Running out of time: all parties required to actively progress claims
Jul 2016 |
Allianz Australia Insurance Limited v Corowa [2016] QCA 170
The Queensland Court of Appeal has recently upheld a decision of the Queensland District Court concerning an application for dismissal for want of prosecution in the context of an insurance litigation matter. The case provides a defining insight into the court’s approach to such an application and suggests defendants also need to be proactive in progressing a matter, even if the plaintiff is not.
Facts
On 14 September 2009, the plaintiff alleged the insured intentionally drove his Commodore at him and ran over his right foot. The plaintiff claimed damages for personal injury and loss suffered as a result of the unlawful battery, or alternatively, the negligent driving of the insured. The insured argued that he drove the vehicle in self-defence of himself and his family (his grandmother and his de-facto were in the vehicle with him).
The plaintiff spent time incarcerated which caused delays in the advancement of the litigation. Meanwhile the insured died, his grandmother’s memory faded and the insured’s de-facto became hard to locate.
Litigation history
The plaintiff filed his notice of accident claim form on 8 March 2010 pursuant to the Motor Accident Insurance Act 1994 (Qld). The defendant served its notice denying liability on 13 October 2010. A compulsory conference was held on 27 August 2012. The matter failed to settle and pleading documents were filed pursuant to the Uniform Civil Procedure Rules (UCPR). The plaintiff was due to serve a list of documents and statement of loss and damage on 23 November 2012.
There was inactivity on the file for approximately 20 months. In July 2014 the defendant’s solicitor sent a rule 444 letter to the plaintiff’s solicitor demanding the list of documents and statement of loss and damage be provided. The plaintiff advised in August 2014 that the documents would be served in the immediate future. This did not occur and a further 13 months passed.
Application
The defendant brought an application pursuant to rule 280 of the UCPR for dismissal for want of prosecution on 29 September 2015.
Specifically, the defendant claimed the plaintiff did not deliver a list of documents or serve a written statement of loss and damage pursuant to rule 214 and 547 of the UCPR respectively (delay). Further, the defendant alleged they suffered prejudice occasioned in the meantime due to the death of the insured, the insured’s grandmother’s faded memory and the difficulty in locating the insured’s de-facto (prejudice).
Decision at first instance
The District Court considered that the delay and prejudice issues did not justify dismissal of the claim. The application was refused by the District Court.
The defendant filed a leave to appeal the decision to the Court of Appeal.
Appeal
Ultimately the Court of Appeal held the failure of the plaintiff to comply with the relevant UCPR provisions was not sufficient to compel the exercise of the court’s discretion to dismiss for want of prosecution.
Delay
The court stated the plaintiff’s dilatory conduct was unacceptable. The court gave consideration to the fact of the plaintiff’s incarceration and commented this impacted upon his ability to instruct his solicitor. However, the court held this did not alleviate his obligation to comply with the procedural requirements of the UCPR.
The court was equally critical of the defendant’s inaction and ‘historically ambivalent attitude’ to the pace of the litigation. The court cited that all parties are obligated to proceed expeditiously in the litigation pursuant to rule 5 of the UCPR. The court referred to the defendant waiting in excess of 20 months after the documents were due to begin following up the matter. The court reasoned such conduct of not advancing the matter appeared to suit the purpose of the defendant.
Prejudice
The Court of Appeal held the alleged prejudice suffered by the defendant was not as serious as contended. The Court of Appeal gave attention to the signed statements of the insured and the two witnesses which were provided to the police, and subsequently to loss adjuster investigators. In the circumstances, the statements were admissible pursuant to the Evidence Act 1977 (Cth). The court agreed that whilst the death of the insured was disadvantageous, this did not preclude a fair trial as his signed statements were admissible. Furthermore, the death of the insured deprived the plaintiff the opportunity to cross-examine him.
With regard to the witnesses, the Court of Appeal commented that the insured’s grandmother’s memory could be refreshed before a trial and the defendant failed to prove the insured’s former de-facto could not be located.
Commentary
The decision of the Queensland Court of Appeal is a strong example that an application for dismissal for want of prosecution should not refer solely to the inactions of a single party. In this circumstance, the ambivalent attitude of the defendant and their inability to ‘get their own house in order’ warranted consideration of the actions and inactions of both parties.
This is a timely reminder that defendants in the course of litigation should attempt to expedite a matter in the spirit of the UCPR as opposed to letting matters sit idle. Furthermore, if an application for want of prosecution is filed, a court will look to the conduct of all parties.
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