McEnearney v Coggin - [2006] QDC 33

[2006] QDC 033

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 6067 of 2001

SUE-MAREE McENEARNEY	Plaintiff
and
SIMON COGGIN	Defendant

BRISBANE

..DATE 02/02/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 389 - plaintiff granted leave to proceed after delay, notwithstanding defendant's possibly being prejudiced by failing recall of conversations about 1998 regarding risks of orthodontic treatment - defendant's files still available.

HIS HONOUR: There are before the Court the now customary cross-applications whereby the plaintiff seeks leave to proceed after delay of more than two years under rule 389, and the defendant seeks the striking out of the claim for want of prosecution. The plaintiff's application came first, being filed on the 7th of December 2005. The leading case is the Court of Appeal decision in Tyler v Custom Credit Corporation Limited, [2000] QCA 178, in which the leading judgment, at paragraph [5] is as follows:

"The onus is on the applicant for striking out the plaintiff's action for want of prosecution to show that the matter should be struck out. On an application for leave to proceed, the applicant for leave must 'show that there is good reason for excepting the particular proceedings from the general prohibition' in a case in which three years have elapsed from the time when the last proceeding was taken. The rationale of the rule requiring leave to proceed after a long delay is to prevent abuse of process. The Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay."

The quote within a quote comes from a judgment delivered in relation to other rules and at a time when the benchmark for delay necessitating leave for a new step to be taken was three years - it is now reduced to two (which from one point of view shows the importance which is, in the modern era, attached to plaintiffs pursuing their claims diligently).

The consequences of delay for the unfortunate defendant should not be overlooked and Ms McClymont, in the course of her submissions, has drawn attention to what McPherson JA said in Cooper v Hopgood and Ganim, [1999] 2 Queensland Reports 113, at 124 in relation to the entitlement of people in the community to get on with their lives and "plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated."

Mr Coggin's difficulties are exacerbated by his being uninsured. The complaint made against him relates to a course of orthodontic treatment over a period in excess of a year leading up to the 8th of December 1999. The plaintiff instituted her claim on the 20th of December 2001, at a stage when she was still undergoing protracted further treatment which, from her point of view, was corrective treatment. The ultimate result was then unknown and, indeed, may still…

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: [2006] QDC 33
Decision Date: 02/02/2006

CaseChat Overview and Summary

In the District Court of Queensland, the case of McEnearney v Coggin involved a plaintiff seeking leave to proceed with her action after a significant delay. The plaintiff, Sue-Maree McEnearney, was pursuing a claim against the defendant, Simon Coggin, regarding alleged risks of orthodontic treatment that she underwent. The defendant's application for the claim to be struck out due to the plaintiff's delay was opposed by the plaintiff's application for leave to proceed despite the delay. The court had to consider the appropriate factors and balance the interests of both parties under the Uniform Civil Procedure Rules.

The legal issues the court had to decide were whether the plaintiff should be granted leave to proceed with her claim under rule 389 of the Uniform Civil Procedure Rules, despite the delay, and if the defendant's application to strike out the claim should be granted. The court had to weigh the delay against the potential prejudice to the defendant and the merits of the plaintiff's case. The court also had to consider the plaintiff's offer to prosecute the claim expeditiously if granted leave to proceed, and the defendant's concern about the impact of the delay on his ability to recall relevant information from conversations with the plaintiff.

The court, after careful consideration, concluded that the plaintiff should be granted leave to proceed despite the delay. The court found that the defendant's potential prejudice due to the delay was not sufficient to warrant the striking out of the claim. The court accepted the plaintiff's offer to prosecute the claim expeditiously and to comply with all relevant timelines and requests from the defendant. The court also considered the defendant's possession of his files, which mitigated the impact of the delay. Therefore, the court ordered that the plaintiff have leave to proceed under rule 389 and directed the plaintiff to file and serve a reply by a specified date. The court further ordered that the plaintiff pay the defendant's costs of the application. The defendant's application to strike out the claim was dismissed.

Orders