Cielo v Fitzgerald & Anor; Cielo v Keighran & Anor [2015] QSC 330

The defendants sought the plaintiff’s claim to be dismissed for want of prosecution under r. 389 of the Uniform Civil Procedure Rules 1999.

The negligence claimed was alleged between 2002 and 2003, with PIPA claims in 2005 and shortly followed by an application under s.43 of the PIPA.

The claims involved allegations of medical negligence. Investigations progressed, including independent medical examinations and expert reports until 2010. A compulsory conference was convened for 28 October 2010, however on that day the plaintiff attended chambers of his Counsel and withdrew his instructions. His former lawyer attended the conference that had been convened by way of mediation and advised that he no longer acted, but received the defendants’ joint offer, which was communicated to the plaintiff.

It then took the plaintiff a further four years to find a lawyer willing to act, some of the delay being as a result of fees owing and the former lawyer retaining the file until an agreement was reached on 30 May 2014 with the plaintiff’s current lawyer. Active steps were then taken by the plaintiff’s lawyer, but there was disagreement with the defendants as to the legal status of the claim. Ultimately, the defendants then sought to strike out the claim for want of prosecution.

His Honour Lyons found the defendants had investigated the claim and were in a position by October 2010 to convene and exchange mandatory written offers. His Honour distinguished Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at [2] per Atkinson J, in respect of prejudice, primarily on the basis that Tyler concerned a limitation proceeding [64] & [65].

His Honour found despite the plaintiff’s explanation for the delay being unsatisfactory and that he could have acted with greater alacrity; or could have tried harder to get the file released from his former lawyer, nevertheless; from that time on, he made reasonable efforts to peruse the claims. In the circumstances, His Honour declined to strike the claims out.

David Cormack – Brisbane Barrister & Mediator

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