Kleeman v The Star Entertainment Group Limited (No 2)

[2020] QSC 332

SUPREME COURT OF QUEENSLAND

CITATION:

Kleeman v The Star Entertainment Group Limited and Another (No 2) [2020] QSC 332

PARTIES:

JOHN BRIAN KLEEMAN
(plaintiff)

v
THE STAR ENTERTAINMENT GROUP LIMITED

(first defendant)

THE STAR ENTERTAINMENT QLD LIMITED
(second defendant)

FILE NO:

12236 of 2018

DIVISION:

Trial Division

PROCEEDING:

Claim  

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

29 October 2020  

DELIVERED AT:

Brisbane

HEARING DATES:

26, 27, 28 and 29 October 2020  

JUDGE:

Ryan J

ORDERS:

1.  The plaintiff’s proceeding is dismissed.

2.  With respect to the second defendant, the plaintiff is to pay the second defendant’s costs on the standard basis until the end of first day of trial (26 October 2020). The plaintiff is to pay the second defendant’s costs incurred on 27, 28 and 29 October on the indemnity basis.

3.  With respect to the first defendant, the plaintiff is to pay the first defendant’s costs on the standard basis up until 12 August 2019, and thereafter on the indemnity basis.

4.  The first defendant has liberty to apply (if 12 August 2019 is not the date of the last correspondence which informed the plaintiff that the first defendant was not properly a party to his proceeding).

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - DIRECTIONS - where the plaintiff is self-represented in a personal injury matter against the first and second defendants - where on the second, third and fourth days of the trial the plaintiff failed to appear or produce adequate medical evidence to explain his failure to appear - where the plaintiff failed to comply with directions of the Court - where the plaintiff has been granted indulgence by the Court on many occasions, notwithstanding obvious deficiencies in his pleadings - where the evidence presented by the defendants raises an obvious concern about the veracity of the plaintiff’s claim - whether the interests of justice require that the proceeding be dismissed

PROCEDURE - COSTS - RECOVERY OF COSTS - where the plaintiff was notified in correspondence that the first defendant was not properly a party to his proceeding - where the plaintiff failed to attend Court and failed to provide adequate medical evidence to explain his failure to attend on the second, third and fourth day of his trial - where the plaintiff’s conduct was wholly unreasonable - whether the plaintiff should pay costs on the indemnity basis

Uniform Civil Procedure Rules 1999, r 370

COUNSEL:

The plaintiff appeared for himself on the first day of trial, and thereafter made no appearance.
D Cormack appeared for the first and second defendants

SOLICITORS:

The plaintiff appeared for himself on the first day of trial, and thereafter made no appearance.
Moray and Agnew lawyers appeared for the first and second defendants

HER HONOUR:   Earlier this morning, on the defendant’s application, I dismissed the plaintiff’s proceedings.  My reasons for doing so follow. 

This matter has had a lengthy procedural history, which I outlined in the course of my reasons for a ruling made on the first day of trial. 

Throughout the history of this matter, the plaintiff has been granted indulgence by the Court on many occasions, notwithstanding obvious deficiencies in his pleadings, including in his nomination of the first defendant as an appropriate party, and notwithstanding his defiant refusal to take any steps to meaningfully rectify his pleadings. 

Also, it is apparent from the procedural history that the plaintiff has defiantly refused to meaningfully engage with the defendants’ solicitors.

It is plain, indeed it seems it was stated expressly by at least one justice of this Court, that, rather than require the plaintiff to regularise his pleadings, it was thought best that the matter come on for trial. 

The trial commenced on Monday of this week, 26 October 2020.  The defendants raised a pleading issue with me at the commencement of the trial.  By way of further indulgence to the plaintiff, I ordered that his statement of loss and damage be taken to be part of his pleadings and the trial commenced. 

It soon became obvious to me that the plaintiff had made no attempt to obtain even a rudimentary understanding of the way in which to prosecute his claim.

Notwithstanding voluminous, regular and patient correspondence from the defendants’ solicitors to the plaintiff, pointing out what he needed to prove and the gaps in his pleading and his evidence, it was obvious from the plaintiff’s opening and his evidence-in-chief that he had no idea of the elements of his cause of action; no idea of the evidence which he would require to establish each of those elements of his cause of action; and no idea of the way in which a party may place evidence before a court. 

His evidence-in-chief commenced at 2.26 pm on 26 October 2020.  The plaintiff asked for a break at 3.23 pm to go to the toilet.  He took that break and court resumed at 3.36 pm.  The plaintiff then informed the Court that he was not feeling well.  He said he felt nauseous and wanted to vomit.  Court was adjourned until 10 am the next day. 

At 9.19 am, the next day, 27 October 2020, the plaintiff emailed my associate and the defendants’ solicitors from his iPhone.  His email read:

Dear Parties,
I regret to inform her Honour that I’m still unwell and unable to attend trial today.  I apologise for the inconvenience to all concerned. 
I will seek medical help today.

On the strength of that email, I excused the plaintiff’s attendance from Court at 10 am but convened at that time in the presence of the solicitor and barrister for the defendants. 

Counsel for the defendants was sceptical about the genuineness of the plaintiff’s explanation for his absence, and referred to his obvious complete lack of preparation for trial.  After hearing submissions from counsel for the defendants, and having regard to the plaintiff’s stated intention to seek medical help, I directed the plaintiff to produce medical evidence explaining his absence by 4.30 pm that afternoon, and to appear at 10 am on Wednesday, 28 October 2020.  The plaintiff was informed that, if he failed to produce evidence of a valid medical reason for his absence from Court, or failed to attend Court on Wednesday, then the defendants would apply for judgment. 

At 3.19 pm, the plaintiff sent by email a letter signed by a Dr Camilla White from an organisation called Doctors on Demand, whose tagline is: “Online when you need them”.

I infer that, on the strength of an online consultation, Dr White was prepared to sign a document purporting to be a medical certificate.  The document bore all of the hallmarks of a pro forma document and said:

THIS IS TO CERTIFY THAT                Mr John Kleeman

Is suffering from a medical condition and will be unfit to continue their usual occupation or duties for the period

27/10/2020        to        28/10/2020      inclusive. 

This Certificate was completed on 27/102020.

Now is not the occasion to comment on the preparedness of Dr White to issue such a document. 

The plaintiff also sent to my associate and the solicitors for the defendants a screenshot of a text message from Doctors on Demand to him, informing him that his script had been sent to a certain chemist, supporting further the inference that there had been no face-to-face consultation between the plaintiff and Dr White before Dr White signed that letter. 

I considered the medical certificate, or the document purporting to be a medical certificate, a completely inadequate response to my direction.  Generously though, I was prepared to give Mr Kleeman the benefit of the doubt about his illness.

After receiving the medical certificate and screenshot, my associate contacted Mr Kleeman, copying in the defendants’ legal representatives, and informed him that he had leave to appear by telephone on Wednesday at 10 am.  He was provided with chorus call details. 

At 8.13 am, the plaintiff contacted my associate and the defendants by email, stating that he was “not in a position to communicate” that day. 

Court resumed at 10 am in the presence of the legal representatives for the defendants.  I confirmed that the plaintiff had made no attempt to dial into the courtroom.  The line had been available for him to do so from 9.46 am.  His name was called three times.  He did not appear.  The defendants then foreshadowed the possibility of making certain applications and the matter was adjourned to allow instructions to be taken.

Court resumed at 11.30 am on Wednesday, Mr Kleeman having been informed (by email) that he could attend by telephone at that time and having opened the line for him to do so at 11.22 am.  He did not call in. 

Counsel for the defendants foreshadowed an intention to make an application under rule 370 of the Uniform Civil Procedure Rules 1999, which permits a court to dismiss a proceeding where there has been a failure to comply with a direction.

As counsel for the defendants was making submissions (after 11.30 am), Mr Kleeman sent an email to my associate and the defendants’ solicitors which read:

Dear parties,
I have gastro
As I said, I can’t communicate.

Mr Kleeman was given yet another opportunity to provide a medical certificate which adequately explained the reasons for his absence from Court on 27 and 28 October 2020, by 4 pm on 28 October 2020. 

He was directed to attend by telephone or in person on 29 October 2020 – that is today – and I directed the Registry to inform him that if he were to fail to provide an adequate medical certificate, or fail to appear, then the Court would entertain an application under rule 370.

The plaintiff’s response to those directions was to send a photograph of a box of prescription medication to the Court. 

The plaintiff did not appear in person or by telephone today, nor has he satisfactorily explained his absence from Court.  Thus he has failed to comply with the Court’s directions.

The defendants applied for an order that the plaintiff’s proceedings be dismissed and an order for costs on the indemnity basis. 

As mentioned, I have already dismissed the plaintiff’s proceeding. 

I have done so having regard to the plaintiff’s cavalier approach to this litigation from the beginning; the inadequacy of his pleadings; his obvious lack of comprehension of that which is required to successfully prosecute a claim for $2.2 million in the Supreme Court; his obvious lack of preparation for trial; his disrespectful response to the directions of the Court; and his failure to communicate to the Court, or to the defendants, his intentions or plan insofar as this trial is concerned, bearing in mind that the trial was listed to conclude today.

Further, I had regard to the fact that nothing communicated by the plaintiff to the Court persuaded me that he was genuinely ill or genuinely unable to communicate by way of telephone. 

In deciding to dismiss the proceeding, I was conscious that I was to have regard to the principle that the interests of justice are paramount. 

As I indicated before I adjourned, I consider the interests of justice to include the interests of ensuring efficient process and procedure, as well as the interest in the just resolution on the merits of a case. 

It is my view that the interests of justice are not served by permitting the plaintiff to treat the court as he has without consequence.

Allowing the proceedings to remain on foot, to be revived, as it were, at the whim of the plaintiff, or perhaps not revived at all, would be to permit unexplained and unacceptable delay and an abuse of process. 

As to the just resolution of the matter, in support of their application, the defendants relied upon affidavit evidence which bore upon the merits of the plaintiff’s claim. 

I have approached that evidence with caution, conscious that it included evidence of relevant witnesses which could not be tested, and conscious that, even though the CCTV footage of the incident (the subject of the plaintiff’s claim) showed the plaintiff to be moving freely and without discomfort thereafter, I ought not to read too much into that as a lay person.

Of particular concern though was other evidence presented by the defendants which reflected adversely on the plaintiff’s credibility. 

The effect of that evidence, which is compelling, is to cast doubt on the plaintiff’s claim that he is disabled by an injury to his spine and, more significantly, to cast doubt on the assertion that it was the incident at Jupiter’s Casino which caused any injury which the plaintiff may have. 

The evidence reveals that the incident, the subject of the present claim, occurred on 15 November 2015.  As I have mentioned, the plaintiff appears to be moving freely and without obvious pain immediately after the incident, but I will not read too much into that. However, there was placed before me evidence of his ability to undertake manual work all day in February 2016, inconsistent with his pleadings. 

There was also placed before me evidence of his seeking medical attention after falling 1.5 metres in July 2016. 

The results of a medical examination at that time show some injury or degeneration at the L5/S1 vertebrae. 

It is, notably, only after that fall that the plaintiff signed the notice of claim in this matter. 

The notice was signed on 16 August 2016.  It asserted that he had sustained permanent physical damage to his spine and disc at L5/S1, and pain and suffering. 

The evidence presented by the defendants raises an obvious concern about the veracity of the plaintiff’s claim. 

On the strength of the evidence presented by the defendants; the deficiencies of the plaintiff’s pleadings and the paucity of the evidence he had available to him (to present at trial) – considered against the background of the procedural history of this matter – I concluded that the interests of justice required me to dismiss the proceeding.

As to the first defendant’s costs, having regard to the correspondence between the first defendant and the plaintiff; it is my view that the plaintiff’s continuing with his claim against the first defendant in the face of that correspondence has been sufficiently unreasonable as to warrant an order for costs on the indemnity basis from the date of the last letter to the plaintiff about the matter. The plaintiff is to pay the first defendant’s costs on the standard basis up until that date.

…

With respect to the second defendant’s costs, I have already ordered that the plaintiff is to pay those costs on the standard basis up until the end of the first day of trial, and thereafter on the indemnity basis – that is, on the indemnity basis for the costs incurred on 27, 28 and 29 October, because of his wholly unreasonable conduct on those last three days.