UCPR: r.389 – failure to prosecute & the importance of locating witnesses – even if late

Electro Industry Group Queensland Ltd v O’Donnell Griffin Pty Ltd [2017] QCA 24

The appeal followed the decision by Martin J on 18 July 2016 to strike out the third party proceedings (ODG) for want of prosecution under Rule 389 of the Uniform Civil Procedure Rules 1999 because the defendant (EIG) did not take a step in the action. The principles listed by Atkinson J in Tyler v Custom Credit Corporation Ltd & Ors[20 were considered.

The plaintiff’s action involved personal injuries sustained in 2003 and 2004. The main complaint of ODG was that the lapse in time imposed great difficulty on their ability to find witnesses and the witnesses recollection, notably the site foreman, Matthew Kirk. Mr Kirk kept a site diary, and in October 2007 he told solicitors for ODG that he could not recall the plaintiff undertaking the work and further that if there had been an injury and reported to him, he would have made a report in the diary.

In April and May 2016, solicitors for ODG endeavoured to contact Mr Kirk but were unsuccessful. The delay and Mr Kirk’s absence was pivotal in the decision at first instance. However, by August 2016 the solicitor for EIG had located Mr Kirk and taken a statement and similarly by November 2016, the solicitor for ODG took a statement from Mr Kirk. There was overall consistency between the pre-court procedure statement in 2007 and subsequent statements. The new evidence was allowed in the appeal. The appeal was allowed.

Gotterson JA with Holmes CJ and Bond J agreeing:

[26] It is, I think, evident from the reasons of the learned primary judge that a factor to which he attached “heavy” weight in the exercise of the discretion to strike out the third party proceeding was that ODG was unable to locate witnesses, especially Mr Kirk.[33] The influence that the “unavailability” of Mr Kirk played in his Honour’s thinking is illustrated in paragraph [33] in the reasons for judgment where he explains the implications of that for the ODG case: “… the importance and meaning of entries and, in particular, the absence of particular entries [in the Daily Site Diaries], cannot be conveyed to the court”. Moreover, as that paragraph and the paragraph that immediately precedes it reveal, his Honour exercised the discretion on the basis that Mr Kirk was, in fact, not available to testify. He clearly did so notwithstanding his earlier, and arguably inconclusive, observation at paragraph [29] that he was not satisfied that ODG had established that it would not be able to locate Mr Kirk.

[27] The affidavits filed by leave reveal that the learned primary judge misapprehended the true facts.[34] Mr Kirk is available to testify. He is in a position to give evidence with respect to the entries to which his Honour specifically referred.

[28] I hasten to say that the misapprehension as to fact was one to which his Honour was led by the unsatisfactory state of the evidence before him. It was not a misapprehension of his own making. Nevertheless, it has infected the exercise of the discretion in a material way. Consistently with basic principle, as formulated in House v The King[35] and affirmed in Australian Coal and Shale Employees’ Federation v The Commonwealth,[36] this Court must, on that account, set aside the exercise of the discretion by the learned primary judge and the orders his Honour made to give effect to it.

[29] Before leaving this topic, I would record my reservation with respect to his Honour’s finding that, in 2007, the solicitors for ODG obtained evidence “at an appropriate level” at the time.[37] I say this because no signed statement was obtained from Mr Kirk at the time. Further, the assertion made by the solicitors in their reply to WorkCover Queensland in December 2006 that the Daily Site Diary entry for 7 July 2003 indicated that the plaintiff “was not doing cabling work as alleged”[38] appears to have been based on inference by the solicitors, and not on specific comments made by Mr Kirk concerning that entry.[39] It is, however, unnecessary to determine whether this finding was erroneous in order to decide whether or not to set aside the exercise of the discretion.

[37] I would accept that all delay in prosecuting the third party proceeding has not been satisfactorily explained by those representing EIG. Despite that, there is no evidence that dilatoriness on the part of EIG itself has been responsible for the delay. In any event, I would not regard the absence of a satisfactory explanation for the delay as, of itself, weighing significantly against a continuation of the third party proceedings.

[38] To my mind, factors that do weigh in favour of a continuation of it are the readiness of the principal proceeding for a trial, the readiness of the third party proceeding for trial, the availability of Mr Kirk to give evidence in it, and the absence of significant prejudice to ODG in the prosecution of its defence to the third party claim, attributable to delay on the part of EIG.

[39] Two particular aspects of this case serve to distinguish it from the circumstances in Cassimatis & Anor v Commonwealth Bank of Australia,[42] to which counsel for ODG referred. In that case, Bond J ordered that a proceeding where there had been extensive delays and failure to comply with Court orders and directions, be dismissed. As to prejudice, the evidence to which I have referred, shows positively that the delays in the third party proceeding will not significantly disadvantage ODG in the presentation of its case. In other words, the influence of the “working assumption” of prejudice through the passage of time of which Bond J spoke[43] is moderated by specific evidence here. Secondly, unlike the position in Cassimatis where “significant work” remained to be done to bring the matter to readiness for trial, here, both the principal proceeding and the third party proceeding are ready for trial.

[40] I would mention at this point that, as paragraph [34] of the reasons indicate, his Honour was also concerned that EIG’s case against ODG had been enlarged by amendments made in the further amended statement of claim filed by EIG on 26 April 2016. I do not accept that the claim was, in fact, enlarged at that point. EIG had always claimed that the personal injury loss and damage suffered by the plaintiff was caused by a breach by ODG of its duty to the plaintiff. The loss and damage claimed by the plaintiff had always been alleged by him to have been the result of personal injuries suffered in both the incident at the Charlotte Street site and in his work at Harrison. The amendments in 2016 clarified, if clarification was necessary, that the indemnity claim extended to loss and damage claimed by the plaintiff to have been sustained during the latter.

David Cormack – Brisbane Barrister & Mediator



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