Hall v RH & CE McColl P/L [2007] QCA 182

SUPREME COURT OF QUEENSLAND

CITATION: Hall v RH & CE McColl P/L [2007] QCA 182

PARTIES: ALLEN LEONARD HALL / (plaintiff/appellant) / v / RH & CE MCCOLL PTY LTD ACN 075 377 945 / (defendant/respondent)

FILE NO/S: Appeal No 11027 of 2006 / DC No 3087 of 2006

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 1 June 2007

DELIVERED AT: Brisbane

HEARING DATE: 4 May 2007

JUDGES: McMurdo P, Jerrard JA and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Appeal dismissed / 2. Appellant to pay the respondent’s costs assessed on the standard basis / 3. Appellant’s solicitors to promptly provide the appellant with a copy of these reasons

CATCHWORDS: Administrative law – Judicial review at common law – Excess of power and defective use of powers – abuse of discretionary power – consideration of irrelevant matter or refusal to consider relevant matter – where the applicant injured himself in Queensland – where the applicant had been employed by the defendant New South Wales company – where the applicant sought compensation – where the respondent filed for an order to strike out the claim and statement of claim for want of prosecution – whether the learned trial judge’s decision to strike out the claim was an appropriate exercise of the discretion / Uniform Civil Procedure Rules 1999 (Qld), r 389(2) / WorkCover Queensland Act 1996 (Qld), s 253 / Workers’ Compensation Act 1987 (NSW) / Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178; Appeal No 9466 of 1999, 19 May 2000, applied

COUNSEL: S A Lynch for the appellant / A M Musgrave for the respondent

SOLICITORS: Ryan Lawyers for the appellant / Hawthorn Cuppaidge & Badgery for the respondent

McMURDO P: I agree with Jerrard JA.

JERRARD JA: In this matter leave was granted, should leave have been necessary, to appeal against orders made in the District Court in Brisbane on 17 November 2006, striking out the claim by the appellant plaintiff Mr Hall against the defendant company for want of prosecutions; and further ordering that the plaintiff pay the defendant’s costs on the scale applicable where the quantum exceeds $50,000. The notice of appeal dated 15 December 2006 claims that the learned judge striking out the plaintiff’s claim erred in holding that the WorkCover Queensland Act 1996 (Qld) (“the Queensland Act”) applied to the plaintiff’s proceedings, and that as a result the learned judge erred in applying the various factors referred to in this Court’s judgment in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178. The court gave leave to the appellant to amend his grounds of appeal, in accordance with a notice filed 4 May 2007, to make the general allegation that the learned judge erred in taking into account irrelevant considerations, and in failing to consider all relevant ones. The appellant seeks orders setting aside the order striking out his proceedings, being claim No 1 of 2000 filed in the District Court of Queensland at Goondiwindi on 13 March 2000, and asks for leave under Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) r 389(2) to take a new step in that proceeding.

The appellant was born on 13 January 1971, and severely injured his left hand in an accident on 19 June 1998, which happened near St George, in Queensland, although the appellant’s pleadings do not identify where it happened. The Appeal Record suggests that Hall had been employed by the defendant company in New South Wales, to work in Queensland. In May 1999 Mr Hall sought Workers’ Compensation under the then New South Wales Workers’ Compensation Scheme. The defendant’s pleadings admit that at the time the defendant employed the plaintiff as a plant operator, but deny that the plaintiff was acting in the course of that employment in the activity in which he was injured. The circumstances of that are described only in an unsigned statement, apparently prepared for Mr Hall’s signature in 1998, and annexed to an affidavit of his solicitor filed in the District Court on 24 October 2006.

Mr Hall’s pleading filed in the Goondiwindi District Court on 14 March 2000 alleges only that on or about 6.00 pm on 19 June 1998:

“[t]he plaintiff:

in the course of his employment was assisting in putting a ram back on a Samsung 208 excavator;

while the ram was being lowered it dislodged and fell.

As a result of the said incident the Plaintiff...suffered an amputation of the terminal parts of the left index, ring, and middle fingers.”

The unsigned statement describes Mr Hall as the defendant’s senior employee at a site near St George, where Mr Hall and co-workers – the statement suggests they were possibly employees of the defendant – were using excavators, which the statement suggests were possibly the defendant’s property. On or about 17 June 1998 an excavator operated by another man broke down, and repairers from St George were contracted to fix it. On 19 June 1998 two employees of the repairer were attempting to return the excavator to its original condition, and Mr Hall was assisting them, when some bolts around the top of a hydraulic ram snapped.

That resulted in instructions by telephone from the Director of the defendant company to get the ram fixed, and the St George repairers were again contracted to do that. At about 6.00 pm – and presumably at dusk – Mr Hall was assisting the repairers to put the ram back on, when (according to the unsigned statement):

“While I...still had my back to the machine and for some reason the ram dislodged itself and I had my left hand fingers in the hold and the ram cut off the end of three of them at the first joint. The ram sits in a saddle and the pin goes through the ram and the saddle. It must have been sitting crooked in the saddle with tension on it and for some reason it straightened up and jumped up because of the tension on the chain.”

On 14 March 2000 Mr Hall initiated his proceedings in the Goondiwindi District Court against the defendant, and served it with the claim and statement of claim on 30 March 2000. Solicitors acting for the defendant’s then insurer, CGU Workers’ Compensation (NSW) Limited, were given particulars of the claimed employment on 23 October 2000, and advised on 15 November 2000 that those solicitors were seeking an opinion as to whether the insurer could refuse to indemnify the defendant. (It appears the defendant company’s managing director resided in New South Wales and the defendant company may have had its principal business there; the defendant’s insurance policy was taken out pursuant to the Workers Compensation Act 1987 (NSW) (“the NSW Act”)).

Solicitors acting for the defendant then wrote on 22 November 2000 to the plaintiff’s solicitors, and on 2 March 2001 the insurer’s solicitors advised the plaintiff’s solicitors that the indemnity was refused for the defendant because (the insurer’s solicitors) considered that:

“Mr Hall is not a worker within the meaning of the Workers Compensation Act 1987.”

The defendant then filed a defence on 16 May 2001, serving that on the plaintiff’s solicitor, and advising that counsel had been briefed to settle third party notices joining the defendant’s workers’ compensation insurer.

On 1 November 2001 the defendant’s solicitors advised that their application for leave to issue third party proceedings against the defendant’s insurer was granted, and that the defendant’s solicitors were attending to that. However, the defendant’s application for leave to issue third party proceedings against the St George based repairers had been dismissed, and the defendants asked if the plaintiff would consider joining those repairers as a second defendant. The defendant’s solicitors advised that if the plaintiff did not wish to do that, the defendant would bring a fresh application for leave to join the repairer as a third party.

It is apparent the defendant’s solicitors were responding appropriately to their client’s insurer’s refusal of an indemnity, and to the plaintiff’s service of proceedings upon them. Unfortunately, the plaintiff’s solicitors took no further steps at all, until an application was filed by those solicitors on 8 May 2006, seeking leave under UCPR r 389(2) to take a new step in the proceedings. All that the plaintiff’s solicitors had done in the intervening period was write a letter on 16 December 2002 – a little over a year after receiving the defendant’s solicitor’s letter of 1 November 2001 – in reply, apologising for the delay, and advising that the plaintiff’s solicitors were not in a position to join the insurer, and that that could occur only by way of third party notice issued by the defendant to its insurer. It appears the plaintiff’s solicitors had not grasped that in fact the defendant had already obtained leave to take third party proceedings against its insurer, and the defendant had requested the plaintiff to proceed as well against the repairer.

No affidavit evidence from Mr Hall was read before the learned District Court judge, on Mr Hall’s application for leave to take a new step. The only explanation for the fact that no step had been taken on his behalf in the court since his claim was filed in March 2000, or on his behalf by the supply of particulars in October 2000, was in an affidavit from his solicitor sworn 3 May 2006, deposing that:

“Our concern at the time was proceeding against an impecunious defendant. If we were aware the insurer had been successfully joined we would have progressed the matter.”

As to that explanation, the plaintiff’s solicitors had been told, but had apparently misunderstood, that the defendant had leave to issue a third party notice against its insurer; the defendant filed that third party notice on 12 November 2001. The solicitor’s affidavit said nothing at all about when the mistake was realised, or how it had happened or what step was now proposed. However, Mr P Alcorn of counsel, who appeared for the plaintiff before the learned District Court judge, did not read any affidavit material from the appellant at all, either as to the circumstances of the accident or the reason for the delay. Mr S Lynch, appearing for the appellant in this Court, likewise did not seek leave to read any affidavit material from Mr Hall as to the delay, and specifically did not invite the court to infer that the delay was due to any fault on the part of Mr Hall’s solicitor. That meant, as Mr Lynch readily conceded, that before both the learned trial judge and this Court, the delay was simply not explained in any submission or argument advanced on Mr Hall’s behalf, or by any evidence from Mr Hall. Although this Court was not asked so to conclude, the limited material suggested that any fault lay with the solicitor and not the client. The problem for Mr Hall was that there simply was no evidence from him.

The defendant responded to the plaintiff’s application for leave to proceed with an application filed on 25 October 2006, for an order striking out the claim and statement of claim for want of prosecution; that was the application upheld by the learned judge. The judge referred to the matters summarised as relevant by Atkinson J, when giving the judgment of this Court, in Tyler v Custom Credit Corp Ltd & Ors in [2] of that judgment. Atkinson J had included as relevant factors to be taken into account when a court was considering whether or not to dismiss an action for want of prosecution, or whether to give leave to proceed under UCPR r 389, these matters:

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

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

what prospects the plaintiff has of success in the action;

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

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

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

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;

whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;

how far the litigation has progressed;

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 as more difficult to explain than delay by his or her legal advisers;

whether there is a satisfactory explanation for the delay; and

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

The learned trial judge in this matter had concluded there were three primary factors that were important. The first was the unexplained delay, on the best case for the plaintiff since November 2001; the second that the plaintiff appeared to have no reasonable prospects of success as matters then stood; and thirdly, the prejudice to the defendant. As to the first, the learned judge remarked that the plaintiff was aware that the insurer was to be joined in November 2001, and of the outcome of that application in mid 2002. I observe that is true, but it is the plaintiff’s solicitors who were so aware, rather than the plaintiff. The solicitors just seem to have done nothing.

Next, the judge considered that the plaintiff had not persuaded her that he had good prospects of succeeding. That was because the nature of the relationship between the defendant and the plaintiff was still a live issue, in the judge’s opinion. That observation, I respectfully observe, seems to have been an error; the defendant had admitted in its pleading the relationship of employer and employee at all material times. The fact that the defendant’s insurer did not concede that the defendant was a “worker” did not affect the admission in the pleading. However, the judge was on stronger ground in observing that on the extraordinarily limited material put before the judge – namely the unsigned statement taken in 1998 – no apparent or obvious basis for liability in the defendant had emerged. That statement suggested the plaintiff was the defendant’s senior employee at the site, and that he had made all the critical decisions. As the judge remarked:

“It seems the plaintiff’s case is this: I was employed; when I was working I was injured, therefore it is my employer’s fault.”

Regarding liability and the apparent absence of strength in the plaintiff’s case, the learned judge also remarked on the non-compliance by the plaintiff with the procedural requirements in the Queensland Act. The judge accepted the submission by the defendant that the Queensland Act applied; on this appeal the respondent defendant accepted that submission may have been an error, and that the combination of the provisions in s 11 of the Queensland Act (the definition of “damages”) and s 155 of the New South Wales Act, might be that the Queensland Act did not apply. It is unnecessary for this Court on this appeal to express any opinion on that point, which was not argued by counsel. The learned trial judge may well have been correct, but the respondent was prepared to have this appeal decided on the assumption the Queensland Act did not apply.

The respondent nevertheless defended the learned judge’s exercise of discretion, pointing out that the judge did not treat the outcome as concluded by the plaintiff’s apparent non-compliance with the provisions of s 253 of the WorkCover Queensland Act (despite the submission then advanced to the judge by the defendant). The respondent argued the learned judge was nevertheless quite correct in the result reached, and pointed to the third matter on which the judge had relied, namely prejudice to the defendant. The appellant submitted in reply that, in part, the judge relied upon the prejudice suffered by the defendant in not having the allegations of negligence, and particulars of that which would have been provided, had the plaintiff complied with the Queensland Act, which Act, the appellant said, did not apply. I note that irrespective of the Queensland Act applying or not, the judge did go on to remark that the plaintiff had not explained how the incident happened, and that no statements had been taken. The judge therefore considered the defendant had been left in a position in which it could not properly investigate the issues.

As to that last point, the defence that was filed suggested the defendant did have some instructions about the matter, because it pleaded that the defendant had engaged an independent contractor (presumably, the repairer who was never joined) to undertake repair of the plant and equipment, and that the plaintiff had been employed only to operate the plant and equipment by sitting in the excavator and operating the control levers of the machine as directed by the independent contractor repairer. The defence further pleaded that the plaintiff was, of his own volition and contrary to instructions, engaged in an activity that he was neither reasonably required nor authorised to undertake in order to carry out his duties. The defence also pleaded that the defendant had ensured there was an adequate and proper manual and mechanical assistance on hand when the ram was being attached to the excavator, and it had retained qualified subcontractors to undertake the maintenance of the excavator.

Because of the concession made by counsel for the respondent, namely that the Queensland Act may not apply to the proceedings, it follows that the learned trial judge determined the application on a basis not supported by argument in this Court. The judge may also have assumed a greater prejudice to the defendant than was justified, in that the defendant had clearly conducted some investigation by the time it filed the defence. The learned judge also had an apparently misplaced concern that the employer–employee relationship had not been demonstrated by the plaintiff. This means that the appellant succeeds in persuading this Court that some irrelevant matters may have been taken into account, and some relevant ones were not. This Court accordingly is obliged to re-exercise the discretion.

With regard to the relevant factors described in Tyler, there was no delay before the litigation was commenced, and the plaintiff’s prospects of success are entirely unknown. There has been a prolonged delay for a number of years. The reason is not explained, but it is more likely to be the fault of his solicitors than the appellant’s. The litigation has not progressed far and the delay would have prejudiced both the plaintiff and the defendant in the preparation for trial. A potentially important party was not joined during the limitation period. On this appeal, Mr Lynch was unable to nominate what step the plaintiff might next take, if given leave. Solely because of the complete absence of any affidavit evidence from the appellant as to the reasons for the delay or the prospects of success, I would dismiss the appeal, order that the appellant pay the respondent’s costs assessed on the standard basis, and further order that the appellant’s solicitors promptly furnish the appellant with a copy of these reasons.

HOLMES JA: I agree with the reasons for judgment of Jerrard JA and with the orders he proposes.