Robb v Morayfield Vehicle Inspection Centre and Mechanical
[2014] QDC 54
•Ex tempore 19 March 2014
DISTRICT COURT OF QUEENSLAND
CITATION: | Robb v Morayfield Vehicle Inspection Centre and Mechanical [2014] QDC 54 |
PARTIES: | GARY ROBERT ROBB (Applicant/Plaintiff) v MORAYFIELD VEHICLE INSPECTION CENTRE AND MECHANICAL (BN 19260817) (Respondent/Defendant) |
FILE NO/S: | 4895/2011 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court in Brisbane |
DELIVERED ON: | Ex tempore 19 March 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 March 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Order as per draft |
CATCHWORDS: | PRACTICE - ADJOURNMENT - where trial dates were listed for the trial between the Applicant/Plaintiff and the Respondent/Defendant - where the Applicant/Plaintiff suffered a mental breakdown resulting in the Applicant/Plaintiff taking an overdose of medication requiring hospitalisation before the Applicant’s/Plaintiff’s trial - whether the Applicant/Plaintiff was aware of a mental condition before the trial dates were listed - whether Applicant/Plaintiff should be granted an adjournment to a date to be fixed and have the set trial dates vacated Legislation Uniform Civil Procedure Rules 1999 (Qld) rule 477 Workers’ Compensation and Rehabilitation Act 2003 (Qld) chapter 5, section 316(4) |
COUNSEL: | Mr G Cross for the Applicant/Plaintiff Mr RN O’Regan for the Respondent/Defendant |
SOLICITORS: | Everingham Lawyers for the Applicant/Plaintiff Kaden Boriss Brisbane for the Respondent/Defendant |
HIS HONOUR: The Plaintiff seeks to have the trial dates of his action against the Defendant vacated and for the trial to be adjourned to a date to be fixed. The matter is due to be tried on 28, 29 and 30 April 2014. The ground upon which he seeks to vacate the trial dates is that in January 2014 he claims to have suffered a mental breakdown resulting in him taking an overdose requiring hospitalisation. Therefore it is apparent his legal advice is that the psychiatric/psychological condition suffered is as a consequence of the physical injury suffered by him in the accident the subject of the action. The accident occurred on the 2nd of January 2008. The Plaintiff accepts his psychiatric/psychological injury requires that he comply with chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003[1] which may not be possible prior to the proposed trial dates. Although, the Plaintiff is now booked for a medicolegal examination with Dr Chau, a psychiatrist, on 7 April 2014.
[1] Workers’ Compensation and Rehabilitation Act 2003 (Qld).
There is no dispute that when he commenced these proceedings his claim was for physical injuries as a result of the back injury that he suffered at work. The injury was severe enough that it required surgery being a lumbar microdisectomy for a right sided L4/5 disk prolapse. He went through all the relevant steps and the proceedings were commenced by the filing of the claim in his statement of claim on 28 November 2011. The action is listed the trial and the parties were notified of the trial date on 12 December 2012.
MR CROSS: 13.
MR O’REGAN: 13.
HIS HONOUR: 13, thank you. The Plaintiff advised his solicitors of his mental breakdown on 21 January 2014. The breakdown was a few days previously; he had taken an overdose. He advised that he was receiving psychological counselling and that he had been advised that his work injury had contributed to the onset of his psychological symptoms. The Plaintiff has sworn evidence that the stress became too much for him and he was struggling physically as he tried to continue working. He’s now undergoing psychological treatment. He had been working until his mental breakdown but he has stopped working since. When the Plaintiff gave his instructions of this mental breakdown to his solicitors his solicitors acted promptly to obtain the Caboolture Hospital records and his treating psychologist’s records. They gave notice to the Defendant’s solicitors of the psychological injury and that it may delay the trial proceeding. This was by letter dated 25 February 2014. The Defendant opposed the vacating of the trial dates.
When examined by his orthopaedic surgeons the Plaintiff was not identified as someone with a psychological condition. However, he contends that he continued to work in constant pain and became particularly distressed by this. It became too much resulting in the attempted overdose. This is not a case where the Plaintiff may have been aware, at some earlier date, of his condition – of his psychological condition – and that he failed to take steps to amend these proceedings. This has occurred recently, in the timeframe, since the proceedings were commenced. There’s no suggestion, in my opinion, that he could have been aware, at an earlier date, of this condition and taken some other steps. I accept, on the face of it, at this stage it should be accepted that his mental condition has manifested itself late as a consequence of an inability to cope with his physical injuries. In my opinion there is no evidence to the contrary.
There will be other steps having to be taken and no doubt that will delay bringing the matter on for trial. I understand the submission of the Defendant that the Defendant would like to have the matter resolved. In my opinion good reason has been shown, in this case, to vacate the trial dates. A balance must be struck, of course, between each party’s desires, the one to have his claim fully put before the court compared to the Defendant’s desire to have the matter resolved after all the steps that have been gone through to get it to trial dates. However, in my opinion, it will be the Plaintiff who would suffer prejudice if the trial dates were not vacated. I do not accept that the Defendant has shown any prejudice other than that which flows from the vacation of trial dates when there has been an expectation of a trial coming on.
The trial dates are some distance away so I am not dealing with claims that witnesses have been booked and have put themselves out whether it be by asking for holidays or time off or whatever to be able to attend the trial. The trial dates are far enough away for if any – for a case of anybody who has put time aside to be able to adjust without any great personal loss or financial loss. I think other matters that can be said in favour of the Applicant here are that the granting of the application will not prejudice public confidence in the judicial system. Further, there has been an adequate explanation for the adjournment now sought and it has not been shown that he is, at this stage – at this point in disobedience of court orders or directions. There is no suggestion that evidence would be lost if the trial dates were not vacated and the matter forced on to trial.
Therefore I am prepared to give the Plaintiff leave to make the application. Further, I do order, pursuant to UCPR 477[2] the trial dates fixed for the trial of the proceeding being 28, 29 and 30 April 2014 be vacated and I also order the trial be adjourned to a date to be fixed. As to the question of costs it is my view that no order for costs should be made. In that respect I consider that section 316, subsection 4, of the Workers’ Compensation and Rehabilitation Act,[3] which provides that an order about costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay by one the parties. There is, in my opinion, no unreasonable delay by anybody.[4] This is a case where, on the evidence before me, the Plaintiff says, and there is no reason to doubt it, no reason not to accept it, that he was working, he was struggling with his physical injuries and then he has suffered a breakdown, a mental breakdown, and has suffered psychological injury as a consequence of his physical injury. That is, at least it is arguable that is the position and for those reasons I do not accept that anyone has delayed to warrant the making of an order for costs.
[2] Uniform Civil Procedure Rules 1999 (Qld) rule 477.
[3] Workers’ Compensation and Rehabilitation Act 2003 (Qld).
[4] Section 316(4) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) is now section 318C in the Workers’ Compensation and Rehabilitation Act 2003 (Qld) current as at 15 October 2013.
Therefore, there will be no order as to costs and overall then I make an order as per the draft initialled by me and left with the papers. Yes, thank you.
MR CROSS: Thank you, your Honour.
MR O’REGAN: Thank you, your Honour.
HIS HONOUR: I’ll just give that order to my associate. No need to wait I have an application on the papers to deal with.
MR O’REGAN: Thank you, your Honour.
HIS HONOUR: Thank you.
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