Kreyzig v QBE Insurance (Aust) Ltd
[2018] QDC 70
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- Kreyzig v QBE Insurance (Aust) Ltd[2018] QDC 70
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Kreyzig v QBE Insurance (Aust) Ltd[2018] QDC 70
Kreyzig v QBE Insurance (Aust) Ltd[2018] QDC 70
DISTRICT COURT OF QUEENSLAND
CITATION: | Kreyzig v QBE Insurance (Aust) Ltd & Anor [2018] QDC 70 |
PARTIES: | TREVER BERNHARD KREYZIG (Plaintiff) V JASON CAREY HORNE (First Defendant) and QBE INSURANCE (AUST) LTD (ABN 78003191035) (Second Defendant) |
FILE NO/S: | D90/13 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Southport |
DELIVERED ON: | 6th April 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 March 2018 |
JUDGE: | Kent QC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the proceeding concerns personal injuries suffered by the plaintiff in a motor vehicle accident – where r 389 of the Uniform Civil Procedure Rules Qld 1999 requires a court order to proceed where no step has been taken in a proceeding for two years from the time the last step was taken – where the plaintiff is seeking a declaration to the effect that the filing of a mediator’s certificate was a step in the proceeding obviating the need for leave to proceed – where the holding of a mediation is permissible but not mandated by the rules – whether the filing of a mediator’s certificate is a step in the action for the purposes of r 389. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the proceeding concerns personal injuries suffered by the plaintiff in a motor vehicle accident – where there has been a delay in the proceedings – where the plaintiff seeks leave to proceed pursuant to r 389 of the Uniform Civil Procedure Rules Qld 1999 – where liability is admitted – where the delay can be partly attributed to the plaintiff’s medical condition – where the parties are otherwise ready for trial – where there is no prejudice to the defendants – whether leave to proceed should be granted. Uniform Civil Procedure Rules Qld 1999, Rules 389, 467, 331 and 533 Civil Proceedings Act 2011, Section 49 Citicorp Australia Limited v Metropolitan Public Abattoir Board (1992) 1 Qd R 592 Kaats v Caelers (1966) Qd R 482, 489 Spencer v Watts (1889) 23 Ch D 350, 358 Mundy v Butterly Co (1932) 102 L J Ch 23 Artahs Pty Ltd v Gall Standfield & Smith [2013] 2 Qd R 202 Russell v Mihaljevic & anor (Full Court, 24 June 1982, unreported) |
COUNSEL: | T Matthews QC for the Applicant R Morton for the Respondent |
SOLICITORS: | Whitehead Crowther for the Applicant McInnes Wilson for the Respondent |
Introduction
- [2]The applicant plaintiff seeks either a declaration to the effect that the filing of a mediator’s certificate was a step in the proceeding, obviating the need for leave to proceed, or alternatively leave to proceed pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (“UCPR”).
- [3]The second defendant cross-applies for dismissal of the proceeding for want of prosecution, in circumstances where it resists each of the orders sought by the plaintiff.
Background
- [4]The action concerns personal injuries suffered by the plaintiff in a motor vehicle accident on 22 December 2009. Liability is admitted. The litigation has proceeded at a leisurely pace, as demonstrated by the chronology relied upon by the second defendant (attachment A to these reasons). In summary, the longest delay was 3.25 years from the time of injury to the time of commencement of proceedings. There have been various other slow periods, culminating in, more recently, a mediation which took place in August 2015. This was adjourned, apparently for further disclosure of documents. The mediation was not resumed and after some correspondence in June 2016 it became apparent by July 2016 that the mediation would not resume and a mediator’s certificate was filed. This was brought about by the correspondence from the defendant’s solicitor, Ms Leary, enquiring as to progressing the matter. When it emerged that the plaintiff would not be attending a reconvened conference, she communicated this to the mediator, Mr Munro, and the certificate was produced.[1]It was filed by the mediator.
- [5]It also emerged that the plaintiff required further surgery. There was some discussion as to the second defendant meeting those costs. This was eventually agreed, the surgery occurred in September 2017 and a further medical report followed.
- [6]This last period of delay, of approximately 2.5 years since the attempted mediation, seems to have been caused by (a) the adjournment of the mediation, apparently to obtain further documents concerning the plaintiff’s claim and (b) the subsequent medical advice that the plaintiff required further surgical treatment, the arrangements for payment thereof, the occurrence of the surgery and its aftermath. Thus this last period of delay is not due to the fault of the second defendant. To the extent that responsibility for this delay lies at the feet of the plaintiff, it is also true to say that the supervening factor which the plaintiff had to respond to was the emergence of the requirement for further surgical treatment. The plaintiff submits that since the mediation was arranged to the present time he has demonstrated his intention to proceed with the action.
The plaintiff’s primary submission
- [7]The plaintiff submits that if the mediator’s certificate is a step in the proceeding then he does not require leave pursuant to r 389. The rule requires a month’s notice if no step has been taken in the proceeding for one year from the time the last step was taken. If no step has been taken for two years, the Court’s order is required. Rule 389 is in the following terms:
“389 Continuation of proceeding after delay
(1)If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.
(2)If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.
(3)For this rule, an application in which no order has been made is not taken to be a step.”
- [8]The plaintiff’s solicitor gave one month’s notice pursuant to r 389(1) of the intention to take a step in the proceeding on 7 December 2017.[2]The present application was filed on 30 January 2018.
- [9]The plaintiff’s position, therefore, is that the filing of the certificate was a step mandated by the rules and one which progressed the proceeding towards a trial, that is, carried the action forward. The plaintiff refers to Citicorp Australia Limited v Metropolitan Public Abattoir Board.[3]McPherson SPJ said:
“It may I think be accepted that to constitute a “proceeding” the act or activity must have the characteristic of carrying the cause or action forward. It may, as Stable J describes it in Kaats v Caelers (1966) Qd R 482, 489, be ‘some step taken toward the judgment or relief sought in the action’; or ‘taken with a view to continuing the litigation between the parties to it’: Spencer v Watts (1889) 23 Ch. d. 350, 358 per Lindley L.J. The word ‘is one that suggests something in the nature of a formal step in the prosecution of an action…’: See Mundy v Butterly Co (1932) 102 L.J.Ch. 23, 26. It need not be a step taken or act done in a court or its registry. Holding a compulsory conference...constitutes a proceeding…see Russell v Mihaljevic & anor (Full Court, 24 June 1982, unreported)…”
- [10]In Russell v Mihaljevicthe court was concerned with the then-applicable Rule, Order 90 Rule 9 of the Supreme Court Rules, and Kelly J referred to the reasoning of Stable J from Kaats v Caelers, to the effect that a “proceeding” (referred to as a “step” in the current rules; the plaintiff submits that the two terms are equivalent) would include a step taken towards judgment or relief sought, or a formal step required by the Rules in prosecution of the action. His Honour made the obiterobservation that under Order 39 r 30A(4)(e) holding a compulsory conference, required by the Rules, satisfied either test.
- [11]In Artahs Pty Ltd v Gall Stanfield & Smith[4]the President concluded that a “step” means a move or proceeding, as towards some end or in the general course of action; whether a step has been taken depends on the circumstances; it must progress the action towards a conclusion, but is not necessarily something required by the UCPR. Peter Lyons J referred at [48] to an “event” being a step in the action, even if not required by the rules. The parties in that case had agreed on an order for disclosure, and told the judge of this in what amounted to an oral application. Peter Lyons J concluded that the agreement and consequent order amounted to a “step”; however, the majority disagreed, and the order (as opposed to compliance therewith) was held not to be a step. Thus the appellant failed on this issue, although succeeded on the exercise of discretion under r 389(2).
- [12]Thus the plaintiff submits the present circumstances are materially different from those in Artahs. In that case, the agreement between the parties resulted in an order that was initiated by a case flow management intervention notice, but then not complied with. Thus the order itself did not progress the action towards finalisation, although compliance with it would have. The contrast in the present case is that the filing of the certificate was the conclusion of the settlement conference process; this removed a barrier to readiness for trial; and thus it had the necessary character of carrying the action forward, such as to constitute a step in the proceeding. Thus, given the timing, the plaintiff does not require leave of the court and may proceed. The plaintiff points to a number of features:
- (a)the mediation was a conference mandated by UCPR r 553;
- (b)UCPR r 331(1) requires the filing of the certificate, presumably by its adoption of s 49 of the Civil Proceedings Act 2011;
- (c)the filing of the certificate was a mandatory step in a proper construction of r 389 and r 467(4)(g), i.e. a party is not ready for trial, and thus cannot sign a request for trial date, until the relevant part of the rules, including r 553, is complied with. That is, the completion of the steps required by r 553 are required to move the matter towards judgment.
- [13]Thus the plaintiff submits that Russellis relevant to and supports his primary submission.
- [14]The plaintiff’s alternative submission is that, if no relevant step has been taken for two years, then applying the appropriate test the court’s discretion should be exercised in the plaintiff’s favour in granting leave to proceed.
- [15]It may be convenient to firstly deal with the defendants’ response to the plaintiff’s first point.
The defendants’ submissions as to “step in the proceeding”
- [16]Firstly, the defendants submit that on the basis of Artahs (supra) the filing of the mediator’s certificate in this case is analogous to the filing of the agreed order in Artahs, thus did not progress the action. Thus the defendants submit that the filing of the mediator’s certificate does not constitute a step in the proceeding for the purposes of UCPRr 389.
- [17]They submit Russell v Mihaljevicis distinguishable because the Rule at that time required the conference and this is no longer so. UCPRr 553 is permissive not mandatory.
- [18]The defendants also submit that even if this were a step, it is the holding of a conference which has that character, not the filing of a certificate by a non-party, which, so it is submitted, does not move the action forward. As the holding of the conference did not continue until July 2016, and the mediator’s certificate was not in itself a “step”, there was no step in the required time frame. Thus Russell v Mihaljevicdoes not assist.
- [19]The defendants argue that the “holding” of the conference did not continue; it was adjourned then abandoned. Thus it is unlike the example in Russell.
- [20]In order to resolve whether this reasoning is binding on the present, slightly different situation, the effect of the rules must be analysed.
Discussion
- [21]Rule 553 does not “mandate” the conference/mediation. A party maygive the other parties a notice specifying a time and place for a conference (r 553(1)). The language of r 553(1) is permissive; there is no requirement to give the notice, nor to hold the conference. If one is given, failure by a party to attend empowers the other party to apply for a trial date or other directions, or an order for mediation (r 553(3)), if the party is otherwise ready for trial. This scheme does not make a conference mandatory in the sense that it is authoritatively ordered or obligatory[5]; it is not the only alternative. This contrasts with other rules in Chapter 14 Part 2, such as rules 547 – 552, all of which are expressed in mandatory terms.
- [22]The operation of r 467(4)(g) is that the gateway to a party being “ready for trial” and thus able to progress the matter to listing for trial, for a personal injuries action such as this, is complying with chapter 14, part 2. As outlined above, the holding of a settlement conference or mediation is not mandatory for r 553; thus it is compliance with part 2, not the holding of a mediation, which is required in order to be ready for trial pursuant to r 467(4)(g). It is not necessary to hold a mediation (with its attendant certificate) to progress such a matter. The filing of the certificate was not the completion of a mandatory step. In my view, the original conference which was convened in August 2015 did not have the character of a step in the action for the purposes of UCPRr 389.
- [23]The settlement conference contemplated by the Rule in Russell was different in character.Order 39 r 30A(4)(e) made it mandatory to have a conference in a personal injuries action before a Certificate of Readiness for trial could be signed. Thus the conference progressed the action towards finalisation. The present rule is different.
- [24]Conversely, it is certainly arguable that the conference did continue despite being adjourned. Both parties originally intended it would be re-convened. The adjournment, later correspondence and then the defendants’ action in contacting the mediator, together with the filing of the certificate, are able to be viewed as a continuing process, in my view, concluding in July 2016. Thus if the process did amount to a step, it probably concluded at that time.
- [25]However, the process, as in Artahs, did not have the characteristic of carrying the action forward. This is because, as with the order in that case, it did not progress the action towards finalisation. This is in contrast, for example, with actions which could thereupon have been taken under r 467 to prepare and sign a request for trial date, since r 467(4)(g) was by then complied with. Other contrasting examples of “steps” include an amendment to a pleading; provision of a supplementary affidavit of documents; delivery of a medical report; and provision of copies of disclosed documents.[6]Those steps moved the litigation process forward; the conference process here unsuccessfully sought an alternative resolution without advancing the litigation. The analysis of what amounts to a step is also, in my view, informed by the terms of r 389(3) which indicates the necessity of an actual, rather than merely anticipated, progression.
- [26]Thus the submissions of the defendants on this issue must be accepted, and the requested declaration should not be made.
Leave to Proceed
- [27]Grant of leave to proceed under UCPRr 389(2), is informed by the principles in Tyler v Custom Credit Corp Ltd & Ors[7]. The plaintiff submits the delay in this case is not particularly lengthy; the plaintiff’s prospects are excellent because liability is admitted; there has not been significant disobedience to court orders or directions[8]; there has been delay, attributable to the plaintiff but explained by his supervening medical condition; his impecuniosity contributed to the delay in funding his surgeries; in the respondents’ favour, the litigation would end if the Statement of Claim were struck out; the action has progressed to the point of being set down for trial; some delay is attributable to the plaintiff’s lawyers but should not be sheeted home to the plaintiff; the delay is explained as set out above; there is no prejudice to the defendants and there is no reason to conclude the trial would be unfair.
- [28]The defendants submit there will be prejudice because the documents disclosed as to income and expenses are inadequate; however I do not understand this circumstance to be brought about by delay, it seems always to have been the case. Secondly, they refer to the inherent prejudice in defending a claim which is some eight years old.[9]However in my conclusion these are matters able to be adequately dealt with; the plaintiff bears the onus of proof and, for example, lack of documents may well be more problematic for him than the defendants. It is also relevant that the claim form was sent to the second defendant within nine months of the accident, and liability was admitted in 2011. The case is in my view a stronger one for the plaintiff than Artahs (supra)where leave to proceed was given on appeal.
- [29]As to costs, the usual result – absent any supervening circumstances not hitherto ventilated – would be that they should follow the event.
- [30]The orders will be:
- Leave is granted pursuant to Rule 389(2) of the Uniform Civil Procedure Rules Qld 1999 to proceed with the claim filed in the District Court on 19 March 2013.
- The defendants’ cross application is dismissed.
- The defendants to pay the plaintiff’s costs of and incidental to the applications, subject to the rights of the parties to make submissions as to any different costs order if desired.
Footnotes
[1]Letter from Ms Leary to Mr Munro dated 12 July 2016, ex “VL 21” to the affidavit filed 23rd February 2018.
[2]See the affidavit of Mr Crowther filed 30 January 2018, Exhibit “JHC10”.
[3](1992) 1 Qd R 592 at 594.
[4][2013] 2 Qd R 202.
[5]Susan Butler (6th ed), Macquarie Dictionary (online ed, at 4 April 2018) ‘Mandatory’.
[6]See Artahs Pty Ltd v Gall Stanfield and Smith (supra) at [47].
[7][2000] QCA 178 at [2].
[8]Although I note the plaintiff is said not to have complied properly with consent orders as to further disclosure.
[9]See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.