Collins v Cootes

[2000] QSC 332

SUPREME COURT OF QUEENSLAND

CITATION:

Collins v Cootes [2000] QSC 332

PARTIES:

PETER JAMES COLLINS
(plaintiff/applicant)
v
MAUREEN ELIZABETH COOTES
(defendant/respondent)

FILE NO:

S4897 of 1996

DIVISION:

Trial Division

DELIVERED ON:

29 September 2000

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2000

JUDGE:

Mullins J

ORDER:

1. Leave be given to the applicant pursuant to r 389(2) of the UCPR to take a new step in the action.
2. The applicant pay the respondent’s costs of the application filed on 26 April 2000 to be assessed in any event.
3.  The application filed on 15 May 2000 be dismissed.
4. There be no order as to costs in respect of that application.

CATCHWORDS:

PRACTICE – LEAVE TO PROCEED – time – delay since last proceeding – r 389 UCPR – striking out for want of prosecution.

Rules of the Supreme Court, O 90 r 9,
Uniform Civil Procedure Rules, r 150, r 155, r 389, r 389(2),

Borg v Muscat [1972] QdR 253

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cooper v Hopgood & Ganim [1999] 2 QdR 113
Dempsey v Dorber [1990] 1 QdR 418
Meredith v Palmcam Pty Ltd [2000] QCA 113

Tyler v Custom Credit Corporation Limited [2000] QCA 178
William Crosby & Co Pty Ltd v Commonwealth (1963) 109 CLR 490

Wilson v Bynon [1984] 2 QdR 83

COUNSEL:

K F Holyoak for the applicant
W A Martin for the respondent

SOLICITORS:

Biggs & Biggs for the applicant
Quinlan Miller & Treston for the respondent

1. MULLINS J: Peter James Collins ("the applicant") has applied for leave to proceed pursuant to r 389(2) of the Uniform Civil Procedure Rules (UCPR) in respect of his action for damages for personal injuries commenced by writ filed on 14 June 1996 against the defendant Maureen Elizabeth Cootes ("the respondent").  It appears that the last steps taken in the action were the filing of the entry of appearance on behalf of the respondent on 25 February 1997 and its service on the applicant on 27 February 1997.  The claim arises in respect of injuries sustained by the applicant in a motor vehicle accident which occurred on 16 June 1993.  The respondent opposes the application and has brought a cross application seeking to have the action dismissed for want of prosecution.

1. The applicant deposes to the accident occurring when he was driving his Mazda motor vehicle home from work outbound along Ipswich Road at Woolloongabba in the centre lane.  He states that a vehicle swung into the path of his vehicle from the left of the carriageway and forced him into the path of oncoming traffic.  His Mazda vehicle collided with a Holden utility travelling in the opposite direction.  It is not in issue that that vehicle was driven by Darren John Sheehan who sustained injuries in the accident. 

1. The applicant alleges that the vehicle which swerved in front of his vehicle was a cream Holden station wagon driven by the respondent.  That vehicle was not involved physically in the collision. 

1. The applicant deposes to suffering a fracture of his left foot as well as a facial injury from impact with the steering wheel in the accident.  He was taken to the Mater Adult Hospital for treatment.  He states that he was off work for a period of 21 weeks and received workers' compensation benefits.

1. In September 1993 the applicant received a letter of demand from solicitors acting on behalf of Mr Sheehan in relation to the personal injuries suffered by Mr Sheehan in the collision and a letter of demand from Suncorp in relation to the damage to Mr Sheehan’s vehicle.  An action was brought by Mr Sheehan in the Brisbane District Court which was defended by FAI as the compulsory third party insurer of the applicant's vehicle and Suncorp as the compulsory third party insurer of the respondent's vehicle. 

1. The applicant’s father took the letters of demand to solicitor Mr Ian D’Arcy in about October 1993 to take steps to protect the applicant’s interests and to see if anything could be done to get the applicant damages for his injuries from the accident.

1. In August 1994 the applicant consulted Mr D'Arcy who was then of D'Arcys Solicitors in relation to making a claim for damages for the personal injuries he suffered in the accident.  The applicant deposes to being informed by Mr D'Arcy that he would proceed with the applicant's personal injuries claim and that these types of actions took a considerable period of time to be resolved.  The applicant also deposes to being informed by Mr D’Arcy that he would be notified when he had to give evidence.

1. The District Court action brought by Mr Sheehan was set down for trial on 16 May 1995, but settled without proceeding to a hearing.

1. D'Arcys sent a letter to the applicant dated 6 March 1997 advising of the issue of the writ and enclosing an invoice in respect of outlays.  The applicant cannot recall receiving that letter or the advice in it about the issuing of the writ.  The applicant can recall receiving a bill from D'Arcys and attending at the office of that firm to pay the bill in early 1997.  The applicant states that on that occasion he gave Mr D'Arcy further instructions regarding his injuries and the circumstances of the collision and that Mr D'Arcy informed him to leave the personal injuries action with him and he would take care of it.  The applicant states that Mr D'Arcy did not provide him with any specific advice regarding the time the action would take to be heard in court. 

1. The applicant did not follow up Mr D'Arcy to ascertain the progress of his action, but waited to hear from him.  In mid 1999 the applicant's sister informed the applicant that Mr D'Arcy had ceased practice due to ill health.  (Mr D’Arcy had, in fact, ceased practice in October 1997.)  It was at that time that the applicant ascertained from other members of his family, particularly his father, that nothing appeared to have been done on his personal injuries file for many months, if not years.  The applicant believed at that time that it would be the end of his claim.  The applicant states, however, that in December 1999 his father informed him that his file was now with solicitors Hopgood Ganim and that he should telephone that firm.

1. On 24 December 1999 the applicant spoke to Mr David Shannon of Hopgood  Ganim and, as Mr Shannon was about to depart on holidays, made an appointment to see him on 24 January 2000.  That also suited the applicant who was about to go away on holidays.

1. On 25 January 2000 Mr Shannon gave notice of intention to proceed to the then solicitors for the respondent who had filed the entry of appearance.  No step was taken in the action within 3 years of the last step.  On 23 March 2000 the applicant's solicitors received a letter from Quinlan Miller & Treston advising that they were now the solicitors for the respondent.

1. On 24 March 2000 the applicant's solicitors served a statement of claim on the respondent's solicitors.  Service of that statement of claim was ineffective because of the lapse of 3 years without a step being taken in the action.  After further correspondence was exchanged between the parties' solicitors, the application seeking leave to proceed was filed on 26 April 2000.      

1. In anticipation of the hearing of the application both parties undertook inquiries to ascertain whether all likely witnesses would be available.  The applicant’s solicitors had a private investigator visit the respondent’s home.  He asked her whether she had a recollection about being involved in an accident at Woolloongabba in June 1993.  The respondent stated “I was not actually involved in the accident, but I do have a recollection of what you are talking about.  What is this about?”.  There was no material filed on behalf of the respondent to suggest that she does not have a recollection of the relevant events.

1. According to the police traffic incident report one Mark James Amos was identified as a witness to the accident.  The applicant’s solicitors located Mr Amos in Sydney.  Mr Amos informed the applicant’s solicitor, Mr David Shannon, that he had a clear recollection of the motor vehicle accident occurring at Ipswich Road, Woolloongabba, on 16 June 1993 when he was driving outbound on Main Street and into Ipswich Road behind a Mazda sedan, and he recounted his recollection.  That account included his observation of a station wagon, light in colour, possibly a Ford Falcon, emerging from Logan Road and cutting across two lanes of traffic in Ipswich Road and entering the lane in which the Mazda was proceeding, cutting off the Mazda, and that the driver of the Mazda was forced to veer to his right to avoid a collision and then was involved in a head-on collision with a Holden utility travelling in an inbound direction along Ipswich Road.

1. Mr Amos also provided statements in connection with the personal injuries action brought by Mr Sheehan.  He gave a statement to an investigator from Suncorp in November 1993 and a further statement to an investigator from FAI Insurances in October 1994.  Those statements were in evidence on this application.

1. The private investigator retained by the applicant’s solicitors located Mr Sheehan who informed the applicant’s solicitor, Mr David Shannon, that he had a reasonable recollection of the accident he was involved in at Woolloongabba on 16 June 1993 and recounted his recollection.

1. After the accident the plaintiff was treated in the Emergency Department of the Mater Adult Hospital.  His left leg was put in plaster.  As he claimed workers’ compensation, copies of the Emergency Department records were sent to the Workers’ Compensation Board on 7 July 1993.  The applicant’s solicitors have obtained a copy of the claim file held by the successor to the Board in relation to the claim for payments.  That file contains copies of the medical records provided by the Mater Adult Hospital.

1. The applicant also sought treatment from his general medical practitioner, Dr Randall Jackson.  A report from Dr Jackson dated 6 June 2000 has been obtained in connection with this application.  The applicant saw Dr Jackson on 29 July, 24 August, 14 September and 19 October 1993.  Dr Jackson has expressed the opinion that the applicant sustained gross soft tissue injury as well as a fracture of the first metatarsal in the left foot and that soft tissue took a long time to heal and needed rehabilitation for which the applicant was referred on 19 October 1993.  Apart from Dr Jackson and the Mater Adult Hospital, the applicant sought no medical treatment for his injuries.

1. The approach which should be taken to determining an application for leave to proceed under r 389 of the UCPR is no different than that developed in the authorities on analogous applications under O 90 r 9 of the Rules of the Supreme Court.  It may be that the philosophy of the UCPR set out in r 5 affects the view which should be taken about what amounts to unacceptable delay in a proceeding. That is also signalled by the change reflected in r 389 with effect from 1 July 2000 that after a lapse of 2 years only from the time the last step was taken, a new step may not be taken without the order of the court. At the time the application for leave to proceed was filed in this matter, the lapse before leave was required was 3 years.

1. In an application for leave to proceed “it is for an applicant for leave to show that there is good reason for excepting the particular proceedings from the general prohibition” on the taking of a fresh proceeding without the order of the court after the requisite lapse in time: William Crosby & Co Pty Ltd v Commonwealth (1963) 109 CLR 490, 496; Dempsey v Dorber [1990] 1 QdR 418, 420. In the latter case it was stated at 420:

“The question whether there is good reason for making such an order obviously involves a consideration of all relevant matters and the question whether there was reasonable excuse for the delay is unquestionably a relevant matter. ... In my judgment, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order.

The other factor which will always be relevant where an application is made under O 90 r 9 is whether the defendant is likely to suffer prejudice as a result of the delay.”

1. What are the relevant factors in any particular case depends on all the circumstances of that case.  A list of factors which have been found to be relevant is set out in the judgment of Atkinson J in Tyler v Custom Credit Corporation Limited [2000] QCA 178, although any list is not exhaustive and in any particular case some of the factors may have more relevance than in others. See also the comments of McPherson JA in Cooper v Hopgood & Ganim [1999] 2 QdR 113, 123-124.

1. The applicant also relies on the authority of Wilson v Bynon [1984] 2 QdR 83 that the provision of a satisfactory explanation for delay is not to be considered as a condition precedent to the granting of leave to proceed.

1. The applicant bears the onus of showing that the leave to proceed should be given, but there is an evidentiary onus on the respondent to show evidence of prejudice because of the delay: Borg v Muscat [1972] QdR 253.

1. The respondent opposed the leave being granted on the grounds that:

(a)        it was unreasonable conduct for the applicant not to pursue his action, when he found out in mid 1999 that Mr D’Arcy had ceased practice;

(b)        the respondent has been deprived the opportunity of investigating quantum, both in relation to the impact of the accident on the applicant’s capacity to work and in being deprived the opportunity of having timely medical examinations;

(c)        the inevitable dimming effect upon the memories of witnesses in respect of an accident which occurred almost seven years ago will irretrievably prejudice the respondent in the conduct of a proper defence.

1. The factors which were therefore primarily addressed in evidence and submissions on this application were that of whether there was reasonable excuse for the delay and the question of prejudice as a result of the delay.

1. The applicant and his father were cross examined during the hearing of this application.  The applicant’s father was the instigator of the applicant’s taking action for personal injuries and then in endeavouring to recover the file when Mr D’Arcy ceased practice.  The applicant was not aware, however, of the steps being taken during 1998 and 1999 to retrieve his personal injuries file from Mr D’Arcy.  Any delays on the part of the applicant’s father in relation to following up Mr D’Arcy should not be attributed to the applicant.

1. According to the draft statement of loss and damage prepared by the applicant’s solicitors in relation to the action, the applicant was employed as a builder’s labourer at the time of the accident.  When he eventually resumed work, it was as a farm hand and then as a builder’s labourer.  He subsequently obtained work as a slaughterman for Australian Meat Holdings Pty Ltd and remains so employed.  His employment history reflects the observation which I made of the applicant that he was unsophisticated when it came to his action for personal injuries and dealing with Mr D’Arcy.  In the course of his cross examination, the applicant raised the limitations of his reading and comprehension skills.  He was cross examined on his three affidavits filed in support of the application.  I am satisfied that the discrepancies which were the focus of that cross examination did not arise from any dishonesty.  It is obvious that as further preparation was undertaken in relation to this application, the applicant’s memory was refreshed.  I find that the discrepancies were satisfactorily explained by the applicant’s poor comprehension skills and the process of the progressive taking of instructions from him in relation to the matters the subject of each affidavit.

1. I accept the applicant’s evidence that when he found out in mid 1999 that Mr D’Arcy had ceased practice, he thought his claim was at an end and that ultimately he was going to have to see a solicitor about what action he would take in relation to Mr D’Arcy. 

1. The failure of the applicant to follow up Mr D’Arcy after seeing him in March 1997 to enquire about the progress of his personal injuries action is explained by the applicant’s belief induced by what he had been advised by Mr D’Arcy that Mr D’Arcy would notify him when he was required to give evidence.  The delay by the applicant in consulting solicitors after finding out in mid 1999 that nothing had been done on his personal injuries file is explicable by the applicant’s belief that he would be pursuing Mr D’Arcy rather than his original personal injuries action.  The delay of one month between the telephone contact by the applicant with Mr Shannon and the actual appointment to see Mr Shannon is not unreasonable.

1. In relation to the reliance by the respondent on the lack of opportunity to investigate aspects of quantum, I note that the applicant appears to have been able to provide his solicitors with relevant documents relating to his income both prior to and after the accident for the purpose of the preparation of the draft statement of loss and damage.  The contemporaneous medical records relating to the applicant’s treatment for his injuries and the workers’ compensation file relating to his accident and rehabilitation are also available.  It is not suggested that the extent of any residual disabilities suffered by the applicant as a result of the injuries he sustained in the accident cannot be determined by medical examination now.

1. In relation to prejudice, even without proved prejudice, a long delay gives rise to a general presumption of prejudice: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556. That general presumption of prejudice must, however, be considered in the light of what is known about the actual recollections of the relevant witnesses. It advantages the applicant that the same witnesses were required for Mr Sheehan’s District Court action. In relation to Mr Sheehan and the respondent I can infer that it is likely that statements were obtained from them about the circumstances relating to the accident prior to the time fixed for the hearing of that action in May 1995. In any case, the inquiries of Mr Amos and Mr Sheehan for the purpose of this application indicate that they retain a reasonable recollection of the relevant events.

1. It was also submitted that the respondent was prejudiced by being deprived of the right to litigate indemnity proceedings against the Nominal Defendant for which the limitation period expired on 16 June 2000.  I do not accept that such  prejudice exists.  If the respondent successfully defends on the basis that the accident was caused by an unidentified motor vehicle the action will be dismissed and no question of indemnity arises.

1. The respondent has therefore not discharged the onus which lies on her to show evidence of prejudice because of delay.

1. I am therefore satisfied that the applicant, on balance, has shown that there is good reason for making the order permitting a further step to be taken in the action.  In relation to the applicant’s application, I therefore order:

1. Leave be given to the applicant pursuant to r 389(2) of the UCPR to take a new step in the action.

2.          The applicant pay the respondent’s costs of the application filed on 26 April 2000 to be assessed in any event.

In respect of the cross application, I order:

3.          The application filed on 15 May 2000 be dismissed.

4.          There be no order as to costs in respect of that application.

1. I accept the submissions of the respondent that the statement of claim which the applicant’s solicitors purported to deliver on 24 March 2000 was defective in that it did not comply with r 150 and r 155 of the UCPR, relying on Meredith v Palmcam Pty Ltd [2000] QCA 113. Subject to hearing submissions of the parties, I propose to direct that the applicant file and serve a statement of claim within 21 days.