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- Unreported Judgment
Sorbello v Gold Coast City Council QDC 135
DISTRICT COURT OF QUEENSLAND
Sorbello v Gold Coast City Council  QDC 135
ALFRED PETER SORBELLO
GOLD COAST CITY COUNCIL
District Court at Southport
DELIVERED EX TEMPORE ON:
11 May 2016
9 May 2016
APPLICATION – Leave to proceed – personal injury action – delay in commencement and prosecution – application to dismiss for want of prosecution – no explanation for delay – prejudice to respondent – inability to identify machine integral to applicant’s claim – delay by both applicant and his solicitors – breach of UCPR r 5 – impairment of recollection of witnesses due to delay
Uniform Civil Procedure Rules 1999 r 5
Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors  QSC 413, followed
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered
Hsu & Ors v Wang & Ors  QSC 324, followed
Puppinato v D & D Machinery Pty Ltd  QSC 47, followed
Quinlan v Rothwell (2002) 1 Qd R 647, followed
Tyler v Custom Credit Corp Ltd & Ors  QCA 178, considered
T. Matthews Q.C. for the applicant
K. Howe for the respondent
Quinlan Miller & Treston for the applicant
Minter Ellison for the respondent
- In this matter, the applicant has applied for leave to proceed. The respondent has cross-applied for an order that the applicant’s claim be struck out for want of prosecution. The applicant’s original claim was for personal injury said to have been suffered in the course of his employment with the respondent. He was employed as a leading-hand painter. He claims to have been injured on 2 March 2004, over 12 years ago.
- The applicant claims he was performing road-maintenance service on Sovereign Drive, Mermaid Waters. He was working with another employee, Bill Kluse, applying line markings to the road surface, using what is alleged in the statement of claim to be a manually operated and driven line marking machine. It is alleged the road was marked using a white dot along the line upon which the machine was to travel to apply a white line on the road surface.
- In placing the dot, the applicant says that he had to bend to apply each dot whilst walking the length of the line to be marked. He also alleges that significant force was required to propel the machine.
- As a consequence of bending to apply the white dots and/or exerting force to propel the machine, the applicant says that he suffered injury to his back.
- It is alleged that the injury was due to the respondent’s negligence and/or breach of statutory and/or common-law duty. Particulars of such negligence and breach are that (1) the applicant was not provided with equipment that enabled him to mark dots without bending; (2) the applicant was not provided with a mechanised line-marking machine.
- The applicant claims damages for personal injury and loss of the amenities of life, past and future loss of income and past and future medical and related expenses.
- The statement of claim was issued on 1 February 2008. Although not alleged therein, it appears from the affidavit of Scott Reid, the respondent’s solicitor, that the notice of claim for damages was issued on 8 February 2007, about three weeks prior to the expiration of the three-year limitation period. A compulsory conference was held on 10 December 2007 and proceedings were issued. A defence was filed on 3 March 2008 and an amended defence filed on 7 July 2010. It appears that the last step taken by the applicant was delivery of his statement of loss and damage on 30 March 2009. The last step in the action was the delivery of the respondent’s amended list of documents on 11 August 2010, over five and a-half years ago, although, as I will shortly refer to, medical reports have also been exchanged.
- The respondent’s solicitors wrote to the applicant’s solicitors on 4 February 2013 indicating that as no step had been taken for a significant time, the applicant would require the Court’s leave to proceed. The applicant’s solicitor did not respond to that letter.
- In such circumstances, the respondent instructed its solicitor to close the file.
- Not till 22 February 2016 did the applicant’s solicitors appear to do anything to advance the applicant’s claim. At that time they rang the respondent’s solicitors requesting a copy of the amended defence. This application of the applicant for leave to proceed was then filed on 13 April 2016.
- It is not disputed that if the applicant’s claim for leave to proceed fails, orders ought to be made that the action be dismissed for want of prosecution.
- In its amended defence, the respondent admits that the task the applicant was required to perform involved some bending, but says that the tasks the applicant had to do were varied and could be shared between the applicant and his co-worker. Importantly, it is also alleged that the line-marking machine was “mechanically self-propelled, and did not require the operator to manually propel it”.
- The respondent alleges that it is uncertain as to the truth or falsity of the allegation that the applicant sustained an injury to his back and denies breach of its duties as an employer. In paragraph 7 of the amended defence, the respondent sets out details of why it says the allegations that it was negligent are untrue. It also alleges contributory negligence of the applicant, as particularised in paragraph 10 thereof.
- In that pleading, it also alleges that if the applicant was injured as alleged, he did not suffer the consequences asserted. It alleges the applicant’s complaints are disproportionate to the objective pathology.
- In short, both liability and quantum are in dispute.
- The applicant relies on an affidavit of Timothy Hancock, the applicant’s solicitor, and on various documents tendered by consent as a bundle (Exhibit 1). Mr Hancock sets out the history of the matter from the time his firm received instructions to act for the applicant. I note that Mr Hancock was not then directly involved in the conduct of the file. I note from his affidavit that the covering letter to the notice of claim for damages of February 2007 refers to the “urgent need to commence proceedings” due to the impending limitation period. No appropriate explanation for the delay between March 2004 when the incident is alleged to have occurred, and February 2007 when that notice was given has been provided.
- The affidavit discloses that the solicitors had also been instructed at an unknown time to make a claim for psychiatric injury occurring during the course of the applicant’s employment with the respondent in early 2004, shortly prior to the subject incident. A notice of claim with respect to that psychiatric injury was also delivered, in February 2007.
- In early 2008, the applicant instructed his solicitors that he no longer wished to pursue that claim for psychiatric injury. The respondent was advised of that matter, and confirmed in a letter to the applicant’s solicitors of 5 March that the applicant was not proceeding with that claim.
- The respondent obtained a medicolegal report relating to the alleged back injury from Dr David Morgan on 22 January 2009. Dr Morgan says it was “possible” the 3 per cent whole-person impairment that he assessed was “linked with the work practices required of the applicant” in 2004.
- Dr Gillett provided a report to the applicant’s solicitors on 8 August 2011. He assessed a 7 per cent whole-person impairment, but said a 2 per cent whole-person impairment was due to pre-existing pathology and the balance of 5 per cent whole-person impairment was due to the effect of the work practices of early 2004 on his back. The fact of that assessment of some pre-existing degeneration suggests to me that issues of the pre-accident physical condition of the applicant could be of importance or are likely to be of importance in any trial of the matter.
- The affidavit of Mr Hancock says that the file indicates the applicant had ongoing psychological problems “which have contributed to the delay in his providing instructions”. How this might have happened is not elucidated. I do note a decision of the General Medical Assessment Tribunal – Psychiatric of 24 November 2006 which is attached to the affidavit. It indicates that the applicant was then said to be suffering some residual symptoms of chronic adjustment disorder. He was, however, working full-time in the security industry at that time, and reported that he was coping well.
- The affidavit discloses some contact with the applicant on 12 March 2012, over four years ago. A staff memo of the applicant’s solicitors records a phone conversation between an unnamed staff member and the applicant, and indicates the phone cut out. The staff member “was unable to get his contact details” but needed “him to call back to work out what he is wanting to (sic)”. A record of 31 March 2013 indicates a solicitor and senior associate, Ms Susan Andersen, spoke at that time to the applicant and advised him she was trying to contact him. I interpose there is nothing in the affidavit to indicate any steps that she had taken which might indicate the manner in which she was so trying. The memo does not indicate that Ms Andersen obtained any contact details from the applicant or advised the applicant of the need to provide instructions in a timely fashion, or of the importance of maintaining contact with his solicitors.
- Thereafter there seems to have been no contact between the applicant and his solicitors until late 2015. On that date, Mr Hancock appears to have taken over the matter and conducted a review of the file. He says that he then contacted the applicant. How he did so, when previously it seems the firm had not been able to so, is not explained. Mr Hancock asserts that based on his review of the file; (a) there was no prejudice to the respondent if leave were granted, due to the fact of earlier disclosure and provision of statements of loss and damage, that “investigations were conducted during pre-Court procedures” and that a medical report of Dr Gillett of September 2011 had been provided. Whilst it is not a matter for Mr Hancock to assert whether or not there is prejudice, I may take into account the matters that he has there referred to as being relevant to the exercise of my discretion in that regard.
- In my view it is notable, even extraordinary, that the material on which the applicant relies contains almost no explanation or reason for the inaction on his file from the occurrence of the alleged incident in 2004 until now. It took almost three years to provide the urgent notice of claim for damages. Between that event and February 2007, things progressed to a compulsory conference and then to the filing of the claim and statement of claim in February 2008. After delivery of a statement of loss and damage in March 2009, no further step was taken by the applicant for over seven years, although as I’ve said he was examined by Dr Gillett and that report provided, two and a half years later, in September 2011. The applicant gives no explanation for not progressing his claim as required by the Uniform Civil Procedure Rules 1999 (UCPR). Indeed, no affidavit of the applicant at all is relied upon. He thus gives no explanation whatsoever for his delay in initially instructing solicitors and for his not contacting solicitors over such a lengthy period of time. The matter is riddled by what I would have thought is extraordinary delay after 2009. There is no explanation for his failure to have provided his solicitors with his phone number or contact details or to have provided instructions in respect of important events in his life which might have an effect on the quantum of his claim. The material also contains no explanation or reason for the solicitors’ failure to maintain contact with the applicant, or the failure to have taken steps to find him once he was effectively lost to them. As at March 2012, it is clear from the staff member’s memorandum of that day that they did not know his whereabouts. They disclose no attempt to contact him, despite a file note of July 2013 of Ms Andersen saying she had been trying to do so. As I’ve said, I note that when Mr Hancock reviewed the file in December 2015, he was apparently able to immediately contact the applicant. There is simply no explanation of what in my view is gross and inordinate delay by both the applicant and by his solicitors.
- That of course is not determinative of the application. But it is a significant factor. I do not accept the opinion expressed by Mr Hancock in his affidavit that there is no prejudice to the respondent if leave is granted. The affidavit of Scott Reid, the respondent’s solicitor, was read, and he was cross examined by senior counsel for the applicant. His affidavit and evidence discloses that after service of the notice of claim for damages he was instructed to and engaged a firm of loss assessors to investigate the matter. The report of those investigators of 12 July 2007 became an exhibit in the proceedings. It discloses a number of relevant matters including statements from relevant witnesses and a statement that the line marker in question had been replaced several weeks prior to the firm being instructed to prepare the report, and the machine in question could not then be identified or examined.
- That of course was in 2007, itself almost nine years ago.
- Unsurprisingly, Mr Reid indicated he had been advised by Mark Dank, an employee of the respondent responsible for the conduct of the litigation on its behalf, that the machine is still unable to be inspected. In my view that’s a very obvious problem with respect to the conduct of the litigation.
- No affidavit has been sworn by the respondent’s solicitors attesting to the fact that witnesses who have provided statements in 2007 to Maurice Kerrigan & Associates are now unavailable or that their capacity to recall events is diminished. Whilst I accept that the witnesses are available it is, in my view, impossible to accept, even in the absence of evidence, that the witnesses at the trial, including, I might add, the applicant himself, would now be able to accurately recall events of and concerning 2 March 2004 or about his condition immediately prior to those events.
- Issues concerning such matters were referred to by McHugh J, with whom Dawson J agreed, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at page 551 where his Honour said:
Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (22), "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
His Honour continued at page 552 and 553 as follows:
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29). As the New South Wales Law Reform Commission has pointed out (30):
"The potential defendant is thus able to make the most productive use of his or her resources (31) and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided (32). To that extent the public interest is also served."
Even where the cause of action relates to personal injuries (33), it will
be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible (34).
- In my view the overwhelming delay in the matter for the whole of the time from 2 March 2004 to today must necessarily mean that the respondent is materially prejudiced. The fact the applicant might himself be prejudiced does not gainsay that finding. In my view a fair trial, as the appropriate forum for determining the issue, could not now occur. In Tyler v Custom Credit Corp Ltd & Ors  QCA 178 Atkinson J, with whom McMurdo P and McPherson JA agreed, articulated factors which a court ought take into account in exercising its discretion whether to grant leave to proceed or to dismiss an action for want of prosecution.
- I’ve had regard to such matters insofar as they apply to this action. In my view the most relevant, which indicate very strongly that the discretion ought not to be exercised in favour of giving leave, are those discussed below.
- Events occurred over 12 years ago, and the applicant took almost until the expiration of the limitation period to give what was then described as an urgent notice of claim for damages.
- The litigation was itself commenced in 2008.
- Although there has been no disobedience of court orders the applicant is clearly in breach of his obligation under UCPR rule 5 to conduct the litigation with dispatch. In Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors  QSC 413 Applegarth J referred to the remarks of Thomas JA in Quinlan v Rothwell (2002) 1 Qd R 647 that the rules are:
… a clear indication of the change in attitude that has independently taken place in courts throughout Australia. They suggest that courts will now be less tolerant of delay and that the expedition of proceedings should be encouraged to a greater extent than was formerly the case.
- The litigation has been characterised by inordinate delay. The applicant has made no or at least very little attempt to maintain contact with his solicitors. In Hsu & Ors v Wang & Ors  QSC 324 Wilson J said:
A client has a duty to give his legal representatives full instructions, not just at the outset of a proceeding, but as required to progress that proceeding through the interlocutory phases and trial. He has an obligation to keep in contact with his solicitors and to ask as to the progress of the proceeding where there has been no communication or where there have been other circumstances which would put a reasonable person on inquiry.
- So to have the applicant’s solicitors breached their duty to their client to advance the claim on his behalf with expedition.
- I am cognisant that to find against the applicant will be an end to his litigation which, on its face, he appears to have some prospects of success in. I am conscious that to so deprive an applicant is a serious step. Indeed, in Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors (supra) Applegarth J said, in respect of Quinlan v Rothwell (2002) 1 Qd R 647 that:
The Court of Appeal in that case overturned a decision to dismiss for want of prosecution, and did so assuming that the matter could come quickly on for trial. It illustrates the proposition that it is a strong thing to deny a plaintiff a trial in a case where it appears to have reasonable prospects of success, preparation of the matter is well advanced and the delay does not mean that a fair trial cannot be ensured.
- I mention that case not because I think that the preparation in this case is necessarily well advanced or that a fair trial might now be possible but because it is an illustration of the care needed to be taken in the exercise of discretion which would involve the deprivation of a right to an applicant to have a trial of its matter.
- Here there is no suggestion that the respondent contributed to or acquiesced in the delay at all. Indeed, in 2012, as I’ve said, the respondent’s solicitors wrote to the applicant’s solicitors advising that if they wished to proceed they would need to seek leave in order to do so. They were not given the courtesy of a reply. In that circumstance they, understandably, were instructed to close their file.
- Such circumstance bring to mind observations of McMeekin J in Puppinato v D & D Machinery Pty Ltd  QSC 47 where, at paragraph 48 his Honour said, after referring to Tyler v Custom Credit Corp Ltd & Ors (supra):
In addition to the matters identified by Atkinson J, another factor that might be material is “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.” Whilst those considerations may not be so important in relation to a corporation such as the respondent, it is nonetheless clear that they remain relevant: AON Risk Services Australia Ltd v Australian National University  HCA 27; 239 CLR 175 at  per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
- In my view his Honour’s observations about corporations are clearly correct. Employees of such organisations themselves often have significant emotional involvement in litigation, especially when allegations concerning the provisions of safe systems of work abide. The potentially traumatic effect on them of conducting litigation over such an inordinate period is one that is easy to overlook.
- Inevitably, where issues of quantum and liability are both in dispute, if this matter were to proceed, it would be determined, at least in part, by evidence of witnesses whose memory of issues or events relevant to both issues will be impaired. The delay in this matter means, in my view, the ability of those witnesses to accurately recall matters after such a long delay must be very significantly affected.
- The fact Mr Reid, the respondent’s solicitor, does not specifically refer to possible issues of prejudice does not, in my view, overcome the force and effect of that conclusion. Witnesses may now not even remember that issues of importance have passed from their memory, a point highlighted by McHugh J in Brisbane South Regional Health Authority v Taylor (supra) in the passage I’ve earlier set out.
- In my view considerations of justice in this case inevitably lead to the conclusion that the application for leave to proceed should be dismissed. I so order. I also order that the applicant’s claim be struck out for want of prosecution and that the applicant pay the respondent’s costs of and incidental to both the applicant’s application and the respondent’s cross application.
- Published Case Name:
Alfred Peter Sorbello v Gold Coast City Council
- Shortened Case Name:
Sorbello v Gold Coast City Council
 QDC 135
11 May 2016