DISTRICT COURT OF QUEENSLAND
CITATION:
Gilbert v. The Minister for Emergency Services [2002] QDC 032
PARTIES:
BARRY JOHN GILBERT (Plaintiff)
v.
THE MINISTER FOR EMERGENCY SERVICES (Defendant)
FILE NO/S:
Plaint 2016 of 1997
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
13 March 2002
DELIVERED AT:
Brisbane
HEARING DATE:
29 January 2002
JUDGE:
McGill D.C.J.
ORDER:
Application dismissed with costs
CATCHWORDS:
PRACTICE – leave to proceed – 4½ year delay in 7½ year old claim – damages for personal injuries – considerable efforts by defendant to push action along ignored – leave refused – Uniform Civil Procedure Rules r.389(2)
Cooper v. Hopgood and Ganim [1999] 2 Qd.R. 113 - considered
Elesanar Constructions Pty Ltd v. Thiess Contractors Pty Ltd [2001] QDC 293 – cited
Schiliro v. Peppercorn Child Care Centres Pty Ltd (2001) 1 Qd.R. 518 - cited
Quinlan v. Rothwell [2001] QCA 176 - applied
Tyler v. Custom Credit Corporation Ltd [2000] QCA 179 - applied
William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 – followedCOUNSEL:
K R Geraghty for the plaintiff
A M Musgrave for the defendantSOLICITORS:
Palella Humphries and Venardos for the plaintiff
Crown Solicitor for the defendant
This is an application by the plaintiff pursuant to r.398(2) of the Uniform Civil Procedure Rules for leave to proceed with the action. There is a dependent application to substitute a new party as defendant in lieu of the present defendant. The application was opposed by the existing defendant, but there was no cross-application for the action to be dismissed for want of prosecution.
History of the action
By a plaint filed on 19 May 1997, the plaintiff claimed from the defendant $200,000 damages in respect of injuries alleged to have been caused to him by negligence or breach of contract or breach of statutory duty in the course of his employment with the defendant. The plaint alleged that the defendant was a corporation sole under The Ambulance Service Act 1991 (“the Act”) responsible for the conduct of the Queensland Ambulance Service, and that the plaintiff was employed by the defendant as an ambulance officer, presumably within the Queensland Ambulance Service. It alleged that on 20 May 1994 the plaintiff, in the course of his employment, was required to assist in the lifting of a disabled man of considerable weight, in the course of which he suffered an injury to his back.
Evidently the defendant was served promptly, because an Entry of Appearance and Defence was filed on 18 June 1997. The defendant admitted that it was a corporation sole constituted under the Act, and that the plaintiff was employed by Queensland Ambulance Service, but denied that the plaintiff was employed by the defendant. Negligence, breach of contract or breach of statutory duty were also denied, but otherwise the claim was not admitted. It was not alleged that the plaintiff was guilty of contributory negligence. The pleading plainly denies that it was the defendant who was the employer of the…
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- Case
- [2002] QDC 32
- Decision Date
CaseChat Overview and Summary
The court considered several factors in making its decision, including the extent of the delay in the plaintiff's application for leave to proceed, the efforts made by the defendant's solicitors to encourage the plaintiff to proceed, and the plaintiff's inactivity during the relevant period. The court found that the plaintiff had made no effort to proceed with the action, despite being in a position to do so, and that the delay was significant. The court also noted that the defendant's solicitors had made considerable efforts to encourage the plaintiff to proceed, and that the plaintiff's inactivity was not due to any lack of awareness of the seriousness of their injuries.
The court concluded that the plaintiff had not shown good reason for excepting the proceeding from the general prohibition imposed by r.389(2). The court found that the plaintiff's inactivity and the delay in filing the application for leave to proceed were significant factors, and that the efforts made by the defendant's solicitors to encourage the plaintiff to proceed did not outweigh these factors. The court dismissed the plaintiff's application for leave to proceed and ordered the plaintiff to pay costs.
This decision highlights the importance of taking timely action in legal proceedings, particularly in cases where there is a significant delay in filing an application for leave to proceed. The court's decision also emphasises the importance of the plaintiff taking an active role in their legal proceedings, particularly where there is a significant delay in filing an application for leave to proceed.
Orders
Orders of the court
Application dismissed with costs
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
A convenient and authoritative summary of most of the factors which are relevant to the determination of whether to give leave to proceed under r.389 may be found in the judgment of Atkinson J, with whom the other members of the court agreed, in Tyler v. Custom Credit Corporation Ltd [2000] QCA 179. The factors listed by Her Honour apply in the circumstances of this case in the following way: The test in relation to an application for leave to proceed is whether the plaintiff can show there is good reason for excepting this particular proceeding from the general prohibition imposed by the rule: William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 at 496, Tyler (supra) para. 5. In Cooper v. Hopgood and Ganim [1999] 2 Qd.R. 113, McPherson JA noted the existence of another fact which was often likely to be material: More recently, the Court of Appeal allowed an appeal from an order dismissing an action for want of prosecution, in Quinlan v. Rothwell [2001] QCA 176. There was a discussion of the facts of that particular case, and certain significant passages from the judgment were quoted, in my judgment in Elesanar Constructions Pty Ltd v. Thiess Contractors Pty Ltd [2001] QDC 293, and I will not set out again what I said there. I would point out however that the comparison between the facts of that case and the facts in Elesanar is somewhat different from a comparison of those facts to the present. Points of distinction include that in that case the action was substantially ready for trial (which was regarded by the Chief Justice, for example, as a powerful residual circumstance); in that case the defendants had been content to allow the action to go to sleep, and the court in that case was affirmatively satisfied that the case was one where recollection of past events was not likely to be of great significance in the resolution of the matters in issue. None of those features apply in the present case. One other point of distinction is that in that case the onus was on the defendants to show that proceedings ought to be dismissed, in circumstances where the plaintiff did not need leave to proceed, whereas here the onus is on the plaintiff to show there are circumstances justifying the grant of leave to proceed. On the other hand, it is appropriate that I have regard to the general statements by the court that the former laissez faire attitude towards the leisurely conduct of actions at the will of the parties has ended, and that courts in this general area will be more robust than they were in the past. In the present case two significant features are the extent of the delay after the point where the defendant’s solicitors began to write to the plaintiff’s solicitors, in effect complaining about the delay and urging the plaintiff to get on with it, and the extent of the efforts by the solicitors for the defendant to get the plaintiff’s solicitors moving. The first of those letters was on 25 February 1999, yet no application for leave to proceed was actually filed until 7 December 2001, by which time there had been a further period of delay in excess of the two year period in r.389. In February 1999 the plaintiff was in a position to proceed without leave. This stands as a marked contrast to the position in a number of the other cases where the defendant has either acquiesced in the delay or contributed to it[13]. This is a case where the remarkable period of inactivity of the plaintiff’s solicitors was largely matched by a period of inactivity on the part of the plaintiff, notwithstanding that there had earlier been a good deal of communication both ways between the plaintiff and the solicitors, so a lengthy period of silence about the action ought to have prompted some inquiry by the plaintiff personally. This is not a case where the plaintiff might have thought for a time that the action was of no great significance because the plaintiff’s injuries were not all that severe; during the relevant period the plaintiff, although still in employment, was unable to work, and it must have been obvious to him that it was only a matter of time before his employment came to an end. [13]For example, In Elesanar the delay occurred during a period when it was for the defendant to take the next step.