The plaintiff sought a declaration that filing the mediator’s certificate was a step in the proceeding and hence, obviating the need for leave to proceed. Alternatively, the plaintiff sought leave to proceed under r 389(2) of the Uniform Civil Procedures Rules 1999 (UCPR).
The defendant resisted the application and cross-applied for dismissal of the proceeding for want of prosecution.
The history of the plaintiff’s claim arose from a personal injury suffered by the plaintiff in a motor vehicle on 22 December 2009. Importantly, liability was admitted at an early stage, because the plaintiff gave notice to the insurer within nine months. However, after that, the claim proceeded at a ‘leisurely pace’ due in part to the plaintiff’s impecuniosity. The most recent delay involved a mediation in August 2015, which was adjourned for further disclosure of documents. It did not resume, and at the promoting of the defendant’s solicitor it became apparent by July 2016 it would not resume, and the mediator’s certificate was filed.
It subsequently emerged that plaintiff required surgery, which took place in September 2017 after the defendant agreed to pay the costs.
Kent J considered that the fault in the delay did not lie with the defendant. It was also apparent that the further delay was caused by the supervening need for surgery.
His Honour noted that the operation of r 553 of the UCPR does not mandate a conference or mediation. If there is a failure to participate in a conference or mediation, it allows for alternative action to be taken, such as to apply for a trial date, directions or an order for mediation. His Honour also noted that it did not have the “characteristic of carrying the action forward” – Artahs Pty Ltd v Gall Stanfield & Smith and was not a “step” in the action. Accordingly, the declaration was not made.
As to leave to proceed under r 389(2) of the UCPR his Honour applied the well accepted criteria in Tyler v Custom Credit Corp Ltd & Ors and found :
“…The plaintiff submits the delay in this case is not particularly lengthy; the plaintiff’s prospects are excellent because liability is admitted; there has not been significant disobedience to court orders or directions; there has been delay, attributable to the plaintiff but explained by his supervening medical condition; his impecuniosity contributed to the delay in funding his surgeries; in the respondents’ favour, the litigation would end if the Statement of Claim were struck out; the action has progressed to the point of being set down for trial; some delay is attributable to the plaintiff’s lawyers but should not be sheeted home to the plaintiff; the delay is explained as set out above; there is no prejudice to the defendants and there is no reason to conclude the trial would be unfair.
 The defendants submit there will be prejudice because the documents disclosed as to income and expenses are inadequate; however I do not understand this circumstance to be brought about by delay, it seems always to have been the case. Secondly, they refer to the inherent prejudice in defending a claim which is some eight years old. However in my conclusion these are matters able to be adequately dealt with; the plaintiff bears the onus of proof and, for example, lack of documents may well be more problematic for him than the defendants. It is also relevant that the claim form was sent to the second defendant within nine months of the accident, and liability was admitted in 2011. The case is in my view a stronger one for the plaintiff than Artahs (supra) where leave to proceed was given on appeal.”
David Cormack – Brisbane Barrister & Mediator