Entriken v Townsville City Council [2022] QDC 126

vi) Bruising to internal organs, including spleen; and,

• [14] Mr Di Michiel goes on to note that as a result of his perusal of the file held by his firm and of medical evidence obtained, that the applicant has suffered both a loss of cognition as well as impaired capacity generally as a consequence of the injuries sustained. He notes that, as a result of that loss of cognition/impaired capacity, the applicant has had a litigation guardian, Phillip Entriken, acting for him.
• [15] Thereafter, Mr Di Michiel details the significant amount of correspondence and exchange generally between his firm and King & Company, lawyers instructed by the Townsville City Council. In paragraphs 14 through 40 of the affidavit filed on the 10th of December 2021, he details exchanges that occurred, culminating in the orders that were made by his Honour Judge Baulch SC, as he then was, on the 17th of June 2015. Mr Di Michiel indicates that it was simply not a case of there being a total lack of communication or, more particularly, action in the proceedings thereafter, but notes that between the 23rd of September 2015 and the 14th of June 2018, when the compulsory conference was conducted, there was a significant amount of activity, including steps taken with regard to medico-legal appointments being arranged, both from the perspective of experts instructed by the legal representatives for the applicant and steps taken on behalf of the lawyers for the Townsville City Council.
• [16] As I have noted previously, the matter was not resolved at the compulsory conference and there was an exchange of the required mandatory offers to settle the proceedings. Mr Di Michiel indicates in his affidavit that there were steps taken by his firm in relation to the furtherance of these proceedings on behalf of the applicant, though it does not appear that there was any communication as between Premier Lawyers and King & Company.
• [17] What Mr Di Michiel then goes on, toward the conclusion of his affidavit, to do is to indicate that the solicitor previously with the conduct of the matter, Ms Elyse Bonnici, left the firm and that another solicitor then commenced employment and took over the carriage of the matter. Steps were then detailed in the affidavit about other inquiries made, including advice obtained in North Queensland with regard to counsel to be briefed.
• [18] Mr Di Michiel notes that the solicitor who had the conduct of the matter following the involvement of Ms Bonnici was a solicitor, Ms Rachel Carey, and that there were a number of occasions where Ms Carey was absent from the firm and unable to work. Mr Di Michiel indicates at the conclusion of his affidavit that he, thereafter, had difficulties finding a replacement solicitor and therefore had, as best he was able, outlined the difficulties and the delays in relation to these proceedings.
• [19] That affidavit, as I say, was filed on the 10th of December 2021. However, a further affidavit was provided in relation to the proceedings, which affidavit is dated the 23rd of February 2022. In that affidavit, Mr Di Michiel annexes copies of the plaintiff's liability expert report under the hand of Grant Johnston and also annexes a copy of the defendant's liability expert report under the hand of Dr F.W. Brigg. Those reports are dated, respectively, the 16th of February 2017 and the 5th of April 2017.
• [20] Mr Di Michiel also annexes to that affidavit a proposed amended statement of claim and notes that once the matter is renewed or otherwise allowed to continue, that it is the intention of Premier Lawyers to bring an application for the proceedings to be transferred to the Supreme Court, it being contended that the injuries are of such a significant nature that it falls outside the jurisdiction of this Court.
• [21] Mr Di Michiel, in that second affidavit, sets out to explain some of the reasons in relation to delay in respect of the furtherance of these proceedings and that is a relevant matter to be considered in relation to the proceedings and, in particular, the application currently before the Court, brought on behalf of the plaintiff. He notes that these difficulties in relation to furthering the proceedings include:

(a) That the plaintiff has a litigation guardian, his father, Phillip Entriken;

(b) The litigation guardian resides in Rockhampton, 700 kilometres from Townsville and, of course, even more significant distances from the office of Premier Lawyers in New South Wales;

(c) The litigation guardian has employment as a long-haul truck driver and spends much of his time away on the road;

(d) It is contended that this factor of itself makes obtaining instructions difficult, though there is no apparent detail of attempts made to communicate with the litigation guardian and, subsequently, information as to the delays that might then have ensued;

(e) That in addition to the difficulties referred to above, the office of Premier Lawyers has undergone a number of staff changes over at least three years and that there have, in addition, been difficulties with regard to obtaining replacement staff such that there have been delays as a result of the office being short-staffed and, therefore, that matters were not being dealt with as regularly as might have been hoped;

(f) That the COVID-19 pandemic has made obtaining instructions almost impossible due, it is said, to the fact, at least in part, that the litigation guardian lives in Rockhampton, the plaintiff lives in Townsville and the offices of Premier Lawyers are in Sydney. Mr Di Michiel goes on to note in that regard that the head office of his firm is in Liverpool in New South Wales, which was one of the affected local government areas in New South Wales which meant that the office was physically closed for many months and that as the office was not set up to work remotely, there were extreme difficulties, if not almost impossibilities in ensuring that all matters were progressed efficiently;

(g) Mr Di Michiel also indicates that the pandemic had the effect of significantly curtailing of the ability for regular travel to see clients and that, therefore, it was a case of there not being the immediacy of attendance with clients that meant that their matters were to the forefront of he or his solicitors' minds and, therefore, more readily progressed.

• [22] As such, Mr Di Michiel indicated that with the pandemic stopping, to all intents and purposes, travel and there being difficulties with communication with the plaintiff and the litigation guardian, that there were difficulties which were inherent in that geographic situation. Mr Di Michiel also noted, perhaps unnecessarily, that the solicitor previously having the conduct of the matter prior to departing from the employment of Premier Lawyers, was an Irish national with a strong northern Irish accent, which was, as he put it, "additionally problematic when dealing with clients, as the accent was more difficult to understand over a telephone".
• [23] As I say, the thrust of the argument therefore put in relation to this matter is that there were delays and that they arose as a result of a number of circumstances outside the control of the solicitor, let alone outside of the control of either the plaintiff or his litigation guardian, such that the application is now brought in the terms that have been brought on behalf of the plaintiff.
• [24] As I indicated, the defendant in the proceedings has also brought an application seeking orders which, generally, are to the effect of seeking a declaration that the claim has not been properly served and that there should be an order made for the claim to be set aside or, alternatively, that it should be dismissed for want of prosecution. That application itself was filed on the 27th of January 2022 and sought orders in these terms:
  1. Pursuant to rule 16(b) Uniform Civil Procedure Rules 1999 (Qld), a declaration that the Plaintiff's claim filed 23 June 2015 has not been properly served on the Defendant.
  2. Pursuant to role 16(e) Uniform Civil Procedure Rules 1999 (Qld), an order that the Plaintiff's claim filed 23 June 2015 be set aside.
  3. Alternatively, pursuant to rule 280(2) Uniform Civil Procedure Rules 1999 (Qld), an order that the Plaintiff's proceeding be dismissed for want of prosecution.
  4. Such further or other Order as the Court sees fit.
  5. The Plaintiff pay the Defendant's costs of and incidental to the application.
• [25] That application was accompanied by an affidavit under the hand of Ethan Nicholas John Brian Edwards, which affidavit was filed on the 27th of January 2022 and was, in fact, sworn on the 24th of January 2022. In that affidavit, Mr Edwards provides some history of the conduct of the proceedings and notes particularly that it was the view of the defendant that the plaintiff's notice of claim, which was provided pursuant to the PIPA legislation was not compliant with the legislation and this was communicated to Premier Lawyers on multiple occasions. Additionally, Mr Edwards deposes to the fact that the compulsory conference was conducted on the 14th of June 2018 and, thereafter, for a period of almost exactly three and a half years, there was no communication whatsoever by the plaintiff with his firm, seeking in any way to progress the claim.
• [26] Additionally, Mr Edwards details the concern that is held with regard to whether or not the claim and statement of claim filed on the 23rd of June 2015 had ever been served and notes that from those inquiries, there does not appear to be any indication by the insurance officer of the Townsville City Council of there ever having been proceedings number 180 of 2015 served upon or otherwise provided to the defendant. There is, however, as I had indicated, a dispute in relation to that particular aspect of the matter.
• [27] Mr Edwards also addresses in relation to what he says is the prejudice that would now be experienced by the plaintiff, were it to be the case that these proceedings were allowed to continue upon any of the bases sought to be relied upon by the applicant.
• [28] He notes steps taken with regard to having Adam Holloway, a liability adjuster, seek to contact potential witnesses to determine the extent of prejudice suffered by the plaintiff's delay in, it is said, serving and/or proceeding with the matter. Mr Edwards details the difficulties that are said to arise and, therefore, the prejudice that would be suffered by the defendant in the proceedings in paragraphs 6(a) through (g) of his affidavit:
  1. I am informed by Mr Holloway, and verily believe, the following:
     1. On 17 January 2022 he attempted to contact Mr Michael Neeson, Queensland Ambulance Service (QAS) paramedic and Mr Michael Grainer, QAS paramedic by phone and requested each of them contact him. On the same day an email was sent to each of them requesting they contact him. As at the date of swearing this affidavit no response has been received from Mr Neeson, and by way of an automated email notification, Mr Grainer deleted the email he received without reading it.
     2. On 17 January 2022 he attempted to contact Mr Andrew McLaren of the Queensland Police Service Forensic Crash Unit (QPSFCU) and as a result of that query Mr McLaren was not spoken to and as he was informed that no direct contact number for Mr McLaren was available. He informed me that he did not believe Mr McLaren continued to work for the QPSFCU. His investigations are ongoing.
     3. On 17 January 2022 he attempted to contact Mr Bradley Byrnes on a number previously used to Mr Byrnes, and determined that the number was disconnected. On the same day, he also posted a letter to Mr Byrnes' last known address. His investigations to contact Mr Byrnes are ongoing. As at the date of swearing this affidavit no response has been received to the letter.
     4. On 17 January 2022 he attempted to contact Senior Sergeant Robert Nalder of the Queensland Police Service and determined that SSGT Nalder was presently on leave and not contactable until 27 January 2022.
     5. On 24 January 2022 he spoke with Ms Emma Gill and determined that Ms Gill has some recollection of the incident.
     6. On 24 January 2022 he spoke with the mother of Ms Kirra Jackson and left a message for Ms Jackson to return his call. As at the date of swearing this affidavit no response has been received to the message left to return his call.
     7. On 24 January 2022 he spoke to Mr Timothy Waters, a witness in another vehicle. Mr Waters recalls the incident due to the significance of it.
• [29] There is, therefore, as I say, background in relation to this particular matter and, certainly, issues that arise with regard to its determination. As noted, one of the arguments that arises relates to the orders that were made by Judge Baulch SC, as he then was, in June of 2015, noting that his Honour specifically ordered that the proceedings be stayed pending compliance with Part 1 of Chapter 2 of the Act (PIPA) or the proceedings otherwise be discontinued or otherwise ended.
• [30] The dispute between the plaintiff and the defendant in relation to that particular aspect of the matter relates to whether or not the proceedings are, in fact, still stayed as a result of the orders made on the 17th of June 2015. For the applicant, it is argued that as the orders did not provide an end date or a date by which there needed to be compliance, the orders remain stayed until there is a further order of the Court. From the perspective of the defendant, however, it is argued that the orders made on the 17th of June 2015 were pursuant to the provisions of section 43 of the PIPA and that this section sits within Chapter 2, Part 1 of the PIPA legislation and that there is an end stage that arises and that was at the time of the conduct of the compulsory conference.
• [31] There are issues that arise in relation to this matter which give rise to difficulties from the perspective of the plaintiff. Time has passed and that, of its very nature, gives rise to the possibility of prejudice for the defendant, particularly as has sought to be identified by the inquiries that have been made on the part of the defendant.
• [32] However, there is, of course, an overarching need to ensure that justice should be done and there are obviously, therefore, concerns that arise with regard to the very clear indications of the difficulties that are experienced by the plaintiff, though of course there is the need to consider issues in relation to liability and the like. What is argued on the part of the plaintiff is that whilst there may have been delay, there has been attempts to proceed with the matter. Reference in that regard is made not only to the stay, but also to the alternative which arises with regard to the renewal of the claim pursuant to the provisions of section 24(4) of the Uniform Civil Procedure Rules. Rule 24(4) of the UCPR provides as follows:

(4) However, the Court's leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary or the day on which the claim was originally filed.

• [33] What is argued from the perspective of the applicant here is that this matter is different to one in which a step has not been taken because, specifically, there is the order previously made on the 17th of June 2015 with regard to a stay. The plaintiff says, therefore, that the claim could and should be renewed and that appropriate orders could be made with specific and directed timelines to ensure that the matter is put back on track and, more particularly, moved towards some appropriate determination or resolution.
• [34] The defendant says that renewal is not a course that could properly be taken in relation to this matter because of the time that has passed and, in particular, as a result of the fact that no step has been taken in the proceeding for a period in excess of two years and that, therefore, there are difficulties inherent in that.
• [35] Further, the defendant, as I have indicated, says that the claim has not been served on the defendant in relation to these proceedings, particularly noting the evidence of Mr Edwards and the issues with regard to service in any appropriate form. It is clear, however, that if a Court is satisfied that a document came into the person's possession, that service has been affected. In that respect, I note specifically the provisions of rule 117 of the Uniform Civil Procedure Rules:

(a) for any reason, a document is not served as required by this chapter but the document or a copy of it came into the possession of the person to be served; and

(b) the court is satisfied on evidence before it that the document came into the person's possession on or before a particular day;

the court may, by order, decide that the possession of the document is service for these rules on the day it came into the person's possession or another day stated in the order.

• [36] What is submitted on the part of the applicant is that it is self-evident that a communication was forwarded which attached a copy of the claim and statement of claim to the defendant's lawyers and that, therefore, they had possession of the document.
• [37] Whether, in fact, it was a sealed copy or not appears unclear, particularly in light of the dates of communication in relation to the proceedings and, in that regard, the defendant argues that the relevant document to be served is the claim which was filed on the 23rd of June 2015 and not an unfiled document which may have been provided by way of communication of the 18th of May 2015.
• [38] What is clear, however, is that there were further steps taken, negotiations entered into and, in fact, a compulsory conference held within a timeframe that followed on from the filing of the claim and statement of claim and wherein it was clear that whether service had specifically been effected, including the service of a sealed copy of the claim and statement of claim, the defendant knew of the existence of it and had possession of such a document, such that I am satisfied that there is a basis upon which it can properly be accepted by the Court and, therefore, that the Court can be satisfied that the possession of the claim and statement of claim came into the defendant's possession at a date shortly after the 23rd of June 2015.
• [39] The argument, then, turns on the question of the operation of the stay or, alternatively, whether or not there should be renewal. As has been noted already, the application filed on the part of the plaintiff seeks leave pursuant to the provisions of rule 24(4) of the Uniform Civil Procedure Rules for the renewal of the claim and statement of claim and, alternatively, leave pursuant to the provisions of rule 389(2) of the Uniform Civil Procedure Rules to take a further step in the proceedings. The considerations in respect of those particular aspects of the matter are somewhat different, but ultimately rest upon a consideration of the background information in the proceedings.
• [40] As is argued on the part of the plaintiff, it is clear from the authorities that each case has to be viewed upon its own set of facts, including reference particularly to the comments of Justice of Appeal Pincus, as he then was, with whom the Court agreed in Muirhead v The Uniting Church in Australia Property Trust [1999] QCA 513, where, at paragraphs 4 and 5 the following was said:

Authorities on rules of a similar sort were discussed by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337. There Stephen J adopted statements of principle from South Australia and Canada (343, 344, 345, 346) in dealing with such an application. In summary, the views which his Honour applied were:

(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".

(5) The last principle was applied by the Full Court of the Supreme Court in Brown v Coccaro (1993) 10 WAR 391 at 400. Further, Van Leer, although a decision of a single judge, acquires some additional authority from the references to it in Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186 at 189 and in Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 60 ALJR 277.

• [41] In Muirhead, there was specific comment as to the need for justice to be done, though of course that relates to justice for both sides. Additionally, of course, there was explanation required in relation to the length of delay and the reasons for it, as well as the conduct of the parties and the hardship or prejudice that might be caused to the plaintiff by refusing renewal, as well as hardship to the defendant in granting it. In this particular instance, there is the very real concern that arises in that regard with respect to the plaintiff and the plaintiff's circumstances.
• [42] I am reminded also, and most appropriately, of the factors which have been set out, though not exhaustively, as relevant in relation to any determination of an application of the nature that is before the Court. Justice Atkinson, as she then was, in Tyler v Custom Credit Corporation Limited [2000] QCA 178, set out some of the factors that may have more relevance in some cases than in others. In particular, her Honour detailed those factors that might be considered in the exercise of a discretion conferred by rule 389(2) of the UCPR:

(1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;

(2) how long ago the litigation was commenced or causes of action were added;

(3) what prospects the plaintiff has of success in the action;

(4) whether or not there has been disobedience of Court orders or directions;

(5) whether or not the litigation has been characterised by periods of delay;

(6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;

(7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;

(8) whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;

(10) whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded are more difficult to explain than delay by his or her legal advisers.

(11) whether there is a satisfactory explanation for the delay; and

(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

• [43] Obviously, the list is not exhaustive, but factors which loom large include that 10 years has passed since the alleged incident and that the litigation was commenced approximately seven years ago. It is difficult also, of course, to assess the prospects of the plaintiff in relation to the action, though it is clear that there have been subsequent periods of delay which have arisen for various reasons.
• [44] There have been, as described by Mr Di Michiel, difficulties in relation to obtaining instructions which, it is said, have affected the pace of the litigation and, in my assessment, most significantly, a consideration as to whether the delay has been caused by deleteriousness on the part of the plaintiff and the litigation guardian or whether it is more reflective of the circumstances that are detailed more specifically by Mr Di Michiel in relation to the circumstances in his office. It is noted that the factors to be considered specifically included a consideration relating to whether the delay is delay that has come about as a result of the action or lack of action of the plaintiff or, in this case, perhaps his litigation guardian, than might be the case with delay or inaction within the office of the solicitors.
• [45] It is certainly the case that there is not a comprehensive explanation of the delay in relation to these proceedings and, as was submitted to me by counsel for the plaintiff, the reasons that have been given may not necessarily be complete, but they do provide some background and indicate that there have been factors which have been at play different to what might normally have been the case. It is also submitted on the part of the applicant that it is, at the present time, too early to determine the prospects of the case, though there are certainly indications of evidence favourable to the applicant, as well as, of course, contrary to the proceedings brought by the applicant.
• [46] Ultimately, the submissions on the part of the applicant are detailed.
• [47] In paragraphs 60 through 70 of the plaintiff's outline, which are in these terms:
  1. It is submitted that the relevant delay in this application is not a delay in commencing proceedings but rather a delay in the continuation thereof.
  2. As is clearly evident from the affidavit of Mr Di Michiel, the injuries sustained by the plaintiff are significant.
  3. Those injuries have resulted in the plaintiff having in cognitive difficulties and the need to appoint a litigation guardian.
  4. The outbreak of COVID-19 at the end of 2019 resulted in significant shutdowns.
  5. This was particular so in New South Wales where the plaintiff's lawyers practice.
  6. It resulted in considerable difficulty in liaising with the plaintiff.
  7. In addition to that the substantial investigations had been conducted and expert reports had been obtained.
  8. This is not the type of case where the delay has caused the defendant the type of prejudice that was identified by Williams J in Muirhead.
  9. It is submitted that it cannot said that the defendant is faced with any significant prejudice.
  10. The facts of the case for be substantially determined on expert evidence. The expert reports have been obtained.
  11. It is submitted that it is in interests of Justice to facilitate this matter progressing.
• [48] The defendant's position is simply to say that the delay is not appropriately or in any way fully explained. Further, it is argued that there are no significant prospects of success in light of some of the evidence that is available in relation to the proceedings, though of course the ultimate determination of that would come from the conduct of a trial. The defendant then goes on to emphasise that the delay is entirely attributable either to the plaintiff or his lawyers and that the explanation is so unsatisfactory that the plaintiff has not discharged the onus that arises pursuant to the provisions of section 389(2) of the UCPR and that, therefore, the Court would decline to exercise a discretion in all of the circumstances.
• [49] Ultimately, the one factor that, in my view, is so overwhelmingly significant in relation to this particular matter is the need to ensure that justice is done in relation to the proceedings. I am concerned that delay in the matter has given rise to difficulties, but I am also satisfied that the prior inquiries that were made and the reports that are to hand are such that the matter can properly and appropriately be proceeded with.
• [50] Accordingly, I intend to dismiss the application brought on behalf of the defendant filed on the 27th of January 2022 and to make orders on behalf of the plaintiff to the effect that the statement of claim has been served upon the defendant and that leave should be granted pursuant to the provisions of section 389(2) of the Uniform Civil Procedure Rules for the applicant to take a further step in the proceedings. The orders are detailed as at the commencement of these reasons.