Pickering v McArthur (No 2)
[2010] QDC 90
•19 March 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Pickering v McArthur (No 2) [2010] QDC 90
PARTIES:
CARLYLE PICKERING
Plaintiff
AND
JOHN McARTHUR
Defendant
SHEENAH TURNBULL
Plaintiff
AND
JOHN McARTHUR
Defendant
MAILY PICKERING
Plaintiff
AND
JOHN McARTHUR
Defendant
FILE NO/S:
D1533/01, D1882/01, D1938/01
DIVISION:
PROCEEDING:
Applications
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
19 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
10 November 2009
JUDGE:
McGill DCJ
ORDER:
In each matter, the plaintiff’s application is dismissed with costs; on the defendant’s application, the action is dismissed for want of prosecution, with costs including costs of the application.
CATCHWORDS:
PRACTICE – Leave to Proceed – whether delay of two years since last step – whether step in the proceeding
PRACTICE – Leave to Proceed – relevant circumstances – significance of quantum if action successful – whether leave appropriate
PRACTICE – Want of Prosecution – whether appropriate to dismiss proceeding – circumstances relevant
Supreme Court of Queensland Act 1991 s 85
UCPR r 389(2)
Arc Holdings Pty Ltd v Riana Pty Ltd [2008] QSC 191 – cited.
Bazley v State of Queensland [2001] QSC 476 – cited.
Citicorp Australia Ltd v Metropolitan Public Abbatoir Board [1992] 1 Qd R 592 – considered.
Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420 – cited.
Cooper v Hopgood and Ganim [1999] 2 Qd R 113 – applied.
Dempsey v Dorber [1990] 1 Qd R. 418 – cited.
Kaats v Caelers [1966] Qd R 482 – applied.
Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd [2008] QSC 317 – cited.
Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444 – considered.
Quinlan v Rothwell [2001] QCA 176 – applied.
Robson v Rev Engineering Pty Ltd [1997] 2 Qd R 102 – applied.
Smiley v Watson [2002] 1 Qd R 560 – applied.
Tyler v Custom Credit Corporation Ltd [2000] QCA 178 – applied.
William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 – cited.
Wright v Ansett Transport Industries Ltd [1990] 1 Qd R 297 – cited.COUNSEL:
M. Grant-Taylor SC and C.C. Hayworth-Smith for the plaintiffs
A.P.J. Collins for the defendant
SOLICITORS:
Maurice Blackburn Lawyers for the plaintiffs
HWL Ebsworth Lawyers for the defendant
In these three matters there are cross‑applications, by the respective plaintiffs for leave to proceed under r 389(2), and by the defendant, who is the same defendant in each of the three actions, to dismiss the action for want of prosecution. The six applications were heard together, with the same counsel appearing for each plaintiff, and for the defendant in each matter.
I have had some involvement in these and related proceedings in the past, and in the circumstances I should say that it was fortuitous that these applications came to be heard by me. They were set down for hearing in a week when another judge was listed to hear applications, but that judge had been presiding in a criminal trial which continued into that week, and on the previous Friday the Chief Judge asked me to take over the applications list until his jury retired to deliberate. That situation was not reached until after I had embarked on the hearing of these applications on 10 November.
Preliminary matter – a step in the action
In D1938/01 it was submitted on behalf of the plaintiff that in fact no leave to proceed under the rules was necessary because two years had not passed since the last step in the action. The relevant chronology is as follows:[1]
[1]Affidavit of Neil filed by leave 10 November 2009; affidavit of Neil filed 15 October 2009 para 64; copy letter tendered during hearing.
Date Action 28 October 2008 Defendant’s solicitors provided plaintiff’s solicitors with copies of notices of non-party disclosure said to have been served. 18 May 2009 Plaintiff’s solicitors provided defendant’s solicitors with copies of plaintiff’s 2007 and 2008 tax returns and notices of assessment. 23 June 2009 Plaintiff’s solicitors provided defendant’s solicitors with a copy of the report of psychiatrist Dr Quadrio dated 16 June 2009. 29 July 2009 Letter defendant’s solicitors to plaintiff’s solicitors claiming that more than 3½ years had elapsed since the last step, and advising that the defendant did not waive the requirement to obtain leave to proceed under r 389. 18 August 2009 Plaintiff’s application for leave to proceed filed.
The plaintiff submitted that there had been two earlier steps within the two year period: first, the letter of 18 May 2009 disclosing the tax returns and notices of assessment; second, the provision on 28 October 2008 by way of further disclosure of copies of notices of non‑party disclosure which had previously been filed and served by the defendant’s solicitors.[2] No objection was taken to either step.
[2]It does not matter by which party that last step was taken: filing and serving the notices was not a step: Smiley v Watson [2002] 1 Qd R 560.
In response it was submitted that neither what was done by the defendant’s solicitors nor what was done by the plaintiff’s solicitors amounted to a step in the proceeding for the purposes of r 389, so that the two-year period had expired prior to 23 June 2009.[3] In the alternative, it was submitted that if the further disclosure by the plaintiff did amount to a step in the action, it was also irregular on the basis that two years had elapsed since the previous step, and the objection in July 2009 stood as an objection to that step as well, so that the irregularity involved in that step was also not waived.
[3]The matter proceeded before me on the basis that that was correct if neither was a step, so I have assumed that that was so.
The term “step” in r 389(2) is not defined in the UCPR. This rule is similar to the former O 90 r 9 of the Rules of the Supreme Court, although that rule used the term “proceeding” instead of the term “step”. I have already expressed elsewhere the view, to which I adhere, that the change in terminology in the new rule was not intended to effect a change in meaning.[4] I note that courts including the Court of Appeal have referred generally to authorities on the term “proceeding” in determining whether something is a “step” for the purposes of r 389, and consider that that approach is appropriate.
[4]Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420.
In Kaats v Caelers [1966] Qd R 482 Stable J, with whom Mack CJ agreed, said that a proceeding was “something in the nature of a formal step, at least a step taken by the litigant in the prosecution of the action, being a step required by the rules”: p 499. Part of this passage was cited with apparent approval by McPherson SPJ, with whom the other members of the court agreed, in Citicorp Australia Ltd v Metropolitan Public Abbatoir Board [1992] 1 Qd R 592 at 594, although his Honour did not make express reference to the requirement that the step be one required under the rules. Nevertheless, his Honour in that matter went on to analyse the question of whether the inspection of discovered documents was a step in the action by reference to whether it was a step required by the rules, and concluded that it was production for inspection rather than inspection which was the proceeding because it was the former that was required by the rules.[5]
[5]See also Smiley v Watson [2002] 1 Qd R 560 at [12] per Williams JA.
Turning to the rules on disclosure in Chapter 7 of the UCPR, the obligation is to disclose documents in the possession or under the control of a party directly relevant to an allegation in issue in the pleadings: r 211(1). The duty is performed by delivering a list of documents and at a party’s request delivering copies of the documents mentioned in the list under r 214(1), or by producing the documents for inspection under r 216. Rule 214(2) provides the times for the delivery of lists of documents and copies of documents requested; relevantly, if a document first comes into the possession or control of a party after one of the ordinary times for making disclosure, within seven days after that occurs: r 214(2)(e). It can be seen therefore that the rules do not provide for disclosure of documents simply by delivering copies; the obligation is to deliver a list of documents, and copies need be provided only upon request. There was no evidence of any request here.
On the other hand, if there is an obligation to disclose a document and a copy of the document is provided directly then the document has been disclosed, albeit not in the way provided by r 214 or r 216. In such circumstances, there was an obligation created by the rules which has been performed other than in accordance with the rules, which is an irregularity: r 371(1). Such an irregularity does not render the step taken a nullity. It is a matter for the other party to object to the irregularity, otherwise the irregularity is taken to have been waived: Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444 at 452. No doubt in practice it is commonplace for documents which come into the possession of a party after disclosure has been provided to be disclosed in this informal way, particularly it the case of documents where it can reasonably be anticipated that the other party is likely to want a copy anyway. Accordingly the fact that any duty of disclosure was performed by providing copies of the documents rather than providing a list is not in my view a matter of any consequence.[6] The real issue is whether the documents were required to be disclosed under the rules.
[6]Wright v Ansett Transport Industries Ltd [1990] 1 Qd R 297 at 298.
Two sets of documents were relied on: first, the plaintiff’s tax returns, and notices of assessment, copies of which were provided on 18 May 2009. In relation to these, one would expect that such documents would be relevant only to the assessment of quantum; the contrary was not argued on behalf of the plaintiff. Rule 221 provides that a party may disclose to another party a document relating only to damages only if the other party asks for its disclosure. Assuming that the tax returns and notices of assessment are documents directly relevant to an allegation in issue in the pleadings, it is not apparent that they would be relevant to an allegation other than as to damages, and no basis for any such relevance was established on behalf of the plaintiff. Nor was there any evidence of the defendant’s having asked for the disclosure of these documents. Accordingly it seems to me that the effect of r 221 is that there was no obligation on the plaintiff to disclose the documents, and their disclosure was therefore not a step required by the rules.
Apart from this, it is difficult to see how the mere disclosure of a tax return and a notice of assessment satisfies the other requirement of the test of a step in the action, namely that it progress the action towards a conclusion. The fact that there is another tax return and notice of assessment to be disclosed is simply a consequence of the passage of time, a consequence of the delay rather than something which tends to counter it. A plaintiff who does nothing except, each year, provide copies of a tax return and notice of assessment for that year could not be said to be doing anything which in any practical sense carried the action towards a conclusion.[7] I doubt therefore whether, even if there were an obligation under the rules to provide copies of these documents, the provision of copies could be seen as a step in the action. But since there was no obligation under the rules to disclose the documents (or at least the material before me does not establish that there was any such obligation), the provision of such copies was not a step in the action so as to defeat the argument that no step has been taken for two years.
[7]Citicorp Australia Ltd v Metropolitan Public Abbatoir Board [1992] 1 Qd R 592.
With regard to the copies of notices of non-party disclosure, there is nothing in Part 2 of Chapter 7, the rules relating to non-party disclosure, which requires a copy of the notice to be served on the other party to the proceeding.[8] Traditionally documents generated in the course of the proceeding, including something of this nature, have been disclosed or discovered, though that may be because such documents were subject to discovery under the former rules of court. The UCPR follows the amended disclosure rules introduced on 1 May 1994 to the Rules of the Supreme Court. Under the rules in force prior to that change, the obligation was to discover documents “relating to any matters in question in the action”.
[8]Rule 244(1)(a) excludes a party from the scope of application of that provision.
Under the former rules, the traditional approach was that any document which may, not must, either directly or indirectly enable a party to either advance his own case or damage the case of his adversary was subject to discovery; it was sometimes described as a train of inquiry test, on the basis that the document was subject to discovery if it may lead to a train of inquiry which may in turn enable the other party to advance his case or damage his opponent’s case. This was also known as the Peruvian Guano test.[9] Under that test copies of notices of third party disclosure would have been subject to discovery.
[9]This is a reference to the English case, Compagine Financiere et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55, perhaps a case of “give a dog a bad name”.
The test, however, is now different; the expression now in r 211(1) appeared in O 35 r 4(1) after 1994, and was said by Demack J in Robson v Rev Engineering Pty Ltd [1997] 2 Qd R 102 at 105 to require disclosure of something which tends to prove or disprove an allegation in issue, though it may do so by constituting circumstantial evidence as well as direct evidence. I do not know that this test has been directly approved by the Court of Appeal,[10] but it has been routinely applied in relation to the obligation under r 211.[11] Plainly notices of non-party disclosure would not satisfy the “directly relevant” test. There was therefore no obligation to disclose the copies of the notices of non-party disclosure, and therefore providing copies of them to the solicitors for the plaintiff was not a step in the proceeding.
[10]That Peruvian Guano has gone was confirmed in Mercantile Mutual Custodians Pty Ltd v Village Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276 at [7] per Pincus JA.
[11]See for example Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd [2008] QSC 317 at [43] per Daubney J.
It follows that neither of the matters that are relied on by the plaintiff as rendering this application unnecessary were actually steps in the proceeding, so that it is strictly unnecessary for me to decide the alternative argument for the defendant, that the irregularity of the earlier step by the plaintiff had not been waived by failing to object promptly to it, so that it was not, as submitted by the plaintiff, now too late to take that objection.
The difficulty with the plaintiff’s argument is that it is based on the proposition that the waiver arises in this case by inactivity alone, and inactivity extending over a period of about two months; the first thing that the defendant’s solicitor did after the copies of the material were provided on 18 May 2009 was write the letter in late July objecting that more than two years had elapsed since the last step and saying that the plaintiff required leave to proceed. Ordinarily mere inactivity is not regarded as waiving a right to object to something, though it may well be that persisted inactivity could be seen as impliedly waiving the right to object.
That was the approach in Perez (supra), but the reasoning there was based on the terms of O 93 of the then rules, which expressly provided in r 18 that “an application to set aside for irregularity … any step taken in any proceedings … shall not be allowed unless it is made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.” There is, however, no equivalent in the UCPR to O 93 r 18. Ordinary principles of waiver would probably produce the effect that taking a step with knowledge of the irregularity, or even simply proceeding with the action with knowledge of the irregularity even if what was done did not amount to the taking of a “step” for the purpose of r 389, would amount to a waiver of an irregularity, but I think it is more difficult to characterise mere inactivity as such a waiver.[12]
[12]See eg Commonwealth v Verwagen (1990) 170 CLR 394 at 407 per Mason CJ.
It is an unattractive argument, from a party who has delayed for over two years, to say that the other party cannot object to that delay because it delayed for about two months before raising the objection. I do not think it is necessary for me to make a precautionary finding in relation to this matter; if the point becomes important later, the Court of Appeal will be in just as good a position as I am to make a finding. It follows from my earlier reasons that the preliminary issue, as to whether leave to proceed is required under r 389 in D 1938/01, is resolved in favour of the defendant.
History of proceeding – D1533/01
It is relevant in each of these matters to consider the history of the proceeding, and there is I think sufficient difference between them to make it appropriate to consider each separately. I will deal with them in the order in which they were commenced. By a claim and statement of claim filed 30 March 2001 Carlyle Pickering claimed damages and interest because he developed a generalised anxiety disorder, as a result of counselling alleged to have been negligently provided to him by the defendant in the course of massage therapy provided by the defendant to the plaintiff between about late 1996 and 1999.[13] A notice of intention to defend and defence were filed on 8 May 2001, and a reply filed on 28 May. Further particulars were sought by the defendant on 2 November 2001 and provided by the plaintiff on 17 December 2002.
[13]The history of the proceeding is set out generally in the Affidavit of Neil filed 15 October 2009 paras 9-66.
The plaintiff served a list of documents on 26 June 2003[14] and a statement of loss and damage on 14 November 2003.[15] The total amount claimed was $137,180.72. An amended claim and statement of claim were filed on 17 December 2003, and the following day the plaintiff applied for an order that the defendant provide a list of three psychiatrists from which the plaintiff could choose a psychiatrist by whom to be examined on behalf of the defendant. A cross‑application by the defendant sought a stay of the action until the plaintiff was examined by a particular psychiatrist. On 16 January 2004, another judge ordered that the plaintiff’s action be stayed until he had attended on a particular psychiatrist for the purposes of an examination for a report. The affidavit does not say whether that happened, but presumably it did[16] because there have been things done in the action since then.
[14]This was due 28 days after the close of pleadings (r 214(2)(c)) so it was 2 years and 1 day late. The only documents disclosed (apart from those for which privilege was claimed) were seven reports of experts, two documents provided to three of the experts, court documents and correspondence between solicitors, so it should not have been hard to prepare.
[15]This was also due 28 days after the close of pleadings (r 547(1)) so it was 2 years 4 months 19 days late. For reasons set out below, it was woefully inadequate.
[16]The report of Dr Quadrio, Exhibit LAN1 to the affidavit of Neil, refers to a report by Dr Redden dated April 2004. The summary indicates that Dr Redden was of the opinion that the plaintiff’s psychiatrist state was caused by his spinal condition, so I infer that this report was the result of that examination.
In April 2004 an application to have the amended statement of claim struck out was filed by the defendant. On 11 May 2004 I struck out part of the statement of claim and ordered that unless a further amended statement of claim was filed within 14 days, the action be struck out; however, a further amended statement of claim was filed. A further application by the defendant to strike out that statement of claim was heard on 11 June 2004, again by me, and on 20 April 2005, I struck out part of one paragraph of the statement of claim and gave leave to make further amendments but otherwise dismissed the defendant’s application: [2005] QDC 81. The pleading was tidied up by a further amended statement of claim filed on 18 May 2005. An application by the defendant for leave to appeal from my order was dismissed by the Court of Appeal on 16 August 2005: [2005] QCA 294.
On 23 November 2005 a defence to the further further amended statement of claim was filed, and a reply to that defence was filed on 7 December 2005. The defendant sought particulars of the statement of claim in January 2006, which were provided (expeditiously) on 8 February 2006. From May 2006 there was some discussion about the possibility of mediation; this continued until July 2006, when the idea of mediation was abandoned.[17] On 3 August 2006 the plaintiff’s solicitors sent a draft statement of loss and damage to the plaintiff for perusal and updating; additional information was provided by the plaintiff up to 7 January 2007. The revised statement was sent to the plaintiff on 9 January 2007, but it took him until 5 April 2007 to sign it, after a number of reminders from his solicitors.[18] The statement was served on the defendant’s solicitors on 16 April 2007. The total amount claimed had grown to $167,960.86.
[17]The defendant refused to mediate because of related criminal proceedings brought against him: Affidavit of McArthur filed 10 November 2009, para 36(q).
[18]Affidavit of plaintiff filed 15 October 2009 paras 14-17.
Prior to this, however, on 8 March 2007 the solicitors received instructions from the plaintiff to request a trial date, and the following day a request for trial date was forwarded to the solicitors for the defendant.[19] On 23 March 2007 the defendant’s solicitors advised that they were not prepared to sign a request for trial date until the conclusion of criminal proceedings brought against the defendant in respect of matters raised in the statements of claim of the other two plaintiffs.
[19]Even though the solicitors for the plaintiff had prepared the updated statement of loss and damage, and were just waiting for the plaintiff to sign and return it.
Two indictments against the defendant were presented in the District Court during 2007, and on 25 June 2007, after a further indictment was presented incorporating the same charges and those two indictments were nolleed, the defendant pleaded not guilty to each of the charges and a jury was empanelled.[20] The Crown prosecutor opened evidence from each of the other two plaintiffs, who were the complainants, and that Carlyle Pickering would be called as a preliminary complaint witness. The plaintiff, Ms Turnbull, gave evidence and was cross‑examined. The following day, while Ms Turnbull was under cross‑examination, the Crown prosecutor decided to nolle the indictment in respect of the charges involving her and as a result to seek the discharge of the jury.[21] Later that same day, the Crown prosecutor also decided not to proceed further with the charges involving the other plaintiff, and the jury was discharged.[22] After 26 June 2007, therefore, there was no criminal proceeding to be an obstacle to carrying forward the civil proceeding.
[20]A copy of the transcript of the trial is Exhibit AFS1 to the affidavit of Scott filed 10 November 2009 by leave.
[21]Ibid p 105.
[22]Ibid p 112.
In any event, in the context of this application any delay due to the criminal trial is not of great significance, in view of the defendant’s understandable attitude that if there were going to be criminal proceedings brought against him they should be dealt with first. What is of importance is the delay after that time, although it is notable that there is no evidence that anything useful was done to prepare the plaintiff’s action for trial after the abandonment of the proposed mediation in July 2006, indeed after particulars were provided in February 2006, apart from updating the statement of loss and damage, which as discussed below, was almost trivial and provided in response to a request for updating from the defendant’s solicitors.[23]
[23]By their letter of 19 July 2006: affidavit of Neil Exhibit LAN11.
The plaintiff’s solicitors deposed to there being unsuccessful negotiations to settle the plaintiff’s claim between the solicitors in July and August 2007.[24] I am not persuaded that anything the defendant’s solicitor did or said at this time provided any justification for failing to ready the matter for trial. The solicitor for the plaintiff spoke to a psychiatrist on 22 October 2007 in relation to the plaintiff’s claim, and the plaintiff had a conference with his solicitors and counsel on 21 February 2008. In April 2008 a different solicitor took over carriage of the matter and “commenced preparations to brief counsel to provide an advice on evidence in respect of the … matter”.[25] In approximately December 2008 the plaintiff advised that he would attend a particular psychiatrist to obtain a further psychiatric report.
[24]Affidavit of Neil para 56; she was not the solicitor handling the matter at this time.
[25]Affidavit of Neil para 58. There is no evidence the brief was prepared or delivered.
The plaintiff’s solicitor said that in December 2008 further unsuccessful attempts to negotiate a settlement between the parties took place; this was specifically disputed by the solicitors for the defendant,[26] and ultimately counsel for the plaintiff did not allege other than that in December 2008 there was an attempt made by the solicitor for the plaintiff to investigate the possibility of settlement negotiations, but the matter went nowhere. In about January 2009 the plaintiff advised that he wanted to be seen by the psychiatrist in Brisbane, and arrangements were made for the psychiatrist to fly to Brisbane, where the plaintiff saw her on 12 March 2009; a report from the psychiatrist was received by the solicitor on 22 June 2009, and a copy was sent to the solicitors for the defendant the following day.
[26]Affidavit of Tolhurst filed 10 November 2009.
The plaintiff’s solicitor deposed that after receiving this report “I commenced preparations to brief counsel with respect to obtaining their advices on prospects, quantum and evidence, as well as how long trial will take and costs. In effect, I have been actively working towards moving the plaintiff’s action to trial.” Apart from arranging for the further report from the psychiatrist,[27] and forwarding a copy when it was obtained to the defendant’s solicitors, it is not apparent that the plaintiff’s solicitor did anything by way of “actively working” in the period between April 2008 and October 2009. I infer from paragraph 66 of the affidavit that counsel was not in fact briefed to advise on evidence, nor was a brief to counsel for that purpose prepared, despite the commencement of preparations in April 2008, and there is no evidence that anything else of value in carrying the action forward was undertaken on behalf of the plaintiff during that period. The initiative to obtain the further report from the psychiatrist appears to have come from the plaintiff. At no time after the conclusion of the criminal proceeding was a request for trial date signed and forwarded to the solicitors for the defendant, nor were those solicitors asked to sign and return the one that had been forwarded in March 2007.
[27]Which said essentially that there was no change in the plaintiff’s psychiatric condition, although his physical problems had been greatly exacerbated by a stroke in about 2006: p 8.
The report of the psychiatrist dated 16 June 2009 was exhibited to the affidavit.[28] The psychiatrist diagnosed a mixed depressive and anxiety condition, perhaps best described as chronic depression. She described the plaintiff as intensely preoccupied with his issues with the defendant, at a level that might be described as obsessive rumination. The report noted that the plaintiff feels especially angry about what the defendant did to his daughter and also to his relationship with her, that is the plaintiff’s relationship with his daughter; he complained that at the time of their involvement with the defendant the daughter became hostile towards him and alien to him.[29]
[28]Affidavit of Neil filed 15 October 2009 Exhibit LAN1.
[29]This is not a matter complained of in the current statement of claim.
The report revealed that the plaintiff has had numerous significant problems apart from any difficulty with the defendant. In view of this, bearing in mind that there is no claim for economic loss, on the basis of this report any award of damages would be relatively modest. The report noted that the plaintiff does not have much energy (p 4) and that he presents as humourless and intense with a grim and brooding quality, withdrawn interpersonally and with a pervasive sense of pessimism: p 7. Reference was also made to his despairing attitude, and his ongoing depression, despair and bitterness: p 9. Both the plaintiff in his affidavit[30] and Ms Neil in her affidavit speak of his symptoms as including a reduced capacity to concentrate and ongoing indecisiveness, but I cannot find reference to either of these matters in the psychiatrist’s report.[31]
[30]Filed 15 October 2009.
[31]The report said at p 4 that he is less focussed on work and not as effective as he used to be, I take it at work, but said at p 8 that the defendant and this legal process have become the central focus of his pre-occupation.
The plaintiff in his affidavit said that his diminished ability to think and concentrate have made it very difficult to gather and produce the information required in order to progress the claim.[32] He also complained about suffering distress from having to relive his experiences with the defendant for the purpose of gathering information required by the solicitors, and that this provoked intense feelings of guilt over having introduced his daughter to the defendant. He said that as a result he has often been unable to respond to requests for information from the solicitors as promptly as he could have but for this condition. It is difficult to reconcile what was said in this affidavit with the psychiatrist’s statement that he is intensely preoccupied with his dispute with the defendant. However, the plaintiff was not cross‑examined on his affidavit.
[32]Affidavit of Pickering filed 15 October 2009 para 6.
In any case, the only occasion when it appears from the material that there was any real delay on the part of the plaintiff in providing information was the delay between August 2006 when the solicitor sought information about updating the statement of loss and damage and January 2007 which is the last of the three dates on which it was said information was provided. That was a period of five months, during which the statement shows that not much information was gathered, and it was a long time for a plaintiff to gather information for a statement of loss and damage. As well, it took the plaintiff over three months to sign and return the statement of loss and damage after it was finalised and provided to him for signature. There is nothing to suggest that any part of the subsequent delay was attributable to any difficulty in obtaining instructions from the plaintiff. There is no evidence that at any time after June 2007 the plaintiff’s solicitors were awaiting instructions or further information from the plaintiff.
Statements of loss and damage – D1533/01
The statements of loss and damage[33] are curious documents, and both are quite inadequate. In each under the heading “medical expenses” an amount paid by the plaintiff is said to be set out in Schedule D, but none of the material in Schedule D relates to medical expenses. In the earlier Schedule D what was claimed was 18 months of cleaning expenses at $20 a month, massage expenses related to the condition in both shoulders for a period of three years and garden maintenance, producing a total of $8,240 said to be up to date to September 2003. The more recent Schedule D includes a claim for physiotherapy, a claim for a massage therapist,[34] and a claim for reimbursement for lost wages for the former de facto referred to in the statement of claim, though the major amount claimed is said to be paid to “Home Instead Senior Care” for “personal care”. There is no allegation in the current pleading that as a result of the plaintiff’s psychological injury, the only injury relied on in the pleading, the plaintiff has been unable to care for himself.
[33]Affidavit of Neil filed 15 October 2009 Exhibits LAN5, LAN12.
[34]There is no evidence that physiotherapy, or for that matter massage therapy, is a useful treatment for his psychiatric condition.
The explanation may be found in the report of the psychiatrist, which said that the plaintiff had a stroke three years ago which led to some months' hospitalisation, problems with coordination of the right hand and difficulty in speaking and eating. He spent two months in rehabilitation, although the report stated that mostly he can cope with self-care at present. The report also referred to an accident to his shoulders. The report also stated that “evidently his physical problems and his disabilities are major and the recent stroke has greatly exacerbated them.” Obviously he had significant medical problems even apart from the stroke. In these circumstances it seems that most if not all of the matters referred to in Schedule D relate to things which are not the subject of the claim. On the other hand, there does not seem to be anything identified which obviously is related to the matters the subject of the claim.
Travel expenses are claimed in each document by reference to Schedule A. In the earlier document this included visits to Dr Mina, identified as a general practitioner in the second document; Dr Walters, an orthopaedic surgeon; Dr Fairburn, another orthopaedic surgeon; Dr Duke, yet another orthopaedic surgeon; the Mater Private Hospital; the Holy Spirit Hospital; Ellen Lake, a physiotherapist; Mary Mitchell, a physiotherapist; and Greg Madden. Mr Madden is not otherwise mentioned in the statement of loss and damage, which seems curious since one would expect that if the cost of travelling to see him was recoverable then the cost of the treatment received would also have been recoverable. On the face of it, so far as I can tell, all of this was concerned with physical problems rather than any psychiatric injuries. Curiously Schedule A in the second document does not include any of these claims, but includes a number of visits to Renee Jansen, the massage therapist; visits to “Body Mechanics”, physiotherapist; some visits to the Greenslopes Hospital outpatients department; and to the GP.
There was no reference to any documents about out of pocket expenses, or indeed any documents at all relating to the plaintiff’s injury, loss or treatment apart from a string of medical reports. The 2007 statement revealed that at that time no additional reports had been obtained from the time of the 2003 statement, and indeed one medical report listed in the 2003 statement was omitted from the later statement. This report was identified as “Dr B. Lawbond dated 21 December 1998”, possibly a reference to the report of “Dr Bruce Lawford November 1998”, apparently a psychiatric report to the Department of Veterans’ Affairs, referred to in the report of the psychiatrist of June 2009, in which case it ought to have been referred to in the later document as well.
The most remarkable deficiency, however, in both documents is that there has been a complete failure to satisfy the requirements of r 547(3)(g), requiring details of any accident, injury or illness suffered by the plaintiff in the three years immediately before the injury the subject of the action, and since the injury. Both forms simply said “nil” to both, despite the fact that it is apparent from the psychiatrist’s report that the plaintiff has had major problems, including an injury to his shoulders, a stroke, high blood pressure, a neurological condition and a joint problem. Yet none of this has been disclosed. This part of the statements strikes me as prima facie dishonest, although the plaintiff was not cross‑examined about this. Overall, both statements are hopelessly inadequate as statements of loss and damage, and it is impossible to believe that either was the product of any serious attempt to get this matter ready for trial.[35]
[35]For the significance of a statement of loss and damage at trial, see Campbell v Jones [2003] 1 Qd R 630.
There may indeed be some doubt as to whether the updated statement of loss and damage was a step in the action. The requirement of r 547 is that the statement of loss and damage must be served within 28 days after the close of pleading. Rule 549(2) provides “if there is a significant change in information given in the statement of loss and damage after it has been served and before a trial date is set, the plaintiff must serve on the defendant a supplement to the statement.” That rule has not been complied with; the more recent document does not reveal any significant change in the information given in the earlier statement, and it is not a supplement to the statement but purports to be a replacement. It is difficult to see that the provision of this document was of any real use in carrying the action further towards trial. It seems to me, frankly, that in this matter there has been no real step in the action, that is to say, nothing done which could actually be said to be something which in a practical sense was carrying the action forward, since further particulars were provided on 8 February 2006.
History of proceeding – D1882/01
By a claim and statement of claim filed 20 April 2001, Sheenah Turnbull claimed damages because she developed a psychiatric disorder as a result of the way (alleged to have been negligent) the defendant conducted himself in the course of massage therapy provided by the defendant to the plaintiff between about 1996 and March 1999.[36] A notice of intention to defend and defence were filed on 21 May 2001, and a reply filed 29 May. On the same day, the plaintiff’s solicitors requested further and better particulars of the defence, which were provided promptly on 21 June 2001. On 24 October 2001 the defendant requested particulars of the statement of claim, which were provided on 17 December 2002. The solicitor and the plaintiff deposed to the plaintiff’s having a great deal of distress when involved in gathering information and providing instructions to the solicitors and that this was the explanation for this delay.[37] The plaintiff served a list of documents on 17 January 2002; the defendant served a list of documents on 21 December 2002. A statement of loss and damage was served on 18 July 2003; neither the plaintiff’s list of documents nor statement of loss and damage are exhibits to the affidavit, so I cannot comment on their content, but they were both late.
[36]The history of the proceeding is set out generally in the affidavit of Neil filed 15 October 2009 paras 9-57.
[37]Affidavit of Neil para 16; affidavit of Turnbull filed 15 October 2009 para 6, 8.
The plaintiff filed an amended statement of claim on 29 September 2003, to which a defence was filed on 21 November 2003.[38] There was a further amended statement of claim filed on 17 December 2003. Following the order that I made in D1533/01 on 11 May 2004, an application was made to strike out the further amended statement of claim, or part of it, which came before me on 20 April 2005, when I struck out the pleading but gave leave to file and serve an amended statement of claim. Following that, a further amended statement of claim was filed on 18 May 2005. A defence to this pleading was filed by the defendant on 23 November 2005, and a reply on 7 December 2005. The defendant sought particulars in January 2006, which were provided (expeditiously) on 8 February 2006.
[38]This occurred after the plaintiff filed a request for default judgment, an inappropriate proceeding, since the notice of intention to defend had already been filed and had never been struck out. It is unnecessary to file a fresh notice of intention to defend when the statement of claim, or for that matter the claim, is amended, and default judgment is given for the absence of a notice of intention to defend, not the absence of a defence or an amended defence.
In the latest statement of claim, it is alleged that the defendant (negligently) counselled the plaintiff to engage in a sexual relationship with a former partner with whom she had broken up, and that as a result of her having done so, and as a result of the defendant’s having massaged her in intimate ways, she suffered psychological injury. The pleading also alleges, somewhat obliquely, that the intimate massage (or some of it) amounted to “sexual battery”, although she claims only damages for negligence and not damages for trespass to the person, the modern term for assault and battery.[39] The defendant denied that he provided any counselling, or that he engaged in “inappropriate sexual and intimate behaviour towards the plaintiff”: para 5.
[39]In these circumstances, the reference to “sexual battery” is surplusage: Uzsoki v Pickering [2007] QDC 110 at [13].
From May 2006 until July 2006 there was some discussion about the possibility of mediation as discussed in relation to D1533/01. On 9 March 2007 a request for trial date was forwarded to the solicitors for the defendant, as in the other matter, and the solicitors for the defendant refused to sign it for the reasons already discussed. I have already said something about the criminal proceeding; this plaintiff was one of the complainants, and gave evidence at that criminal trial. Indeed, it seems she was the only witness who gave evidence before the Crown abandoned the prosecution.
In evidence in the criminal trial the plaintiff said that on 29 September 1998 the defendant during the massage rubbed her near the top of the left leg and the groin.[40] On another occasion between 5 November and 10 December 1998, he put some lavender oil on a sore near her vagina.[41] In January or early February 1999 he had, while massaging her chest, run his hands over her breasts.[42] She said that each time she did not agree to what he did, but she did not at the time do anything to indicate that she objected, and she subsequently attended other massages, including at least two after the third occasion, without complaint, and had not raised any objection to this behaviour until some years later.[43] She was at the time about 40 years of age, and a qualified and practicing psychologist.[44]
[40]Affidavit of Scott filed 10 November 2009 Exhibit AFS1 p 56.
[41]Ibid p 58.
[42]Ibid pp 59-60.
[43]Ibid p 66.
[44]Ibid p 63.
In response to a letter of 19 July 2006 from the defendant’s solicitors requesting an updated statement of loss and damage, such a statement was served under cover of a letter dated 10 April 2007. A copy of this document was not put in evidence. There was no evidence of any particular difficulty on this occasion on obtaining instructions or a signature from the plaintiff. Again, it was deposed that there were unsuccessful negotiations to settle in July and August 2007; I am not persuaded that anything the defendant’s solicitors did or said at this time provided any justification for failing to ready the matter for trial. There was a teleconference with a psychiatrist on 22 October 2007, but no evidence that anything of use came from that; the same applies to a meeting with the plaintiff on 21 February 2008.
The current solicitor took over the conduct of the claim in April 2008 and “commenced preparations to brief counsel to provide an advice on evidence in respect of the plaintiff’s matter.”[45] She deposed to having briefed counsel to obtain advice on prospects, quantum and evidence, as well as on how long a trial will take and costs, but does not say when.[46] She said that during 2008 she regularly received instructions and information from the plaintiff or attendance on the plaintiff, but does not say what if anything of use in progressing the matter occurred as a result. On 1 December 2008 she requested a report from the plaintiff’s treating psychiatrist, said by the plaintiff to have been treating her since at least 2003.[47] As at the date of swearing the affidavit (13 October 2009), the report had not been provided. Again, there was a claim that there were unsuccessful attempts at negotiation in December 2008; again, I am not persuaded that anything the defendant’s solicitor did or said at this time provided any justification for failing to proceed the matter. Again, the plaintiff’s solicitor said (para 57): “I have been actively working towards moving the plaintiff’s claim to trial.”
[45]Affidavit of Neil para 53.
[46]Ibid para 57.
[47]Affidavit of Turnbull para 9.
It is not apparent that anything of any real use to that end has been achieved, at least since the serving of the updated statement of loss and damage in April 2007. This is not the case where any of the delay since then is attributable to any difficulties being experienced by the plaintiff. The solicitor said that she received instructions and information on at least five occasions during 2008, though it is not apparent that anything very useful happened as a result of this. One wonders what the instructions given were; to do nothing? That seems to have been the effect of them.
It was also said that the delays associated with the applications by the defendant in relation to the pleadings in 2004 and 2005 caused delay in this matter as well. It may well have been the case that this matter was reasonably not progressed while my judgment in the other matter was reserved, and that nothing very much was done subsequently until the decision of the Court of Appeal was delivered in August 2005. However, it seems that the only matter of significance undertaken on the initiative of the plaintiff thereafter was the filing of the reply in December 2005; the further and better particulars were in response to a request and the updating of the statement of loss and damage were in response to a letter seeking such an updating, and I do not regard the signing and forwarding of the request for trial date in March 2007 as a serious attempt to carry the action forward, in view of the fact that the updated statement of loss and damage had not been provided,[48] and after the criminal proceeding was resolved in June 2007 the request for trial date was not followed up. Overall, the picture is one where the plaintiff has done very little to carry this action forward since 2002.
[48]See UCPR r 547(2).
History of proceeding – D1938/01
By claim and statement of claim filed 26 April 2001 Maily Pickering claimed damages and interest because she suffered a psychiatric injury as a result of her having become emotionally dependent on the defendant, the defendant having assaulted the plaintiff, and counselling alleged to have been provided by the defendant in the course of massage therapy he provided to the plaintiff from mid 1996.[49] A notice of intention to defend and defence were filed on 28 May 2001, and a reply filed 14 June 2001. The previous day the plaintiff requested further and better particulars of the defence, which were provided on 18 March 2002; in the meantime the defendant had sought further and better particulars of the statement of claim on 2 November 2001, which were provided on 17 December 2002. The solicitor and the plaintiff deposed to the plaintiff’s having struggled to provide answers to the request for particulars due to the distress that considering the circumstances of the defendant’s contact in such detail produced to the plaintiff.[50] On 15 January 2002 the plaintiff served a list of documents; the only relevant document disclosed was a medical report dated 23 November 2000.[51] Either disclosure was a singularly undemanding process in the circumstances of this matter, or it has not been done properly.
[49]The history of the proceeding is set out generally in the affidavit of Neil filed 15 October 2009 paras 8-66. I have corrected a couple of dates.
[50]Affidavit of Neil para 6, 16. Affidavit of Pickering filed 15 October 2009 para 5, 7, 8, 15. It is a curious coincidence that all three plaintiffs should suffer from this same difficulty, but none was cross‑examined on this.
[51]Affidavit of Neil Exhibit LAN4.
A statement of loss and damage was served on behalf of the plaintiff on 8 April 2003.[52] The statement was due within 28 days after the close of pleadings (r 547), which closed on 14 June 2001 (r 169), so the statement was one year, eight months and twenty-seven days late. The next step was on 29 September 2003 when an amended statement of claim was filed, to which a defence was filed on 21 November 2003. A further amended statement of claim was filed on 17 December 2003, and the following day there was an application filed similar to that filed in the matter of Carlyle Pickering, which produced the same result: on 15 January 2004 another judge stayed the plaintiff’s action until she attended upon a particular psychiatrist. Again, I will assume that that has occurred.
[52]Affidavit of Neil Exhibit LAN7.
The next step was on 18 May 2005 when yet another version of the statement of claim was filed, to which a defence was filed on 23 November 2005. A reply was filed on 7 December 2005. The defendant sought further and better particulars of the latest version of the statement of claim on 9 January 2006; these were provided expeditiously on 10 February 2006.[53] The affidavit does not reveal when the defendant served his list of documents, but says that in February 2006 the plaintiff sought disclosure of some diaries, which disclosure was apparently provided reasonably promptly.[54] In 2006, as with the other matters, there was some discussion about the prospect of mediation but in July 2006 the defendant indicated that he would not mediate while the criminal proceedings were pending.
[53]Despite the plaintiff’s difficulties, it took her only 11 days to provide the information sought by her solicitors: affidavit of Pickering paras 9, 10.
[54]On the face of the affidavit, the diaries were provided to the plaintiff’s solicitors two weeks before they were asked by the plaintiff to obtain them: para 32.
In its current form, the statement of claim seeks damages for negligence on the basis that the plaintiff has suffered psychiatric injury as a result of her having acted on counselling alleged to have been negligently provided, by alienating herself from her father and leaving premises shared with a flatmate. The pleading also alleges that the defendant engaged in inappropriate sexual and intimate behaviour towards the plaintiff, by saying that he loved her and in late 1998 running his hand over her breast 3-5 times, but this is relied on only as something which made the plaintiff unable to extricate herself from the defendant’s influence, or not follow the counselling: para 13(b)(iv), (c). Both the provision of counselling and the inappropriate behaviour are denied: defence filed 23 November 2005 paras 4, 5.
At the prompting of the defendant’s solicitors, a draft updated statement of loss and damage was sent to the plaintiff on 3 August 2006. On 21 August 2006 a report of Mr Geoff Waldren was disclosed to the defendant. Nothing further seems to have been done until, as with the other matters, on 9 March 2007 a request for trial date was forwarded to the solicitors for the defendant, which the defendant refused to sign because the criminal charges were still pending against him. That I consider was a reasonable approach, and in any event the matter was plainly not ready for trial at that stage. The criminal charges ceased to be an excuse for delay in June 2007.
The draft statement was chased up by the plaintiff’s solicitors on 28 March 2007, and information was provided intermittently up to 22 May 2007; again, according to the affidavit, this delay in providing the information was due to the distress dealing with this matter caused the plaintiff. The amended statement of loss and damage was finally served on 24 May 2007.[55]
[55]Affidavit of Neil Exhibit LAN17.
It was said that in July and August 2007 there were unsuccessful negotiations to settle the plaintiff’s claim; I am not persuaded that anything the defendant did at that time provided any justification for any delay in bringing the matter on to trial. On 12 September 2007, the plaintiff asked the solicitors to communicate with a particular psychiatrist, to whom the solicitor spoke in a teleconference on 22 October 2007; nothing seems to have come of that. There was a conference with counsel and the plaintiff on 21 February 2008. Again, nothing seems to have come of that. In March 2008 there was some discussion with the plaintiff about making an offer to settle, but again nothing seems to have come of that.
The present solicitor handling the matter took over in April 2008 and “commenced preparations to brief counsel to provide advice on evidence …” (para 57). Nothing useful seems to have been done as a result, however. In December 2008 the plaintiff gave instructions to obtain a psychiatric report from Dr Quadrio. The plaintiff saw that psychiatrist on 12 March 2009, the report was received on 22 June 2009 and provided the next day to the solicitors for the defendant. The solicitor said that on 29 July 2009 she received instructions to proceed with obtaining an advice on evidence from counsel. In the final paragraph, the affidavit says that the solicitor has “commenced preparations to brief counsel with respect to obtaining their advices on prospects of quantum and evidence as well as on how long the trial will take and costs. I have been actively working towards moving the plaintiff’s action to trial.” What I said in relation to the matter of Carlyle Picking applies here too.
Position of the defendant
The defendant said[56] that he was previously married to a person who operated the “Inner Energy Centre”, a body referred to in the pleadings. The plaintiffs in these three matters, and the plaintiffs in four other matters which were commenced in 2001 against the defendant, were people who attended the Inner Energy Centre to receive spiritual healing and to undertake meditation. The three plaintiffs involved in these applications were also, he admits, regular clients of his massage therapy business. He says he separated from his then wife in about February 1999 and that month she wrote to those who attended the Inner Energy Centre complaining about him.[57] The defendant said that shortly afterwards there was a hostile confrontation from Carlyle Pickering, who complained about the way the defendant had treated his then wife. A few days later the plaintiff and a number of other clients, including the plaintiffs in the other two applications, cancelled their massage appointments.
[56]Affidavit of McArthur filed 10 November 2009.
[57]Affidavit of McArthur Exhibit JMM1, a copy of the letter, on which there are two dates, 26 February 1999 and 1 March 1999; the letter concludes with the words “these are not the ravings of a mad woman.”
The defendant said he closed down his massage business in 1999, and put his business records, including patient record cards, into boxes stored in a shed in his backyard. These suffered extensive water damage following a heavy storm that caused the shed to flood, with the result that he had thrown out most of his business records prior to the commencement of these proceedings. This proceeding and others were commenced in 2001, since which time the defendant and his new wife have moved to Canada and have made a new life for themselves there, where they have a son. The defendant says he has no insurance that covers the cost of this litigation or any amount awarded, and he is funding his defence from his own income; he has incurred legal costs of over half a million dollars in defending these proceedings, and other matters including the criminal proceedings. He is understandably unhappy about having the litigation hanging over his head.
The defendant’s affidavit also contains material which if true suggests that these three plaintiffs and others have been conspiring to persecute him, and his new wife, presumably in support of his former wife or in retaliation for his treatment of her. He referred to the formation in December 2000 of a company Justice Through Integrity Pty Ltd, of which the plaintiffs in these three matters are shareholders and which in view of documents that he has seen including during the criminal proceedings, and in the light of the evidence of the criminal proceedings, was apparently formed with a view to taking action to attack the defendant through various legal means.[58] Apart from these actions, and the others commenced in 2001 and not currently before me,[59] in December 2001 the members of the company filed defamation proceedings in the District Court against some friends of the defendant, arising out of conversations allegedly occurring between those friends and one Bob Munt, said by the defendant to be a private investigator engaged by his former wife to investigate him.
[58]The psychiatrist’s report referred to things said by the plaintiff about the Justice Through Integrity group, which he told her was established to finance the legal process, was not doing much anymore, and do not meet regularly.
[59]Other proceedings by other plaintiffs are referred to in the defendant’s affidavit, and have been before me previously.
In March 2001 the shareholders of Justice Through Integrity commenced Supreme Court proceedings against the defendant and his new wife alleging misleading and deceptive conduct in breach of the Fair Trading Act 1989 in relation to representations allegedly contained in advertising material. Subsequently an application must have been made to the court which led to an undertaking being given by the defendant not to publish in oral, written or electronic form certain matters alleged to overstate the defendant’s qualifications or experience. Justice Through Integrity Pty Ltd then published an advertisement in The Courier Mail on 20 April 2002 under the heading “A matter of public concern” publicising that the defendant (and his new wife) had given an undertaking and setting out the terms of the undertaking.[60] In about September 2001 a group of women, including two plaintiffs in these matters, filed complaints in the Anti-Discrimination Commission alleging sexual harassment, which complaints were rejected as out of time.
[60]The advertisement is expressed in terms which clearly imply discreditable conduct on the part of the defendant.
The defendant also complained of having received hostile statements from persons associated with the Inner Energy Centre, and said that complaints were made about him to the National Federation of Spiritual Healers and the Australian Psychologists Press, which led to his being expelled from those organisations, and a complaint was made to the Public Relations Institute of Australia concerning his new wife’s membership which led to her being asked to resign from that organisation. Complaints were made to his new wife’s then employer, and to a former employer, about her involvement with the defendant. After he moved to Canada complaints were made to the Canadian authorities about him.
7. There have been lengthy periods when nothing has been done by or on behalf of the plaintiff to carry the proceeding forward, most of this delay being unexplained.
8. For most of the period since the action was commenced the things the plaintiff did were in response to steps taken, requests from or prompting by the defendant.
9. It is not clear that there has ever been any serious attempt properly to prepare the matter for trial or to bring it on for trial.
10. There has been a clear and prolonged breach of the implied undertaking in r 5(3).
11. It is unreasonable that the defendant has had the continuing threat of this litigation hanging over his head for so long, and he should be entitled to get on with his life and plan his affairs without it.
12. The plaintiff’s rehabilitation has been impeded by the delay in the action, and would probably be further affected by allowing it to continue.
With regard to the plaintiff’s psychiatric problems, the comments made in relation to D1533/01 apply here too. In the light of the history of the matter and the various factors referred to and discussed in my earlier analysis, I consider that, notwithstanding the significance of the first factor listed above, on balance there is not good reason for exempting this particular proceeding from the general prohibition imposed by the rules. It follows that the plaintiff’s application for leave to proceed is dismissed. In those circumstances, it is appropriate on the defendant’s application to dismiss the plaintiff’s action for want of prosecution. I order the plaintiff to pay the defendant’s costs of the proceeding, including the costs of the applications, to be assessed.
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