Reactivation after deemed resolution

 Gold v State of Queensland [2011] QSC 112

Issue: application for reactivation after the proceedings were deemed to be resolved

Dalton J

[2] The plaintiff claims damages for personal injuries sustained when he was injured on 26 January 2004 in a single vehicle accident on Beachmere Road, Caboolture. There is no doubt that the plaintiff was so injured. He made a Personal Injuries Proceedings Act 2002 (Qld) (PIPA) claim and on 2 January 2007 filed a claim and statement of claim. A defence, reply and lists of documents were delivered. There was a settlement conference on 3 April 2008. The plaintiff changed solicitors twice between April and August 2008 and then once again at the end of 2008. By 6 February 2009 there was confusion, but he was at least partly acting in person. On 13 February 2009 an order was made that unless a request for trial date was filed by the plaintiff, the proceeding would be deemed resolved. By operation of this order the claim was deemed resolved on 7 June 2009. The application to reactivate was filed on 24 February 2011.

[9] It is evident from the further and better particulars of the statement of claim and reply, that the plaintiff has no evidence to support his allegation that the road was constructed in a manner so that it was prone to deterioration. As to paragraphs 4(f)-(i) in the extract above, the plaintiff has an action for failing to warn or properly signpost the road which is independent of an allegation of the type caught by s 37(1) of the CLA. The particulars given of the statement of claim and reply do not inspire great confidence that the plaintiff does in fact have evidence to support this case. Further, given the plaintiff was driving to work at the time of the accident, I imagine that there will be a claim for contributory negligence based on the plaintiff’s own knowledge of the road. However, it could not be said that the plaintiff’s case is unarguable, or doomed to fail.

[15] In summary, once the matter commenced, it progressed promptly until May 2007. It could not be said that there was any undue delay on the part of any party before August 2008. August 2008 marked a time when the plaintiff’s file was transferred between lawyers. On 6 February 2009 the plaintiff filed a notice that he was acting in person. The next week the orders of 13 February 2009 were made. The orders of 13 February 2009 were complied with, but for the order that a request for trial date be signed. Consequently, until 7 June 2009 there was still no undue delay in the matter. There was between 7 June 2009 and February 2010 a period of eight months where nothing occurred in the action because the plaintiff was under a misapprehension that the parties were waiting for the Court to allocate trial dates. The plaintiff having been disabused of that notion in February 2010, another period of delay ensued. The period until 10 November 2010 is attributable to the plaintiff.

Reactivation of the Proceedings

[16] In GSM Operations Pty Ltd v Neilsen & Ors[1] I set out my view as to the scope of paragraph 5.4 of Practice Direction No. 4 of 2002 and as to the matters which are relevant to be considered by a judge hearing an application pursuant to that paragraph, having regard to the Court of Appeal decisions in Multi-Service Group Pty Ltd (in liq) & Anor v Osborne & Anor[2] and Barton v Atlantic 3-Financial (Aus) Pty Ltd & Anor[3] and I will not repeat those matters here. Mr Gold’s proceeding is not unarguable. He explains the proceedings having been deemed resolved by saying that this occurred, as it plainly did, at a time when he was partly acting for himself, and partly acting through solicitors and that there was confusion and misunderstanding on his part as to who was responsible for filing a request for trial date. He was not cross-examined on this version of events. Mr Gold puts no plan before the Court to have this proceeding determined in a timely way. The best he does in this respect is to say that he has found a solicitor who is prepared to take on his case if he is able to have the matter reactivated.

[17] The applicant for reactivation is thus in a position where he provides an explanation, but not a particularly satisfactory justification, for the proceedings having been deemed resolved and for the time which has passed since then, and does not provide a satisfactory plan for the proceeding’s timely resolution. However, nor did the applicant in the Atlantic 3 case and nor the applicant in GSM Operations. Nonetheless, having regard to the Court of Appeal’s warning that the objects of the Practice Direction are not served by allowing proceedings to linger indefinitely in the twilight zone of deemed resolution,[4] and bearing in mind that the proceedings are relatively simple, and had progressed to a point where all interlocutory steps had been attended to, before they were deemed resolved, it seems to me that I ought reactivate the proceedings, bearing in mind the purpose of Practice Direction No. 4 of 2002 is to facilitate the timely and just disposition of proceedings. Until these proceedings are brought to a permanent end, either by a trial or summary disposition, they will subsist, unresolved, which is to the benefit of neither party.

Dismissal for Want of Prosecution

[18] The Court of Appeal in Tyler v Custom Credit Corp Ltd & Ors[5] listed matters which the Court may take into account in exercising its discretion to determine whether a proceeding should be dismissed for want of prosecution. As outlined above, the plaintiff does not have an unarguable case. This is important in exercising my discretion, because to dismiss the proceedings now will mean that there will never be a determination of the merits of Mr Gold’s claim.

[19] Many of the factors outlined in Tyler (above) relate to delay and I have comprehensively discussed delay in this matter above. I bear in mind that the Courts generally are less tolerant of delay by a party than they were in the past – Aon Risk Services Australia Ltd v Australian National University.[6] In this regard, I take note of the fact that the solicitor representing the Crown deposes to at least two conversations he has had with the plaintiff where, essentially, the Crown lawyer called on the plaintiff to give up his proceeding. In responding to him, the plaintiff has both times made reference to the fact that he is impecunious, has no assets and nothing to lose by having his day in Court. I apprehend this is advanced by the Crown as the plaintiff’s displaying an irresponsible attitude to the litigation. In circumstances where the Crown has taken a hard line in attempting to compromise this matter and has never offered any amount to the plaintiff by way of settlement, I am unable to regard the statements by the plaintiff as other than his assuming an equally hard line for the purpose of negotiation, and as having a desire to have the merits of his claim determined.

[20] During periods of delay there has been non-compliance with Court orders. I do not find this was contumelious – see below. Some of the delay has been caused by the plaintiff’s lawyers, in particular in the period between April and August 2008. Some of the delay has been due to the impecuniosity of the plaintiff – in particular, the delay from June 2009. It is impossible on the material before me to say that his impecuniosity is the fault of the defendant. If the plaintiff succeeds on his claim at the end of the day, that will have been proven to be the case. The plaintiff provides explanations for delay occurring up until 19 February 2009, and to some extent for delay occurring after that, in that he was still unrepresented and struggling to deal with the proceeding while in ill-health. The defendant concedes very little prejudice arising to it because of the delay. There is certainly no submission made that it would be impossible to conduct a fair trial. The defendant says that extra costs will be incurred by it because of the delay, in that it will need to get the matter up and running again, which will inevitably involve some duplication of tasks and updating of information – for example, the plaintiff’s statement of loss and damage. The defendant also relies upon the type of prejudice identified in Brisbane South Regional Health Authority v Taylor.[7]

[21] The matter had come to a point in June 2009 where apparently all interlocutory steps had been attended to and both parties anticipated that it would be set down for trial.

[22] For all the above reasons, I am not persuaded this matter ought to be dismissed for want of prosecution.

Rules 371 and 374

[23] In Quinlan v Rothwell (above), the Court of Appeal recognised a distinction between an application to dismiss for want of prosecution and an application to set aside a proceeding pursuant to r 371-[24]. In that case, authorities to the effect that repeated non-compliance with the rules can be indicative of a flouting of the rules or contumelious disregard, were discussed. I do not see evidence of Mr Gold’s having flouted the rules in this case. To the contrary, progress in the action was satisfactory whilst he had solicitors acting for him but confusion, misunderstanding and inability to move promptly have characterised the period of time during which he has acted for himself. I see the non-compliance with the order of 13 February 2009 and the non-response to the letter sent pursuant to r 444 as being due to these factors, not contumelious disregard. It is true that a failure to comply with an order made 30 June 2008 to file a request for trial date has not been specifically addressed by the plaintiff. Nonetheless, this occurred during a time when there were changes of solicitors acting for the plaintiff, and in any event appears now to have been well and truly overtaken by events.

[24] In Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased)[8] the Court of Appeal discussed r 374. It was noted that in exercising the discretion conferred by r 374 the Court must take into account the purposes of the rules: “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense” – r 5. If this matter is summarily dismissed, those issues will never be tried.

[25] In relation to both the application pursuant to r 371 and the application pursuant to r 374, much of what I have set out above as to merits and delay is relevant. I do not find any flouting of the rules by Mr Gold. The merits of his case are not such that I could give a summary judgment in the defendant’s favour. I take into account the delay in the matter and have regard to the principles in Aon Risk Services (above), which I note were discussed in Johnson at [17]. I also have regard to Mr Gold’s explanation for the delay and the fact that no dramatic prejudice to the defendant flows from it. In the circumstances, I am not prepared to exercise my discretion to set aside the proceeding pursuant to r 371 or give judgment for the defendant pursuant to r 374.

Brisbane Barrister – David Cormack


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