Mattiuzzi v Padua College Limited - [2011] QDC 187

[2011] QDC 187

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2268 of 2005

MICHELE ANTONIO MATTIUZZI

Plaintiff

and

PADUA COLLEGE LIMITED ACN 072 693 700

and

SCOTT MAGUIRE

First Defendant

Second Defendant

BRISBANE

..DATE 11/08/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 381, r 389

Leave to proceed granted after delay exceeding 2 years since last step - claim had come on for trial in 2008 when the parties agreed that trial dates should be vacated and plaintiff should have leave to amend statement of claim to frame his claim in an alternative way based on assertions in the defence - main reason for delay appeared to be inaction by the plaintiff's former solicitor/s
HIS HONOUR: This is a plaintiff's application for leave to proceed with his claim after more than two years' delay. The application is made pursuant to Rule 389(2).

There has been some difference between the parties in identifying the last step. Curiously Mr Dawson, for the defendants/respondents who resist the application, suggests the last step was on 14th of November 2008 when disclosable documents along with some information about the plaintiff's changing his employment were sent by his solicitors to the defendants' solicitors.

Mr Wiltshire, for the plaintiff, took the approach that the last step was Judge McGill's order on 11th of June 2008 on what would have been day 2 of the trial which had been listed for the previous day when his Honour was available, but the parties were not wishing to have a trial. That order granted leave to amend the statement of claim in accordance with a document attached, vacated trial dates and struck out the request for trial date. The court hears from counsel, who happen to be those briefed on the trial, that those orders were made by consent.

There was a certain amount of correspondence between the parties in the following months but the plaintiff apparently lost his entitlement to amend pursuant to Rule 381 because nothing was done within the 14 days allowed. The correspondence between the parties, in the latter part of 2008, included "without prejudice" offers to settle, one from each side.

The proceeding went to sleep until the middle of March 2011 when new solicitors who had been engaged by the plaintiff the previous July communicated their involvement and sought consent to an order for leave to proceed. Future steps were proposed including the filing and serving of the amended statement of claim which retains the form it had in 2008, the obtaining of updated medical reports, the preparing and serving of an updated statement of loss and damage and the serving of a request for trial date.

Notice of change of solicitors was filed in the court on the 29th of April 2011. Doubtless, some trouble had to be taken by the plaintiff's new solicitors in obtaining the file from their predecessors. The court has been told from the Bar table that difficulties of a medical nature within Mrs Walker's family, she being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QDC 187
Decision Date: 11/08/2011

CaseChat Overview and Summary

In the District Court of Queensland, Michele Antonio Mattiuzzi sought leave to proceed with his personal injury claim against Padua College Limited and Scott Maguire after a significant delay. The underlying incident, which occurred in 2000, involved Mattiuzzi being struck by another student while swimming in a PE class at the college, allegedly due to the negligence of the teacher, Scott Maguire. The claim had been set for trial in 2008 but was vacated, allowing Mattiuzzi to amend his statement of claim. However, further delays ensued, leading to the present application for leave to proceed under Rule 389(2) of the Uniform Civil Procedure Rules.

The primary legal issue was whether the plaintiff's substantial delay in proceeding with his claim should be excused, allowing the case to continue. Factors considered included the length of time since the events in question, the prospects of success, and the impact of the delay on the defendants. The court also weighed the responsibility for the delay, whether it was attributable to the plaintiff or his former solicitors, and whether the defendants had suffered prejudice as a result.

After reviewing the evidence and submissions, the court concluded that the delay was primarily due to the inaction of the plaintiff's former solicitors. The court found that Mattiuzzi had good prospects of success and that the defendants were not prejudiced, as the evidence and witnesses remained available. The court determined that the delay, while significant, did not warrant striking out the claim. Instead, the court granted leave to proceed, emphasizing the need for the matter to be resolved expeditiously.

The court ordered that the case proceed with appropriate directions to ensure timely progress. The plaintiff's application for costs was denied, as the court considered the plaintiff to require indulgence rather than compensation for the delay.

Orders