Kiymaz v Davies
[2008] QSC 299
•21 November 2008
SUPREME COURT OF QUEENSLAND
CITATION:
Kiymaz v Davies & Anor [2008] QSC 299
PARTIES:
LYNETTE JOY KIYMAZ
(plaintiff/applicant/respondent)
v
DR JANENE ROSEMARY DAVIES
(first defendant/respondent/applicant)
DR BRIAN ERIC HOUSE
(second defendant/respondent/not a party to the application)FILE NO:
SC No 4953 of 2004
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
21 November 2008
DELIVERED AT:
Brisbane
HEARING DATE:
23 October 2008
JUDGE:
Mackenzie J
ORDER:
On the Plaintiff’s application:
1. Leave for renewal of the claim is refused.
2. The application to substitute Murat Kiymaz, as Personal Representative and Administrator of the Estate of the late Lynette Joy Kiymaz, as Plaintiff in the proceedings is refused.
3. The applicant Plaintiff pay the respondent First Defendant’s costs of and incidental to the application insofar as it relates to the issues in respect of orders 1 and 2, to be assessed.
4. The Plaintiff’s action against the Second Defendant be discontinued pursuant to rule 69(1)(a) UCPR.
5. That there be no order for costs of the application insofar as it relates to the issue in respect of that order.
On the First Defendant’s application:
6. The claim is dismissed.
7. The Plaintiff pay the First Defendant’s costs of and incidental to the claim to be assessed.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – where the plaintiff died before the matter proceeded to trial – where the plaintiff’s widow, as personal representative and administrator of the plaintiff’s estate, applied to be substituted as plaintiff in the proceeding – whether the applicant should be substituted as plaintiff under r 72 UCPR
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – where the applicant sought leave to renew the claim – where the first defendant sought to dismiss the proceedings for want of prosecution – where there were long delays in progressing the matter – whether there was good reason to renew the claim
Personal Injuries Proceedings Act 2002 (Qld), Pt 1, s 43
Supreme Court Act 1991 (Qld), s 85
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 24, r 69, r72(2)
Hamling v Australia Meat Holdings Pty Ltd (No 2) [2007] 1 Qd R 315; [2006] QCA 422, cited
I.M.B Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407, cited
Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513, applied
Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130, cited
Rideout v Glaxo Group Ltd [1996] 1 Qd R 200, cited
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; [1981] HCA 11, appliedCOUNSEL:
G O’Driscoll for the plaintiff
G W Diehm for the first defendant
No appearance by the second defendantSOLICITORS:
Hall Payne Lawyers for the plaintiff
Blake Dawson Waldron for the first defendant
No appearance by the second defendant
MACKENZIE J: These applications arise from a chain of circumstances that began when the plaintiff, who is now deceased, allegedly consulted the first defendant in 2000 and 2001 about a dark spot on her heel which subsequently proved to be a melanoma which metastasised. The word “allegedly” is used advisedly since what actually happened is disputed, both as to whether all of the alleged consultations with the first defendant occurred and as to what was discussed at any consultations that both agree occurred. The medical notes covering the relevant period which were in evidence do not, in some instances, refer to discussion of the particular condition or establish conclusively that a consultation had not been conducted by a different medical practitioner.
An application has been brought by the plaintiff’s former husband (“Mr Kiymaz”) as personal representative and administrator of her estate for substitution of him as plaintiff pursuant to r 69(1)(a) Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Also, subject to the making of that order, he seeks leave to renew the writ. He also seeks to discontinue the proceedings against the second defendant pursuant to r 69. A deed of release has been executed by the personal representative in that regard following settlement of the claim. That particular relief is uncontroversial.
There is also an application by the first defendant. The primary relief sought is dismissal of the proceedings for want of prosecution pursuant to s 85 Supreme Court Act 1991 (Qld) (“SCA”). Alternatively, she applies for the proceedings to be struck out on the ground that the plaintiff filed proceedings without compliance with Pt 1 of the Personal Injuries Proceedings Act 2002 (“PIPA”). It was accepted that failure to do so did not render the proceedings a nullity (Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555; [2007] QCA 130; Hamling v Australia Meat Holdings Pty Ltd (No 2) [2007] 1 Qd R 315; [2006] QCA 422). It is not necessary to pursue the question of setting aside the proceedings on discretionary grounds for failure to comply with PIPA to resolve the matter.
It is common ground at least that there was a consultation on 18 June 2001 at which the lesion was examined and not identified as a melanoma. On 14 December 2001 the lesion was surgically removed by a doctor at a different practice. Histological examination revealed that it was a metastatic melanoma.
On 20 December 2002 a notice of claim under s 9 of PIPA was served. The solicitors for the first defendant raised non-compliance issues. It was not until
29 August 2003 that the second notice of claim was served. On 8 December 2003 the first defendant’s solicitors advised that it was compliant.
A claim and statement of claim were filed on 7 June 2004. No attempt to serve it was made and it became stale under s 24(1) UCPR. None of the preliminary procedures under PIPA had been undertaken at that time. Nor have they been substantially undertaken since. On 22 June 2004, when the plaintiff was being treated by a palliative care specialist as well as an oncologist, an application for an expedited trial under s 43 PIPA was foreshadowed. However, before that occurred, the plaintiff passed away on 7 August 2004.
Continuation of a dependency claim was foreshadowed within a short time after that. On 7 December 2004, the plaintiff’s solicitors advised the deceased plaintiff’s husband of the need to retain Victorian solicitors in connection with obtaining letters of administration since the plaintiff had lived there before passing away as well as having lived in Queensland.
It was not until 21 September 2005 that the letters of administration were obtained. On 10 October 2005 the plaintiff’s solicitors advised that they were seeking instructions about how Mr Kiymaz intended to proceed.
In February 2006, he moved to Thailand, entered into a new relationship and married soon afterwards. On 11 July 2006, the solicitors emailed him with respect to the dependency claim and also about the need to conclude a client agreement with him since the circumstances of their retainer had changed by reason of the death of the plaintiff. The need for a new PIPA notice of claim and the 9 month limitation from the plaintiff’s death to lodge it unless reasonable excuse could be demonstrated were mentioned. It was suggested that the delay caused by having to obtain letters of administration might suffice.
On 20 July 2006 an application to substitute him as plaintiff was foreshadowed by his solicitors to the first defendant’s solicitors who were asked if they would consent. It appears from the material that the first defendant’s solicitors sought counsel’s advice. It was not until 30 January 2007 that they advised that they were instructed to oppose the application.
Mr Kiymaz’s solicitors followed up the issue of the further instructions and the costs agreement with him in mid August 2006 and then on 7 November 2006, when they said in correspondence that they would presume that he did not wish to proceed and would take steps to notify the court accordingly if he did not give instructions. It was not until 9 January 2007 that he asked to be reminded about “what the situation is like at the moment and how to resume proceedings”. In that letter he said the delay in responding was due to his grandfather dying and that he had been involved in making the funeral arrangements. I will return to this and other issues bearing on the delay later.
After that, the foreshadowed application seems to have remained dormant until December 2007 when, in response to a telephone call from the first defendant’s solicitors, the solicitors for Mr Kiymaz advised that it was his intention to continue with the claim and that the solicitor would be in contact after 14 January 2008. Once again, nothing happened for several months. It appears that the solicitor handling the matter had left the firm and the solicitor who took it over could not find part of the file, including contact details for Mr Kiymaz. Conventional searches within Australia with a view to locating him failed, because he was no longer resident here. The missing part of the file was apparently located only in June 2008. Nevertheless, when the first defendant’s solicitors raised the matter of the application again on 12 May 2008, Mr Kiymaz’s solicitors confirmed his intention to proceed. Finally, on 24 July 2008 the application was served, followed by an affidavit by the solicitor dated 26 August 2008.
On the day the matter was heard before me, 23 October 2008, an affidavit in facsimile form by Mr Kiymaz was allowed to be read by leave. It is not easy to discern how much of his recounting of the consultations with the first defendant will be admissible at trial. It is not clearly established whether, on a number of the occasions, Mr Kiymaz was actually present. Also, the PIPA notice suggests that he was not present at most of them.
As to reasons for the dilatory progress of the matter, Mr Kiymaz deposes that he was aware that a Claim and Statement of Claim had been filed on 7 August 2004. He received a letter on 13 October 2004 from his solicitors requiring him to provide further instructions and to obtain letters of administration. He says that during late 2004 he was undergoing his final semester of a computer science course at Latrobe University he had commenced in February 2003 while looking after his wife during her treatment in Melbourne. He was “not in a suitable position to provide instructions” in relation to the claim. He also said he received a letter on or about
9 December 2004 “explaining the progress of the claim” and about the need to get letters of administration. He also says that it was on or about 21 September 2005 when he became aware that the letters of administration had finally been obtained.
In early February 2006 he moved to Thailand to pursue further employment after having failed to obtain employment in Australia. He entered into a new relationship, attempted to secure employment and remarried. In March 2006 he went to Turkey for about a month to visit his family. On his return to Thailand he made further attempts to secure employment. Then, on or about 11 July 2006 he received an email from his solicitors advising that steps were being taken to file an application for him to be substituted as plaintiff in the action on behalf of the estate. (There is no mention by him that this was also the letter in which the need to sign a client agreement was raised).
On 3 November 2006 he secured employment as a school teacher in Thailand but “endured an acrimonious environment” where he encountered difficulties in dealing with management on a regular basis. Nevertheless, due to his poor financial circumstances he remained at the school subject to the same workplace stressors. He deposes that during this period his primary focus was to deal with them and adjusting to his new surrounds in Thailand.
Then, on about 7 November 2006 he received the letter from his solicitors enclosing the client agreement and seeking his instructions about progressing the matter. He says he was not able to reply to that letter due to his excessive workload. Nor did he like the comments in the letter. He subsequently spoke to the solicitor handling the file about the contents of the client agreement. He was not prepared to execute it.
It was around this time that his grandfather passed away in Turkey. He did not return to Turkey but was involved in telephone discussions with his family and was “involved in organising funeral arrangements, etc”. He sent an email on 9 January 2007 to his solicitors advising that he had not been in contact because of his grandfather passing away and having to help his family and assist with the funeral arrangements. His affidavit does not refer to the request in the email for the solicitors to remind him of the current situation and how to “resume the proceedings”.
In early July 2007 he received the client agreement sent by the solicitors. Then in July or August 2007 he obtained new employment at an educational institution in Thailand where the work environment was more harmonious and less stressful. On 23 August 2007 he returned the executed client agreements.
The evidence shows that Mr Kiymaz has not been particularly diligent about pursuing the claim. Part of the delay appears to have been due to reluctance on his part to sign the client agreement. Generally, the matters relied on as explanations for other phases of the delay are not compelling. It is true that from early December 2007 until some time in June 2008 the solicitors were unable because part of the file was missing to find a contact address for him but, equally, he did not attempt to contact them himself during that period. Although he was in Thailand, there seems to have been no practical difficulty in establishing email contact when the occasion warranted it. It is against that background that the issues in the applications before me must be resolved.
There are miscellaneous other matters that may conveniently be mentioned here in the interests of completeness. One is that there is no suggestion that there is any specific prejudice to the first defendant over and above the lapse of time (although one wonders if there would be difficulties for the defendant over and above the normal in relation to the dependency claim given the applicant’s current domestic situation and location overseas). It is undoubtedly the case that the claim is now very old. However, the first defendant has had full details of the underlying complaint from an early time.
Another is that the quantum of the claim in so far as it relates to the plaintiff herself is, in the events that happened, probably likely to be a small one. A third is that such medical evidence as there is about the consequences of any failure to identify the melanoma at an early stage does not suggest that the claim is overwhelming. From the plaintiff’s point of view, there is a report from Dr Neville Davis that supports her case. However, since it was accepted as common knowledge that
Dr Davis is now deceased, presumably the written document may not be of as much assistance as oral evidence expanding on it might have been. It would, of course, be possible to supplement it with other medical opinion. In any event it is accepted by the first defendant that the case cannot be categorised as a hopeless one.
With regard to substitution of a party, where a party dies, r 72(2) UCPR authorises the court to order the personal representative of a party to be substituted as a party for the deceased person. While there are proceedings on foot, this essentially procedural matter would ordinarily be uncontroversial. However in this case it would be of little utility if the claim is not renewed. Despite the reference to
r 69(1), the precise wording of the application suggests that it is as personal representative and administrator of the plaintiff’s estate that Mr Kiymaz seeks to be substituted and r 72(2) seems the more appropriate rule.
Rule 69 raises other issues which are not sufficiently addressed in the material to allow any order of wider application to be confidently made. As the first defendant points out, there are issues concerning the compliance with PIPA and the expansion of the ambit of the claim. While the application has been conducted against the background that Mr Kiymaz may wish to pursue a dependency claim, these issues were not argued.
The remaining substantial question with regard to the application by Mr Kiymaz is whether an order renewing the claim should be granted. The statement of principle in this regard by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; [1981] HCA 11 has been adopted in Queensland by Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513. The principles are as follows:
1.There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice and injustice to other parties.
2.The discretion may be exercised although the statutory limitation period has expired.
3.Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.
4.There is a wide and unfettered discretion and there is “no better reason for granting relief than to see that justice is done”.
In I.M.B Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148; [2006] QCA 407, Keane JA stressed the importance of the philosophy set out in r 5 UCPR in considering whether an order for renewal should be made.
In deciding whether to allow the claim to be renewed, the issues concerning the strength of the case, which is conceded not to be hopeless, and the size of the claim, except for a limited purpose in assessing where the appropriate balance lies, are put out of consideration. Unsatisfactorily explained delay is not necessarily fatal, although one factor to be weighed. The question to be answered is whether there is good reason to renew the claim. The focus in Stephen J’s summary above on the notion of justice being done involves a balance between competing interests. It is the case that Mr Kiymaz will in all probability be precluded from proceeding with the action if the claim is not renewed. However, in the events that have transpired in Mr Kiymaz’s life since early 2006, it is not clear that the loss of the claim either for damages or the dependency will be as catastrophic as it might be in other circumstances. The most telling aspect of the matter is the very long delay in progressing it. It is difficult to avoid the conclusion that for reasons of his own, the applicant has failed to fulfil his implied undertaking to the court and to the other parties to proceed in an expeditious way. The principal manifestations of this are the long delays in responding to requests from his solicitors for instructions, failing to keep in touch with them proactively and his apparent reluctance to enter into the client agreement so that the matter might be progressed.
It is understandable that he may have subjectively thought that the matters that he says were an immediate problem to him may have had a higher priority at the time, but looking at the matter objectively, the delay can only realistically be characterised as a conscious prioritisation of his affairs in a way that did not permit the matter to proceed towards prompt resolution. Having regard to this, I am not satisfied that he has shown good reason why the writ should be renewed and the application will be refused in that regard. For the reasons that I have given, it becomes academic to substitute him as plaintiff. That aspect of the application is also dismissed, although had the application for renewal of the claim succeeded, substituting him as plaintiff under r 72 UCPR would have been appropriate.
The third aspect of the application, discontinuance of the proceedings against the second defendant, is uncontroversial since the claim has been settled. An order will be made for that purpose.
With regard to the first defendant’s application, the orders made remove the capacity of the applicant to take any further step in the proceeding. The proceedings, such as they are,[1] are irregularly commenced and would have to be regularised under PIPA. If they were to have been regularised on the basis that it was a case where leave would have been given, they would, in all probability in the circumstances now existing, have been stayed until the preliminary procedures under PIPA had been completed.[2] The implications of these issues on an application under s 85 SCA were not fully argued.
[1]See Rideout v Glaxo Group Limited [1996] 1 Qd R 200 at 206-207.
[2]Section 43 PIPA.
The case is an unusual one because of the combination of factors. Whether it is a case that would appropriately fall within s 85 SCA is somewhat academic, since I am confident that the court can exercise inherent power to dismiss proceedings where the unusual, almost sui generis, circumstances of this case, which render them unable to be progressed further, exist.
The orders are as follows:
On the Applicant’s application:
1. Leave for renewal of the claim is refused.
2.The application to substitute Murat Kiymaz, as Personal Representative and Administrator of the Estate of the late Lynette Joy Kiymaz, as Plaintiff in the proceedings is refused.
3.The applicant Plaintiff pay the respondent First Defendant’s costs of and incidental to the application insofar as it relates to the issues in respect of orders 1 and 2, to be assessed.
4.The Plaintiff’s action against the Second Defendant be discontinued pursuant to rule 69(1)(a) UCPR.
5.That there be no order for costs of the application insofar as it relates to the issue in respect of that order.
On the First Defendant’s application:
6.The claim is dismissed.
7.The Plaintiff pay the First Defendant’s costs of and incidental to the claim to be assessed.
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