Gibson v Nominal Defendant (Qld)

[1996] QCA 240

IN THE COURT OF APPEAL	[1996] QCA 240
SUPREME COURT OF QUEENSLAND

Appeal No 3290 of 1996

Brisbane
[Gibson v. The Nominal Defendant (Queensland)]

BETWEEN:

PAUL JOSEPH GIBSON

Appellant

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

Respondent

Williams J
Ambrose J

Byrne J

Judgment delivered 19/07/96

Separate reasons of each member of the court, all concurring as to the orders made.

LEAVE TO APPEAL REFUSED. APPLICATION DISMISSED WITH COSTS.

CATCHWORDS: CIVIL PROCEDURE - APPEALS FROM DISTRICT

COURT.
Personal injury - an error in the exercise of
judicial discretion where relevant principles
are well established is not sufficient to
raise an important question of law or justice
- leave to appeal refused.
Johns v. Johns (1988) 1 Qd. R. 138
American Express International Inc v. Hewitt

(1993) 2 Qd. R. 352.

CIVIL PROCEDURE - LEAVE TO APPEAL AGAINST
ORDER DISMISSING ACTION FOR WANT OF
PROSECUTION AND REFUSING LEAVE TO PROCEED.
Personal injury - on the evidence the chamber
judge was entitled to come to the conclusions

he did.

Counsel:	Mr P Hackett for the appellant Mr K Holyoak for the respondent
Solicitors:	Baker Johnson & Partners for the appellant Biggs and Biggs for the respondent

Hearing Date: 8 July 1996
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 3290 of 1996

Brisbane

Before Williams J
Ambrose J
Byrne J

[Gibson v. The Nominal Defendant (Queensland)]

BETWEEN:

PAUL JOSEPH GIBSON

Appellant

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 19th day of July 1996

This is an application for leave to appeal against orders made by a District Court judge sitting in Chambers on 22 March 1996. There were then two summonses before him for determination. The first in time was brought by the respondent, The Nominal Defendant (Queensland), seeking an order that the applicant's action claiming damages for personal injuries be dismissed for want of prosecution. The other was brought by the applicant, Paul Joseph Gibson, the plaintiff in the action, seeking an order that he be granted leave to proceed in the action notwithstanding that more than three years had elapsed since the taking of his last step in the proceeding. The learned judge of District Courts refused leave to proceed and dismissed the action for want of prosecution.

A notice of appeal was filed on 18 April 1996, within the time prescribed for so doing where there was a right of appeal. It was then accepted by the applicant that leave was required and the notice of motion seeking leave to appeal to the Court of Appeal was dated 20 June 1996. The application seeking leave to appeal was thus not filed within time, but counsel for the applicant contended that if grounds for granting leave to appeal were established the necessary extension of time should be granted. Counsel for the respondent pointed out that no material relating to such an extension of time was before the court and submitted that the applicant failed at that threshold point. In the circumstances it is not necessary to deal further with the issue as to an extension of time.

It is convenient at this stage to set out relevant background facts including the critical chronology.

The plaintiff was injured on 26 August 1983 when the motor vehicle he was driving ran off the road and struck a pole. The roadway was wet at the time. He commenced an action against the respondent in the Supreme Court by writ dated 14 August 1986 (No 3470 of 1986). His statement of claim was delivered on 4 December 1986, and in that it was alleged that he was obliged to take evasive action to avoid collision with an unidentified motor vehicle which was being driven negligently, and it was as a result of his attempts to avoid such a collision that he left the roadway and collided with the pole. The respondent in its defence denied that any other vehicle was involved and asserted that the cause of the plaintiff's motor vehicle striking the pole was his own negligence.

Thereafter the action proceeded with reasonable rapidity, and a certificate of readiness was signed on 29 September 1987. It was not filed until 2 November 1987 when the matter was entered for trial. Thereafter the respondent became aware of certain deficiencies in the applicant's discovered material, particularly documents relating to his earnings. On 10 October 1989 Master Horton QC ordered that the applicant make further and better discovery within one month. By consent of the parties the action was remitted to the District Court on 5 December 1989, and the action was re-numbered in that court 738 of 1990.

The applicant failed to comply with the order of Master Horton QC notwithstanding numerous letters written by the solicitors for the respondent. In consequence on 16 August 1990 an application was filed by the respondent seeking an order that the action be struck out for want of prosecution, and relying in particular on the failure to comply with the order of Master Horton QC. The matter was due to come on for hearing on 27 August 1990 and shortly prior to that date the applicant agreed to comply with the order within a certain time frame. In consequence the application to dismiss was adjourned to a date to be fixed and the present applicant ordered to pay the respondent's costs thereof. On 12 October 1990 a supplementary affidavit of documents was sworn by the applicant which constituted partial compliance with the order of Master Horton QC. It was delivered to the solicitors for the respondent, but it appears never to have been filed. For present purposes it can be taken that the last step in the proceeding taken by the applicant was the serving of that supplementary affidavit of documents on 12 October 1990.

On 1 June 1990 the action had been adjourned to the abeyance list at a District Court callover because of the applicant's failure to comply with the requirements of the order of Master Horton QC. Late in 1991 the solicitors for the respondent wrote two letters asking the applicant's solicitors what was happening. On 4 December 1991 the applicant's solicitors wrote back requesting that the respondent's solicitors take no further action to prepare for trial until the end of January 1992. In February 1992 the respondent's solicitors wrote asking as to the applicant's intentions, and they received a reply in the same month stating that the applicant's solicitors had been unable to get instructions.

In July 1994 the applicant's solicitors wrote advising that they proposed to bring the matter "back into order" and asked what were the outstanding requirements of the respondent. By letter dated 20 September 1994 the respondent's solicitors reminded the applicant's solicitors that they would require leave to proceed. The next communication was in March 1995 when the applicant's solicitors wrote advising that they were having difficulty contacting their client. A letter to similar effect was sent in April 1995. At that stage the applicant's solicitors engaged private investigators in an endeavour to locate him. The applicant was located some time between 6 April and 5 June 1995. The applicant's solicitors wrote to him on 5 June and 30 June 1995, but apparently they received no meaningful response.

On 21 August 1995 the respondent's solicitors wrote to the solicitors for the applicant advising that they held instructions to bring an application to have the action dismissed for want of prosecution. That was communicated to the applicant by his solicitors in a letter of 4 September 1995. Following that those solicitors received correspondence (on a date or dates undisclosed) from the applicant.

As stated by the solicitor for the applicant in his affidavit in support of the application for leave to proceed, the applicant then informed his solicitor that he had only recently commenced working intermittently as a taxi driver, that he had been very sick with post-motor stress syndrome, that he had an alcohol problem, and that he wished to proceed with the action but was unable to provide the financial information requested in 1992. There was no more specific evidence placed before the District Court judge than that relating to the applicant's alleged medical condition. There was nothing from a medical practitioner confirming either condition, nor anything suggesting for what period of time the applicant had been suffering from either of those conditions.

Members of this court queried during argument what was meant by "post-motor stress syndrome", but no further explanation was forthcoming.

It should next be recorded as part of the chronology that in November 1995 the applicant's solicitors applied to the Australian Taxation Office under the Freedom of Information Act seeking copies of the applicant's income tax returns. That Office advised on 13 December 1995 that returns for the years ended 30 June 1991 to 30 June 1993 were available, but returns for the years ended 30 June 1989 to 30 June 1990 had been destroyed.

It would appear from the solicitor's affidavit referred to above that such material had not actually been obtained from the Australian Tax Office by 19 March 1996.

Indeed no step in the proceeding was taken by or on behalf of the applicant from the time in September when he resumed contact with his solicitor and 23 February 1996. On that date the respondent filed its application to have the action dismissed for want of prosecution. As at that date, and as at the date of hearing in March 1996, the applicant still had not complied fully with the order of Master Horton QC of 10 October 1989.

The respondent relied on the chronology of facts outlined above, the failure to comply with the order of Master Horton QC, and the failure to take any step in the proceeding after 12 October 1990 as providing sufficient grounds for the court to dismiss the action.

By summons filed 20 March 1996 the applicant sought leave to proceed in the action. As noted above both applications were heard together. An affidavit of the applicant's solicitor was filed and was relied on both in answer to the respondent's application and in support of the application for leave to proceed.

In that affidavit the following paragraph appeared:

"The delays in this matter have been attributed to the Plaintiff's failure to communicate with this office which have arisen by reason of the Plaintiff's inability to produce documents required for discovery together with the Plaintiff's medical condition and alcoholic state of existence."

Again the observation must be made that there was no material from the plaintiff himself and no medical evidence confirming the alleged medical conditions.

The learned District Court judge gave reasons for his decision. He noted that the last step taken was the serving of the supplementary affidavit of documents on 12 October 1990. He found that the correspondence placed before him "reveals that for a long period of time the plaintiff was out of contact with his solicitors." He mentioned that the only affidavit filed on behalf of the applicant was that of his solicitor who only took over the file in July 1994. The learned judge noted that when communication was resumed in September 1995 the applicant "made some complaints of ill health which are quite vague and which are deposed to by Mr Bax on the basis of information and belief only." The learned judge also found that "some prejudice to the defendant is likely to result from the taxation returns that have been destroyed."

The reasons then went on:
"Although the explanation for delay is not a
condition precedent for leave to proceed to be
granted, it is a relevant circumstance. The
failure of the plaintiff to condescend to depose
to such matters is quite unsatisfactory, in my
view. There is no medical evidence to support his
allegations of ill health or to indicate the
duration of such. No other explanation is given
for his failure to keep contact with his
solicitors or to respond to their correspondence."

There is then a reference to Dempsey v. Dorber (1990) 1 Qd. R. 418, one of the more recent authorities on the relevant law.

Then after noting that "no witnesses to the accident exist" he went on to say:

"I take the view, however, that the plaintiff's application for leave to proceed should be dismissed. On that application the plaintiff carries the onus of proof. On the defendant's application I find that the plaintiff's conduct in not pursuing the action over a long period of time has been intentional and contumelious, coming as it did on the heels of a striking out application in 1990 and the failure even then to take steps to obey the order of Master Horton. I have already pointed out that part of the order of Master Horton has still not been complied with."

Thereafter his Honour dealt with the second ground referred to in Dempsey v. Dorber on which an action could be dismissed for want of presentation. He concluded that there was "inordinate and inexcusable delay" but he expressed concern as to whether there was a substantial risk that the respondent would be deprived of a fair trial because of prejudice associated with the delay. He observed that a delay of nearly 13 years might of itself "present substantial problems" and that the loss of financial records "might also on its face seem to amount to serious prejudice". But he nevertheless was not prepared to find such prejudice as would justify striking out the action on that second ground.

The applicant now seeks leave to appeal from those orders of the chamber judge. In the applicant's outline of argument the following matters were set out in support of the application:

"9. It is submitted that the Chamber Judge erred in law in finding that there was intentional and contumelious delay when such finding was against the evidence and the weight of evidence. It is submitted that at best for the Respondent, the delay was inordinate.

However, there was no evidence and no suggestion by the Respondent that a fair trial would be prejudiced.

10.  It is submitted that the Chamber Judge erred in law in finding that there was intentional and contumelious delay and that such delay was inordinate and inexcusable when:-

(a)	there was evidence albeit on information and belief, that the Appellant had suffered post-motor stress syndrome; and
(b)	there was no evidence to the contrary, that the Appellant had suffered from post-motor stress syndrome and alcoholism.

11.  It is submitted that the Chamber Judge erred in law in failing to give any or any sufficient weight to the following factors:-

(a)	The Appellant had resumed contact with the solicitors and wished to proceed with the action;
(b)	The Appellant was prepared to proceed with the action and the remaining steps could be completed within a relevantly short period of time;
(c)	The Appellant's material asserted the Respondent would not suffer prejudice (if leave to proceed were given) to the Appellant to proceed with the action;
(d)	Respondent had rather than asserting that the delay would prejudice a fair trial, and prior to the application suggested that interest for the full period should not be allowed;
(e)	That the Appellant's inability to produce documents required for discovery was contributed to by the Appellant's medical condition and alcoholic state;
(f)	The Appellant's age and state of health which was poor and that by dismissing the Appellant's application and exceeding to the Respondent's application, the Appellant would be prevented, from pursuing a personal injuries action, where moneys had already been paid into Court."

It should be noted that as at the date of the hearing before chamber judge a total of $50,000 had been paid into court by the respondent.

This being an application for leave to appeal from the District Court to the Court of Appeal it was incumbent upon the applicant to show that some important question of law or justice was involved (s.118(3) of the District Courts Act 1967). There is ample authority establishing that it is not sufficient to demonstrate an error of law in the judgment the subject of the application: Johns v. Johns (1988) 1 Qd. R. 138 at 143 and American Express International Inc v. Hewitt (1993) 2 Qd. R. 352. Clearly mere error in the exercise of a judicial discretion where the relevant principles were well established would not ordinarily satisfy that test.

Counsel for the applicant when asked to formulate the important question of law or justice involved answered in this way: "Its whether an action for personal injuries which would be statute barred should be struck out for delay which is explained but not accepted where there is no alleged prejudice for fair trial."

The principles relevant to an application for leave to proceed in a personal injuries action where more than three years have elapsed since the taking of the last step, and the principles applicable on an application to strike out a personal injuries action for want of prosecution, have been considered in many decisions of appellate courts over recent years. The starting point has consistently been taken as the decision of the High Court in William Crosby and Company Pty Ltd v. The Commonwealth (1963) 109 CLR 490, and one of the more authoritative recent decisions is that of the Full Court in Dempsey v. Dorber. In my view there is nothing in the facts and circumstances of the present case which raises any new question of principle. What was called for by the cross-applications before the Chamber Judge in this case was the application of well established principles to the facts as he found them.

There is no important question of law or justice involved in this case whether as formulated by counsel for the applicant or otherwise.

It is, however, appropriate to say that given the principles discussed in William Crosby and Dempsey v. Dorber it was incumbent upon the applicant before the Chamber Judge to show there was good reason for excepting this particular proceeding from the general prohibition on the taking of a fresh step in the proceeding without the order of the court given the failure to take such a step within the proceeding three years. The learned Chamber Judge came to the conclusion that the applicant had not discharged that onus.

Given the chronology and facts as outlined above he was

clearly entitled to reach that conclusion.

It was then necessary for him to consider whether or not, on either of the grounds referred to in Dempsey v. Dorber, the proceeding should be dismissed for want of prosecution. Again given the chronology and facts as presented to him there was a clear basis upon which he could make the finding that the delay was intentional and contumelious such that dismissal was justified.

In the course of argument there was regular reference by counsel for the applicant to the fact that the respondent had paid money into court. In my view the fact that there was money in court was not such a material consideration as to require the Chamber Judge to reach conclusions other than those which he did.

In the circumstances leave to appeal should be refused and the application dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3290 of 1996

Brisbane

Before Williams J Ambrose J Byrne J

[Gibson v. The Nominal Defendant (Queensland]

BETWEEN:

PAUL JOSEPH GIBSON

Appellant

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

Respondent

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered: 19/07/1996

I have had the opportunity of reading the judgment of Justice Williams in this matter and agree with his reasons and the orders proposed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3290 of 1996

Brisbane

Before Williams J Ambrose J Byrne J

[Gibson v. The Nominal Defendant (Queensland]

BETWEEN:

PAUL JOSEPH GIBSON

Appellant

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

Respondent

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered: 19/07/1996

I gratefully adopt the statement of the pertinent facts and the effect of the authorities in the judgment of Williams J. As his Honour's reasons disclose, the case does not present any important question of law.

In my opinion, there is no important question of justice. The analysis by
Williams J shows that an appeal against the dismissal of the action for want of

prosecution would not enjoy sufficient prospects of success to permit it to proceed.

Accordingly, I agree in the orders proposed.