Azad v Ljubas

[2006] QDC 128

[2006] QDC 128

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No PLT2780 of 1991

PASTOR AZAD	Plaintiff
and
DAVID LJUBAS	Defendant

BRISBANE

..DATE 26/04/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 223 and r 389.  Time to be allowed to plaintiff to make disclosure in very old action.

HIS HONOUR:  This is a very old action, being commenced in 1991.  There was no undue delay in filing of the plaint, given that the motor vehicle accident underlying the proceeding occurred only the year before. 

Mr Azad, the plaintiff, is currently self-represented, having experienced difficulties over the years in retaining legal advisors and in satisfying requirements that they had of him.  He is seeking leave to proceed under rule 389 of the UCPR, there having been more than two years elapsing since the last step in the proceeding which relates to a medical examination by Dr John Morris at the instance of the defendant.  The doctor's report became available in January 2004.

By a special arrangement with the Court, the defendant was permitted to file, and make returnable today, an application seeking dismissal of the plaintiff's "claim" for want of prosecution.  The defendant is not proceeding with that application, accepting the justice of allowing Mr Azad's claim to proceed to trial. 

Mr Dawson for the defendant, who appears to me to have conducted the proceeding very fairly, informed the Court that it was stated in open Court before Mackenzie J in Supreme Court proceeding 3785/1996 on the 13th of November 2003, that there was no issue regarding liability.  The case is simply one of having damages assessed.  That is a very contentious exercise.

The proceeding before his Honour was an application for removal of the "claim" to the Supreme Court.  It is quantified in millions of dollars, which it is said by Mr Azad he could have realised by exploiting land he had available as a working nursery and he has indeed indicated today that, but for the disabling effect of his injuries, he would have been able to profit hugely from developing land at Byron Bay.

Mackenzie J regarded the evidence before him, as opposed to Mr Azad's assertions, as insufficient to justify transferring the matter to the Supreme Court.  His Honour said:

"It is quite impossible to conclude whether the

economic loss component of the damages is substantial
or a pipe dream".

The defendant has produced a draft order which includes the granting of leave to the plaintiff under rule 389.  It is also calculated to ensure that Mr Azad makes available to the defendant any documents which he has which bear on his very large economic loss claim. 

He has suggested there are no such documents, but in my opinion he ought to be required to say it in a formal way.  He has been supplied with a copy of form 19, which is the relevant document.  The order to be made includes a provision based on rule 223(2) that if the form 19 is completed to the effect that there are no documents, that should be confirmed by an affidavit.  It is clear from Mr Azad's own application and supporting affidavit that he knows how to produce an affidavit.
I think the defendant is entitled to that protection against documents suddenly emerging.  Mr Azad has indicated that he may embark on the preparation of documents in the future in the form of calculations of his loss and the like.  No doubt those will be disclosed, if appropriate, as they are generated. 

He has sought more time than the period of weeks allowed in the order, indeed until the end of the year.  I am simply unable to go along with his approach there, which is to obtain more time within which to conduct settlement negotiations.  The way the timetable is set is such that no trial would be available before September at the very earliest.  It seems to me that gives ample time for Mr Azad to get organised and hopefully, as Mackenzie J also said, to get himself legal representation. 

Although the draft order supplied by Mr Dawson seeks an order for costs, payment being deferred until completion of the action, it is preferable and fairer to reserve costs in the circumstances.  I bear in mind the strong course originally pursued by the defendant of seeking dismissal of the "claim".  It was of course a plaint, as the rules contemplated in 1990.  The costs order will be that the defendant's costs of and incidental to this application, and his application for dismissal of the plaintiff's claim for want of prosecution, filed on the 20th of April, be reserved.  Order as per initialled draft.

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