“Glacial-like pace” on appeal – UCPR 5, 24 & 367 + WCRA 306(3)

 Crompton v Buchanan & Ors [2010] QCA 250

CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – TIME – DELAY SINCE LAST PROCEEDING – where appellant injured at work on 14 October 1999 – where appellant filed claim and statement of claim within limitation period on 12 October 2000 – where originating process never served on employer – where claim renewed for 12 months in 2001 and 2002 – where claim became stale on 12 October 2003 – where successive solicitors of the appellant failed to protect his interests – where appellant was persistent in contact with solicitors – where significant investigation had been conducted in relation to the injury – where parties had prepared for and attended compulsory conference under the WorkCover Queensland Act 1996 (Qld) – where appellant’s application to renew claim dismissed – whether there was a good reason to renew the claim – whether prejudice to appellant of being deprived of cause of action outweighed prejudice to respondent inherent in delay – whether a fair trial could be had – whether primary Judge’s discretion miscarried

Issues:

I refer to my earlier posting where Jones J dismissed the plaintiff/appellant’s application to renew the claim and for leave to proceed, and allowed the cross-application of WorkCover to strike out the claim. The plaintiff appealed and White JA delivered the judgment with Muir JA and Mullins J concurring. Central the decision was degree of any prejudice to the respondent, the investigation steps taken by WorkCover, the failure of the appellant’s solicitors to progress the claim and the holding of the compulsory conference.

Discussion

[58] The appellant accepts that it was for him to persuade the primary Judge that he ought to exercise his discretion in favour of renewal.[28] Keane JA observed in The IMB Group P/L (in liq) v ACCC[29] of r 24(2) that it must be read and the discretion exercised in a context which includes r 5. It is not suggested that this observation does not apply equally to r 24(4). His Honour also referred to Pincus JA’s summary of Stephen J’s analysis in Van Leer Australia Pty Ltd v Palace Shipping KK,[30] in the Muirhead v The Uniting Church in Australia Property Trust (Q):[31]

“(1) There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.

(2) The discretion may be exercised although the statutory limitation period has expired.

(3) Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.

(4) There is a wide and unfettered discretion and there is “no better reason for granting relief than to see that justice is done”.”

[59] It is accepted that the loss of the ability to pursue an apparently worthwhile claim alone does not constitute a sufficiently good reason. That is a feature present in every case where recourse has to be had to r 24.[32] If the notice of claim is not renewed and other enabling orders made, the appellant will be deprived of his cause of action. It was submitted before the primary Judge and acknowledged by him in his reasons that the appellant would not be without a remedy as there were good grounds for supposing that he would be protected by claims against his solicitors.[33] That he may be forced to commence such litigation to vindicate his claim was not recognised by his Honour as serious prejudice. At best, the appellant will be able to litigate the loss of chance.[34] That prejudice needed to be balance against any prejudice which the respondent might experience. His Honour was correct to identify general prejudice which infects all stale causes. However, what his Honour did not note was that WorkCover has from the time of the appellant’s initial injury been fully engaged. There was an investigation of the incident on the farm immediately following the report to WorkCover which necessarily involved the employer. The hospital records have all been produced and the medical reports of the alleged aggravation in Tasmania were supplied immediately. Investigations were, it would appear, thorough and complete at the time. The affidavits suggest that medical witnesses are available and even Mr Turner in Tasmania, although retired, would still, conceivably, be available to be cross-examined on his report.

[60] The contention that there is a want of explanation for the delays during the two identified periods must be considered in light of the whole of the relationship between the appellant and his solicitors. Furthermore, in the absence of prejudice of the kind which would prevent a fair trial being had, unexplained delay is less relevant.[35] The appellant was a young man of 21 and a labourer when he sustained the injury. When he allegedly aggravated the left knee injury in Tasmania in 1999 he notified WorkCover promptly and, on its rejection of his claim, he attended immediately upon solicitors who were prompt and regular in protecting his interests. He had the great misfortune to be put in contact with solicitors in Queensland who failed to protect his interests. The sorry saga reveals, for example, that on three occasions the same income tax notices of assessment and returns were sought and provided. The appellant was constant in his attempt to have some response from Pescott Reaston. He was fobbed off or ignored regularly. He was driven to contacting his parliamentary representative. That might have been a wake up call to the solicitor but after initial contact, enthusiasm waned. Those solicitors handed over the appellant’s file to a firm in Brisbane, notwithstanding that the appellant resided in Far North Queensland. The respondent criticises the appellant for not again seeking assistance from his federal member of parliament. When the appellant requested Mr Cooper to take over the conduct of the file after the failure of the Brisbane solicitors to advance his interests, this was because the appellant saw that Mr Cooper had a real financial interest in bringing the personal injuries claim to a successful conclusion. However, as the chronology reveals, that did little to advance matters.

[61] Against the background of the inaction by the solicitors, notwithstanding the reasonable persistence of the appellant to engage their interest in his claim, the appellant’s cessation of pressure for a period to deal with his personal circumstances does not seem to warrant censure to the extent of losing his claim altogether. The final period of delay between the compulsory conference in February 2009 and the filing of the application to renew the notice of claim in August 2009 is a matter for which the solicitor must be held responsible.

[62] I am of the view that the primary Judge misconceived the history of the matter by suggesting that there had been no movement “to the second step in 12 years” against the background of the purpose of the provisions in the WorkCover Queensland Act. Furthermore, his Honour suggested that had the matter been ready to proceed to trial, he may have exercised his discretion differently. He has made no reference to the state of readiness which must necessarily have been achieved for the compulsory conference.

[63] A purpose of the pre-court procedures leading to the compulsory conference are to have the proceedings at the date of the compulsory conference in as good a position as they would be immediately prior to a trial so that all information “is on the table”. Part 6 relating to the settlement of claims provides for the parties to sign a certificate of readiness which provides that all investigative material required for the conference has been obtained, including witness statements from persons other than expert witnesses, that medical and other expert reports have been obtained, and each party has complied fully with the party’s obligation to give the other party material that is relevant and required to be given for the claim. A financial statement must be given to the opposite party containing details of the legal costs payable and the estimate of the party’s likely legal costs and damages if the claim proceeds to a trial. If the claim is not settled at a conference each party must make a written final offer at the conference which will impact upon the costs of the trial. Accordingly, with the exception of updated medical reports and adjusting financial statements, the matter must be regarded as ready to proceed to trial. These were matters not adverted to by the primary Judge. The failure to do so, together with a failure to acknowledge the appellant’s attempts to get his several Queensland solicitors to advance his claim over many years, and the early engagement of WorkCover in the investigation including medical investigations, has minimised any prejudice to the respondent, and has meant that his Honour’s discretion miscarried.

[64] For the reasons discussed above, I have concluded that a fair trial may be had. The respondent referred to AON Risk Services Aust Ltd v ANU.[36] No other litigants have been prejudiced. No trial has been adjourned. There is, of course, a degree of vexation associated with the necessity to dust off this matter but that is to be contrasted with the serious loss to the appellant.

[65] The claim is thoroughly stale. There is power to renew it for any period in excess of the one year stipulated in r 24(2) by virtue of r 367.[37] Renewal from the last renewal should be made and for one year from 12 October 2009. By s 306(3)(a) of the WorkCover Queensland Act, the claim must be served within 60 days after the date of the compulsory conference. By s 306(3)(b) the court may extend the time for doing so. Time should be extended for 28 days after the delivery of judgment in this appeal.

[66] These are the orders I would make:

1. Allow the appeal.

2. Set aside the orders made below.

3. Renew the claim for the period from 12 October 2003 until 12 October 2009 and for one year from 12 October 2009.

4. Extend the time within which the respondent employer must be served with the claim and statement of claim pursuant to s 306(3)(b) of the WorkCover Queensland Act 1996 (Qld) to 28 days after judgment is delivered in this appeal.

5. The respondent pay the appellant’s costs of and incidental to the appeal to be assessed.

Brisbane Barrister – David Cormack

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