47]
    In the request for trial date, the plaintiff’s preferences were specified to be the week commencing 22 April, 10 June and 25 November 2013.

48. [48]
    On 5 April 2013, the plaintiff’s solicitors returned the signed Medicare Australia/PBS authority.

49. [49]
    This was forwarded by the defendants’ solicitors to Medicare Australia on 9 April 2013 (PRB5).

50. [50]
    The application in this matter was filed in the Rockhampton Registry on 10 April 2013.

51. [51]
    In this case, I have regard to the provisions of the Motor Accident Insurance Act 1994 which inter alia in s 3 notes the objects of the Act are “to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents.” 

52. [52]
    Also, s 51B of the Motor Accident Insurance Act 1994 requires a certificate of readiness to be signed by the parties (s 51B(6)).

53. [53]
    Furthermore, I note the provisions of UCPR r 5 which notes the overriding obligations of parties in court, namely to facilitate the justice expeditious resolution of the real issues in civil proceedings at a minimum of expense and “… these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.”

54. [54]
    It also seems to me that the prescribed form for a request of a trial date, contemplates that a certificate of readiness might be signed by parties not withstanding there are outstanding matters (see (e) of form 48).

55. [55]
    Contrary to the defendants’ submissions I do not consider that the requirements of rule 467(4) must be met prior to an order under rule 469. Rule 469 refers to the mere serving of the request under rule 467(2). Of course the matters mentioned in Rule 467 (4) would be relevant to the exercise of the discretion under rule 469.

56. [56]
    Of course the question of prejudice must also be considered.

57. [57]
    If this trial is listed in the November sittings, there is much time for the defendants to obtain the Medicare records and to commission independent expert reports if required.

58. [58]
    If there is any difficulty in this regard, no doubt an adjournment application may be brought and considered on its merits. No doubt the plaintiff and her lawyers will be and should be co-operative in this process.

59. [59]
    In the circumstances bearing in mind the knowledge the second defendants had of the relevant issues, as early as May 2012 and noting these matters were pleaded, to my mind there is presently no prejudice to the defendants if the application is granted. Any potential future prejudice may be cured by an adjournment application.

60. [60]
    The respondent relied on a decision of Fryberg J namely Foreman v Lee and Anor [2005] QCA 86.

61. [61]
    That case may be distinguished. In Foreman the trial was called on that morning and leave was made to amend the defence on the first day of trial.

62. [62]
    I accept the submission made by the applicant plaintiff that there is no suggestion that the Medicare history will not be available to the respondent defendants in sufficient time for them to make further enquiries as they may wish to prior to the trial.

63. [63]
    In the circumstances, my determination is:

1. That pursuant to r 469 of the Uniform Civil Procedure Rules 1999, the court dispense with the requirement for the second defendant to sign the form 48, request for trial date;

2. This trial be listed at the sittings commencing 25 November 2013.

64. [64]
    I will give leave to the parties to lodge written submissions within 7 days on the question of costs.