Halls v Executor of the Estate of Alan William Johnston
[2014] QDC 245
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- Halls v Executor of the Estate of Alan William Johnston[2014] QDC 245
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Halls v Executor of the Estate of Alan William Johnston[2014] QDC 245
Halls v Executor of the Estate of Alan William Johnston[2014] QDC 245
[2014] QDC 245
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE R.S. JONES
No 3232 of 2009
GREGORY GEORGE HALLS Plaintiff
and
EXECUTOR OF THE ESTATE OF
ALAN WILLIAM JOHNSTON and ANOTHER Defendants
BRISBANE
2.46 PM, THURSDAY, 23 OCTOBER 2014
EX TEMPORE JUDGMENT
HIS HONOUR: This proceeding is concerned with an application for leave to continue with a personal injuries action commenced by claim and statement of claim filed 13 November 2009. The subject incident was a road accident that occurred on 27 October 2008. In the circumstances of this proceeding it is necessary to dispose of it at the earliest opportunity. That is so because if I were to find against the plaintiff he would be required to recommence proceedings by no later than next Monday, that is, only two clear working days from today. I refer, there, to the plaintiff. I should note that the original plaintiff was one Mr Halls. He, however, is no longer, as I understand it, directly involved in this proceeding in that by way of release that he executed on or about 17 December 2008, the insurer, Lumley, acquired the subrogated right to pursue the action. Also in this case there is an insurer involved on the part of the defendant, but for the sake of convenience I will simply refer to the parties as the plaintiff and the defendant. The defendant died as a consequence of the accident.
Because of the time constraints involved I have decided, albeit with some reluctance, to deal with this matter by way of ex tempore reasons. Notwithstanding that, I reserve the right to tidy up these reasons and also add cases, if I consider it appropriate, before publication.
As I said, the substantive proceeding was commenced by way of pleadings filed on 13 November 2009. In paragraphs 4, 5 and 6 of the statement of claim it is alleged as follows. “At the same time and place the deceased was proceeding on the Pacific Highway in the opposite direction. As the two vehicles approached each other the defendant’s vehicle crossed onto the wrong side of the road and collided with the plaintiff’s vehicle, causing damage. The collision was a breach of duty owed by and constituted negligence by the deceased, for whose negligence the executor is vicariously liable.” Then the particulars of the negligence is given.
On 14 December 2009 a defence was filed which, of significance, admitted the allegations in paragraphs 3, 4 and 5 of the statement of claim, which, essentially, was an admission that when the two vehicles collided the defendant’s vehicle was on the wrong side of the road. However, in paragraph 5 of the defence it was pleaded to the effect that the accident was the inevitable consequence of a medical condition suffered by the defendant driver. More relevantly, that medical condition was more than one problem associated with his heart.
Following the filing of the defence the following steps took place. And I should note here that there was no dispute about the chronology of events as set out in the outline of Mr Copley, counsel for the plaintiff applicant. Following the filing of the defence on 14 December 2009 a reply was filed on 6 January 2010. Between 8 January 2010 and 9 April 2010 discovery was undertaken by the parties. On 25 January 2010 the plaintiff sought further and better particulars, which were provided by the defendant on 25 February 2010. After obtaining advice on prospects of success on the part of the plaintiff the next step that occurred was that on 11 June of 2010. The plaintiffs sought disclosure from the defendant. Between 29 June 2010 and 20 July 2010 the plaintiff then issued a number of notices of non-party discovery.
It is clear that the most likely last step was that which occurred on 11 June 2010. But, in any event, even accepting for the moment that the issuing of notices of non-party discovery might constitute a step for the purposes of this argument that does not take the plaintiff’s case much further in that that only occurred a month or so after 11 June 2010. That is there has been no step taken in the action for – depending on the view you take of it – between four years and three months and four years and four months.
Up until this application there have been a number of events, if I can put it that way, that have occurred, including discussions and attendances between employees of the insurer for the plaintiff and his former solicitors, and also the obtaining of medical reports, etcetera, none of which constitute a step in the action. It was agreed between counsel that of particular relevance in this proceeding was the decision of the Court of Appeal, which was delivered by her Honour Justice Atkinson in Tyler and Custom Credit Corporation and Others (2000) QCA 178. However, before considering that particular decision in more detail it is relevant to refer to rule 5 of the Uniform Civil Procedure Rules, which, relevantly, provide:
Philosophy – overriding obligations of the parties and court.
- (1)The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
- (2)Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality in facilitating the purpose of these rules.
- (3)In a proceeding in a court a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
- (4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
In a fairly recent decision of the Court of Appeal of Basha and Basha (2010) QCA 123 the Court of Appeal said:
It is settled that the failure to take, as well as the taking of procedural steps, another delay in the conduct of proceedings are capable of constituting an abuse of process. There is such an abuse of process were, taking into account the burdens of effect upon the defendant arising from the lapse of time, the objective effect of continuation of the proceeding is that a fair trial was not possible. Under UCPR the courts are less tolerant of delay than was the case under formal procedural regimes. Whilst the High Court’s decision in Aon Risk Services Australia Ltd and Australian National University directly concerned the principles to be applied in applications for amendments passages in the judgments emphasise the general significance of provisions in the form of rule 5 in the application of procedural rules, which require consideration of the effect of delay upon the quality of justice. The express recognition in rule 5(3) of the importance of expeditious resolution of proceedings must be borne in mind when deciding whether or not the objective effect of continuation of the proceeding is that a fair trial is not possible.
In Tyler, Justice Atkinson set out a number of factors considered relevant in a proceeding such as this. The list is by no way meant to be definitive or exhaustive, but includes a number of matters which are out set out in the submissions of both counsel. I do not intend to refer to them all, but will refer to those that either arose as a consequence of the submissions made by counsel or which, in my view, otherwise became relevant.
On behalf of the applicant Mr Copley accepted that to the effect that whilst there might be an excuse it could not be said that there was a reasonable or satisfactory explanation for the delay. However, he contended, essentially, in reliance on four particular factors, that despite this the plaintiff ought still succeed. In paragraph 4 of Mr Copley’s written submissions it is asserted:
The applicant readily accepts that there has been an inordinate delay in the progression of this matter, but submit that leave ought to be given as:
- (a)The plaintiff has strong prospects of success.
- (b)There has been no disobedience of court orders or directions.
- (c)Striking out the proceeding will not conclude the plaintiff’s claim, as the limitation period does not expire until 27 October 2014.
- (d)There is no prejudice to the defendant.
Before dealing with each of these matters I would observe that the most likely explanation for the delay in the progress of this matter were defects within the internal systems and procedures of the insurer, Lumley. In this context I should also note that this is not a case of an impecunious or unsophisticated or otherwise disadvantaged litigant.
Returning, then, to the four issues raised on behalf of the applicant, in my view, the plaintiff’s prospects of success may not be as strong as contended for by Mr Copley.
In the coronial autopsy report, to which I was taken by Mr Copley, it is true that it refers to a hypothetical possibility, “tentative only”, that the collision was preceded by an acute cardiac episode. At the conclusion of that document there is a further quote which says:
Simplified layperson explanation of cause of death: death was due to severe head injuries. It is possible that the collision producing these was preceded by an acute cardiac arrest, given the poor state of the cardiac circulation.
That information, of course, is nowhere near decisive, even accepting for the moment that it may become admissible evidence. More relevantly, in my view, are the medical reports. There is a report by a Dr Linton, that I was taken to. Dr Linton was a consultant cardiologist who had treated the defendant. At page 2 of his report, he asserted:
From the circumstances leading up to the accident which resulted in the death of Mr Johnson, I think it is likely that he experienced a rhythm disturbance of this type, and either lost consciousness or became so faint that he was unable to control the car.
He later said:
If this did indeed occur, Mr Johnston would not have been able to prevent the subsequent collision. I have not had any indication that Mr Johnston had experienced any symptoms prior to this accident that may have warned him that he was at risk of such an event.
Also, as I understood his report, or at least those parts of it that were summarised by Mr Copley, he reported to the effect that he thought that the defendant’s heart condition would have been a likely contributor to what occurred, and reading from Mr Copley’s written submissions at paragraph 24B, it is reported by Dr Linton:
Given the report that Mr Johnston’s car had driven onto the wrong side of the road, I think it is likely that the –
which should read “he” –
suffered such a cardiac event. If this did indeed occur, Mr Johnston would not have been able to prevent the subsequent collision.
In paragraph 26 of Mr Copley’s written submissions, it was asserted that given the driver of the motor vehicle was dead, the real issues in the case, at least insofar as they concern liability, falls to be determined on the medical evidence. The difficulty for the plaintiff here, as I see it, is the medical report commissioned on the plaintiff’s behalf, by one Dr Galia. His report, according to Mr Copley, at least as far as I understood him, did not differ in any material respect from the observations and opinions expressed by Dr Linton. I should mention here immediately that having regard to those statements made by Mr Copley and also given the time constraints, I have not read Mr Galia’s report but the difficulties Dr Galia’s report might pose for the plaintiff at the trial were canvassed during submissions.
Clearly the factual matrix of the accident tends to favour the case for the plaintiff, the defendant’s vehicle being on the wrong side of the road when it struck the vehicle driven by the plaintiff. However, if, as Mr Copley considers it to be, that the case would largely turn on the medical evidence, it would be in my view somewhat of a stretch to say that the plaintiff has a strong case. In fact, on the material before me, it would seem that the more accurate description, at least based on the medical evidence, is that the prospect of the plaintiff’s case could not be ranked any higher than fair to good, but in any event certainly not strong.
Turning to the next matter raised by Mr Copley: it is true that there has been no disobedience of any orders or direction of the court. However, in my view, the plaintiff’s behaviour has been entirely at odds with the philosophy of Rule 5 of the Uniform Civil Procedure Rules. Rule 5, of course, imposes a duty on all of the parties in litigation, but in this context, it is particularly relevant that a party, when it elects to commence proceedings against another party is obliged to prosecute those proceedings in an expeditious way. That clearly has not occurred.
The defendant here of course might have been more active in trying to keep the matter moving forward, but I accept Mr Hampson’s submission on behalf of the defendant that no material level of blame could be laid at the feet of the defendant. Particularly in circumstances where the defendant’s solicitors had written to the plaintiff’s then solicitors twice, on the 3rd of December 2010 and then on 1 February 2011, asking in effect whether the plaintiff intended to proceed with the action. Those requests, I think it could be fairly said, were if not ignored then fobbed off. Indeed it was not until 19 June 2014 that the solicitors wrote to the defendant’s solicitors saying to the effect that he wished to give formal notice that he held instructions to “continue the proceedings to a conclusion”.
I should note in this context that no fault for anything that has occurred to date in respect of these proceedings lies with the plaintiff’s current solicitors, Tucker & Cowen and TurksLegal.
Turning then to the next matter relied on by the plaintiff, it is true that any decision by me to dismiss the application would not necessarily bring the matter to a conclusion, and indeed, it may well be that it probably will not. At first blush, it might be thought that to dismiss the application in such circumstances may be seen as a triumph of form over substance and simply involve the parties in further time and, in particular in respect of the plaintiff, the incurring of additional expense. I accept that there is some merit in this point, but in my view it is not decisive. It is one that favours the continuation of the proceedings, but it is not decisive.
To ignore lengthy delay in the absence of any satisfactory explanation because of this consideration would or could be seen as importing an unjustifiable limitation on the intended purpose of and the class of cases to which the philosophy embodied in Rule 5 might be seen to be applicable to.
Turning the question then of prejudice: the plaintiff says, as I have already said, that the case will turn largely, if not entirely, on the medical evidence. Not so, says the defendant. In paragraphs 25 to 30 of Mr Hampson’s submissions, it is asserted as follows:
“The defendant does not accept that the proceeding will simply be determined upon medical evidence. Evidence as to the deceased’s condition at or prior to the time he was driving his vehicle at the time of the subject accident (and his health generally) as known by members of the family will undoubtedly be relevant. Even assuming all those witnesses are located and are capable of giving evidence, one of the witnesses, the defendant’s spouse, is now over 80 years old. She would be a critical witness at a trial and would be required to give evidence-in-chief and be cross-examined about matters concerning her late husband’s medical condition and fitness to drive more than six years after she observed those matters. The quality of her recollections (and those of other lay witnesses) would undoubtedly not be the same as would have been had the applicant proceeded expeditiously as required by the Rules. The forensic disadvantage to the defendant is only magnified by the onus being upon the defendant to positively prove its inevitable accident defence.”
A couple of preliminary observations before I move on. The first is that it was not suggested to me that because of the passage of time there is any difficulty in now locating the family members to which my attention was drawn, namely the defendant’s widow, and his two sons. Also it would appear to me that the most direct way of establishing the defendant’s medical condition, in particular his heart condition, would be through Dr Linton, not through his widow or his sons, even though one of them is a doctor.
In the case of Tyler, Justice Atkinson made the following observation:
The prejudice caused by the passing of time may be as insidious as it is subtle in that the parties cannot demonstrate what it is that they have forgotten. It is necessary to remember however that the inevitable disadvantage to all parties of delay does not necessarily mean that the relevant issues cannot be fairly tried particularly where, as here, the case will for the most part be determined by contemporaneous documents.
In considering this issue, of course, as was identified by Justice Atkinson, the central issue is whether the delay has in any material way jeopardised the innocent party’s prospects of having a fair trial. In paragraph 42 to 44 of the affidavit of Ms Saul, filed by leave today, it is said:
The defence of this claim will depend on the available medical evidence but also on the evidence of the following witnesses: Geoff Johnston, son of the late Mr William Johnston, aged 58, Dr Ken Johnston, son of the late Mr William Johnston, aged 56, Mrs Shirley Johnston, the widow of the late Mr Alan Wilson, aged 80 years, being born on 7 March 1934. Since being served with the application on 14 October 2014, I was successful in contacting witnesses, Mr Geoff Johnston on 22 October 2014. Mr Johnston advised his mother Shirley Johnston was elderly and her memory was failing her. No signed statements have been obtained from the above witnesses in readiness for trial.
Leaving aside questions of hearsay, while asserting that Ms Johnston was an 80 year old woman with a failing memory, it is at no time asserted that she had no memory or that any relevant memory was seriously impaired, and there has been no suggestion that the memories of the two sons has been affected by the passing of time. Further, while it is asserted that there are no signed statements by the witnesses, my recollection is that during argument, reference was made to there being unsigned statements by some, if not all, of those witnesses. However, that matter is of lesser significance in the light of the first matter to which I have referred and in the absence of any real indication about just why it is the evidence of these witnesses would add in any material way to the case for the defendant.
In paragraph 28 of Mr Hampson’s submissions, it is said that Mrs Johnston would be a critical witness, but no attempt was made to identify just how, in the circumstances of this case she ought be or could be properly described as a critical witness. In my view, on the material as it stands, I am not convinced that the case for the defendant, at least insofar as it affects the memory of those three witnesses, has been prejudiced to any material extent. Notwithstanding these observations, given the passage of time, I am unable to accept Mr Copley’s effective submission that I should proceed confidently on the basis that the defendant has suffered no prejudice whatsoever. My conclusions on this point, however, do tend to favour the position of the plaintiff.
As both parties have recognised, cases exist where extensions or relief have been granted in cases where a number of years have lapsed since anything was done. However, in this case the delay exceeds four years and in circumstances where the only explanation for the delay would appear to be a failure on the part of the real plaintiff and/or his respective agents at the time to take any care in the management of the case. Also, as I have said, this is not a case where the plaintiff could be described as being an impecunious, unsophisticated litigant and one who was, in effect, left holding the bag for the sins of those he put in charge of his legal affairs. I have reached the conclusions that in respect of the delay, there is no reasonable explanation provided and, on balance, I consider that no real fault can be laid at the feet of the defendant, and as I have said, the – in my view, the prospects of the plaintiff’s case is not as strong as it considers it to be.
As I have said, to dismiss this application will likely not be the end of the proceedings and will likely add to the costs of the proceedings, and for the reasons given, I also accept that the answer to the question involving prejudice tends to fall in favour of the plaintiff. However, with some reluctance and recognising the likely ramifications of the result, I have concluded that the application ought be dismissed. The defendant, despite their efforts on two occasions to try and find out what the plaintiff’s intentions were, has had this litigation hanging over its head for in excess of four years without any positive step being taken to progress the matter. The plaintiff has ignored its obligations to the court and to the defendant and has not convinced me that its behaviour does not warrant the dismissal of its application.
HIS HONOUR: The orders are as follows:
- (1)The application is dismissed.
- (2)The plaintiff is to pay the defendant’s costs of today’s application.
- (3)There will be liberty to apply.
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