Collingwood v Calvert and CSR Pastoral Co

[1996] QCA 494

IN THE COURT OF APPEAL	[1996] QCA 494
SUPREME COURT OF QUEENSLAND

Appeal No. 3028 of 1996

Brisbane

[Collingwood v. CSR Pastoral Co.]

BETWEEN:

JAMES COLLINGWOOD

(Plaintiff) Appellant

AND:

MICHAEL JAMES CALVERT

(First Defendant)

AND:

CSR PASTORAL COMPANY

(Second Defendant)	Respondent
Fitzgerald P. Mackenzie J. Cullinane J.

Judgment delivered 6 December 1996

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL ALLOWED WITH COSTS TO BE TAXED.
THE ORDERS MADE BELOW ARE SET ASIDE, AND IT IS ORDERED THAT THE
APPELLANT HAVE LEAVE TO PROCEED ON CONDITION THAT, WITHIN 14 DAYS
OF THE DATE OF THIS ORDER, THE APPELLANT PROVIDE THE RESPONDENT
WITH THE NAME AND LAST KNOWN ADDRESS OF EACH OF THE WITNESSES, IN
ADDITION TO HIMSELF, WHOM IT IS PROPOSED TO CALL IN RELATION TO THE
ISSUE OF LIABILITY IN THE ACTION.
THE COSTS OF THE APPLICATION BEFORE THE PRIMARY JUDGE ARE TO BE
TAXED AND PAID BY THE APPELLANT TO THE RESPONDENT.

CATCHWORDS:	PRACTICE AND PROCEDURE - appeal from judgment refusing an application by the appellant pursuant to R.S.C. O. 90 r. 9 for leave to proceed in an action which was commenced against the respondent, notwithstanding that the last step was taken more than three years earlier - whether there was sufficient reason for the delay - whether the delay was “inordinate” and “inexcusable” - material delay did not arise from any cause for which the appellant was personally responsible - prejudice to the respondent and the appellant’s prospects of success should the trial proceed.
Brisbane South Regional Health Authority v. Taylor (1996) 139 A.L.R. 1
Counsel:	Mr W. Campbell for the appellant. Mr R. Aldridge for the respondent.
Solicitors:	C.A. Sciacca & Associates for the appellant. Corrs Chambers Westgarth for the respondent.
Hearing Date:	17 October 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3028 of 1996

Brisbane

Before Fitzgerald P. Mackenzie J. Cullinane J.

[Collingwood v. CSR Pastoral Co.]

BETWEEN:

JAMES COLLINGWOOD

(Plaintiff) Appellant

AND:

MICHAEL JAMES CALVERT

(First Defendant)

AND:

CSR PASTORAL COMPANY

(Second Defendant) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 6 December 1996

This is an appeal from a judgment of a Judge of the Trial Division delivered on 21 March 1996 refusing

an application by the appellant pursuant to R.S.C. O. 90 r. 9 for leave to proceed in an action which

he has commenced against the respondent, No. 1911 of 1987, notwithstanding that the last step was

taken more than three years earlier. It is not submitted that the primary judge made any error of

principle in his careful judgment.
His Honour said that he was “not satisfied that the material establishes any sufficient explanation for the

inordinate delay between October 1990 and the making of this application in December 1995", and that

there had, in his view, “been inexcusable delay in prosecuting the action particularly since 1990 but that

does not preclude the [appellant] from showing that there is good reason for excepting these

proceedings from the general prohibition imposed by O. 90 r. 9 ... . ... The court hearing the application

must determine whether, given all the relevant circumstances of the case, there is good reason for

making the order ...”.

Before proceeding further, it is convenient to consider the appellant’s challenge to his Honour’s

conclusion that there was “inordinate” and “inexcusable” delay between October 1990 and December

1995. The action arises out of an incident in which the appellant was patently blameless. On 17 June

1984, he was struck by a bullet fired from a rifle by a co-employee, Michael James Calvert, and

rendered paraplegic. Calvert, who was aged 15 at the time, and it is alleged a “prevented person”

within the meaning of sub-s. 62(b)(ii) of the Firearms and Offensive Weapons Act 1979, was convicted

of assault occasioning grievous bodily harm to the appellant and sentenced on 28 November 1984.

On 8 October 1990, the appellant’s answers to interrogatories were served on the respondent. That

was the last step taken in the action, and there was no contact between the parties’ respective solicitors

until 13 August 1991. On that date, the respondent’s solicitors requested all the appellant’s medical

reports, which were supplied on 16 August 1991. Further, in the period between October 1990 and

August 1991, the appellant’s solicitors attempted to communicate with witnesses, engaged a private

investigator to assist, communicated with the barrister then retained for the appellant seeking advice, and had communications with the Legal Aid Office (Queensland), which was then funding the appellant’s

action, seeking funding to enable the retention of senior counsel on behalf of the appellant. I do not

think that a conclusion that there had been “inordinate” and “inexcusable” delay up until that time is

justified.

Between 23 August and 12 December 1991, there were a number of further communications between

the appellant’s solicitors and the Legal Aid Office, which was provided with a copy of counsel’s

opinion, granted a certificate to pay for further advice, refused to provide funding to brief senior counsel,

but provided funding to pay a private investigator to locate witnesses who were proving difficult to find.

In January and February 1992, there were communications between the parties’ respective solicitors,

which included a letter dated 22 February 1992 from the respondent’s solicitors indicating that,

conformably with its pleading, liability was not admitted.

Between then and 3 August 1992, the appellant’s solicitors, with the assistance of a private investigator,

located and obtained statements from four prospective witnesses. On 11 August 1992, the Legal Aid

Office requested an up-dated opinion from counsel, and a brief for that purpose was delivered by the

appellant’s solicitors to counsel on 17 August, seeking advice in relation to liability and quantum. In

September and October 1992, additional witnesses were located and counsel’s opinion, suggesting

further enquiries, was forwarded by the appellant’s solicitors to the Legal Aid Office. The private

investigator was then again retained to carry out the enquiries which counsel had recommended.
On 10 November 1992, a notice of intention to proceed was served by the appellant’s solicitors on the

respondent’s solicitors, as they acknowledged on 12 November 1992.

Again, I do not think that the time which had elapsed to that point indicated “inordinate” and

“inexcusable” delay which should be taken into consideration against the appellant.

However, there was no further contact between the parties’ respective solicitors until 26 September

1994, almost two years later. On that date, the appellant’s solicitors wrote to the respondent’s

solicitors discussing the progress of the action, requesting that certain matters be addressed, forwarding

interrogatories for examination of the respondent, and nominating a date for a compulsory conference.

When the respondent’s solicitors received that letter on 28 September 1994, they wrote to the

appellant’s solicitors advising that the last step in the action had been taken more than three years

previously and, on 21 October 1994, they did not attend the scheduled compulsory conference. In the

period between 12 November 1992 and 21 October 1994, the appellant’s solicitors had been engaged

in utilising the services of the private investigator, communications with the Legal Aid Office, which

provided some additional funding, obtaining a costing of their file by a costs assessor, and forwarding

an advice from counsel that the appellant had prospects of success to the Legal Aid Office. That

occurred on 18 August 1994, but the barrister in question retired from the Bar in September 1994 and,

on 14 September, a new counsel was retained who accepted the brief on a speculative basis so that

there was no longer any financial bar to the matter proceeding. It was after that that the letter of 26

September 1994 was written by the appellant’s solicitors to the respondent’s solicitors. However, the

appellant’s new counsel retired from the Bar in December 1994.
Before leaving this period, it should be noted that, in February 1993, the respondent’s solicitors

engaged a private investigator to confirm the location of two potential witnesses and to attempt to locate

other witnesses and, in March 1993, the respondent’s solicitors were advised that three witnesses had

been located, but that a fourth could not be found. It seems that no further effort was made by the

respondent to locate witnesses until after the present application was filed in December 1995.

While there was material delay in the period between November 1992 and October 1994, it did not

arise from any cause for which the appellant was personally responsible; the material factors appear to

have been his impecuniosity and some dilatoriness on the part of his solicitors and barrister, probably

associated with the appellant’s lack of funds and the limited funding available from the Legal Aid Office.

On 26 October 1994, the appellant’s solicitors gave a notice of intention to proceed to the respondent’s

solicitors, who wrote to the appellant’s solicitors on 1 November 1994. In December 1994, the

appellant’s second barrister retired from the Bar. The respondent’s solicitors wrote again to the

appellant’s solicitors on 20 December 1994, but received no reply until 10 July 1995, when the

respondent’s solicitors wrote saying that they proposed to file an application for leave to proceed and

that the material would be served in the near future. In fact, the summons was not filed and served until

1 December 1995. It is plain that there was “inordinate” and “inexcusable” delay in the period

preceding the filing of the summons.

Nonetheless, I do not agree with the primary judge’s view that there was “inordinate” and “inexcusable”

delay between October 1990 and December 1995; i.e., for more than five years.
I am also of opinion that the primary judge overstated the potential prejudice to the respondent. His

Honour correctly stated that the present action involved issues which would not have been relevant in

the prosecution of Calvert, and that “... it would be necessary at the trial to canvass the issue whether

the incident occurred in the course of employment by reference to specific evidence”. His Honour also

referred to the need “to canvass at the trial the circumstances in which [Calvert] came into possession

of the rifle, the question whether some person representing the [respondent] on the [pastoral property

outside Cloncurry where the incident occurred] knew or ought to have known that [Calvert] had come

into the possession of the rifle, and so on”. Further, as his Honour noted, while there is an allegation

that the respondent “was guilty of negligence in allowing or permitting [Calvert] to have access to liquor

... [t]here is no positive allegation that [Calvert] was affected by alcohol at the time of the shooting, nor

that the [respondent] knew or ought to have known that [Calvert] was so affected when it allowed or

permitted him to have access to a firearm”. The judgment also pointed out that, if as the appellant has

a cause of action based on the Firearms and Offensive Weapons Act 1979 (which the primary judge

found unnecessary to decide), “... the [appellant] can only succeed if the evidence establishes that the

[respondent] knowingly supplied the firearm to [Calvert]”.

His Honour went on to state that all the factual considerations would have to be resolved by oral

evidence given at least 12 years after the incident, and considered that even if all potential defence

witnesses could be located, “there is still prejudice, or at least a serious risk of prejudice, to the

[respondent] because the witnesses will be required to answer specific and detailed questions as to the

matters outlined above more than 12 years after the events occurred”. His Honour thought the risk of
prejudice to the respondent sufficiently “serious” that leave to proceed should be refused.

There is obviously force in the reasoning referred to. However, it should also be noted that the

respondent accepted in its submissions that all six witnesses which it might wish to call in this action gave

evidence at Calvert’s trial, that the whereabouts of four were known, the search for another, who had

been found in September 1992, was continuing, and only one had never been located. It acknowledged

that it could point to no specific prejudice. Further, correspondence from its solicitors demonstrated

that all six prosective witnesses for the respondent had been interviewed by loss assessors on its behalf.

The position of the appellant in relation to the present application could have been significantly improved

by two steps. In material filed on his behalf, it is indicated that “there will be four liability witnesses in

addition to himself, but none of them are named, and there is no attempt to indicate the issues on which

each could give relevant evidence”, as the trial judge found. Further, a request from the respondent

dated 27 December 1995 for those witnesses to be identified has been refused. A further letter from

the solicitors for the respondent dated 2 February 1996 contained the following paragraph:

“Our client is left with no choice but to oppose your client’s application on the basis that it is prejudiced in the conduct of the trial because, given the lapse of time, it is now not able to locate the relevant witnesses. Clearly, your client could remove this prejudice (and presumably enhance his prospect of obtaining a favourable order) by advising the names and addresses of the witnesses referred to in the affidavit material.”

The judgment went on to note that despite the request in that form the solicitors for the respondent have

“maintained their refusal to divulge the names and whereabouts of the witnesses referred to”.

However, I consider that the appellant should not be penalised for his lawyers’ recalcitrance if injustice can otherwise be avoided. The implicit suggestion by the respondent in the passage quoted from its

solicitors’ letter that it would view the appellant’s application for leave to proceed more favourably if

the names and addresses of his witnesses were provided is important. Although unusual, there seems

to me no reason why an appropriate condition should not be imposed upon any order giving the

appellant leave to proceed.

There is one further consideration. The primary judge obviously had reservations concerning the

appellant’s prospects of success, not surprisingly, since no attempt was made to place evidence with

respect to what occurred before him; the appellant’s legal advisers apparently thought it sufficient to rely

upon the allegations in his pleading. However, as it accepted before this Court, equally the respondent

did nothing to assist his Honour to determine whether or not the appellant’s action had reasonable

prospects of success. In the circumstances, I am once again of opinion that the appellant should not be

penalised for the approach which his legal advisers have adopted.

Although conscious of the deference due to the conclusion arrived at by the primary judge in the

exercise of his discretion, in my opinion this Court’s ultimate task is to ensure that justice is done

between the parties. In the circumstances to which reference has been made, I consider that that can

best be done by giving the appellant leave to proceed on condition that, within 14 days, the names of

his “liability witnesses” and their last known addresses be provided to the respondent.

Accordingly, I would allow the appeal with costs to be taxed, set aside the orders made below, and

order that the appellant have leave to proceed on condition that, within 14 days of the date of this order, the appellant provide the respondent with the name and last known address of each of the witnesses,

in addition to himself, whom it is proposed to call in relation to the issue of liability in the action. In the

circumstances, the costs of the application before the primary judge should be taxed and paid by the

appellant to the respondent.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.3028 of 1996

Brisbane

Before Fitzgerald P. Mackenzie J. Cullinane J.

[Collingwood v. CSR Pastoral Co.]

BETWEEN:

JAMES COLLINGWOOD

(Plaintiff) Appellant

AND:

MICHAEL JAMES CALVERT

(First Defendant)

AND:

CSR PASTORAL COMPANY

(Second Defendant) Respondent

REASONS FOR JUDGMENT - MACKENZIE J.

Judgment Delivered 6 December, 1996

This is an appeal against the decision of the Chamber Judge refusing an application for leave to

proceed in an action for personal injuries. The first defendant has never been served. The second

defendant, the respondent, is the first defendant's employer. Order 90 rule 9(2) provides that when 3

years have elapsed from the time when the last proceeding was taken, no fresh proceeding shall be

taken without the order of the court or a judge.

The incident described in the pleadings is that on 17 June 1984 the first defendant who was 15

and employed as a jackaroo on a property outside Cloncurry fired a shot from a rifle he had obtained

rendering the plaintiff paraplegic. The first defendant was convicted in the District Court of "assault

occasioning grievous bodily harm" and sentenced on 28 November 1984. Presumably he was

convicted under s.320 of the Criminal Code. No other information than that is revealed in the material

in the record before us.

The writ was issued on 18 May 1987, one month before the expiry of the limitation period. The

pleadings proceeded expeditiously until the last step taken, the filing of the plaintiff's Answers to

Interrogatories on 28 September 1990 and their delivery to the respondent's solicitors on 8 October

1990. Throughout the first half of 1991 the plaintiff's solicitors sought to make contact with potential

witnesses and on 16 August 1991 forwarded all medical reports concerning the plaintiff to the

respondent's solicitors following their request for them. On 24 February 1992, following an earlier

conversation between the solicitors about the difficulty of finding witnesses who were rural workers, the

respondent's solicitors confirmed that liability was denied and advised that the plaintiff should collect its

evidence.

In August 1992 the plaintiff's solicitors were provided with statements from witnesses on the

matter of liability. Further enquiries were recommended by counsel and those further enquiries were

made resulting in the provision of the further information to the plaintiff's solicitors by mid-November 1992. On 10 November 1992 a notice of intention to proceed pursuant to Order 90 rule 9(1) was

served on the respondent's solicitors but nothing was done pursuant to it. At the time of service of the

notice of intention to proceed, over 8 years had elapsed since the incident upon which the claim was

based but the plaintiff was still in compliance with the rules; so far as taking further steps was concerned.

So far as the respondent's evidence gathering is concerned, according to the evidence before the

court, the court file relating to the prosecution was obtained on third party discovery in April 1989. In

September 1992 electoral searches located two potential witnesses (Kocsis and Cottrell) but not

others. In February 1993 investigations were instituted which resulted in private investigators locating

and speaking to those two witnesses and one other, Hamilton, who had been sought previously. One

remained untraceable and remains so so far as the respondent can ascertain. Enquiries since service

of the application for leave to proceed have established that Cottrell's and Hamilton's whereabouts are

known; Kocsis can no longer be found. Two other potential witnesses, Ahern and Willis, have been

found but another, Chapman, has at all times been untraceable. During the period following service of

the application for leave to proceed, the respondent's solicitors requested that the identity of the

witnesses intended to be called by the plaintiff be notified but the plaintiff's solicitors refused. Because

of the localities in which they are said to live in the plaintiff's material the probabilities seem to be that

they are those mentioned above as having been traced. However that has not been confirmed. It

appears from the plaintiff's material that in about April 1993 the Workers Compensation Board and the

Legal Aid Office discussed the holding of a legally aided conference, but the Board took the view it was

premature.

One of the factors in favour of a witness action being prosecuted without undue delay is

highlighted in Brisbane South Regional Health Authority v. Taylor (1996) 139 ALR 1. That was a case

involving extension of the limitation period in which to bring an action and other factors, including that it involves potentially reimposing liability on a person after the right to bring the action has expired, are

important elements. However there are passages in which the effect of delay on the quality of evidence

is discussed. In my view those are equally relevant to cases where leave to proceed under Order 90

rule 9 is sought. McHugh J., at 8, says the following:-

"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, (1972) 407 US 514 at 532 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose." (see also Toohey and Gummow JJ., at 7)

One of the complications about the action in this case is that in relation to the second defendant

the action is framed in terms of breach of contract of employment and/or negligence on the part of the

second defendant as employer of the plaintiff. The particulars are:-

(i)        allowing or permitting a person of the age of the first defendant to have

access to and possession of a firearm and ammunition;

(ii)       allowing and/or permitting the first defendant to have access to liquor while

on the station;

(iii)      failing to properly supervise the conduct and activities of the first defendant;

and

(iv)      making no satisfactory checks on the suitability of the first defendant for employment on a station property.

It is also alleged that the first defendant was a "prevented person" within the meaning of the

Firearms and Offensive Weapons Act in respect of the firearm and its ammunition. It is alleged that

there was a breach of this statutory duty on the part of the second defendant in that it knowingly

supplied the firearm and ammunition to or for the use of a prevented person. It is very unlikely that a

number of these matters would have been relevant to the criminal trial. Contact has been made with

possible witnesses, but after 12 years, even so, memories may yet have to be searched in detail for the

first time on those issues. There is a substantial risk that the quality of the evidence will be poor.

However no specific prejudice was asserted by the respondent other than the difficulty in locating

witnesses.

The learned Chamber Judge described the delay between October 1990 and the making of the

present application in December 1995 as inordinate. It is quite likely, although it is not explicit in the

material, that the delay occasioned by various applications for legal aid, including one for senior counsel,

and waiting for advice from counsel is symptomatic of the difficulty of the plaintiff's case. The long

drawn out process of seeking legal aid to fund various inquiries and advice has contributed to the delay

but demonstrates that the action was not one that had become quiescent. Nor is it something that can

be attributed to fault on the appellant's part. The less defensible part of the delay is that from about

September 1994 onwards. At that time the plaintiff's solicitors were on notice that the last step had

been taken more than 3 years ago and that leave would be necessary to proceed. That was followed

by a notice of intention to proceed served on 26 October 1994. After that, nothing was done until the

present summons was filed and served on 1 December 1995, the only sign of activity in the meantime

being advice from the plaintiff's solicitors to the second defendant's solicitor almost 5 months before

filing that the summons would be filed shortly.

In deciding whether the learned Chamber Judge's refusal of leave should be set aside the focus,

in my view, is on the notion that there has been inordinate delay. If as seems to be the case, that

characterisation is applied by him to the whole of the period, it is my view that there was at least some

explanation of the delay until mid-1994 although it is quite likely due in no small measure to the difficulty

of the plaintiff's case. The reasons of the learned Chamber Judge expand on some of those difficulties.

The lack of any indication in the material before a judge who is asked to grant leave, demonstrating

even in skeleton form how the apparent difficulties are to be overcome, may be a factor in the decision

to give leave or not. Where the case is out of the ordinary and it is not immediately apparent how the

case is to be constructed it is in my view important that the plaintiff give some indication that there is at

least a conceptual formulation of the shape of the case showing a viable basis for the proceedings if

fleshed out by evidence. However, I do not consider its absence to be necessarily fatal to the appellant

applicant's case. After some hesitation I have come to the conclusion that leave should be granted.

The case is not one where it is sought to revive it after total inactivity over a lengthy period. It is one

where there were indications over a long period that it was progressing, albeit glacially, towards trial.

While the delay since the need for leave to proceed was drawn to the plaintiff's solicitors attention has

been relatively lengthy and no readily acceptable excuse is offered, the events in the period before that

are not suggestive of fault arising from the plaintiff himself or a lack of intention to prosecute the action.

In particular, it was not a case where the defendant had been led to think that it was never going to

proceed. Looking at the circumstances of the case over the whole of the relevant period and trying to

strike a balance of the competing factors I have, after some hesitation, come to the conclusion that the

case is one where leave to proceed should have been granted. I agree with the orders proposed by

the President.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3028 of 1996

Brisbane

Before Fitzgerald P. Mackenzie J. Cullinane J.

[Collingwood v. CSR Pastoral Co.]

BETWEEN:

JAMES COLLINGWOOD

(Plaintiff) Appellant

AND:

MICHAEL JAMES CALVERT

(First Defendant)

AND:

CSR PASTORAL COMPANY

(Second Defendant) Respondent

REASONS FOR JUDGMENT - CULLINANE J.

Judgment delivered 6 December 1996

I agree with the reasons for judgment of Fitzgerald P. and with the orders proposed by him.