McKenzie v Honnery & Flinders

[2001] QSC 255

SUPREME COURT OF QUEENSLAND

REGISTRY:  TOWNSVILLE

NUMBER:     66 of 1995

[2001] QSC 255

Plaintiff:  PAUL MCKENZIE

and

First Defendant:                  GLENVILLE AND ELIZABETH HONNERY

and

Second Defendant:              COUNCIL OF SHIRE OF FLINDERS

DECISION -  CULLINANE J.

DELIVERED THE FIFTH DAY OF JUNE 2001

There are two applications before me in this matter. One is by the Defendant Council to strike out the action for want of prosecution and the other by the Plaintiff for leave to proceed under Rule 389 of the UCPR, no step having been taken for more than two years.

The Plaintiff sustained serious injuries in an incident which occurred at a water hole near Hughenden on the 11^th April 1992.  He has been rendered tetraplegic as a consequence.

The action was commenced on the day prior to the expiration of the limitation period. 

The steps taken in the action are set out in the affidavit of Mr Routh a solicitor having the conduct of the action for the Defendant:

Date	Steps taken
11.4.92	Date of accident
10.4.95	Writ of summons filed in the Townsville  Supreme Court
15.5.95	Appearance entered by second defendant
16.8.96	Statement of claim delivered
30.9.96	Defence of second defendant delivered
03.10.96	Defence of the third defendants delivered
09.12.96	Order made by Cullinane J that the Plaintiff be at liberty to substitute the respondents for the first defendants
11.5.98	Summons filed on behalf of the second defendants requesting the Plaintiff file and serve further and better particulars.
22.5.98	Order by Cullinane J that the Plaintiff file and serve further and better particulars
21.7.98	Plaintiff answers request for further and better particulars
28.10.00	First defendant files application for the Plaintiff’s claim to be dismissed for want of prosecution
06.10.00	The court orders the Plaintiff’s claim against the first defendant be struck out

To the above should be added the fact that there was an appeal from the order of the court made on 9^th December 1996.  The Court of Appeal dismissed the appeal.

As can be seen, the action is one in which very little has been done.  The last step which has been taken by the Plaintiff was on 21^st July 1998 when the Plaintiff in response to an order of the Court but outside of the time limited for compliance by that order provided further and better particulars.

The action has been struck out against the First Defendant.

Notice of intention to proceed was given on 5^th October 2000.  At this time it was foreshadowed that an application for leave to proceed would be made at the expiration of one month.  Notwithstanding that the Defendant’s solicitors in a letter of 17^th October 2000 pointed out the need for this to be done it was not done until 27^th April 2001.

At the time that the Defendant made the application to strike the action out, the Plaintiff had not provided a statement of loss and damage or a list of documents. 

The application to dismiss was made on 10^th April 2001 and was followed by the Plaintiff’s application on 27^th April 2001.

A statement of loss and damage was sent to the Defendant’s solicitors on 28^th April 2001 and a list of documents on 26^th April 2001. 

These of course are not steps in the action as no leave had been obtained under Rule 289.

Where application for leave under Rule 389 is sought, it is necessary for the Applicant to demonstrate that there is good reason why the action should be permitted to proceed, that is that the matter should be exempted from the consequences which flow from the operation of that Rule.

The exercise of the Court’s discretion in a case of this kind involves the balancing of a number of considerations.

A number of the considerations which might arise on such an application were listed by Atkinson J in Tyler v Custom Credit Corporation Limited  (CA QLD) Appeal Number 9466 of 1999, 19 May 2000 unreported).  These are:

1. “How long ago the events alleged in the statement of claim occurred 2 and what delay     there was before the litigation was commenced;

2. How long ago the litigation was commenced or causes of action were added;

3. What prospects the Plaintiff has of success in the action;

4. Whether or not there has been disobedience of Court orders or directions;

5. Whether or not the litigation has been characterised by periods of delay;

6. Whether the delay is attributable to the Plaintiff, the Defendant or both the plaintiff and the defendant;

7. Whether or not the impecuniosity of the plaintiff has been responsible  for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecunionsity;

8. Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;

9. How far the litigation has progressed;

(10) Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory.  Such dilatoriness will not necessarily be sheeted home to the client but it may be.Delay for which the applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;

(11) Whether there is a satisfactory explanation for the delay;  and

(12) Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial".

This list is not of course intended to be an exhaustive statement of the considerations and there may in the circumstances of a particular case exist other factors which are relevant to the exercise of the discretion.

As I have said, the delays in the present case have been substantial with nothing having been done since July 1998 prior to the  steps which the Plaintiff has purported to take recently. 

Although it is possible to find cases in which there have been greater delays and leave to proceed has been given, I think that standing alone, the statement of the history of the matter
would militate substantially in favour of refusing leave.  There should be added to the delays the failure to respond to the correspondence forwarded by the solicitors for the Defendant and the failure to take any steps to obtain leave prior to the application of April this year (after the application to strike out was made) notwithstanding the fact that the attention of the solicitors for the Plaintiff was drawn to the need to make such application.

There are however it seems to me, some features of the Plaintiff’s situation which I think must bear significantly on the exercise of the discretion.  He is, I am told, a tetraplegic.  He lives in Hughenden, a town in north west Queensland.  He is bed-ridden and according to an affidavit of his solicitor, “resides in a government supplied house” presumably with a carer.  His solicitor deposes to his being impecunious.

The Plaintiff’s solicitor, who practices in Charters Towers, swears that it is extremely difficult to obtain instructions in the matter as to his injuries and generally because “of his situation”.

There are three affidavits by the Plaintiff’s solicitor.  In one of the affidavits, while referring to the difficulty which the Plaintiff has in arranging transport out of Hughenden he refers to  an occasion on which the Plaintiff  travelled  to Townsville in the back of a utility, lying on a mattress.  This, I think I can safely conclude, is neither a safe nor advisable means of transporting such a seriously injured person over a significant distance.

In another affidavit the solicitor deposes in somewhat greater detail as to the Plaintiff’s problems with transport.  It is said that the Plaintiff cannot travel unless special arrangements are made with the Royal Flying Doctor Service and this can only be done when his condition gives rise to a medical emergency.  This service cannot be used for legal reasons.

It is also said that because the Plaintiff is impecunious and since no specialists are prepared to travel to Hughenden “on a speculative basis” to consult with the Plaintiff he has, according to the solicitor, “been in effect, abandoned by the system".

The evidence as to the Plaintiff’s condition and the restrictions on his capacity to travel are unchallenged, as is the evidence of his inability to arrange for prospective witnesses to travel to him.

The Plaintiff has been awaiting a further operation on his hip.  This has to take place in Brisbane and  has now been arranged.  The Plaintiff is currently in Brisbane for the purposes of that operation and I was informed that he will be there for approximately three months.  The solicitor for the Plaintiff has made arrangements for him to see a number of medical specialists as well as an occupational therapist and an architect for the purposes of obtaining reports to enable the matter to proceed.  Also, arrangements have been made for him to see Professor James, a psychiatrist who is based in Townsville, but it is not clear where that is to take place.

The presence in Brisbane of the Plaintiff has provided an opportunity which, if the Plaintiff’s solicitor’s evidence is to be accepted, has not been possible prior to this and would not have been possible but for that operation.

No explanation is offered as to why the list of documents and the statement of loss and damage had not been provided earlier apart from the general reference that I have referred to in the affidavit of the solicitor for the Plaintiff in which he refers to difficulties associated with obtaining instructions. 

In the main, I understand that the specialists who will see the Plaintiff again are those who were involved in his treatment whilst in Brisbane after the accident and whilst he was an in-patient at the spinal unit.  Evidence of the Plaintiff’s present condition, his future needs and disabilities, it can be accepted, is necessary to enable the action to be properly conducted.

The Plaintiff’s difficulties, whilst they provide an explanation for his inability to progress the matter in terms of obtaining the necessary reports, do not provide an explanation for the delays in other respects.  There is no explanation for the failure to provide the statement of loss and damage or the list of documents or the taking of other steps apart from undergoing the necessary examinations and obtaining reports.  I have mentioned the reference in the affidavit of the solicitors for the Plaintiff to the difficulties associated with the Plaintiff’s condition.  This however cannot provide an explanation for a failure to take such steps over such a long period.  It is not possible to reach any conclusion as to whether the solicitor or the Plaintiff, or both, were responsible for the delays in these respects but I proceed upon the basis that there is no adequate explanation for them.

The cause of action against the Defendant is based upon the claim that the Defendant was responsible for maintaining access to the waterhole and facilities at the site.  The incident is alleged to have occurred when the Plaintiff, whilst swinging on a rope which was attached to a tree overhanging the waterhole, lost his grip because of the wet or muddy condition of the rope and was propelled into a steep bank of the creek.

The particulars provided arguably go beyond what appears in the statement of claim and  it may be necessary for the Plaintiff to seek leave to amend.  It is for present purposes, assumed that no difficulty will confront the Plaintiff in advancing the claim upon the basis made in the particulars.

According to an affidavit of the solicitor acting on behalf of the Defendant the Defendant at no time maintained the road into the waterhole and I would infer had nothing to do with the facilities at the waterhole.  On the other hand there is an affidavit from the solicitor for the Plaintiff that the Plaintiff holds statements from a number of witnesses in support of the allegations and particulars as to the maintenance of the waterhole and the facilities there by the Defendant Council.

To the extent that it is necessary to form an impression about the Plaintiff’s prospects of success, the action is certainly not a clear cut or straight forward one but on the other hand, I do not think it would be proper to proceed upon the basis that the Plaintiff’s prospects of success are remote or negligible.

Whilst it may be accepted that lengthy delays in the prosecution of an action will always result in some diminished opportunity to litigate the matter satisfactorily, the Defendant here does not suggest (except in one respect) that it has in any way been prejudiced by the delays and this I think must also be a matter of significance in a case of this kind.  Indeed it would appear that the Defendant regards itself as being in a position to mount a defence which will demonstrate that it did not maintain access to the waterhole and has no responsibility for anything there or that might have occurred there.

The Defendant advanced an argument that it was or may be prejudiced by the dismissal of the First Defendants from the action which it was said, had deprived the Second Defendant of any opportunity to take third party proceedings against the First Defendants. It is not clear why the dismissal brought this about. In any case, a claim for contribution against a tortfeasor would by virtue of s.40 of the Limitation of Actions Act 1974 as amended have been statute barred prior to the dismissal of the First Defendants from the action. The Defendant Council had made no attempt to raise such a claim prior to that occurring.

Whilst there have been undoubtedly been very substantial delays and no excuse can be offered for some of these, the particular circumstances of the Plaintiff and the severe disadvantages that these have imposed upon his ability to take what I would regard as important steps in the preparation and the progress of his case are, I think, weighty matters.
His situation is very different from that of a person having similar injuries who lives in a city or within reasonable travelling distance of a city.  I think that taking these factors into account and the absence of any prejudice, together with the fact that the Plaintiff is now somewhat fortuitously in a position to take these steps and is prepared to undergo at the same time any medical examination which the Defendants would want to have carried out, I am persuaded that the appropriate course to take in this case is to grant the Plaintiff leave to proceed.

The Defendant’s application that the action be dismissed for want of prosecution is dismissed.  I reserve the costs of the application to the trial judge.

I grant the Plaintiff liberty to proceed notwithstanding that no step has been taken in the action for more than two years.  I order the Plaintiff to pay the Defendant’s costs of and incidental to the application for leave to proceed.