Mix v Queensland Rail[2007] QSC 135

SUPREME COURT OF QUEENSLAND

1. HIS HONOUR: In April 2001 the present applicant commenced proceedings in the Maroochydore Magistrate's Court against Queensland Rail, the first respondent in the present proceedings, for damages for personal injuries. That action was commenced only a few days short of the expiry of the limitation period which applied to the claim.
2. In the following months of 2001 the parties went through the ordinary steps of litigation, including non-party disclosure and disclosure and Queensland Rail filed and served a third party notice joining BHP Limited, which under its new name is now the second respondent to the present application, as a third party.
3. The action proceeded with reasonable expedition until September of that year when the applicant, who was then aged 23, went to China with his mother and younger siblings. He remained in China for about two years and when he returned in September 2003 notice of intention to proceed was given and a supplementary statement of loss of damage was served by the applicant.
4. In November of 2003 a medical report was served on the defendant, that is, the present first respondent, and in July 2004 a further medical report was served. An amended list of documents was served on the defendant the following month and also yet another medical report. There the action seemed to go to sleep.
5. In May this year the applicant came to this Court and filed an application seeking three forms of relief: first, an order transferring the proceedings from the Maroochydore Magistrate's Court to this Court under section 74 of the Supreme Court of Queensland Act 1991; second, liberty to take a new step in the proceedings so transferred under Rule 389 of the Uniform Civil Procedure Rules (that was necessary because no step had been taken for two years); and, third, an order including the third party as a second defendant.
6. It is, I think, convenient to deal with matters in the reverse order.On the assumption that the orders sought in paragraphs 1 and 2 were made, I would make the order sought in paragraph 3. The effect of that order is to shift BHP from being a third party to also being a defendant. The limitation period, of course, has expired. The major problem which the plaintiff faces in doing that is finding a provision which will enable that course to be adopted. For a while the plaintiff was inclined to rely upon section 81 of the Supreme Court of Queensland Act 1991 but I think that reliance is misplaced.
7. In my judgment rule 69 constitutes a rule limiting the power conferred by section 81 and that is something which the section itself authorises the rules to do. I think that one can discern that view also from the decision of the Court of Appeal in Greig v. Stramit Corporation Proprietary Limited [2004] 2 Queensland Reports 17.
8. The question then is whether the plaintiff can bring himself within the ambit of rule 69. It seems, in my judgment, the plaintiff does bring himself within rule 69 (1) (b) (ii) at least because it would be just and convenient to enable the Court to adjudicate on all matters in dispute in the proceedings that BHP become a defendant.
9. That provision however is limited by sub-rule (2). That sub- rule provides that "The Court must not include a party after the end of a limitation period unless one of the following situations applies." To include BHP as a defendant at this time would be to do so after the end of the limitation period.
10. The plaintiff submitted initially that the case fell under paragraph 2(f) of rule 69 but I would reject that submission. The plaintiff relied on subparagraph (i) that for a reason a claim made in the proceeding before the end of the limitation period could not be maintained. That does not apply in the circumstances of the present case. But the plaintiff also relied on rule 69(2) (a) (iii) and (iv).
11. Again at first sight those rules do not seem to cover the case where the plaintiff has started the proceeding against one person intentionally and has subsequently found out that another person may be the only person who is liable in respect of an injury in circumstances such as the plaintiff alleges here.
12. To explain that I should say what those circumstances are. The plaintiff claims that after a social function in rural Queensland he went to a railway station in the evening and, being sleepy, lay on the platform to wait for a train. He claims he lay on the safe side of the yellow line demarcating where passengers might wait. He was at that time still at high school.
13. He claims that as a train went past something protruding from it hit him and injured his leg. He did not see what it was that hit him. Investigations by Queensland Rail disclosed that a train did go past at or about the relevant time, in fact, that two trains might have done so which had something on them which might have caused the injury.
14. One had only a rope and the plaintiff does not seem to rely upon that as having caused his injury. However, he points to the fact that the third party statement of claim asserts that another train which went past had a metal tie protruding and that it was this which caused the plaintiff's injury.              The metal tie was attached to and intended to secure a load of steel which BHP had delivered to Queensland Rail for transportation. I would infer that Queensland Rail alleges that the protrusion occurred after the steel was loaded onto the train and was due to imperfect packaging.
15. Until the third party statement of claim was made available to him, the plaintiff was completely unaware of the existence of anyone else who might be liable to him. However, it seems that it is many years since that statement of claim was provided to the plaintiff. That occurred in May 2001. Despite receiving the statement of claim the plaintiff took no step then to join BHP as a defendant.
16. Mr Hastie, on behalf of BHP, submitted that the case was not covered by Rule 69(2) (a) (iii) or (iv). He referred to the literal wording of that rule. However, I think I should follow the decision of Justice Muir in Interline Hydrocarbon Incorporated v. Brenzil Pty Ltd [2006] QSC 184. Applying his Honour's decision to the facts of the present case it seems to me that rule 2(a) is wide enough to cover the circumstances. As to discretionary matters I see nothing in the circumstances which would warrant not making the order. BHP has been fully familiar with everything that has occurred since the action began and does not allege that it has suffered any particular prejudice or would suffer any particular prejudice if joined.
17. If, therefore, I were to grant the relief sought in the first two paragraphs of the application I would grant that sought in paragraph 3.
18. The second application is for leave to proceed and I shall approach it on the assumption that I transfer the action to this Court. The plaintiff demonstrates a reasonably arguable case but it is one in which the cause of action arose some nine and a-quarter years ago.
19. The proceeding was commenced just within the limitation period which, itself, had been slightly extended because the plaintiff was not an adult at the time the accident happened. The delay has been substantial. It is, in my judgment, to be attributed to the plaintiff himself. He simply has not pressed his solicitors to proceed with the action.
20. His affidavit discloses that his father had died in 1996 and after his father's death he took on a lot more responsibility around the home looking after his two younger brothers. After finishing school he went to Queensland University of Technology studying engineering. This was, of course, subsequent to the accident. His mother contacted solicitors on his behalf and it was they who commenced the action on his behalf.
21. In 2001 his mother took a job teaching English in China and the whole family moved there for almost two years. The applicant went with his mother so that he could be with the family and keep the family together as at that point his younger brothers were still of school age.
22. When they returned to Queensland in 2003 they re-established contact with the solicitors and the applicant inquired as to what was happening with his claim. As a result the solicitors arranged for him to see a doctor and he did so in about October 2003. That led to the report to which I have referred earlier.
23. The plaintiff deposed that over the next couple of years he contacted his solicitors a number of times. He understood, from his discussions with the solicitors, that they had to brief a barrister for an opinion in relation to the claim and that that occurred. As a result further reports were obtained from the doctor. That occurred in March 2004 and, again, in March 2005. There is no explanation of why nothing happened during that time.
24. In 2005 the plaintiff felt that his knee condition, which was what he still suffered from the accident, was worsening. He instructed his solicitors that he did not feel that he was ready to settle the action because he was concerned that he was going to have ongoing problems that would affect him in his work especially given that he was studying engineering. He deposed, "I was not led to believe that there were any pressing timeframes associated with the claim. I thought that the time limit had been protected by filing a document in the Court".
25. He was studying in 2005 and 2006. He was living in Brisbane but would return home to Mooloolah regularly to assist his family on the farm. He was limited in what he could do physically. He did not pursue his solicitors actively because, at least, in 2006, he was in his final year of study. He did not realise there was any urgency associated with the claim.
26. In that year the solicitors told him that they were no longer going to undertake work of this nature and that he needed to find other representation. He had not been told that there was any urgency associated with that and took until recently to do so. There were health problems in the family. He did not focus on his claim but rather focussed on trying to provide support for the family.
27. He did not want to settle the claim prematurely as he had ongoing knee complaints. He consulted another medical practitioner in 2005 and was given a referral to a specialist but did not actually see the specialist. The plaintiff, in short, it seems to me, did not proceed in an expeditious way. He explains that by saying that he did not realise that he had to but, in my judgment, that is not a position which can help him.
28. The rules of Court are part of the law of the land and they, by rule 5, cast a duty upon a litigant to proceed in an expeditious way. The attempt by the plaintiff to blame his solicitors may have some justification. He says that he was not led to believe that there were any pressing timeframes associated with the claim. That is a rather vague statement but if I take it to mean he was not told that any time limits existed it will suffice.
29. I may also take it that he was not told about rule 5 of the Uniform Civil Procedure Rules. I do not think that that can relieve him of the duty which he has to comply with rule 5.
30. It may be true that there was negligence on the part of the solicitors either in not proceeding more expeditiously with the matter, or in not informing the plaintiff of the need for expedition. However, I would not be prepared to make a finding of negligence in the absence of evidence from the solicitors as to what occurred. The plaintiff has called no evidence from those solicitors to explain why no steps were taken for such a protracted period and has not explained why he failed to do so. There is no reason, apparent to me, why such evidence could not have been called.
31. The plaintiff does not rely upon impecuniosity as a reason for his neglect and in my judgment does not satisfactorily explain the delay.
32. That delay is substantial. It is the delay, of course, since the accident which must be looked at. That is more than nine years. There is the highest authority for the proposition that such delay will inevitably cause some prejudice: Taylor v South Brisbane Regional Health Authority (1996) 186 CLR 541.
33. The defendant made some attempt to prove that it had suffered specific prejudice, but its evidence is very thin and unconvincing and I have the impression that the evidence reflects, not a genuine attempt to gather evidence for a trial, but rather an attempt to create evidence for the purposes of this application. I am not satisfied that any specific prejudice was suffered by the defendant.
34. I therefore must weigh all of these things against the plaintiff's injury which is now said to be quite serious and to merit proceeding in this Court rather than the Magistrates Court. In doing so I must take into account the fact that in the Magistrates Court proceedings there was no claim for future economic loss and that it is now intended that there will be such a claim if the matter proceeds.
35. In those circumstances the defendant did not have the plaintiff examined by its own medical practitioners. That can, no doubt, now be done but it is not as satisfactory as having had examinations conducted at an earlier stage. I do not think the defendant is to be criticised for not engaging the services of medical practitioners who work in the forensic field in respect of a Magistrates Court claim.
36. Weighing up all of the circumstances I am not satisfied that this is an appropriate case to make an order in the plaintiff's favour for leave to proceed under rule 389. Even if the matter were transferred into this Court, therefore, I would not make that order.
37. That leaves the first order sought, that is the order for transfer. The purpose of that as sought by the plaintiff was to enable the action to proceed. There is, however, in my view another reason why a transfer might be sought and that is to bring the action into this Court now for the purposes of summarily dismissing it.
38. The first defendant has filed an application for dismissal for want of prosecution. It has filed the application in the present proceedings rather than in the removed action because the action was not, of course, removed at the time that the filing took place. But no doubt that is a minor procedural obstacle. I would be inclined to bring up the proceedings and dismiss them but I would not do so if, in the light of my reasons on other grounds, the plaintiff chose to abandon that part of its application. That would leave the plaintiff with his action in the Magistrates Court. It would leave the defendant to bring any application in that Court which it might wish to do in respect of dismissal for want of prosecution, and it would seem an unfortunate position. I do not, however, think that I should proceed to act in the way that I have suggested without first allowing the plaintiff the opportunity to withdraw paragraph 1 of the application if he wishes to do so.

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39. HIS HONOUR: The plaintiff has abandoned paragraph 1 of his application but the defendant and the third party have both made application orally in the same terms as that paragraph. It seems to me that it is appropriate, having regard to the discretion conferred by section 74 of the Supreme Court of Queensland Act, that I bring the proceedings up to this Court for the purpose of their dismissal.
40. I will, therefore, order that proceeding number 406 of 2001 presently pending in the Maroochydore Registry of the Magistrates Court between the applicant as plaintiff, the first respondent as defendant and the second respondent as third party, be transferred to the Supreme Court at Brisbane.
41. In relation to the plaintiff's application I dismiss that application. I will hear the parties on costs and on the application of the defendant to dismiss for want of prosecution.

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42. HIS HONOUR: On the defendant's application I dismiss the transferred proceedings pursuant to rule 280(2) for want of prosecution.

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43. HIS HONOUR: I order that the plaintiff pay the costs of Queensland Rail and BHP Billiton Limited incurred in respect of both written applications and the oral application, and I order that the plaintiff pay the costs of Queensland Rail of and incidental to the transferred proceedings including any costs which Queensland Rail may be liable to pay to BHP Billiton Limited in respect thereof. All costs to be assessed.