Dismissal of plaintiff’s claim where liability was admitted

Dodd v O’Meara & AAI Limited [2017] QDC 226

Porter QC DCJ

The plaintiff was involved in a motor vehicle accident on 26 December 2007 where he allegedly suffered personal injuries. Trial commenced on 29 August 2017. Liability was not in dispute.

On the first day of the trial counsel for the defendants commenced cross examination of the plaintiff. On the following day after lunch, counsel for the plaintiff informed Porter QC DCJ that the plaintiff would not be returning for further examination. The trial was adjourned until the following morning.

On the following morning, the plaintiff filed a notice acting in person. Relevantly, the plaintiff applied to further adjourn the trial in order to obtain new representation as he was not satisfied with his current solicitors. That application was denied by his Honour at which time the plaintiff declined to continue with his case and left the courtroom.

Counsel for the defendants then applied, inter alia, for the dismissal of the proceedings pursuant to r 658(1) of the Uniform Civil Procedure Rules 1999 (Qld).

Procedural history

The plaintiff commenced proceedings on 22 November 2011, however as noted by his Honour the proceedings did not proceed promptly due to the plaintiff’s failure to progress his case. Relevantly, on 7 November 2013, Robin QC DCJ made orders requiring the plaintiff to take certain steps to progress the proceedings.

Failing this, the defendants wrote a series of letters to the plaintiff complaining of his failure to take necessary steps to progress litigation. Consequently, orders were made by Reid DCJ on 1 September 2016 for the plaintiff to take steps to progress his claim. The plaintiff, however, failed to comply with the order, at which time the defendant’s solicitors applied for dismissal of the proceedings for want of prosecution:

[11] Accordingly, the defendants’ solicitors requested the matter be relisted before his Honour as provided for by order 8 of the 1 September orders, and applied for the dismissal of the proceedings for want of prosecution and non-compliance with the 1 September orders.

However, Reid DCJ dismissed the defendant’s application:

[16] His Honour’s reasons were not before me, but it is evident from those orders that his Honour did not consider that Mr Dodd had properly complied with the 1 September orders. It is also evident that his Honour considered that the plaintiff’s conduct in the litigation to that point merited an order in nature of a guillotine order, as provided in order 14. The Request for Trial was filed by the due date and the matter was set down for trial for 3 days commencing on 29 August 2017.

History of legal representation

Porter QC DCJ summarised the plaintiff’s history of legal representation as follows:

[18] Mr Dodd commenced the proceedings on 22 January 2008 represented by Carter Capner solicitors. They were replaced by Slater & Gordon, but this change seems to have been the result of acquisition of the Carter Capner by Slater & Gordon, rather than the result of any decision to change representation by Mr Dodd.

[19] Slater & Gordon acted for Mr Dodd until 9 March 2012, when Mr Dodd filed a notice that he would be acting in person. He continued to act for himself until 29 October 2013, when Platinum Lawyers took over conduct of the proceedings. They ceased to act on filing a Notice of Withdrawal of Solicitors on 28 August 2015, having sought and obtained leave from this Court to do so.

[20] Mr Dodd did not file a notice that he was acting in person until 18 October 2016, following the making of the September orders by Judge Reid. He continued to act for himself until 14 December 2016, when (in the shadow of the defendant’s application to dismiss the proceedings) he retained Carew Lawyers.

[21] In the period between the withdrawal of Platinum Lawyers and appointment of Carew Lawyers, the solicitors for the defendants repeatedly wrote to Mr Dodd urging him to seek legal representation.

[22] On 11 August 2017, just 18 days before the trial commenced, Mr Dodd changed his representation again, retaining Parker Simmonds. Parker Simmonds appeared for Mr Dodd on the first two days of the trial.

Refusal of the adjournment application

His Honour justified refusing the plaintiff’s application for an adjournment for the following reasons (at [43], [53]):

  • The subject event of the litigation occurred nearly ten years ago;
  • The plaintiff sought adjournment of trial which had been on foot for nearly six years and that the plaintiff did not pursue the proceedings expeditiously;
  • The plaintiff had ample opportunity to find suitable legal representation;
  • The plaintiff’s dissatisfaction with his representation related to forensic judgments by his representatives which could not sustain an adjournment of the trial;
  • There was no basis to believe that the plaintiff could pay costs of the adjournment and that the defendants had to incur the costs of multiple applications to bring the plaintiff to court
  • The plaintiff’s timing to choose to adjourn the proceedings may have been unfair to the defendant’s forensic advantages established during cross examination; and
  • A substantial part of the plaintiff’s case had already been dealt with

Dismissal of the proceedings

Dismissing the plaintiff’s claim, his Honour’s reasons were as follows:

[80] First, and of central importance, in the circumstances set out above, Mr Dodd plainly evinced an intention to abandon prosecution of his proceedings, notwithstanding the efforts made to point out the consequences of doing so.

[81] Second, in my view it may have been difficult to conduct the trial on the merits fairly to the defendants in circumstances where Mr Dodd had given evidence in chief but had refused to permit proper cross examination. A reasonable opportunity to cross examine is ordinarily an incident of a fair trial. It certainly was in this case, where Mr Dodd’s evidence was central to many issues in dispute. It was evident that Mr Crow’s cross examination was far from complete and the plaintiff, by abandoning the witness box, created the prospect of substantial unfairness in the further conduct of the trial on the merits by the defendants.

[82] Third, it is relevant that the party who abandoned prosecution of the litigation was the plaintiff. If the plaintiff fails to prosecute its case, I do not see any reason why the Court ought to insist that the defendant seek a decision on the merits.

[83] Finally, it was of some relevance that the defendants chose to make this application rather than seek to proceed to a hearing on the merits. There can be different consequences for both the plaintiff and the defendant depending on whether judgment is granted in default rather than following a hearing on the merits. I could see no good reason in the circumstances of this case to impose on the defendants the burden of proceedings with a hearing on the merits if they did not seek one.

 

David Cormack – Brisbane Barrister & Mediator

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