The facts involved a claim for personal injuries arising out of the use of a motor vehicle, with a pre-proceedings requirement under the Motor Accident Insurance Act 1994 (Qld) before litigation could commence. The injury giving rise to the claim was alleged to have occurred on 14 September 2009. The respondent/plaintiff alleged while walking on a footpath his right foot was injured when the first defendant intentionally drove his motor vehicle at the plaintiff. In issue was whether the driver acted in self-defence of himself and his family.
The plaintiff was intermittently imprisoned during the litigation, but there were periods when he was not and nevertheless failed to maintain contact with his solicitor. The respondent’s list of documents and statement of loss and damage, despite being due were not served and indeed had not been when the application was first heard. Hence, the description the learned District Court Judge gave at first instance, that the respondent was “casual in the extreme”.
The prejudice alleged by the applicant related to three witnesses; the first defendant, Brenton Winner, who died during the litigation; his grandmother, Joy Winner, who was elderly and had a fading memory; and the deceased’s former de facto, Erin Jaenke, who was difficult to locate.
In support of the alleged prejudice, the applicant relied on the well-known presumption that time makes it more difficult to prove facts, because memories fade, witnesses die or cannot be found.
His Honour Henry J delivered the judgment with Morrison JA and North J agreeing.
While his Honour Henry J considered there was “…no doubt the respondent’s dilatory conduct was unacceptable” it “…did not fall for consideration in a vacuum, without regard also to the applicant’s historically ambivalent attitude to the pace of the litigation. The applicant’s conduct was relevant in that, pursuant to r5 UCPR, all parties to litigation carry the obligation to proceed expeditiously.”
In weighing the factors in Tyler v Custom Credit Corp Ltd & Ors  QCA 178, his Honour Henry J found that the absence of an explanation by the applicant to advance the matter during the analogous pre-proceedings stage was that: “…the obvious inference is that it suited the applicant’s purposes to not advance the matter.”
In making this finding, his Honour Henry J considered the delay by the applicant in the litigation of one year and eight months, in not pressing the respondent for the outstanding list of documents and statement of loss and damage, in similar terms:
“The applicant’s inaction in not having taken such a course earlier in the intervening year and eight months again suggests it suited the applicant’s purposes to not advance the matter.”
His Honour Henry J found the applicant well knew it had to discharge its onus of proof, but armed with that knowledge, the applicant’s election not to be more proactive:
“…detracts from the force of its argument that the respondent’s delay was the cause of the prejudice of the which the applicant now complains.”
The signed statements were significant because of the application of section 92 of the Evidence Act 1997 (Qld). They constituted an admissible form of evidence which could be tendered and in the particular circumstances of the case, the disadvantage may be less than where a witness has not given such a statement. This was especially relevant in relation to the deceased, Mr Winner.
The forensic advantages and disadvantages for both parties were considered by reference to inconsistencies in the statement; the lost opportunity to cross-examine or for Mr Winner to explain the inconsistency. In the circumstances, his Honour Henry J agreed with the first instance decision that Mr Winner’s death did not prejudice the applicant’s prospect of a fair trial to such a degree to dismiss the claim.
As to argument of the fading memory of the grandmother, Joy Winner, his Honour Henry J noted that the memory might well be refreshed from her statement:
“…is hardly surprising a witness of any age when spoken to by telephone some years after an event might indicate she has a general recollection of an event but has difficulty as to the sequence. When such a witness is given the time and advantage of refreshing her memory from her two witness statements, as she presumably will then properly conferred with in a pre-trial conference, it is likely her memory will be refreshed…”
Finally, in relation to the witness Erin Jaenke, his Honour Henry J was not satisfied that she would bring useful assistance to the case and in any event, his Honour found the attempts fell well short she could not be located or wished not to be located.
Leave to appeal was dismissed.
David Cormack – Brisbane Barrister at Law & Mediator