Turvey v Steindl

[1997] QSC 2

IN THE SUPREME COURT

OF QUEENSLAND

No 383 of 1994

Brisbane

Before the Hon. Justice Williams

[Turvey v. Steindl & Anor]

BETWEEN:

STEPHEN TURVEY
  (A mentally ill person not so declared, by his next friend
  EILEEN WINIFRED TURVEY)
  Plaintiff
AND:
  ANTHONY LOUIS STEINDL
  First Defendant
AND:
  TREVOR FREDERICK WARDROBE
  Second Defendant

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 20/1/1997

CATCHWORDS      PRACTICE - plaintiff of unsound mind - action commenced 39 years after accident against former solicitors alleging negligent advice - 3 years later identity of vehicle owner becomes known - application to join owner as defendant resisted on basis action an abuse of process - stay refused - Williams v. Zupps Motors Pty Ltd (1990) 2 Qd. R. 493 considered.

Counsel:Grant-Taylor for plaintiff applicant

Drysdale for proposed third defendant, Commonwealth of Australia

Solicitors:Poteri Woods town agents for O'Brien Solicitors for the plaintiff-applicant

Quinlan Miller & Treston for first and second defendants

Australian Government Solicitor for Commonwealth of Australia

Hearing Date:   13 January 1997

IN THE SUPREME COURT

OF QUEENSLAND

No 383 of 1994

Brisbane

[Turvey v. Steindl & Anor]

BETWEEN:

STEPHEN TURVEY
  (A mentally ill person not so declared, by his next friend
  EILEEN WINIFRED TURVEY)
  Plaintiff

AND:

ANTHONY LOUIS STEINDL
  First Defendant

AND:

TREVOR FREDERICK WARDROBE
  Second Defendant

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 20/1/1997

The action between the plaintiff and the first and second defendants has been certified as ready for trial; more will be said about the action later.  In rather unusual circumstances the plaintiff now seeks leave to join the Commonwealth of Australia as a third defendant.  Somewhat unusually the proposed additional defendant appeared on the hearing of the application and submitted that in the circumstances no order for joinder should be made.  Essentially the contention of the Commonwealth is that any action against it by the plaintiff would in the circumstances amount to an abuse of process such as ought be stayed by the court in exercise of its inherent jurisdiction.  In the circumstances it is appropriate to deal with that contention on the application to join.
The plaintiff was born on 28 May 1953, and was severely injured when struck by a motor vehicle on 22 February 1955, when he was aged about 21 months. The incident occurred on Oxley Road, Oxley at about 4.00pm. The plaintiff sustained, inter alia, major head injuries as a result of being so struck and has since that time been legally incapable of managing his own affairs. There is ample material to support a finding that at all times since the incident he has been a person of unsound mind and under a disability for purposes of the Limitation of Actions Act 1974. Because of his mental condition no limitation period relevant to an action claiming damages for personal injuries sustained on 22 February 1955 has expired. Further, there is ample evidence to support a conclusion that his unsoundness of mind will continue indefinitely.
           The first and second defendants were at all material times solicitors of the Supreme Court of Queensland and carried on practice in Queen Street, Brisbane.  In 1955, on a date unknown but subsequent to the incident, the parents of the plaintiff retained the defendants to advise as to the plaintiff's remedies at law consequent upon his sustaining the injuries in the incident.  The statement of claim alleges that the defendants (through an employee) negligently advised that the plaintiff had no reasonable prospects of success in an action at law against the owner or driver of the motor vehicle.  In consequence of that advice no steps were taken on behalf of the plaintiff to recover damages from the owner or driver of the motor vehicle which struck him.  The plaintiff's current solicitors began acting for the plaintiff in another matter in about 1990 and subsequently made investigations into the incident the subject of this action.  In consequence this action was commenced by writ issued 18 March 1994.
           The action as currently constituted is against the plaintiff's former solicitors claiming damages for negligence resulting in the loss of a chance to recover damages for personal injuries against the owner or driver of the motor vehicle in question.  By 1994 when the action was commenced all police records relating to the incident had been lost or destroyed and the plaintiff's current solicitors were unable to obtain any information with respect to the vehicle involved in the incident.  The only relevant information they had (presumably supplied by the parents of the plaintiff) was that the name of the driver of the vehicle was "Brian Perry".  It was alleged in the statement of claim that he was deceased.  The original defence of the defendants was delivered 5 January 1995 and essentially constituted a denial of relevant facts alleged in the statement of claim.  By letter dated 6 November 1996 the solicitors for the first and second defendants foreshadowed amendments to the defence and subsequently delivered a draft amended defence.  Of course, as a Certificate of Readiness had already been filed the defendants would need leave to formally deliver that document.
           The recent material from the defendants asserts that enquiries have established that the driver of the vehicle was one "Edwin Evan Perry" who was employed by the Department of the Army at the Bulimba Army base and that the vehicle involved was an army vehicle owned by the Commonwealth of Australia.  Essentially the assertion of the defendants is that the plaintiff, being a person under a disability, still has viable cause of action against the owner of the motor vehicle and that as the owner is now identified there is nothing to prevent the plaintiff bringing an action at this point in time against that owner, the Commonwealth.  The defendants assert that as the plaintiff still has a good cause of action against the Commonwealth of Australia he has suffered no loss in consequence of any negligence on the part of his former solicitors.  What the defendants propose to do by their amended defence is allege such matters in support of the contention that the plaintiff has not suffered any loss as a result of any negligence on the part of the former solicitors.
           If the plaintiff proceeded with the action as presently constituted there is a very real possibility that he would fail because the court could conclude that any proven negligence on the part of his former solicitors had not resulted in any loss because there was still a good cause of action against the Commonwealth.  It is because of those considerations that the plaintiff now wishes to join the Commonwealth as a defendant, and in an amended statement of claim allege as facts against the Commonwealth the matters which have come to light through the endeavours of the solicitors for the defendants.
           The Commonwealth has filed material in support of its contention that the proceedings would constitute an abuse of process.  It is clear that there are no extant police records relating to the incident.  Army records indicate that there was an Edward Evan Perry stationed at Bulimba at the material time, but that person is now deceased.  Attempts have been made by the Commonwealth to speak with his widow but because of dementia she is of no assistance.  None of the other members of his family who have been contacted know anything of his involvement in an incident in February 1955.  Further, there are no extant army records relating either to such an incident or to a vehicle which may have been involved.
           Certainly the lapse of time since the incident occurred means that the Commonwealth would be at some disadvantage in defending the proceedings.  But the plaintiff is really in the same position.  The court does not know what evidence is available to the solicitors for the defendants in support of the contentions that they raised in their correspondence of November 1996.  They are not obliged at this stage to divulge that evidence.
           There can be no doubt that civil courts have an inherent power to prevent an abuse of process where, by reason of inordinate and inexcusable delay or contumelious conduct of the plaintiff or his legal advisers after instituting proceedings, there has been prejudice suffered by the defendant.  It is probably correct to say that the exercise of that power is not constrained by specific considerations but is "exercised as and when the administration of justice demands" to use the words of Gaudron J in Jago v. District Court (NSW) (1989) 168 CLR 23 at 74. That was a criminal case, and it may well be that somewhat different considerations apply when the liberty of a subject is at stake.
           Speaking in the context of proceedings before a professional disciplinary tribunal McHugh JA said in Herron v. McGregor (1986) 6 NSWLR 246 at 253: "Nevertheless, in my opinion the courts have power to stay in action, though brought within the relevant limitation period or even though not governed by such a period, if the conduct of the plaintiff or prosecutor is oppressive to the defendant or accused person." Whilst that statement can be accepted as accurate it is no more than a statement of general principle which is not all that helpful when a court is called upon to consider the circumstances of a particular case. The fact that the court has power to stay an action as an abuse of process based on delay in prosecuting or commencing the proceedings does not help in determining at what point of time the administration of justice demands that a plaintiff should be denied the right of commencing proceedings.
           Questions similar to those with which I am here concerned were considered by the Full Court in Williams v. Zupps Motors Pty Ltd (1990) 2 Qd. R. 493. The appellant in that case was injured in February 1966 when he was six years of age. Again, as here, his injuries were such that he had been of unsound mind as a result of the accident at all times from and after that date. Consequently there, as here, there was no statutory time bar to the commencement or continuance of an action. In 1973 separate proceedings were commenced against two defendants and each was allowed to lay dormant. A further action was commenced in 1977 against both of those defendants and that was dismissed in 1984 for want of prosecution. Then on 7 October 1988 the writ in the subject action was issued; that was more than 22 years after the injury was sustained. The Full Court was unanimous in holding that the action should not be stayed on the ground that it was an abuse of process of the court. Ambrose J (with whom Connolly J agreed) said at 499:

"I can discover nothing which would make it "unfair" or "oppressive" at common law for the appellant to pursue his action.  It is clear that the passing of various statutes of limitation has been motivated by the perception of the legislature that injustice will result to defendants if pursuit of stale actions is permitted.  It is clear on the facts of this case that it will be very difficult for the respondents to call reliable evidence as to the events that occurred during a period of seconds twenty-three years ago.

...

In essence the respondents seek that the Court exercise "its inherent power" to stay the action because the policy of the legislature to be discerned in the Limitation of Actions Act is generally to achieve such a result. Although at common law there is no limitation placed upon the right of the appellant to pursue his action, it is said that the Court has an inherent power to stay it.

I am unpersuaded that there is any power in this Court whether under its inherent jurisdiction or otherwise to impose upon the appellant a limitation of time within which he must commence his action.  The legislature is clearly refrained from imposing such a limitation upon persons of unsound mind."

In a separate concurring judgment Thomas J observed at 495 that in "commencing the present action the plaintiff acted by right and not by indulgence of the court."  His Honour then referred to some factors, many of which are not present it would appear in this case before me, which resulted in his conclusion that the court ought not, in the exercise of its discretion, stay the action.
           I am bound by Williams to approach the issue raised in this case against the background circumstance that the legislature has refrained from imposing any limitation period for commencing an action upon persons of unsound mind.
           The way in which the possible liability of the Commonwealth has arisen is also something which cannot be ignored.  If the action was stayed the plaintiff may well lose an otherwise good cause of action against the former solicitors on unmeritorious grounds.  Counsel for the plaintiff submitted that if the court was now to stay the action against the Commonwealth that would be a sufficient protection to the plaintiff.  I am by no means certain that such would be so.  If an order for a stay was made it would operate from the date on which it was made, and the critical point of time may well be March 1994 when the writ was issued.
           Taking into account all of the circumstances of this case, and the matters to which I have specifically referred in these reasons, I have come to the conclusion in the exercise of my discretion that the administration of justice does not demand the staying of the proceedings against the Commonwealth at this stage.  Should there by any future delay in prosecuting the proceedings then a situation may well exist when the court in the exercise of its discretion would conclude that an order for a stay was demanded.  In the light of all that I reject the submissions advanced by the Commonwealth and will order that the Commonwealth of Australia be joined as a third defendant in the action.
           There will be an order in accordance with the amended draft which I have initialled.