Supreme Court of Queensland|2007-04-13|Before: Jones J

Webster v. Yates & Anor [2007] QSC 242 (13 April 2007)

HIS HONOUR: On the 30th of October, 2006 the plaintiff applied to have the action remitted to the District Court, and if necessary, to be granted leave to proceed. The defendants contend that leave is necessary, and further, that it should not be granted. However, if leave is granted, they do not oppose the matter being remitted to the District Court.

The fact that six months has elapsed to have this application finalised rather characterises the progress of the action since it's inception on the 13th of March, 1997. The cause of action is for damages for negligence for personal injuries sustained on the 13th of March, 1994. The service of the writ took nine months to achieve, with a further 10 months before the statement of claim was delivered. Not to be entirely outdone the defendants took 10 months to answer a request for particulars of their defence. That was done in 1999. The year 2000 was something of a stellar year because three positive events occurred; the plaintiff provided a statement of loss and damage; made disclosure; and the parties participated in a compulsory conference pursuant to rule 553 of the Uniform Civil Procedure Rules.

Nothing particularly happened in 2001. In 2002 the defendants completed disclosure and the parties participated in a further conference. The only event reported in 2003 was the plaintiff's provision of an updated statement of loss and damage, and the provision of further taxation documents.

Nothing happened then until the 4th of March, 2005 when a further conference was held. There is some argument as to whether this was a reconvening of the earlier conferences or a new step. This point was raised in July 2006 when the plaintiff gave notice of intention to proceed but the defendants contended that at that point leave was required, hence the present application. If the conference in March, 2005 is to be regarded as a step in the proceeding, leave is not required. If it is not such a step, then the last step was the delivery of the statement of loss and damage on 10 July 2003.

Rule 389(2) of UCPR provides that if no step in a proceeding has been taken for two years since that last step, then leave must be sought. This two year limitation applies to this action even though it was commenced under an earlier procedural regime - see Yrittiaho v The Public Curator [1971] HCA 29; (1971) 125 CLR 228. The conference of March 2005 may or may not have been arranged pursuant to rule 553 of the UCPR. Assuming for the purpose of argument that it was, the question is, can that be characterised as "a step in the proceeding"?

Under the previous rule regime a compulsory conference was a step in the proceeding because a matter could not be entered for trial without that conference having been held. A certificate of readiness could not, in those circumstances, be signed. Order 39, rule 30A(4)(e). If the first of the three conferences mentioned occurred after the introduction of the UCPR, under these rules the holding of a conference pursuant to rule 553 is a matter of choice unless the Court orders that the conference is to be held. In these circumstances of an order being made, the action would not be ready to be set down until the conference is held. For that reason, the earlier cases suggesting that a compulsory conference was "a step" would not now be applicable, in my view.

What characterises conduct as "a step in the proceeding" is one which moves the matter towards the judgment or the relief sought in the action - see Smiley v Watson (2001) QCA 269. The conference in March 2005, being the third such conference, did not have, nor was it intended to have this effect. More probably it was intended to avoid the matter having to proceed further. I take the view that the conference was not "a step in the proceeding" making it, therefore, necessary for a grant of leave to be obtained.

The circumstances of the plaintiff's injury as detailed in the statement of claim is that the plaintiff, a paying passenger in a game fishing vessel operated by the defendants, was assisting a deckhand to haul in an anchor rope. As he was doing so the vessel rose on a swell causing the rope to become taut and jamming the plaintiff's hand between the rope and the bollard. The defence simply makes a blanket denial of these allegations of fact. There seems to be little controversy about the facts. The known witnesses, including the defendants' deckhand, are available to give evidence.

In opposing this application the defendants point to -

The defendants claim that they were prejudiced by the fact that the action was instituted only shortly before the limitation period expired. By that time documents which might have identified other witnesses had been lost or destroyed. The defendants do not, however, point to the further delays after the commencement of the action as giving rise to any specific prejudice. There remains always the impact on the quality of a witness' recall after so long a time. The defendants initially retained solicitors and then for a period acted on their own behalf, and more recently have retained new solicitors. The defendants did not have insurance cover for the type of claim the plaintiff now makes.

In a litigation environment where costs can quickly escalate it is not surprising that there was some focus on settlement rather than vigorously pursuing the matter to a trial. There was also a concern on the part of the plaintiff that the defendants may not have been sufficiently financial to meet any judgment or costs. None of this justifies the delay of this magnitude but at least it points to a mindset where the claim was not pursued with ordinary vigour.

I am to have regard to the principles rather than to the exercise of my discretion as to whether a grant of leave should be made. These have been identified in familiar cases of Dempsey v Dorber (1990) 1 Qd R 418 and Tyler v Custom Credit Corporation (2000) QCA 178. I am satisfied in these circumstances that there has been sufficient explanation for the delay. Though the bulk of it is properly attributable to the plaintiff's inaction or that of his solicitors, the defendants themselves have contributed to the delay.

The critical issue is whether there has been such prejudice to the defendants that a fair trial cannot be now assured. I am satisfied that the issues to be litigated are really quite narrow and can be properly ventilated on a trial to be held now. I am satisfied that the matter can be brought on expeditiously in the District Court at Cairns. In these circumstances I would exercise my discretion to grant the plaintiff leave to proceed and then to remit the action to the District Court for hearing.

. that the action be remitted to the District Court at Cairns.

. that the plaintiff pay the defendants' costs of and incidental to this application to be assessed on the standard basis.

Webster v. Yates & Anor [2007] QSC 242 (13 April 2007)

At a glance

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Judgment (17 paragraphs)

Webster v. Yates & Anor [2007] QSC 242 (13 April 2007)

Cases Cited (2)