Qubeck v Hicks [2018] QDC 193 (29 August 2018)

Last Updated: 21 September 2018

DISTRICT COURT OF QUEENSLAND

CITATION:	Qubeck v Hicks [2018] QDC 193
PARTIES:	JASON QUBECK (Plaintiff) v DANIEL FRANCIS HICKS (Defendant)
FILE NO/S:	3175/2015
DIVISION:	Civil
PROCEEDING:	Application (to set aside renewal of claim)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 August 2018 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2018
JUDGE:	Koppenol DCJ
ORDER:	Application dismissed. Plaintiff’s costs of and incidental to the application are Plaintiff’s costs in the cause.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME EXTENSION AND ABRIDGMENT - RENEWAL OF CLAIM - CONDUCT OF PARTIES - Plaintiff applied to Registrar under rule 24(2) UCPR to renew personal injuries claim – Plaintiff’s lawyers informed Defendant’s lawyers of claim, cause of action, negligence alleged, supporting evidence, date the claim and statement of claim filed and Court file number – steps taken under Personal Injuries Proceedings Act – parties’ lawyers prepared for compulsory conference - mandatory final offers to settle exchanged - claim never served personally on Defendant despite lawyers’ requests – Registrar renewed claim twice – six years since accident – not contended that lapse of time a real impediment to fair presentation of Defendant’s case - Plaintiff’s claim statute-barred if renewal set aside – whether “other good reason” to renew claim - whether renewal should be set aside Uniform Civil Procedure Rules, r 24(2) Personal Injuries Proceedings Act 2002 The IMB Group Pty Ltd (in liq) v ACCC [2006] QCA 407; [2007] 1 QdR 148 (CA), applied McIntosh v Maitland [2016] QSC 203, considered King v Gunthorpe [2018] QSC 1, considered
COUNSEL:	R Oliver for the plaintiff P Telford for the defendant
SOLICITORS:	Bartels Lawyers for the plaintiff Carter Newell Lawyers for the defendant

[1] The registrar renewed the respondent/plaintiff’s claim (for damages for personal injuries) on two occasions. The applicant/defendant applies now to set aside those ex parte orders.

[2] I am of the opinion that the application should be dismissed.

[3] Rule 24(2) of the UCPR provides that if a claim has not been served on a defendant within one year, the registrar may renew the claim if the registrar is satisfied that (a) “reasonable efforts have been made” to serve the defendant or (b) there is “another good reason” to renew the claim. Requirement (a) does not apply because it was accepted that reasonable efforts were not made to serve the defendant. It was requirement (b) upon which Mr Oliver of Counsel for the respondent/plaintiff relies.

[4] The relevant accident is alleged to have occurred on 16 August 2012. The plaintiff said that he suffered a physical injury when he slipped while walking downstairs at the defendant’s boarding house. A witness statement was obtained by the plaintiff’s solicitors from a Mr Cummings, who allegedly observed the defendant lying at the bottom of the steps. He said that he found the plaintiff unconscious on the ground at the bottom of the steps near the leaky hot water service after slipping on a greasy substance on the white-tiled floor at the top of the staircase. There is no suggestion that there are other witnesses to the events or to its aftermath. The plaintiff was taken by ambulance to hospital and there are various medical reports that apparently support the allegation that the plaintiff suffered injury.

[5] Some steps under the Personal Injuries Proceedings Act 2002 were then taken by the plaintiff’s lawyers. A notice of claim was sent to the defendant in January 2013. That notice must have been passed on to the boarding house’s insurers because Carter Newell Lawyers took over the matter for the defendant in February 2013. Over the next year, a considerable amount of correspondence was exchanged between the two firms of lawyers. In January 2014, the parties were preparing for a compulsory conference. By July 2015, the compulsory conference had still not been held. The limitation period was due to expire on 16 August 2016. The parties agreed to dispense with the compulsory conference and then exchanged mandatory final offers to settle.

[6] The plaintiff commenced proceedings on 14 August 2016 to preserve the limitation period. Three days later, the plaintiff’s lawyers wrote to Carter Newell and said that the claim and statement of claim had been filed and the file number was BD3175/15.

[7] Subsequently, the plaintiff’s lawyers regularly updated the defendant’s lawyers with evidence which they had obtained, such as medical records and other material obtained through non-party disclosure. The defendant’s lawyers, however, insisted upon the defendant being served personally, but that did not occur.

[8] On 21 November 2016, the defendant’s lawyers advised the plaintiff’s lawyers that they no longer had the conduct of the matter. They referred the plaintiff’s lawyers to the insurer’s claims manager.

[9] About six months later, the plaintiff’s lawyers wrote to the insurer’s claims manager and asked if he had instructions to accept service of the claim and statement of claim. No reply was received to that letter.

[10] On 9 June 2017, the plaintiff’s lawyers successfully applied to the registrar to renew the claim.

[11] In April 2018, Carter Newell informed the plaintiff’s lawyers that they had been re-engaged to act for the defendant.

[12] In the meantime, the claim had gone stale again and another application for its renewal was then made to the registrar. The registrar renewed the claim.

[13] Mr Oliver’s key point was that when all of the circumstances are looked at, the plaintiff kept the defendant fully informed and did not keep the defendant in the dark. I regard that as very significant. The defendant’s lawyers knew in 2013 the details of the claim, the cause of action relied upon and the negligence alleged and they knew in 2016 that the claim and statement of claim had been filed and the number of the Court file. As a result, this is not a case where a plaintiff’s lawyers had effectively done nothing and allowed years to pass before taking any action.

[14] Those circumstances are significantly different from those which were the subject of Jackson J’s decision in McIntosh v Maitland [2016] QSC 203 and Burns J’s decision in King v Gunthorpe [2018] QSC 1, upon which Mr Telford of Counsel for the applicant/defendant relied.

[15] In McIntosh, the plaintiff had been waiting for the outcome of other proceedings before deciding whether to progress the claim. Jackson J regarded that as not a good reason to renew the claim. More relevantly for present purposes, however, his Honour noted (at [82]-[83]) that the question of whether notice of a claim to a defendant is a factor which may show good reason to renew the claim was not settled: it was treated as irrelevant in some cases and relevant in other cases.

[16] In King v Gunthorpe, the plaintiff had been waiting for his lawyers to thoroughly investigate the claim and take advice on whether it was a viable one. Burns J was satisfied that in the circumstances, that was good reason for renewing the claim. However, no point arose about whether the defendant had knowledge of the claim.

[17] To be balanced against that are a number of considerations including that (a) the UCPR provides that litigation should be conducted expeditiously, (b) the claim and statement of claim should be served personally on a defendant, (c) six years have now elapsed since the alleged accident, (d) the passage of six years is quite a lengthy one and memories fade, and (e) prejudice can sometimes be inferred from the passage of such a period of time. However, I did not understand the applicant/defendant to contend that there was reason for concern that the lapse of time was a real impediment to the fair presentation of its case: cf The IMB Group Pty Ltd (in liq) v ACCC [2006] QCA 407; [2007] 1 QdR 148 (CA), at [51] per Keane JA.

[18] In addition, it is the case that if this application to set aside the registrar’s decision is successful, the plaintiff’s claim will be statute-barred. Whilst that is not in itself a reason to dismiss the application, it is a factor that must be taken into account along with all of the other factors that are relevant to the exercise of the judicial discretion.

[19] Mr Oliver also submitted that in this case, service of the claim and statement of claim on the defendant was effectively a practical step with no utility. Because the rules require that step to be taken, I cannot accept that submission.

[20] No fault, of course, can be directed at Carter Newell as the lawyers for the defendant. At all times, they were interested in having the claim and statement of claim served on their client, as they were entitled to do and as the rules envisage.

[21] It is true that the plaintiff was prosecuted in 2014 and 2015 for the criminal offence of making a false statement, albeit in a context unrelated to this claim. He was convicted in the Magistrates Court and his appeal to this Court was dismissed. Naturally, that criminal conviction may adversely affect the Court’s assessment of the plaintiff’s credibility at trial, but contrary to the defendant’s submissions, that is not a reason to (a) shut out the plaintiff from pursuing his claim in this Court or (b) conclude that the plaintiff’s claim had poor prospects of success.

[22] In balancing all of the circumstances and having regard to the conduct of the parties and the defendant’s lengthy and detailed knowledge of the claim, I have come to the conclusion that “other good reason” for renewal has been shown by the plaintiff.

[23] The defendant’s application to set aside the orders made by the registrar on 9 June 2017 and on 12 March 2018 to renew the plaintiff’s claim is dismissed.

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[24] The plaintiff’s costs of and incidental to this application are the plaintiff’s cost in the cause.