Hemmings v Suncorp Metway Insurance Ltd

[2010] QDC 305

DISTRICT COURT OF QUEENSLAND

CITATION:

Hemmings v Suncorp Metway Insurance Ltd [2010] QDC 305

PARTIES:

KAREN LOUISE HEMMINGS

(plaintiff/respondent)

V

SUNCORP METWAY INSURANCE LTD

(defendant/applicant)

FILE NO/S:

BD522/2004

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 July 2010 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2010

JUDGE:

Irwin DCJ

ORDER:

1.   Application adjourned to the Registry to be relisted by either party giving seven (7) clear business days notice in writing to the other party.

2.   Subject to any further order the application is not to be relisted before 2 September 2010.

3.   The costs of and incidental to this application be each party’s costs in the cause.

CATCHWORDS:

PROCEDURE – DISTRICT COURT PROCEDURE –QUEENSLAND – PRACTICE UNDER RULES OF COURT – OTHER MATTERS – where the defendant filed an application to have a trial date set down without a request document – where the plaintiff’s claim was for damages for personal injuries from a motor vehicle accident on 16 February 2001 – where proceedings were commenced on 13 February 2004 – where the plaintiff’s solicitor signed a certificate of readiness for compulsory conference stating all investigative material required for trial had been obtained – where the plaintiff’s solicitor advised the defendant’s solicitor on 3 April 2009 that statements on the defendant’s behalf at the compulsory conference prompted further investigations – where as a result of those investigations the plaintiff’s solicitor was advised that documents were located at the Office of the State Coroner, the disclosure of which was believed to assist in determining liability – where disclosure of the documents was refused on public interest grounds – where the pleadings subsequently closed on 3 June 2010 – where following the closure of pleadings the plaintiff’s solicitor caused a notice of non party disclosure to be prepared and forwarded to the court – where the plaintiff opposed the defendant’s application because of the ongoing investigation – exercise of the court’s discretion as to whether to dispense with the request for trial date

Evidence Act 1977 (Qld), s 134A

Motor Vehicle Accident Insurance Act 1994 (Qld), s 3, s 51B

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 242, r 396, r 466, r 467

AON Risk Services Aust Ltd v ANU (2009) 83 ALJR 951, applied

Knight v Kulver and The Medical Superintendent, Pindara Hospital [2001] QCA 254, applied

Mid Australia Pty Ltd v Around Australia Pty Ltd & Ors [2004] QSC 374, cited

Naskam Security Services v Adarm Security Pty Ltd [2000] QDC 441, applied

Queensland v JL Holdings (1997) 189 CLR 146, cited

COUNSEL:

R. B. Dickson for the applicant/defendant

C. K. Copley for the respondent/plaintiff

SOLICITORS:

Jensen McConaghy for the applicant/defendant

South Burnett Lawyers for the respondent/plaintiff

HIS HONOUR:  The applicant, who is the defendant in these
proceedings filed an application that the request for trial
date be dispensed with, that the matter be listed for a
liability only trial, or alternatively, the matter be listed
for a liability and quantum trial and the defendant have leave
to call evidence from Drs Fraser and Bourke who have examined
the plaintiff, that evidence being given by telephone.

The applicant, whom I will for convenience describe as the
defendant for the purpose of these reasons, relies upon UCPR
467(2) to have a trial date set down without a request
document.

The rule works in conjunction with UCPR 466 which provides
that a date of trial may be set by a Judge or by a Registrar
at the discretion of a Judge.  UCPR 467 has the effect that
unless the Court under subrule (2) otherwise orders, where
proceedings have been commenced by claim the action cannot be
set down for trial unless all parties have signed a request
for trial date in the approved form.

The application is brought in relation to the plaintiff's
claim for damages for personal injuries from a motor vehicle
incident which happened on 6 February 2001.  The claim is made
under the Motor Accident Insurance Act 1994. The incident
involved two vehicles, each proceeding in the opposite
direction from the other on the D'Aguilar Highway at
Blackbutt.  The defendant was the CTP insurer of one vehicle.
The driver of that vehicle was killed in the incident.

The plaintiff, who was the driver of the other vehicle has no
recollection of the incident.  The effect of the statement of
Mr Bray, who was following the deceased's vehicle and who was
nominated as a witness in the plaintiff's notice of accident
claim, is that the plaintiff's vehicle was about a third of
the way on its incorrect side of the road immediately before
the "head on" collision between the vehicles.

There is a statement from the investigating police officer,
Sergeant Wendt, which comes to the conclusion that the point
of impact was just over the centre line on the side of the
highway on which the deceased was driving.  An expert report
from Mr Ruller, which I am told was obtained for the
plaintiff, supports Sergeant Wendt's conclusion.  The relevant
portion of this report states:

"The damage to the road and the vehicles involved shows that
the [deceased's vehicle] was travelling either on or next to
the centre line at impact.  The [plaintiff's vehicle] was just
over the centre line with the right side wheels on the
opposing side of the road."

The plaintiff claims substantial damages in the order of
$400,000 as can be seen from the current Statement of Loss and
Damage.  In fact, it has been suggested her damages are
close to $750,000 as will be reflected in an amended Statement of Loss and Damage to be filed.  This Court has
jurisdiction by consent of the parties under section 72 of the
District Court of Queensland Act 1967. I have made necessary
orders requested by the parties in relation to this.

The application is opposed by the plaintiff who is the
respondent to these proceedings, because it is investigating
whether, and if so to what extent there was alcohol in the
deceased's blood at the time of the collision.  This is an
ongoing investigation.

On the other hand, the defendant submits that nothing has ever
been raised or pleaded about alcohol and there is not a
skerrick of evidence about it.  Mr Dickson labels the
plaintiff's investigative efforts as a fishing expedition.

In order to appreciate the respective arguments and to resolve
the first issue of whether to dispense with the request for
trial date, it is relevant to appreciate the chronology of
events since the incident which is the subject of these
proceedings up until the present date.

As I have said, on 16 February 2001 the incident occurred on
the D'Aguilar Highway in which the motor vehicles driven by the plaintiff and the deceased insured came into contact as a
result of which the plaintiff suffered injuries.

On 9 April 2002 the plaintiff signed the notice of accident
claim form (non-fatal injury).  This is the document which, as
Mr Dickson puts it, "Gets the claim going."

On 28 May 2002 the plaintiff's solicitor forwarded the claim
form to Suncorp Metway explaining that it was lodged late
because of delays experienced with obtaining a signature for
the medical report.  I note the plaintiff was unable to state
what caused the accident and why, saying that it is "unknown"
and she has "no recollection."

On 13 February 2004 the claim and Statement of Claim were
filed on behalf of the plaintiff just inside the three year
limitation period.  The claim was made against the defendant
as the deceased's compulsory third party insurer.  The claim
was for damages for personal injuries occasioned by the
negligence of the deceased.  Particulars of the claim include:

.    Driving without due care and attention;

.Driving on to the wrong side of the road when it was unsafe to do so;

.    Failing to maintain control of his vehicle.

The claim states the plaintiff gave notice in compliance with
sections 34 and 37 of the Motor Accident Insurance Act prior
to commencing the proceedings and had otherwise complied with
part 4 division 3 of the Act.  The claim also states that on
13 February 2004, the date it was filed, it was ordered by the
District Court that the Act's requirements for a compulsory
conference and an exchange of final written offers be
dispensed with.

The matter then remained in abeyance with no party taking any
action for approximately four and three quarter years until
7 November 2008 when the Statement of Loss and Damage was
signed.

According to the affidavit of the plaintiff's solicitor both
this and a list of documents were filed.  According to this
affidavit, affirmed on 16 July 2010, the plaintiff's solicitor
was then preparing a supplementary Statement of Loss and
Damage.

On 10 November 2008 a change of the plaintiff's solicitor was
filed however, in reality, this was simply a change in the
name of the firm.

On 16 March 2009, about five years and one month after the
Statement of Claim was filed, and eight years and one month
after the incident, the plaintiff's solicitors signed a
certificate of readiness for a compulsory conference under
section 51B of the Motor Accident Insurance Act which was
regenerated despite the earlier dispensation.  It certified:

.    The plaintiffs were in all respects ready for trial;

.All investigative material required for the trial had been obtained (including witness statements from persons other than expert witnesses), the party intended to call as witnesses at the trial;

.Medical or expert reports had been obtained from all persons the plaintiff proposed to call as expert witnesses at the trial.

On 3 April 2009, based on the letter of 26 June 2009 from the
plaintiff's solicitor to the then solicitor for the defendant,
exhibited to the affidavit from the plaintiff's solicitor, the
compulsory conference was held.

In April 2009, following this conference, the plaintiff's
solicitor engaged MYI Freemans to locate witnesses and obtain
further evidence.  According to the 26th of June 2009 letter
"Statements on your client's behalf at the....conference...prompted further investigations."

At that time the investigations were ongoing and they were
hoped to be finalised in the near future.  In this letter the
plaintiff's solicitor also advised that he anticipated to be
in a position to amend and/or up lift the claim and/or
Statement of Claim shortly after the investigations were done.
It was observed that while the defendant was free to file a
defence to the pleadings as they stood, this would seem to be
wasteful given the foreshadowed amendment, the fact
investigations were being made, and that the plaintiffs would
not, without reference to the defendant, seek orders in
default.

On 11 October 2009 Mr Ruller, who describes himself as a
collision analyst completed his crash analysis report.

On 21 December 2009 the investigations were still ongoing when
the plaintiff's solicitor, on request from MYI Freemans wrote
to the Department of Justice and Attorney-General and, in
particular, to the manager of the Right to Information and
Privacy Unit advising he had asked MYI Freemans to contact
the John Tonge Centre to inquire whether there was any alcohol
in the deceased's blood at the time of the accident and, if
so, the level of blood alcohol found.  It was made clear in
that letter that the solicitor was writing on behalf of the
plaintiff.

On 19 February 2010, without the investigation being
completed, an amended Statement of Claim was filed on behalf
of the plaintiff.  Although this involved greater
particularisation it did not significantly alter the nature of
the claim.

On 22 February 2010, according to a letter of 16 March 2010
from the acting manager of the Department of Justice and
Attorney-General unit, MYI Freemans applied under the Right to Information Act 2009 for access to:

"The post-mortem and toxicology report of the deceased [in
this case] undertaken on 17 February 2001 as a result of a
motor vehicle accident involving [the plaintiff]."

The letter of 16 March 2010 advised that searches were
conducted at the office of the State Coroner and three
documents were located in response to this request.  These
were pages 1 and 2 of the post-mortem and page 3 which was the
toxicology report.  Although disclosure was refused because it
would be contrary to public interest, a factor was identified
as favouring disclosure in the following terms:

"One factor that favours disclosure is the public interest in
insurance companies obtaining information to enable them to
determine liability.  If insurers were not able to determine
liability of claims the cost of insurance premium would become
prohibitive.  I believe that the disclosure of some of the
information held on this Coroner's file will assist you in
determining liability but not at the expense of the personal
information privacy rights of the deceased."

On 16 April 2010 the plaintiff's solicitor wrote to the
defendant's then solicitor seeking copies of these documents.
This letter enclosed the Department of Justice and
Attorney-General response and expressly sought pursuant to
section 47 of the Motor Accident Insurance Act within one
month the Coroner's file for the deceased, the post-mortem for
the deceased and the deceased's toxicology report.

On 29 April 2010 the defendant's then solicitor wrote to the
plaintiff's solicitor supplying certain documents but advising
that the firm did not hold any other documents that would meet
the description of the documents sought.

On 20 May 2010 the notice of intention to defend and a defence
was filed denying that the deceased was negligent as alleged,
or at all.  A positive assertion was made that the cause of
the incident was the plaintiff driving her car over the centre
line of the highway.  Further, it was asserted that if there
was any negligence on the part of the deceased which caused or
contributed to the collision, there was contributory
negligence on behalf of the plaintiff.

On 3 June 2010 the plaintiff's reply was filed denying the
allegation that the plaintiff caused the collision and denying
the allegations of contributory negligence.  The pleadings
closed on this date.

According to the affidavit of the solicitor for the defendant
sworn on 12 July 2010, the defendant has completed disclosure
and a statement of expert and economic evidence.  It accepted
that the plaintiff has also completed disclosure.

On 22 June 2010 the change of the defendant's solicitor to its
current solicitor was noted with advice that both quantum and
liability were disputed 100 per cent.

On 24 June 2010 the notice of change of solicitor on behalf of
the defendant was filed.  I note that in the plaintiff's
solicitor's affidavit of 16 July 2010 he deposes that
following the closure of pleadings he recently caused a Notice
of Non-Party Disclosure under UCPR 242 to be prepared and
forwarded to the Court.  It is directed to the Office of the
State Coroner and the Department of Justice and
Attorney-General and requires within seven and 14 days after
the service of the notice the production of the post-mortem
examination report and the toxicology report of the deceased
in relation to the accident the subject of these proceedings.

The allegation in the pleadings to which these documents are
alleged to be relevant is said to be, as set out in paragraph
5 of the statements of claim:

"The said collision and the plaintiff's injuries, loss and
damage, sustained consequent thereupon were occasioned by the
negligence of the deceased...for whose negligence the
defendant is liable."

Against the background of the recent communications with the
Department of Justice and Attorney-General, and in particular
the statement from the acting manager of the Right to
Information and Privacy Unit that the disclosure of some of
the information held on the Coroner's file will assist in
determining liability, Mr Copley says in his written
submission that given investigations have proceeded to the
point of finalising a Notice of Non-Party Disclosure, it may
be inferred the receipt of the documents from the department
would occur in the near future.  Nonetheless, he accepts they
may prompt further investigation by either party.  He submits
that accession to the present application would have the very
real potential to exclude important evidence on the issue of
liability.

In his oral submissions before me he accepts that while there
is no evidence of alcohol in the deceased's system to hand,
this continuing investigation is not purely speculative
because of the admitted existence of the post-mortem and
toxicology reports that the Department of Justice and
Attorney-General is refusing to release but about which it has
been said they would assist in determining liability.  He
submits this is evidence which is highly cogent with
particular reference to the deceased's behaviour,
particularised in paragraph 5 of the Statement of Claim.

He also argues that the plaintiff's signing of a certificate
of readiness pursuant to the requirements of the Motor
Accident Insurance Act as a prerequisite to the compulsory
conference is of small moment.  He asserts it does not
preclude a party from undertaking further investigation.  He
argues this is consistent with the notion that the Motor
Accident Insurance Act certificate is no substitute for a
request for trial date under the UCPR.

In support of the application Mr Dickson responded to my inquiry about it being brought under UCPR 467 rather than UCPR 469 by giving the reason that the matter is going nowhere and nothing is happening after nine years.  He refers me to the terms of the certificate of readiness signed approximately 16 months ago and submits for the reasons to which I have referred that the current investigations about the blood alcohol level, if any, of the deceased is a red herring.

In addition to what I have already summarised concerning this
submission he refers to paragraph 21 of Mr Ruller's report
which states:  "There is no evidence to suggest that liquor or
drugs affected either driver at the time of the incident."
That report is dated on 11 October 2009 as I have said.

Of course, Mr Ruller in making that statement would base it on
the information which was then available to him.  There is no
suggestion, for example, that he had access to any of the
documentation which is currently available to the state
Coroner such as the post-mortem report or the toxicology
report.

Mr Dickson refers to the fact that the plaintiff made no
reference to inquiring about the deceased's blood alcohol
level at the time of the incident until it wrote to the
Department of Justice and Attorney-General on 21 December
2009, almost eight years after the incident.  He points to the
fact that the response from the Department of Justice and
Attorney-General on 22 February 2010 does not say that there
is any evidence of alcohol in the blood of the deceased.  He
argues that the UCPR 242 Notice of Non-Party Disclosure is not
available because it is speculative and the need to certify
under subrule (2) that there is not another reasonably simple
and inexpensive way of proving the matter sought to be proved
by the document.  In this regard he refers me to the procedure
available in section 134A of the Evidence Act 1977 for the
production of documents by agencies in relation to civil
proceedings.  In Evidence Law in Queensland (fourth edition) Dr Forbes observes that the purpose of this provision is to provide a relatively cheap and speedy alternative to applications for non-party discovery in relation to agencies.  

Mr Dickson also argues that the UCPR 242 procedure is not available because the notice is only for the purpose of a fishing expedition in the present case.

Against this background he says that what the defendant has come to Court about is the dilatory manner concerning this claim on behalf of the plaintiff, which exhibits no sense of expedition or urgency to get the matter on for trial.

He also supports this application by reference to the problems of memory which he submits are likely to affect the evidence of the two witnesses other than experts who are likely to be

required to give evidence.  These are Mr Bray and Sergeant
Wendt.

As Mr Dickson puts it, any delay will inevitably compromise the quality of Mr Bray's evidence.  A further complication to
which he refers is that Sergeant Wendt has cancer and is on
extended sick leave.  Prior to the hearing of the application
Sergeant Wendt had told the defendant's solicitor that if he
were back on deck when the matter went to trial he would be
happy to give evidence and would be available.  He was happy
in any event to be called when the matter was set down for
trial to see if, at that time, he would be well enough to give
evidence.

I allowed Sergeant Wendt to give telephone evidence during the
course of the application to clarify his state of health,
memory and future availability.  His evidence was that his
cancer was a brain tumour which was progressively getting
worse.  In all probability he will not go back to work.  He
had two operations in November 2009 which involved
craniotomies to remove the tumour.  A recent consultation has
picked up a small lesion in the front of his brain.  He will
be seeing Dr Redmond, his neurosurgeon, about this in a couple
of weeks to see if an invasive procedure will be required in
the future.  He gave the impression of not being optimistic on
this account.

He remembered the motor vehicle incident the subject of these
proceedings and preparing and signing a police statement
about it.  In general, he found things hard to remember all
the time.  He considered it would be better to give his
evidence later rather than sooner.  My impression was that
this was due to his expectation that the result of his
forthcoming consultation with Dr Redmond would be a further
operation.

Mr Copley responded that a further relatively short period
while the investigation identified was completed will be
unlikely to further affect the memory of Mr Bray.  With
reference to Sergeant Wendt he emphasised the evidence that it
would be better if the trial took place later and observed the
evidence was silent as to whether it was his long or short
term memory that was affected.  He also submitted that the
evidence was silent as to whether medical opinion is that
Sergeant Wendt's memory will get better or worse.

He also referred me to UCPR 396 where the Court may order the
examination of a witness for the purpose of taking evidence
before the actual trial of the proceeding.  I responded that I
was not attracted to such a course at this stage.

In relation to the argument about the use of section 134A of
the Evidence Act as the procedure for obtaining non-party
disclosure, Mr Copley's submission was that although it had
not previously been adverted to, this was an alternative
procedure which would be examined for use if appropriate.  It
was at least implied in that submission that the prospect of
using that section had not previously been adverted to.

Mr Dickson also emphasises that one of the objects of the Motor Accident Insurance Act is the encouragement of speedy
resolution of claims and UCPR 5 requires expeditious
resolution, avoidance of undue delay, and an undertaking of a
party to proceed in an expeditious way.  He asserts that these
proceedings do not appear to have been prosecuted in accordance with this rule.

To emphasise this and to counter Mr Copley's reliance by way
of example to the decision of White J on a UCPR 469
application in Mid Australia Pty Ltd v Around Australia Pty
Ltd and Ors [2004] QSC 374, Mr Dickson refers me to the decision of the High Court of Australia in Aon Risk Services Australia Limited v ANU [2009] HCA 27; [2009] 83 ALJR 951. As he observed, the decision of White J was made at the time
Queensland v J L Holdings [1997] 189 CLR 146 was regarded as
authoritative in determining an application to amend.

In Aon, the High Court stated that to the extent statements in
J L Holdings about the discretion to amend pleadings suggest
that case management considerations and proper use of Court
resources are to be discounted or given little weight, it
should not be regarded as authoritative.  Although neither the
decision of White J or the issues in this proceeding relate to
applications to amend and adjourn, I apply, with necessary
adaptions what the High Court said in Aon about the
interpretation of rule 5 and its equivalent provisions in
other States and Territories to the exercise of my discretion
in this case.

As French CJ observed in Aon, matters of relevance include
inefficiencies in the use of the Court arising from the
vacation or adjournment of trials, the need for public
confidence in the legal system and the lack of a satisfactory
explanation for an application for amendment or adjournment.
As his Honour said at paragraph 31 of his judgment:

"Also to be considered is the potential for loss of public
confidence in the legal system which arises where a Court is
seen to accede to applications made without adequate
explanation or justification, whether they be for adjournment,
for amendments giving rise to adjournment or for vacation of
fixed trial dates resulting in the resetting of interlocutory
processes."

The plurality in that case (Gummow, Hayne, Crennan, Kiefel and
Bell JJ) said at paragraph 90:

"The overriding purpose of rules such as UCPR 5 was to
facilitate the just resolution of the real issues in civil
proceedings with minimum delay and expense."

At paragraph 92 they said:  "These purposes reflect principles of case management by the Courts."

At paragraph 93 they stated that rules of this nature
concerning civil litigation are no longer to be considered as
directed only to the resolution of the dispute between the
parties to a proceeding.  The achievement of a just, timely
and cost-effective resolution of a dispute has an effect upon the Court and upon the litigants. 

Therefore, what may be just when amendment is sought requires account to be taken of other litigants, not just to the parties to the proceedings in question (paragraph 95).

Their Honours said the purposes stated in this rule cannot be
ignored (paragraph 97) and at paragraph 98 observed:

"Of course, a just resolution of proceedings remains the
paramount purpose of rule 21 but what is a 'just resolution'
is to be understood in light of the purposes and objectives
stated.  Speed and efficiency in the sense of minimum delay
and expense are seen as essential to a just resolution of
proceedings."

Rule 21 was the equivalent rule in that case to UCPR 5.

At paragraphs 100 and 101 they said that a Judge is entitled
to weigh in the balance the strain the litigation imposed on
litigants, including commercial litigants and extending to
corporations, and that those effects extend to other litigants
who are also seeking a resolution in their proceedings.
However, their Honours also stated that rules of this nature
do not require every application for amendment should be
refused because it involves a waste of some costs and some
degree of delay as it inevitably will.

In particular their Honours said about the equivalent rule in
that case:

"Factors such as the nature and importance of the amendment to
the party applying cannot be overlooked.  While rule 21
assumes some ill-effects will flow from the fact of the delay,
that will not prevent the parties dealing with its particular
effects in their case in more detail.  It is the extent of the
delay and the cost associated with it, together with the
prejudice which might reasonably be assumed to follow, and
that which is shown, which are to be weighed against the grant
of permission to a party to alter its case.  Much may depend
upon the point the litigation has reached relative to a trial
when the application to amend is made.  This may be cases
where it may properly be concluded that a party has had
sufficient opportunity to plead their case and that it is
too late for a further amendment having regard to the other
party and other litigants awaiting trial dates.  Rule 21 makes
it plain that the extent and the effect of delay and cost are
to be regarded as important considerations in the exercise of
the Court's discretion.  Invariably the exercise of that
discretion will require an explanation to be given where there
is a delay in applying for amendment."

Their Honours concluded at paragraph 111:

"All matters relevant to the exercise of the power to permit
amendment should be weighed.  The fact of substantial delay
and wasted costs, the concerns of case management will assume
importance on an application for leave to amend."

I adapt these principles to the exercise of my discretion
under UCPR 467 to determine the different question of whether
a trial, not having commenced or not being listed to commence, the request for a trial date should be dispensed with in this case.  It is not in dispute that liability is a live issue in these proceedings.  The defendants dispute it 100 per cent. 

In response to the plaintiff's application through MYI Freemans under the Right to Information Act for access to the
post-mortem and toxicology reports of the deceased as a result
of the motor vehicle incident which is the subject of these
proceedings, as I have noted the acting manager of the
relevant Department of Justice and Attorney-General unit
responded:  "I believe that the disclosure of some information
on this Coroner's file will assist you in determining
liability."

Specific reference was then made to three pages of that file
involving the reports I have referred to.  This is in the
context of advice by the plaintiff's solicitor when previously writing on 21 December 2009 to the manager of that
unit, that he had asked MYI Freemans to inquire whether
there was any blood alcohol in the deceased's blood at the
time of the incident and, if so, the level of blood alcohol
found.  It is reasonable to conclude that this information
would have been available to the acting manager at the time he
made his decision which was communicated in the letter of
16 March 2010 and that he would have had regard to it in
making that decision.

Therefore, I conclude that when he stated as part of the
balancing exercise in coming to that decision he believed
disclosure of information in the Coroner's file would assist
in determining liability, he would have used those words
advisedly.  After all, this is a decision which may
subsequently be subject to review, including judicial review.

Mr Dickson said in his argument that the response was in terms
which suggested the decision maker may have believed the
request by MYI Freemans was on behalf of an insurance company.
However, such a conclusion is contrary to the 21 December 2009
letter in which the plaintiff's solicitor confirms acting for
the plaintiff, Mrs Hemmings in relation to District Court
proceedings against Suncorp which have been brought by her to
recover compensation for her injuries suffered in the motor
vehicle accident in which the other motor vehicle was driven
by the deceased.

This letter also confirms that the solicitor had asked MYI
Freemans to contact the John Tonge Centre on behalf of the
plaintiff, Mrs Hemmings to inquire about the results of the
deceased's post-mortem.  Although the acting manager of the
unit may not be an expert in areas relevant to civil
litigation of this nature, I consider that in light of the
response, the plaintiff is bona fide entitled to rely on the assessment of a public official making a decision under an enactment that pages of the post-mortem and toxicology
reports concerning the deceased which are held by the state
Coroner will assist "you" in determining liability.  In
context, the reference to "you", as I have said, must be to
the plaintiff's solicitor for whom MYI Freemans was acting
as an agent and not to the defendant insurance company.

Although there is no express reference to blood alcohol, it is
a commonsense inference that the most likely information in
such a report which will assist in determining liability in
circumstances such as these, is information about blood
alcohol or a legal drug which may have some side effects
either alone or together with alcohol on the abilities
required to drive a motor vehicle.  I do not consider this to
be mere speculation.

Even if other information is being referred to, I proceed on
the basis of the report that it is information relevant to the
determination of liability from the position of the plaintiff.
Therefore, I do not consider that the opposition to this
application or the proposed UCPR 242 notice is only for the
purpose of a fishing expedition for documents which may have
been in possession of a party not a party to the action.  As
such, the UCPR 242 notice would not fall foul of the decision
of Dodds DCJ in Naskam Security Services v Adarm Security Pty
Ltd [2000] QDC 44 at 11. In my view the documents are in possession of the Office of the State Coroner who is not a party to the action and are probably directly relevant for the reasons I have given to an allegation in issue in the proceedings.

However, as Aon determines, while a just resolution of proceedings that the continuation of the investigation to obtain these documents remains a paramount purpose of UCPR 5, speed and efficiency in the sense of minimum delay and expense are also essential to such a resolution.  Therefore, this must be considered in determining whether to grant the current application.

As Mr Copley concedes, there will inevitably be some delay
involved in obtaining these documents.  As Aon makes clear, in
these circumstances the extent of the delay and the costs
associated with it are important considerations in the
exercise of the Court's discretion.  As their Honours also
say, much may depend upon the point the litigation has reached
relative to the trial.

Therefore, it is relevant for me to consider these questions
in the context of the history of these proceedings which I
have outlined.  It is a relevant factor that the incident of
the collision which is the subject of the proceedings occurred
approximately nine and a-half years ago, the Notice of Accident Claim Form was lodged late with the defendant, about one year and two months after the accident (although a reason was given for this) and the claim and Statement of Claim to
commence these proceedings was filed just inside the three
year limitation period.

Nonetheless the proceedings were commenced within this period and despite the complaints of dilatory conduct on behalf of the plaintiff, the defendant took no steps to progress the proceedings in the four and three-quarter years before the Statement of Loss and Damage was signed on 7 November 2008.  There may have been good reason for this.  However if there was this was not explained to me.

It is since the filing of the amended claim and Statement of
Claim on 19 February 2010 that the case has proceeded with some expedition.  Following this, the Notice of Intention to Defend and Defence were filed on 20 May 2010.  These are the first documents filed on behalf of the defendant in these
proceedings.  This was approximately two months ago.

Following this, the plaintiff's reply was filed as required on
the last day of the following 14 day period, 3 June 2010.  It
was at this point that the pleadings closed and about five
weeks later the defendant filed this application.

In this case, as I have observed, unlike Aon where the application for an adjournment to amend the pleadings was made on the third day of a period of four weeks set down for trial, allowing the adjournment will not jeopardise an allocated trial date or jeopardise trial dates in other cases.  Further,
no request from the defendant or its solicitors have been made
to the plaintiff or its solicitors to file a request for trial
date.

The application is made in circumstances where well before the
pleadings closed the solicitor for the plaintiff advised the
solicitor for the defendant that as a result of statements on
the defendant's behalf at the compulsory conference, further
investigations were being conducted.  This was on 3 April
2009.  When the plaintiff's solicitor wrote to the
defendant's solicitor again on 16 April 2010 about five weeks
before the defence was filed they were made aware of what
those investigations involved.

Although it is regrettable that these investigations have been ongoing for over 15 months I have no reason to conclude that they were not proceeding bona fide during that time.  I have no reason to conclude that they have been instituted simply to delay proceedings which it is in the interests of the plaintiff to resolve as soon as possible.

Now that the existence of the relevant information has been
identified a relatively short period should be required to
complete them.  The UCPR 242 notice has been drafted and
according to the plaintiff's solicitor's affidavit it has been
forwarded to the Court.  If due to UCPR 242(2) the appropriate
procedure for the production of these documents is that
provided under section 134A of the Evidence Act I have reason
to believe this will proceed expeditiously from what Mr Copley
has said now that procedure has been adverted to.

I am satisfied the reason this section was not utilised is
because it was genuinely overlooked.

The plaintiffs are not to be criticised for waiting until the
close of the pleadings to issue the UCPR 242 notice because in
accordance with Knight v Kulver and the Medical
Superintendent, Pindara Hospital [2001] QCA 254, a non-party
is not obliged to respond to such a notice before the close of
proceedings.  As stated by Williams JA (with whom Davies and
Thomas JJA agreed):

"Rule 242 requires the document which is to be produced
pursuant to the order to be 'directly relevant' to an
allegation in issue in the proceedings.

In my view, that can only be established where a Statement of
Claim and defence have been delivered and there is an issue
raised by those pleadings to which the document sought to be
obtained is relevant.

The simplest and quickest way of identifying what is in issue
and obtaining documents relevant to that issue is for the
pleadings to close and for the parties to obtain discovery in
the ordinary way."

Thomas JA additionally said:

"Rule 242 seems designed to avoid premature discovery from
non-parties.  That is to say before the issues are finalised
between the actual parties.  It is also, no doubt, designed to
deter fishing raids on the documents of persons who are not
parties to the litigation."

As I have said, I do not consider a fishing raid is being
undertaken in this case by the plaintiff.

In this case a certificate of readiness was signed on behalf
of the plaintiff in the terms I have referred to.  However I
agree this does not preclude a party from undertaking further
investigation, particularly where it is bona fide prompted by
statements on behalf of the defendant at the conference which
was after the certificate of readiness was signed.

In circumstances where proceedings were commenced approximately six and a-half years ago, the notice of intention to defend and the defence was filed two months ago, pleadings closed six weeks ago, the defendant was notified of the ongoing investigation before it filed its defence, no request has been made by the defendant to the plaintiff to sign a request for trial date, a trial date has not been allocated and one step is required in the form of adopting the procedure under either UCPR 242 or section 134A of the Evidence Act to obtain the relevant information which the plaintiff has been advised would assist in determining liability, I do not consider that the extent of delay and the costs associated with it are such as to reject the plaintiff's argument that the application should at least be adjourned for some period to allow the completion of this investigation.

It follows from what I have said that a satisfactory
explanation has been given for the delay in this case.

I do not consider that an adjournment of the application in these circumstances will prejudice public confidence in the judicial system.  The case is far removed from what happened in Aon.

I appreciate in coming to this conclusion that it cannot be
assumed there will be no resistance to the disclosure by the
non-party on public interest grounds, just as the request for

access to this information was declined on these grounds.
Further, under section 134A(5) of the Evidence Act this
provision expressly does not affect the laws of privilege or
the Right to Information Act. As Mr Copley also concedes, if
the documents are made available this may prompt further
investigation by either party.  However, I consider the
consequences of such circumstances arising can be properly
addressed so as to ensure that the principles under UCPR 5 and
section 3 of the Motor Accident Insurance Act are not violated
by the orders I propose.

I am also conscious of the position in relation to the
witnesses, Mr Bray and Sergeant Wendt.  As far as Mr Bray is
concerned, I agree with Mr Copley that after this length of
time since the incident the further time which will elapse in
resolving this issue is unlikely to further affect his memory.
Additionally, he will undoubtedly have the opportunity to
refresh his memory from his statement before he gives
evidence.  This can also be expected in the case of Sergeant
Wendt.  As a police officer he is also likely to have his
notes and other records of investigation to assist him in
giving evidence.

Sergeant Wendt suffers from the additional problem of having
been operated on for brain tumours with the prospect of
further invasive surgery of this nature in the near future.
Although he says he generally finds things hard to remember,
he remembers the motor vehicle incident the subject of the
proceedings and signing the police statement about it.  As
Mr Copley says, there no evidence that his long term memory,
as opposed to his short term memory is affected and there is
no expert medical testimony about whether his memory is likely
to get better or worse.  For that matter, there is no such
evidence about any aspect of his condition, including his
prognosis for the future.

For these reasons, I exercise my discretion not to accede to
the application.  However, in order to ensure that the objects
of UCPR 5, in particular those identified by Mr Dickson's
submissions, are not violated I do not dismiss the
application.  Instead, I propose to adjourn it to an
appropriate date to ensure that the investigation identified
in the material filed on behalf of the plaintiff and
emphasised in Mr Copley's submissions is undertaken
expeditiously or, to adopt other language from UCPR 5, without
undue delay.

In these circumstances it is not necessary for me to address
the other issues which are the subject of this application.
It would be premature to do so.

As far as the issue that the matter be listed for a liability
trial only, Mr Copley says this may be appropriate in due
course.  In oral submissions he said there was no opposition
to this course per se but it was not appropriate to make an
order at this stage.

In relation to the issue as to how the evidence of Drs Fraser
and Bourke is to be given, which I understand would involve
their giving oral evidence by telephone, Mr Copley also does
not oppose this per se.  But, again, argues that it is not
appropriate to make the order now.  In his written submissions
he says, in any event Dr Fairburn's evidence should be dealt
with in the same way.

I agree with Mr Copley's position about those matters.  I
simply indicate that on the basis of the submissions advanced
by Mr Dickson on these issues I find them prima facie persuasive on the issue of a separate determination of liability and quantum and if it becomes necessary for the doctors to give evidence that it be dealt with in the proposed manner.

...

HIS HONOUR:  The formal order of the Court in relation to this
application is:

1.  The application is adjourned to the registry to be
relisted by either party giving seven clear business days'
notice in writing to the other party.

2.  Subject to further order the application is not to be
relisted before 2 September 2010.

3.  The costs of and incidental to this application be each
party's costs in the cause.