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- Unreported Judgment
Ward v Sunsuper Pty Ltd QDC 23
DISTRICT COURT OF QUEENSLAND
Ward v Sunsuper Pty Ltd & Anor  QDC 23
CRAIG THOMAS WARD
SUNSUPER PTY LTD ACN 010 720 840
AIA AUSTRALIA LIMITED ACN 004 837 861
District Court at Brisbane
13 February 2015 ex tempore
13 February 2015
PRACTICE – ADJOURNMENT – COSTS – DISCLOSURE – NON-COMPLIANCE WITH ORDER – WANT OF PROSECUTION – where the plaintiff commenced personal injury proceedings against the defendants – where the defendants applied to the court for further disclosure of the plaintiff’s income and bank records – where the defendants sought that the plaintiff pay the costs of the application fixed at $5000 – where the plaintiff did not make disclosure or pay the costs of the application in accordance with the orders of the deputy registrar – where the plaintiff’s solicitors lost contact with the plaintiff – where the defendants apply to the court for dismissal of the plaintiff’s proceedings for want of prosecution – where the plaintiff’s solicitors seek to adjourn the defendants’ application for want of prosecution in order to seek instructions from the plaintiff – whether the defendants’ application for want of prosecution should be adjourned – whether the plaintiff’s personal injury proceedings should be dismissed for want of prosecution
Uniform Civil Procedure Rules 1999 (Qld) r 280
Mr M Robinson, solicitor, for the plaintiff
Mr S Williams, counsel, for the defendants
Shine Lawyers for the plaintiff
McInnes Wilson for the defendants
- HIS HONOUR: The plaintiff has sued for damages alleging a back injury which has had a significant impact on his capacity to earn income. In the course of the proceedings, disclosure was made by the plaintiff. However, the solicitors for the defendants were able to obtain copies of documents from a contractor. These documents relate to the plaintiff and include his birth certificate and passport and drivers’ licence and, in addition, a statement, undated, of moneys paid to him between May 2013 and May 2014. In addition, there is a letter from the tax office to the effect that he has not lodged tax returns for the period 2012 to 2014. If the statement of moneys paid to him, apparently, between May 2013 and May 2014 were the only income he has received, it might be argued that for the year ended 30th June 2013 he may not have had to have lodged a tax return. However, the same, I do not think, can be said for the year ended 30th June 2014. Nevertheless, the exchange between the solicitors for the plaintiff and the solicitors for the defendants was to the effect that further disclosure was warranted.
- The reason I say that is because the parties agreed to resolving the apparent failure to disclose relevant documents by an order made by the deputy registrar on the 25th of November 2014. The application by the defendants seeking further disclosure was agreed to be adjourned and it was ordered that the plaintiff disclose copies of bank statements in respect of his earnings during the period 20 March 2013 to 30 June 2013 within seven days and further that he disclose any documents relevant to income earned in July 2014 within seven days. While those particular orders were, to my mind, narrow compared to the dispute that seemed to enliven the application that was resolved, nevertheless it seems to me the plaintiff accepted that he had not made disclosure and would appear to have not disclosed that he had earned income during those periods I have mentioned, that is, May 2013 to May 2014, which would reflect on his allegations in his statement of claim of significant disability ending in permanent disability.
- It was also ordered on that date, the 25th of November 2014, that he pay the defendants’ cost of the application fixed in the sum of $5000 to be paid within 14 days. That has not been paid. I saw in correspondence it was said on his behalf that he is a destitute person. The defendants have brought an application seeking, pursuant to rule 280 of the UCPR, that the proceedings be dismissed for want of prosecution. Mr Robinson of counsel who appears for the plaintiff has told me that the firm has lost contact with the plaintiff since the 16th of January 2015. He seeks to adjourn the application, at least for four weeks, so it could be ascertained what has happened to the plaintiff and obtain his instructions. The application for the adjournment is opposed by Mr Williams of counsel who appears for the defendants.
- I have come to the view that it was recognised last year that the plaintiff’s disclosure was deficient. I also have come to the view that it came as some surprise that the solicitors for the defendants had obtained information that would suggest he had not been truthful about his claim as to his earnings since the accident. If the matter were adjourned again, as it were, the defendants would have incurred costs again which would not be recoverable. While I noted that Mr Robinson, quite rightly, said in correspondence that anything could’ve happened to the plaintiff, the fact remains, it seems to me, that what has happened is – that is of significance, he has been disclosed as not having told the truth. It is for those reasons I, therefore, refuse to adjourn the application.
- HIS HONOUR: The application seeks an order that I dismiss the proceedings for want of prosecution. Mr Robinson submits that that is a different – that different considerations are relevant to that application compared to the considerations I considered on the application for the adjournment. Notwithstanding different considerations are relevant to dismissing for want of prosecution, it seems to me much of what I said in refusing the application for the adjournment is relevant with respect to dismissing for want of prosecution.
- It is clear from the correspondence between the parties that the plaintiff had not made proper disclosure and, prima facie, was making the claim that was inconsistent with documents obtained by the solicitors for the defendants from non-party disclosure. I consider that is the background to the order made by the deputy registrar on 25 November 2014. There, to my mind, the plaintiff accepted that there should be further disclosure, and there has not been further disclosure for, at least, one would say, about two months. That is, Mr Robinson, who appears for the plaintiff, told me that the last contact they had with the plaintiff was 16 January 2015. To that extent, he was alive, at least between the 25th November 2014 and the 16th of January 2015.
- The plaintiff has not addressed disclosure and has not addressed what appears in the non-party disclosed documents. One might’ve expected at least a letter from the solicitors for the plaintiff to the defendants’ solicitors before the 16th of January 2015 providing some explanation for the documents disclosed on non-party disclosure and the apparent inconsistency with his claim.
- In addition, the documents that were intended to be obtained were to be obtained within seven days of the 25th of November 2014. The plaintiff did not suggest there might be some difficulty obtaining those documents within seven days. They had not been obtained at all. No excuse has been offered for why he has not provided further instructions. While I acknowledge that it is a serious step to take to refuse a person a claim in a court, nevertheless, on the other side, there has been a failure to comply with an order that was clearly intended to be complied with very quickly and there’s been no explanation for an apparent inconsistency, which is significant, in my view.
- And in addition, the defendants have already incurred costs of $5000 which will not presumably be paid. They will have the costs of today which, again, presumably, would not be paid. And if I adjourn the matter for four weeks and it was brought back on again, there would be another set of costs that the defendants may not be paid. In my view, there has been a failure to prosecute the action and it is not reasonable to have failed to do so in the circumstances of this case. In those circumstances, I do order that the proceedings be dismissed for want of prosecution.
- I am satisfied that the solicitors for the plaintiff have behaved appropriately with respect to this matter. I consider the application that the defendants have brought is an application that they would have had to have brought in any event and nothing the solicitors for the plaintiff did caused that application or the need for that application. I consider that Mr Robinson has acted properly throughout, although I don’t necessarily accept his conclusion that the actions of the solicitors for the defendants was in some way a vendetta. But litigation being what it is, one can understand that at times conclusions are drawn that may not be ultimately warranted. I am not persuaded by any of the submissions of Mr Williams to order the firm of solicitors representing the plaintiff to pay the costs. The only order I am prepared to make on costs is that the plaintiff pay the defendants’ costs of this application fixed in the sum of $5000.
- I repeat the previous order: that the proceedings are dismissed for want of prosecution.
 Uniform Civil Procedure Rules 1999 (Qld).
- Published Case Name:
Ward v Sunsuper Pty Ltd & Anor
- Shortened Case Name:
Ward v Sunsuper Pty Ltd
 QDC 23
13 Feb 2015