Crompton v Buchanan[2010] QSC 61

SUPREME COURT OF QUEENSLAND

[1] On 12 October 2000, the plaintiff filed a Claim and Statement of Claim seeking damages for personal injury sustained in the course of his employment with the defendants on 14 October 1997.  The Claim was thereupon stayed by the operation of the provisions of the WorkCover Queensland Act 1996 (WQA).  For a variety of reasons, the Claim and Statement of Claim have not yet been served, although the Claim was renewed on the anniversary of its filing in each of the years 2001 and 2002.  The Claim became stale on 12 October 2003 when it was not renewed for the third time.

[2] The plaintiff now applies to have the Claim renewed pursuant to R 21 of Uniform Civil Procedure Rules (UCPR) or alternatively for leave to proceed pursuant to R 389.

[3] The defendant also applies to have the proceeding dismissed for the want of prosecution pursuant to R 389 under UCPR or alternatively dismissed under the provisions of the WQA. 

Background facts

[4] As can be noted, the Claim was filed only two days prior to the expiration of the limitation period.  This was done without the pre-commencement procedures required under the WQA having been completed.  The plaintiff did in March 2000 serve a Notice of Claim on WorkCover who maintained that the plaintiff could not validly do so.  Consequently, the action was stayed by the operation of s 262(4) of WQA until, amongst other things, an unconditional Notice of Assessment had issued.  The Notice of Assessment was in fact issued on 18 December 2002 after a number of delays occasioned by applications for reopening of the Claim and appeal against WorkCover’s refusal to reopen.  In this period also the plaintiff submitted to independent medical review at the request of WorkCover.  Consequently, the delay associated with this period should not be seen as telling against the plaintiff.

[5] The progress of the plaintiff’s claim is set out in extensive detail in the affidavit of Michael Cooper filed on 11 September 2009.  It is not necessary to refer to every detail of the interaction between the plaintiff and his successive solicitors which appears to be the root cause of the delay and which has led to the need for the Court’s intervention.

[6] The defendants do not complain about any delay between 14 October 1997 and mid 2003.  During this time the statutory requirements were being attended to culminating in the issue of the Notice of Assessment on 18 December 2002.  It is reasonable to allow also a period of time for inquiries to be undertaken and for the plaintiff to confer with counsel.  This latter task was done on 30 August 2003.  The next step ought to have been the service of the writ before it became stale on 12 October 2003.  During this period also there appears to have been exchanges of correspondence between the plaintiff’s solicitors and WorkCover solicitors.[1]

[7] The defendants however contend that for the periods between August 2003 - 23 May 2008 and again between 12 August 2008 - 20 August 2009, there is no proper explanation for the plaintiff’s failure to progress the action.

[8] In August 2005, the plaintiff had a meeting with his former solicitors and arrangements were made for his file to be transferred to his present solicitors.  This was effected in early September 2005.  Some further preparation for the presentation of the plaintiff’s Notice of Claim for Damages was undertaken by his present solicitors in November 2005.  But the need for the Court’s intervention and the urgency of the situation does not appear to have touched the consciousness of either the plaintiff or of his successive legal representatives.

[9] The solicitors’ next contact with the plaintiff was on 18 September 2006 when he gave details of his new address and employment to his solicitors.  It is to be noted that the plaintiff’s house was destroyed by Cyclone Larry in March 2006.  There was no doubt considerable disruption in his life for some time as a consequence of this.  Following the meeting in September 2006, the next meeting was in March 2007.  By this time, the effects of that disruption should have passed sufficiently to allow the claim to proceed with due celerity.  In fact, it did not do so as the next action was not taken until 14 months later on 23 May 2008.  

[10] By this time, the preparation of a Notice of Claim for Damages had progressed and ultimately finalised on 11 July 2008.  This document was forwarded to WorkCover together with supporting documents on 12 August 2008.

[11] WorkCover’s response was to assert that the Notice of Claim was non-compliant and it reserved its rights in respect of the delay in prosecuting this action. 

[12] Apart from one contact from each of the plaintiff’s former and present solicitors advising of the change in representation, there was no communication betwixt the plaintiff’s advisors and the defendants’ solicitors between 25 November 2003 and 18 August 2008.  The defendants’ solicitors had, by this time, placed their file in abeyance.

[13] Following the receipt by WorkCover of the Notice of Claim for Damages, some progress was made to the point of holding a compulsory conference on 16 February 2009.  However, following that compulsory conference there was no service of the stayed proceedings within the 60 day period thereafter.  Leave of the Court would have been necessary for this to have been done but there was no application for such leave until 20 August 2009.

[14] The question of whether the Court’s discretion should be exercised in the plaintiff’s favour falls to be considered against the background of two periods of inactivity,  the first between August 2003 - 23 May 2008 and the second, between 12 August 2008 - 20 August 2009. 

Legal principles

[15] The principles upon which the discretion is to be exercised are well understood.  The same principles apply to both the applications for leave to proceed, including the renewal of the claim, and the application to dismiss the claim for want of prosecution.

[16] The starting point were the terms of R 5 of UCPR where the focus is upon the “justice and expeditious resolution of the real issues…at a minimum of expense” and the avoidance of “undue delay, expense and technicality”.  As Chief Justice de Jersey expressed in Quinlan v Rothwell[2] “the rule has gone to the length of expressly confirming that breach of a party’s implied undertaking ‘to proceed in an expeditious way’ may attract sanctions including, as per the proffered example, dismissal of the proceeding”.[3]

[17] In Muirhead v The Uniting Church in Australia Property Trust (Q)[4] Williams J said:-

“[29]The general principle is that it is for the applicant to establish some good reason why the case should be excepted from the general rule that the court will not exercise its discretion in favour of renewal.  (Jones v Jebras & Hill (1968) QdR 13, Licul v Corney (1976) 58 ALJR 439, and Van Leer Australia Pty Ltd v Palace Shipping KK (1979) 180 CLR 337).  One of the more recent relevant statements is that of McHugh J in Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541 at 553:

“…I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods.  A limitation provision is the general rule; an extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”

[33]At the end of the day, the material is not capable of supporting a finding that there is good reason “for renewing this plaint after the expiration of the limitation period”.

[18] This remark was cited with approval by Keane JA in The IMB Group Ltd (in liquidation) v Australian Competition and Consumer Commission[5].

The issues

[19] In submissions as to why I should except this case from the general rule, the plaintiff argues that for most of the subject period time the action was stayed by the operation of the provisions of WQA.  For that reason the application for leave to proceed is probably unnecessary as the issue falls to be determined on whether the claim should be renewed.  For this reason also the defendants’ cross-application is also unnecessary. 

[20] Under WQA the plaintiff needed to serve a complying Notice of Claim before the pre-court procedures could be undertaken to allow the action to proceed and that process could not start until the plaintiff had received a Notice of Assessment from WorkCover.  Section 262(1).  The unconditional Notice of Assessment was received on 18 December 2002.  All delay before this date is explained by the process of attempted reopening of the statutory claim and the appeal against WorkCover’s refusal to reopen.

[21] As to delay since December 2002, the plaintiff draws attention to the lack of any complaint of specific prejudice to the defendants.  It is the fact that they had ample opportunity to investigate the claim.  Also, the plaintiff points to the hardship which he would face if the claim was not renewed and he is not permitted to litigate the claim which has strong prima facie merit.

[22] Counsel for the plaintiff relied particularly on the decision of the Court of Appeal in Smith v Harvey-Sutton & Ors[6]  where a delay of 16 years was not seen as grounds to dismiss the action in circumstances where there had not been raised any specific prejudice.  That action had however advanced to the point of being ready for trial.  The Court said:-

“The principles applicable in applications of this kind have been stated in many cases, sometimes with varying emphasis upon one or more of the factors that tend to be relevant in the determination of such cases.  Without attempting a comprehensive statement of principle, it may be taken that while the history of the legal proceedings and any explanation concerning the delay are always relevant, the provision of a satisfactory explanation for the delay is not a condition precedent to the continued survival of the action.  Usually the most important factor in the exercise of the discretion is the degree of prejudice that the defendant is likely to suffer as a result of the delay.  However, individual factors cannot be satisfactorily weighed in isolation, and it is always necessary to identify all relevant factors affecting the particular case, and then determine on balance whether there is good reason for making the order.”[7]

[23] The defendant contends that no proper explanation has been given for the delays during the two identified periods.  At the same time, WorkCover was pressing for action to be taken and threatened to apply to strike out the claim.[8]  The defendant points also to the time lapses at every step leading to the compulsory conference and even this application filed six months later.  Finally, the defendant contends that in the event of the action being struck out the plaintiff will not be without a remedy.  There are good grounds for supposing that he will be protected by claims against his solicitors but that there ought to be an end to the litigation against the defendants which is now 12 years old.

[24] There is force in the defendants’ submissions.  The delay covers a long period by modern case standards but more particularly there is no explanation for much of the delay in the two unidentified periods.  I have considered the assertion that the defendants do not allege any specific prejudice but I regard the general impact of prejudice as referred to in Brisbane South Regional Health Authority v Taylor[9] is significant here. 

[25] The most telling factor in the exercise of my discretion, is that the action has only begun and has not moved to the second step in 12 years.  A different consideration would arise if the matter could proceed quickly to trial as was the situation in Smith v Harvey-Sutton (supra).  The philosophy of the UCPR is well known and constantly highlighted by this Court to practitioners.  That philosophy must also impact on the position where leave is given to proceed with the commencement of proceedings which are then stayed because of lack of compliance with statutory obligation that there is a continuing requirement for the expeditious resolution of the real issues.

[26] In this instance the rules have been disregarded by the glacial-like pace in the pursuit of pre-commencement procedures.  In the end result I take the view that a delay of 12 years between the commencement of the action and the very next step cannot be condoned.  At the end of the day, the plaintiff has not shown any good reason for renewing the Notice of Claim after such a delay.  The plaintiff’s application should be dismissed.  I allow the defendants’ application to strike out the claim.

Costs

[27] The defendants seek costs under the exception to s 325(4) of WQA on the grounds that their application has been brought because of the unreasonable delay on the part of the plaintiff.  It follows from my findings that there has been unreasonable delay and as a consequence there is little the plaintiff can say to avoid the consequences of that.  Costs should be assessed on the standard basis.

Orders

[28] I make the following orders:-

1. The plaintiff’s application to renew the Notice of Claim is dismissed.

2. These proceedings commenced by Notice of Claim on 12 October 2000 are dismissed.

3. The plaintiff pay the defendants’ costs of the proceedings, including this application, to be assessed on a standard basis.