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  4. Martin v Kone Elevators Pty Ltd - [2014] QDC 210

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Martin v Kone Elevators Pty Ltd[2014] QDC 210

Martin v Kone Elevators Pty Ltd[2014] QDC 210

DISTRICT COURT OF QUEENSLAND

CITATION:

Martin v Kone Elevators Pty Ltd & Ors [2014] QDC 210

PARTIES:

WARREN MARTIN

(plaintiff)

v

KONE ELEVATORS PTY LTD (ACN 000 142 423)

(first defendant)

AND

ING MANAGEMENT LIMITED (ACN 006 065 032)

(second defendant)

AND

CB RICHARD ELLIS (M) PTY LTD (ACN 070 973 090)

(third defendant)

AND

BUILDING OPERATIONS & SERVICES SOLUTIONS (ABN 17 813 050)

(fourth defendant)

FILE NO/S:

2547/02

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

11 September 2014 Ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2014

JUDGE:

Samios DCJ

ORDER:

  1. The defendants’ application to dismiss the plaintiff’s action for want of prosecution is dismissed.
  2. The plaintiff has leave to proceed with his action despite he not having taken a step in the action for more than two years.
  3. The costs on each application be costs in the cause.

CATCHWORDS:

PRACTICE - LEAVE TO PROCEED - DISMISSING ACTION - WANT OF PROSECUTION - where the plaintiff allegedly suffered personal injury during an elevator malfunction - where the elevator expert witness retained by the plaintiff was erratic and unreliable - where the plaintiff did not proceed with his action against the defendants for a number of years - whether the plaintiff’s action should be dismissed for want of prosecution - whether the plaintiff should be given leave to proceed - whether the plaintiff tried to advance the matter despite the behaviour of the plaintiff’s expert witness - whether the plaintiff has any prospects of success in the action - whether the plaintiff could have avoided or mitigated delay in prosecuting the action - whether the defendants would be prejudiced by the delay in the plaintiff’s prosecution of the action

Legislation

Uniform Civil Procedure Rules 1999 (Qld) r 389(2)

Cases

NDC Investments (Australia) Pty Ltd v Sign Vision (Australia) Pty Ltd & Anor [2013] QSC 35

Tyler v Custom Credit Corp Limited and Ors [2000] QCA 178

COUNSEL:

Mr R Morgan for the plaintiff

Mr D Atkinson for the first, second, third and fourth defendants

SOLICITORS:

McKays Solicitors for the plaintiff

Barry.Nilsson Lawyers for the first, second, third and fourth defendants

  1. [1]
    HIS HONOUR: There are two applications before me. The first in time is brought by the defendants for an order that the plaintiff’s proceedings commenced 17 June 2002 be dismissed for want of prosecution. The second application brought in response, no doubt, to the first application is by the plaintiff seeking an order that he be granted leave to proceed pursuant to rule 389 sub-rule (2) of the Uniform Civil Procedure Rules.[1] 
  1. [2]
    The plaintiff was born on the 27th of September 1953. According to his statement of claim filed on 17 June 2002, on or about 11 January 2002 at or about 11.30 am he was going down in an elevator from the 24th floor of what has been known as the MLC Building and as far I am aware is now called the Hitachi Building when he heard a loud bang and the elevator suddenly plummeted without warning throwing him about on impact. He alleges the elevator then dropped again throwing him against the wall and on to the floor. He was then stuck in the elevator for approximately three-quarters of an hour.
  1. [3]
    In his statement of claim against the fourth defendant filed on 11 January 2005, what he alleges occurred is slightly different to the earlier statement of claim. In this statement of claim he alleges on or about the 11th of January 2002 at or about 11.30 am he was riding in an elevator in the premises for the purpose descending from the 24th floor when he heard a loud bang and the elevator suddenly plummeted without warning, came to a sudden stop and then threw him about the elevator by reason of a sudden deceleration of the elevator, thereafter descended rapidly again and decelerated abruptly throwing the plaintiff against the wall of the elevator and on to the floor of the elevator. He alleges in this later statement of claim that thereafter he was trapped in the elevator, which was stationary and did not allow access from the elevator to any particular floor, for approximately three-quarters of an hour.
  1. [4]
    Despite the difference that is apparent in the way he has alleged what occurred, basically I am prepared to accept the two pleadings are substantially the same. The plaintiff was 48 years of age when this event occurred and he is now 61 years of age. Liability has been denied by all defendants. For the record, the first defendant serviced the lifts in the building. The second defendant is the owner of the building. The third defendant is the managing agent for the building and the fourth defendant provided facility services and maintenance.
  1. [5]
    There is no evidence before me to suggest the event did not occur. Further, there is no evidence to suggest the plaintiff could not have suffered at least physical injuries in such an incident which may have caused or contributed to psychiatric injuries.
  1. [6]
    With respect to dismissing an action for want of prosecution, Justice Atkinson, delivering the Court’s judgment in Tyler v Custom Credit Corp Limited and Others [2000] QCA 178, said:

When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules rule 389, there are a number of factors that the court will take into account in determining whether the interests of justice require a case to be dismissed. These include:

  1. (1)
    how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
  1. (2)
    how long ago the litigation was commenced or causes of action were added;
  1. (3)
    what prospects the plaintiff has of success in the action;
  1. (4)
    whether or not there has been disobedience of court orders or directions;
  1. (5)
    whether or not the litigation has been characterised by periods of delay;
  1. (6)
    whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  1. (7)
    whether or not the impecuniosity of the plaintiff has been responsible for the pace of litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
  1. (8)
    whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
  1. (9)
    how far the litigation has progressed;
  1. (10)
    whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such a dilatoriness will not necessary be sheeted home to the client but it may be. 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;
  1. (11)
    whether there is a satisfactory explanation for the delay; and
  1. (12)
    whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.[2]
  1. [7]
    In her judgment, Justice Atkinson said:

The court’s discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case including the consideration 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.[3]

  1. [8]
    I see in the outline of submissions from the plaintiff that her Honour’s judgment was repeated in NDC Investments (Australia) Pty Ltd v Sign Vision (Australia) Pty Ltd [2013] QSC 35.
  1. [9]
    Dealing with the relevant considerations then, there is no doubt that at first blush the fact that the event complained of and the injuries suffered occurred over 12 years ago is of some concern. However, I accept the proceedings were commenced promptly on 17 June 2002 against the first, second and third defendants. I accept the existence of the fourth defendant only became apparent following the process of disclosure of the joinder of the now fourth defendant by the third defendant as a third party.
  1. [10]
    After the proceedings were commenced, defences were received from the first defendant on 5 September 2003, the second defendant on 11 July 2003 and the third defendant on 9 September 2003. The plaintiff gave an amended claim – statement of claim against the fourth defendant on 11 January 2005. The defence of the fourth defendant then came in on 29 March 2005. The reply of the plaintiff to the fourth defendant’s defence was 5 April 2005. An amended defence of the first defendant came in on 13 March 2008 and the plaintiff’s reply to the amended defence of the first defendant came in on 10 February 2009.
  1. [11]
    Arguably, matters proceeded comfortably rather than with any urgency. However, in addition to those steps I have just referred to there was other activity by the plaintiff. That activity may not have been overt in the sense of the filing of documents in the court and serving them on the defendants. But nevertheless, the plaintiff’s actions went towards prosecuting his action and being ready to prosecute his action. That is, in the course of 2003 he obtained three medico-legal reports. In addition he served the list of documents. In 2004 he obtained two further medico-legal reports. In 2005 he served an amended set of pleadings together with a statement of loss and damage.
  1. [12]
    Importantly, I think, there was a mediation on 6 April 2006. Unfortunately the mediation was not successful. However, I do not think that event can be ignored when looking generally at what has happened in this action. To my mind it is an important step in the prosecution of an action. It might lead to the resolution of the action or alternatively fine-tune issues for the future of the action if it has to go to trial.
  1. [13]
    It is correct though, as the defendants submit, the plaintiff did not take other steps during 2006. It is correct he took no steps at all in 2007 and the only step in 2008 was to sign an undated statement of loss and damage. When I refer to him not taking steps, this refers to overt actions on his part. That is, actions that could be seen by the defendants and arguably now by me, considering an application to strike the plaintiff’s claim out for want of prosecution.
  1. [14]
    I should add that the plaintiff also sent a letter on 27 April 2009 enclosing an updated statement of loss and damage, a reply to the amended defence and a report from his expert. Otherwise, again, no overt steps were taken in 2009. However, what the evidence also shows is that the first defendant obtained expert reports dated 1 March 2004, 19 October 2005 and 25 February 2008. The plaintiff retained an expert, Mr Frith, on 23 October 2007. He produced a report dated 27 April 2009. It was then provided to all of the defendants in April 2009.
  1. [15]
    I accept, on the evidence before me, that the plaintiff and his solicitors experienced significant frustration and delay due to the erratic and unreliable and even unprofessional behaviour of the plaintiff’s expert witness. I accept that when the plaintiff’s solicitors conferenced with the expert he would advance opinions to support the plaintiff’s case and the purport to produce a draft revised report which, in fact, failed to include the propositions which the expert had asserted in face-to-face conferences. I accept he continued to send the same report while describing it as revised. This occurred on the evidence on six occasions. On the 1st of June 2009, again on the 4th of February 2011, again on the 25th of July 2011, again on the 3rd of August 2011, again on the 7th of September 2011 and then on 18 May 2012.
  1. [16]
    Again, in the background of course, and not overt by way of steps that somebody could see that is, the defendant’s solicitors could see or the court could see until now. Throughout that period the plaintiff’s solicitor and/or counsel had conferences with this expert on 20 May 2009, 26 October 2009, 9 September 2010, 11 April 2011 by telephone and 27 July 2011. I accept during this period the plaintiff’s solicitors had considerable difficulty pursuing this expert witness.
  1. [17]
    The evidence before me also shows that the plaintiff’s solicitor is conducting the case for the plaintiff on a speculative basis and has spent $25,000 on his own money on outlays. I accept that because of the plaintiff’s expert’s behaviour, the plaintiff’s solicitor let the matter slip. He has taken responsibility for the delay that has occurred. I accept this has not been caused in any way by the plaintiff himself. I accept the behaviour of the expert witness left the plaintiff and his legal advisers in a difficult position.
  1. [18]
    What I can also see on the evidence is that the plaintiff’s solicitor has continued to try and advance the matter, including receiving recent advice from Mr Turnbull of counsel on 1 February 2014. The plaintiff’s solicitor has also engaged Mr Roger Kahler an engineer. Mr Kahler has only been able to produce a preliminary report at this stage dated 8 September 2014. Of course, the fact that Mr Kahler has come into the matter late and has indicated that an inspection would be required and has raised issues that need to be investigated – and this may lead to further delay. The fact remains that notwithstanding Mr Kahler’s entry late to the proceedings, the defendant’s solicitors have had experts look at the issues and, in my opinion, are not prejudiced except for the delay that will ensue, I consider, by Mr Kahler’s entry at this late stage. I have to balance that against all other relevant considerations. In terms of timing, I accept that the filing of the application to strike out for want of prosecution has generated some urgency on the plaintiff solicitor’s part. Nevertheless, I accept that it was reasonable for them to try and deal with the expert that had originally been chosen. I accept this could be considered to be a very small field in which people operate in terms of expertise. I also think it is likely that persons who might be engaged may not wish to become involved when the first defendant may have a large market and may hold onto a large market in this area.
  1. [19]
    Of course, I have to bear in mind that it is correct that the plaintiff has not taken a step which might be considered a step in the proceedings for three and a half years but, to my mind, the explanations that have been offered in all the circumstances are satisfactory. Therefore, there was no real delay when the proceedings were commenced. It is correct that the events alleged occurred over 12 years ago. I have to bear that in mind and balance it against other relevant considerations.
  1. [20]
    Regarding the plaintiff’s prospects of success in the action, as I have said earlier, there does not appear to be evidence to suggest the incident did not occur nor is there evidence to suggest the plaintiff could not have suffered at least physical injuries in such an incident which may have caused or contributed to physical injuries and may have caused or contributed to psychiatric injuries. In addition, I do not accept that the plaintiff’s prospects of success are poor. On the contrary, the evidence would suggest that the argument might come down to whether the first defendant’s servants or agents should have replaced the tachometer. I’m not suggesting that is the extent of the allegations made by the plaintiff. However, it might come down to that. As to that, there would seem to be documentary evidence that the service records and callout records – whether this action was heard 10 years ago or some time in the future, those records would have always been to my mind, the source of evidence whether by the plaintiff’s expert or by the defendant’s expert.
  1. [21]
    In addition, three days earlier the first defendant responded to a callout. The evidence of what was found by the technicians – the documentary evidence of what was found by the technicians prima facie is available. Then there was the callout on the 8th of January 2001. That again is a source of evidence. I won’t go into what they show but, to my mind, those records support the plaintiff’s case and are also available to the defendants and I do not consider the defendants are prejudiced by the delays that have occurred. In addition, there’s evidence that on 11 January 2001, when the incident occurred in which the plaintiff says he was injured, the tachometer was replaced. Again, this could be evidence in favour of the plaintiff of what could have been done at an earlier time, that is, three days earlier or at some earlier stage.
  1. [22]
    Therefore, considering the evidence and the records that the plaintiff has taken me to today, I am satisfied that the prospects of success are reasonable. I do not consider they can be said to be poor. I’ve mentioned that now the plaintiff has engaged Mr Kahler and, again, the plaintiff would have to his advantage what Mr Kahler has said in the preliminary report, which is also supportive of his prospects of success. That is, I consider they are reasonable prospects of success. The third item mentioned by her Honour Justice Atkinson is whether or not there has been disobedience of Court orders or directions. There is no such behaviour here.
  1. [23]
    The fourth item is delay. I have already touched in some respects on this issue. There is no doubt that there are gaps and significant gaps of things being done to progress the action. However, I do not accept the defendants’ submissions that one can say nothing was being done in a particular year or following year. It might be correct that nothing was being overtly done. While there may have been no contact between Mr Seeto, the solicitor for the plaintiff, and the plaintiff initiated by the plaintiff, I do not hold that against the plaintiff.
  1. [24]
    As to how far the litigation has progressed and how far it is from possible resolution, no doubt, the pleadings have closed, full disclosure has been given, the defendants have their expert reports. However, while Mr Kahler is going to provide a report by mid-October 2014, I suspect there will be some further delay, which I have to balance in all the circumstances. However, medical practitioners are available. Yes, Dr White has retired but Dr Wallace is available in his place.
  1. [25]
    It will be difficult, I accept, after 12 years for a Judge to try and assess quantum. That includes difficulty for the doctors, of course, to express opinions after this length of time. That is another circumstance I have to balance. Dr Boyce, the neurologist, is available to examine the plaintiff at any time from 22 September 2014 onwards. As I understand it, the plaintiff could be seen by Dr Byth on 6 November 2014 and I’ve mentioned Dr Wallace is available in place of Dr White from mid-October 2014. Again, assuming the defendants require independent medical examinations, the existing experts, Dr Fraser and Dr Varghese are available in respect of leave from 23 October 2014 and 3 November 2014.
  1. [26]
    I accept the defendants have not caused any delay. It is clear that they have written letters by their solicitors to try and get the plaintiff going and the plaintiff has not got going. There have been times when Mr Seeto did not reply. I don’t know but I’d infer that he might’ve been embarrassed about the position he was in with his expert and wondering where to go to solve the problem.
  1. [27]
    Certainly, there is no impecuniosity of the plaintiff to be considered. It appears from the statement of loss and damage that he has earned reasonable income. If I did strike out the plaintiff’s claim, then that would be the end of his proceedings. He would not be able to come again. Much has been done with respect to the litigation. I accept there will be more to be done if the matter proceeds.
  1. [28]
    I would not characterise in this case that the plaintiff’s lawyers are being dilatory. I draw the inference that they were trying their best with a difficult case and with a difficult expert. While more could have been done, I would not hold that against them on the hearing of this application. I consider there is a satisfactory explanation for the delay in this case. It may not answer all the delay but on balance, I am satisfied that it is a satisfactory explanation overall – at the end of the day, I should say.
  1. [29]
    The final item is prejudice. Here, I consider this will largely be a case involving the opinions of expert witnesses on the sufficiency of maintenance and safety assessment and foreseeability of risk associated with the lift. These experts have had the advantage that there are manufacturers’ manuals and instructions and there is the service records, call out records, the premises scheduled summaries, site evaluation form and Riskpac report referred to in the submissions. I do accept, essentially, the case will be determined upon expert opinion, based upon the service records for the lift. The service technicians of the first defendant can refer to those documents to refresh their memories. However, the documents themselves indicate what work was done at particular times. All that is available. It is not suggested the statements were not taken from such witnesses in the preparation of the first defendant’s case.
  1. [30]
    It is a complex matter, as can be seen from the exchanges between the defendants themselves as to their respective liability vis-à-vis each other. I don’t accept this is a case where the fading of memories is an important consideration. This is not about verbal contracts or discussions between the parties which are now being contradicted by one or other of the parties or their witnesses. In the end, it is accepted that there has been considerable delay. However, I accept it’s not the fault of the plaintiff. I accept it is the fault of the unusual behaviour of the expert. I accept it frustrated the plaintiff’s solicitor. If he had his time over again, he would’ve dropped that expert more quickly and found an alternative and we would all like to have our time over again with respect to a lot of things in litigation.
  1. [31]
    I do not accept there is sufficient prejudice here which would deprive the defendants of a fair trial. I think the matter can proceed expeditiously, although I acknowledge there will be a need for further steps. As far as directions are concerned, that’ll be a matter for the parties. In the end, I have balanced all the relevant considerations and I have come to the view that the proceedings should not be struck out for want of prosecution.
  1. [32]
    I have come to the view that the plaintiff should have leave to proceed and the first two orders I make are that the application to dismiss the plaintiff’s claim for want of prosecution is dismissed, secondly, the plaintiff has leave to proceed with his action in spite him not having taken a step in the action for more than two years. Now, that leaves the question of costs and you mentioned, Mr Morgan, directions but I’m not inclined to – I mean, I should give directions but I’m not inclined to do it off my own back.
  1. [33]
    MR MORGAN: Yes. Certainly that ‑‑ ‑
  1. [34]
    HIS HONOUR: So if you thought it was a matter you could discuss with Mr Atkinson and prepare a list of directions – and I’ll include those in any orders. I’ll do that. I mean, it’s difficult to ask Mr Atkinson if he’s just failed in his application to turn around and be nice and friendly to you about directions.
  1. [35]
    MR ATKINSON: I think I can manage that, your Honour.
  1. [36]
    HIS HONOUR: Sorry?
  1. [37]
    MR ATKINSON: I think I can manage that, your Honour.
  1. [38]
    HIS HONOUR: Yeah. Good on you.
  1. [39]
    MR MORGAN: We go through this all the time, your Honour.
  1. [40]
    HIS HONOUR: Well, I – good. So they’re the first two orders. So as far as directions are concerned, I’ll leave it to the parties to agree on a list of directions. If you can’t agree, I’ll just try and list it at 9.30 one morning somewhere and I’ll have a go at it.
  2. [41]
    MR MORGAN: Yes.
  1. [42]
    HIS HONOUR: But you can make it a separate order if you wish. So just – if you both initial it, email it through to my Associate and I’ll make it an order as per the draft initialled by me.
  1. [43]
    MR MORGAN: Thank you, your Honour.
  1. [44]
    HIS HONOUR: So you can say those directions are being made.
  1. [45]
    MR MORGAN: Make it a second.
  1. [46]
    HIS HONOUR: All right. What about the question of costs.
  1. [47]
    HIS HONOUR: There is certainly merit in Mr Atkinson’s submissions on behalf of the defendants. However, I do have the difficulty that I have accepted that the plaintiff and/or his solicitors had a satisfactory explanation for the delay. I am mindful that the defendants’ solicitors, Barry Nilsson, have acted commendably. More accurately, the defendants have given instructions through their solicitors such that costs have been minimised. I think there was merit on both sides is probably what I’m trying to say. In my opinion, through the action, I think the plaintiff has been proceeding on one railway line and the defendants have been on another railway line and it hasn’t crossed until, of course, the application to strike out for want of prosecution was filed and served.
  1. [48]
    Even so, in the end, in my discretion I’ve come to the view, because I think there is merit on both sides, that the costs of the – the order I make is that the costs on each application be costs in the cause. Yes. Thank you. No need to wait because I’ve got another matter I have to deal with.
  1. [49]
    MR ATKINSON: Thank you, your Honour.
  1. [50]
    HIS HONOUR: Yes. Thank you.
  1. [51]
    MR MORGAN: Thank you, your Honour.

Footnotes

[1] Uniform Civil Procedure Rules 1999 (Qld).

[2] Tyler v Custom Credit Corp Limited and Others [2000] QCA 178, [2] (Atkinson J).

[3] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Martin v Kone Elevators Pty Ltd & Ors

  • Shortened Case Name:

    Martin v Kone Elevators Pty Ltd

  • MNC:

    [2014] QDC 210

  • Court:

    QDC

  • Judge(s):

    Samios DCJ

  • Date:

    11 Sep 2014

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
NDC Investments (Aust) Pty Ltd v Sign Vision (Aust) Pty Ltd [2013] QSC 35
2 citations
Jump To
Cite 1 - [2013] QSC 35
Cite 2 - [2013] QSC 35
Tyler v Custom Credit Corp Ltd [2000] QCA 178
3 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178
Cite 3 - [2000] QCA 178

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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