Blythe v Queensland Generation Corporation - [1999] QSC 92

IN THE SUPREME COURT
OF QUEENSLAND

No. 754 of 1995

Brisbane
Before Wilson J
[Blythe v Queensland Generation Corporation]
BETWEEN:

ERIC JOHN BLYTHE

Plaintiff

AND:

QUEENSLAND GENERATION CORPORATION

Defendant

JUDGMENT - WILSON J.
Judgment delivered 27 April 1999

This is an application by the defendant to strike out the plaintiff’s action for want of prosecution or alternatively to dismiss the action.
By the writ issued on 4 May 1995 the plaintiff claimed damages for negligence and/or breach of duty and/or breach of contract of employment and/or breach of statutory duty. No other particulars were given.
The writ was not served for almost twelve months. It was served on the Workers’ Compensation Board of Queensland on 24 April 1996 and on the defendant two days later.
It was not until 17 February 1999 that the statement of claim was delivered. It contains the following allegations (inter alia). The plaintiff was in the employ of the defendant from 20 April 1968. At all material times he was working as a “generation planning engineer.” On 4 May 1992, whilst performing his duties, which included public relations and engineering planning work and the conduct of project approval for the Tully-Millstream Hydro-Electric Project, he suffered an injury, namely a major depressive illness. He was compelled to take extended sick leave. He obtained medical and psychiatric treatment, and was subsequently retired on medical grounds.
On receipt of the statement of claim the defendant’s solicitors briefed counsel and sought a short extension of time in which to deliver a defence. Then they advised the plaintiff’s solicitors that the defence was ready, but that they wanted an explanation for the plaintiff’s delay in prosecuting the action. An explanation was not given. The plaintiff’s solicitors threatened to enter interlocutory judgment. The defence was delivered on 29 March 1999. This application was filed on 1 April 1999.
From the defence it is clear that both liability and quantum are in issue. The pleading consists largely of denials and non admissions, and an allegation that the action is barred by the Limitation of Actions Act.
The principles applicable to an application such as this were enunciated by the House of Lords in Birkett v James [1978] AC 297. At p 318 Lord Diplock said that the power to dismiss an action for want of prosecution should be exercised only where the court is satisfied either:
“(1)that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the Court or conduct amounting to an abuse of process of the Court; or
(2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and
(b)that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.”
This was adopted by the Full Court of the Supreme Court of Queensland: see Bruce Pie & Sons Pty Ltd v Mainwaring [1987] 1 Qd. R. 304 and Dempsey v Dorber [1990] 1 Qd. R. 418.
More recently the continued application of these principles has been questioned by the majority of the Court of Appeal in Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd ( No. 2) [1998] 2 Qd. R. 551. That case concerned a fire in an industrial building in December 1982. The action was begun at the end of 1983. There was substantial delay in its prosecution from the end of 1986 to mid 1996. The Court of Appeal upheld the primary judge’s decision to strike out the action relying on the second limb in Birkett v James. At p. 555 Pincus JA (with whom McPherson JA agreed) said:-
“In a time when complaints of delay in the disposition of legal proceedings are legion, one may question whether principles which can encourage delay and which have been said to have failed in their country of origin should continue to be applied in this State.”
However, the court was not asked to overrule the application of the Birkett v James doctrine, and in any event, the delay was such that the case fell within that doctrine.
In the present case it seems that the plaintiff’s advisers were proceeding with the preparation of is case over most of the period of delay which is in question, but that they failed to communicate with the defendant’s solicitors to this effect. From March 1996 to February 1997 they were carrying out investigations including obtaining a copy of the relevant file of the Workers’ Compensation Board of Queensland (which contained medical reports obtained by the Board in 1994) and medical reports. In March and May 1997 the defendant’s solicitor inquired as to the plaintiff’s intentions with respect to the action, but no response was given. In July 1997 the plaintiff was hospitalized for a depressive illness. Further medical evidence was obtained in November 1997. There appears to have been a period of inactivity until about September of 1998. Then further work was carried out including a conference with counsel and obtaining further medical reports. Notice of intention to proceed was given on 7 January 1999.
The statement of claim ought to have been delivered by mid June 1996. The defendant has cause to be critical of the delay of more than 2½ years. However, I do not consider the delay to have been so long that it was inordinate. Nor do I consider that it was inexcusable given the nature of the plaintiff’s injury, the investigations which were being carried out and his hospitalization in July 1997.
The defendant bears the onus of establishing that the delay is such that there is a substantial risk that it is not possible to have a fair trial of the issues or such that it is likely to cause or to have caused serious prejudice to it either as between it and the plaintiff or between it and a third party. The defendant led no evidence of prejudice. It asked the court to infer that the passage of time would have had a detrimental effect on the recollections of witnesses, but it did not condescend to any particulars of the witnesses whose recollections might be so affected or even of the type of evidence in question. I am not prepared to draw an inference of serious prejudice on the facts of this case, particularly given that the Workers’ Compensation Board had obtained medical reports about the plaintiff’s condition as early as 1994.
The defendant’s counsel asked me to take into account in support of the application that the plaintiff may have available an action for negligence against his solicitors. That is not a factor which can be given any significant weight on the material before me. It seems that they were relatively diligent in investigating his claim but I cannot express any concluded view on whether he may have a viable cause of action against them.
In all the circumstances I dismiss the defendant’s application.
I direct the plaintiff to file and serve a statement of loss and damage by 4 pm on Friday, 21 May 1999.
I order the applicant/defendant to pay the respondent/plaintiff’s costs of and incidental to the application to be taxed.
IN THE SUPREME COURT
OF QUEENSLAND
No. 754 of 1995
Brisbane
Before Wilson J
[Blythe v Queensland Generation Corporation]
BETWEEN:
ERIC JOHN BLYTHE
Plaintiff
AND:
QUEENSLAND GENERATION CORPORATION
Defendant
JUDGMENT - WILSON J.
Judgment delivered 27 April 1999
CATCHWORDS:     PRACTICE   - striking out action for want of prosecution - injury sustained 1992 - writ issued 1995 - writ not served for almost 12 months - 2½ years delay in delivery of statement of claim - no evidence of prejudice to defendant - possibility of action for negligence against solicitors.
Birkett v Jones [1978] AC 297
Bruce Pie & Sons Pty Ltd v Mainwaring [1987] 1 Qd.R. 304
Dempsey v Dorber [1990] 1 Qd R 418
Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd (No. 2)   [1998] 2 Qd R 551
Counsel:Mr M O’Sullivan for the applicant/defendant
Mr H Zillman for the respondent/plaintiff
Solicitors:Crown Solicitor for the applicant/defendant
William R Wilson & Associates for the respondent/plaintiff
Hearing Date:              19 April 1999