Ellis v Davies Philp Millican [1999] QSC 30

/./ /' SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION VWHITE J No 616 of 1995 REGINALD JOHN ELLIS and GRAHAM DAVIES WILLIAM MILLICAN AND KENNETH PHILP TRADING UNDER THE NAME STYLE OR FIRM OF DAVIES PHILP MILLICAN BRISBANE .. DATE 25/02/99 JUDGMENT 1 REVISED COPIES ISSUEDState Reporting Bureau Date�/ 31 Plaintiff Defendants -tlh Floor·, The L:nv Courts, Gcoq�e Street, Hrishane, Q. 41100 Telephone: (07) ]247 4360 Fax: (07) 3247 55]2 [1999] QSC 30 -- 1 of 13 -- 250299 T1/JJD24 M/T 4132/99 (White J) HER HONOUR: In this application, I give the plaintiff leave to proceed, pursuant to Order 90, Rule 9 of the rules and I publish my reasons. HER HONOUR: Despite the points made by Mr Smith, I am not persuaded that they are any good reason, since it is always a matter which must be attended to, that is the effective Order 90, Rule 9 must be forever hanging over the heads of parties and their solicitors to exempt this from the usual rule that the costs of an application of this kind ought to be paid by the applicant who is seeking an indulgence of the Court. HER HONOUR: The order as to costs is that the applicant to pay the respondents costs of and incidental to the application, in any event, to be taxed. HER HONOUR: By way of directions, I direct that the respondents enter their appearance within seven days of today and the plaintiff deliver statement of claim, 14 days after being served with the entry of appearance. 10 20 .C 30 40 50 60 -- 2 of 13 -- ( ( &QQ/030 IN THE SUPREME COURT OF QUEENSLAND No. 616 of 1995 Brisbane Before White J [Reginald John Ellis v Davies Philp Millican] BETWEEN: AND: REGINALD JOHN ELLIS Plaintiff GRAHAM DAVIES, WILLIAM MILLICAN AND KENNETH PHILP trading under the name style or firm of DAVIES PHILP MILLICAN Defendants REASONS FOR JUDGMENT - WHITE J Judgment delivered 25 February 1999 CATCHWORDS: Leave to proceed - RSC 0.90 r.9 - professional negligence action - earlier personal injuries actions neglected - delay - prejudice. COI.;'1srJ: .. /: :' ~ S:-;jt!1 for the aprli.(;20]~/9ia:dt; ff. Mr R Alldridge for the respondent/defendant. Solicitors: Stephens & Tozer, as town agents for Michael Hefford, for the applicant/plaintiff. McInnes Wilson for the respondent/defendant. Hearing Date: 19 February, 1999 -- 3 of 13 -- ( ( ) 1. 2. IN THE SUPREME COURT OF QUEENSLAND No. 616 of 1995 Brisbane Before White J [Reginald John Ellis v Davies Philp Millican] BETWEEN: REGINALD JOHN ELLIS Plaintiff AND: GRAHAM DAVIES. WILLIAM MILLICAN AND KENNETH PHILP trading under the name style or firm of DAVIES PHILP MILLICAN Defendants REASONS FOR JUDGMENT - WHITE J Judgment delivered 25 February 1999 The plaintiff issued a writ against the defendants trading under the firm name of Davies Philp Millican dated 11 April 1995 claiming damages for negligence. The defendants carried on practice as solicitors in partnership for a short time in 1986. On 8 February 1999 the plaintiff rules, which the defendants oppose being given, and for interlocutory judgment against the defendants. The latter relief was not pursued. It was based, it seems, on some notion that an entry of appearance or defence had not been filed. The last relevant step for the purposes of the rule was the service of the writ in May 1995 on Mr Philp. In order to resolve this application it is necessary to describe at some length the circumstances leading to the issue of the writ in this action.I -- 4 of 13 -- 3. 4. 5. 6. 7. 2 The plaintiffwas born on 6 March 1955. On or about 21 May 1982, he was employed by F A Pidgeon & Sons Pty Limited as a carpenter. He alleges he sustained injury to his back whilst stripping concrete formwork from a column located at the Woodridge Shopping Centre. He continued to work although in considerable pain. On or about 26 March 1983 the plaintiff was employed by Tafcom Pty Ltd also as a carpenter. In the course of his employment at ajob site in Astor Terrace in Brisbane the plaintiff was required to strip formwork from a ceiling. There was no scaffolding so he stacked Besser blocks and stood on them to use a wrecking bar. A sheet of ply gave way and he fell over and ( sustained personal injury. He was able to persevere with his work for a short time and consulted with his general practitioner. X-rays were reported as normal. In October 1983 when surfing he experienced an episode which aggravated his back pain. Shortly afterwards he attended at the Royal Brisbane Hospital where a myelogram showed a prolapsed inter-vertebral disc at L5 S 1. A laminectomy and discectomy was performed in December 1983. In the 15 or so years since the operation the plaintiff has experienced chronic lower back pain. A report from Dr Brian Purssey, orthopaedic specialist,dated 25 January 1999 sets out the plaintiff s current situation. In 1984 the plaintiff retained Paul Richards & Associates, solicitors, to act on his behalf C.,) & Sons Pty Limited in respect of the first incident. That firm issued a writ against Tafcom Pty Ltd in respect of the second incident on 26 March 1986. It is unlikely that that writ was ever served upon Tafcom or the Worker's Compensation Board. The Pidgeon action progressed reasonably in as much as a statement of claim was delivered on 15 November 1985 and the plaintiff gave discovery on 22 April 1986. -- 5 of 13 -- 3 7. The plaintiff deposes that at about that time his pain had become significant and he commenced attendance at the Chronic Pain Association of Queensland where he was recommended the services of Kenneth Philp, one of the defendants. In September 1986 he engaged the firm Davies Philp Millican to act on his behalf and on 19 September 1986 he paid $339 to that firm being monies due to Paul Richards & Associates, no doubt in order to have the file released. The trust account receipt was signed by Mr Philp. In the meantime, in early September, F A Pidgeon & Sons Pty Limited had given discovery in the action. The plaintiff ( deposes that up until 1988 he kept in touch with Mr Philp as to the conduct of his matter in respect of which he was assured, he says, by Mr Philp that it took a long time for such cases to ( '\ \. resolve. He further deposes that Mr Philp represented him when he was charged with an assault in 1998. There are numerous what are clearly typographical errors in the various affidavits which I propose to read as references to the 1980s rather than the 1990s. Accordingly I infer that the plaintiffis referring to an assault in 1988. He deposes that he asked Mr Philp what was happening with his matter on that occasion to which Mr Philp replied that it would take some time. Mr Philp denies that any such conversation. occurred, or, I infer, ifit did, it took place some years earlier. 8. In order to assess the likelihood of the conversation in 1988 it is necessary to look at the evolution of the various partnerships of which Mr Philp has been a member. He deposes that in name of Davies & Philp. In October 1986 he and Mr Davies entered into a new partnership with Mr William Millican and they traded under the finn name of Davies Philp Millican. That partnership existed only for two months through October and November 1986. Mr Millican has deposed that he carried on his work exclusively at the Gold Coast and, it seems, his files were never intermingled with those of the two Brisbane partners. That partnership was dissolved at the end of November 1986. Mr Philp and Mr Davies continued in partnership under the name -- 6 of 13 -- 9. 10. 4 Davies Philp until July 1987. That practice was then dissolved as at 31 July 1987 and Mr Philp commenced practice on 1 August as a partner with the firm Hicks & Bennett and in due course that partnership became known as Bennett & Philp. As part of the partnership dissolution arrangements agreed between Mr Davies and Mr Philp, Mr Davies retained certain of the files of practice and Mr Philp took others. The files to be taken were listed in a schedule. Mr Philp wrote to those clients seeking their authority to allow him to take their files from Davies Philp to Hicks & Bennett. Mr Philp deposes that no file pertaining to the plaintiff was taken by him. He deposes to making a thorough search of all possible files or avenues to ascertain whether he had taken the plaintiff s file with him. Contact was made with Mr Graham Davies in 1994 and he informed Mr Philp that he had checked all the files retained by him and that there was no personal injuries file for the plaintiff. Receivers were appointed to the practice of Graham Davies & Associates in early 1995 when he had departed the jurisdiction. Enquiries made of the receivers were unsuccessful in locating any file relating to the plaintiff. On the morning of this hearing I was informed that the plaintiffs file had been located in the archives of the Queensland Law Society where it had presumably been deposited by the receivers. It appears that no contact was made with the plaintiff by the receivers or the Law Society before archiving the file. The reasonable inference is that Mr Davies retained the plaintiff's ( " Returning to the plaintiff s assertion that Mr Philp represented him in 1988 in respect of an assault charge, Mr Philp by then was with the firm Hicks & Bennett and has been unable to fmd any file relating to the plaintiff and an assault (or any file about the plaintiff for that matter). , However, in July 1994 he was informed by Mr Davies that he had noted in a file book which he held a reference to a file opened on 11 November 1986 under the plaintiff s name in respect of an assault charge which gave an address which related to the plaintiff. The inference is that the I -- 7 of 13 -- 5 finn Davies Philp acted for the plaintiff in respect of an assault charge in November 1986 and the plaintiff is mistaken when he places his conversation with Mr Philp in 1988. Mr Philp has no recollection of whether he or Mr Davies acted for the plaintiff. If either of them said to the plaintiff that the personal injuries action would take some time in November 1986 that would not be unreasonable given that the writs were issued in 1985 and 1986 respectively. What was, prima jacie, negligent conduct was to let the Tafcom writ go stale without either seeking to renew it before the expiration of 12 months from its issue or to serve it on the defendant and the Workers' ( Compensation Board. On any view it concerned a more serious injury even if the surfing incident raised issues of causation. Mr Philp denies that the plaintiffkept in contact with him up until 1988 , '\ ( ,: and since the assault matter was in 1986, the plaintiff is, in all probability, mistaken as to the date. He deposes that he received no correspondence from the plaintiff after he had left the Davies Philp partnership at the end of July 1987. 12. On 7 December 1993 Mr Philp received an undated letter from the plaintiff in which he said that he had written to Mr Philp "quite some years back" asking for infonnation on what he, Mr Philp, was doing with respect to the matter and had received no reply. Ifhe wrote it would have been to the old finn which became Graham Davies & Associates. Mr Philp denies that he had received any earlier letters. The plaintiff deposes that he had given up on the actions as he had March 1992 and his focus throughout that time was on his business problems. Indeed he was made bankrupt in about March 1992. 13. It was through the Law Society in late 1993 that the plaintiff was able to contact Mr Philp. Thereafter correspondence took place between the plaintiff and Mr Philp and some contact was made with Mr Davies. In mid 1994 the plaintiff engaged new solicitors who, inter alia, tried to trace the/missing file. Other solicitors were engaged by the plaintiff but they concluded that they -- 8 of 13 -- 13. 14. 6 were not prepared to act on a speculative basis. In about April 1995 the plaintiff engaged his current solicitors. On 11 April 1995 the writ in the present action was issued. Mr Hefford searched the Supreme Court files in both actions and was thereby able to ascertain the stage at which each had reached. He came to the conclusion that the writ had not been served upon Tafcom or the Workers' Compensation Board of Queensland and was in contact with Law Claims about those actions. There is no explanation as to why no application for leave to proceed in the Pidgeon action was not made promptly. It may have been unsuccessful since there was, it seems, no record of the plaintiff s injury made by the employer (.') and his fellow workers who might have been witnesses were long gone. Neither was there any application to renew the writ against Tafcom, though any prospects of success were quite remote Cl given that the company had been deregistered in 1991. In July 1995 counsel was retained to draw a statement of claim. After reminder letters to counsel over the course of almost a year the brief was returned. In July 1996 new counsel was briefed to draw a statement of claim and requested further investigations to be carried out, which occurred shortly thereafter. 15. Mr Hefford had been in communication with the Director of Law Claims since May 1995. He indicated that a reasonable extension of time would be given for filing an entry of appearance C~) I of claim (yet to be drawn). He wrote of the difficulty of serving Mr Davies. Law Claims was slow to answer Mr Hefford's letters and responded on 3 July 1995. Mr Hefford wrote to Law Claims about the difficulties with counsel settling the statement of claim. The statement of claim was forwarded to the indemnity insurers on 9 September 1996 "for their consideration". The statement of claim sets out the details of the two personal injuries actions, the retainer and allegations of negligence. The insurer responded on 27 September 1996 asking whether the I -- 9 of 13 -- 7 statement of claim had been served on the defendants and indicated that the matter had been referred to the defendants (or those who had been served) for their comment. Mr Hefford advised that the statement of claim had not been served upon the defendants: "... as it was the writer's understanding that an agreement existed between yourself and the writer that this office would provide you with a copy of the Statement of Claim to enable you to consider the allegations raised prior to service on the Defendants." 16. On 30 October 1996 a statement by the plaintiff was sent to the insurers. Mr Hefford ( enquired as to whether applications to extend time (presumably to obtain leave to proceed) would be required to be made. The insurers responded by letter dated 30 October 1996 that it was () incumbent upon the plaintiff to make application for leave to prosecute his actions against F A Pidgeon & Sons Pty Limited and Tafcom Pty Ltd since unless leave was sought the failure to do so would be a basis for resisting any action against the defendants. ! 17. A further delay was caused by misplacing some of the exhibits needed on an application for leave to proceed which were not located until July 1997. Counsel who had been briefed wrote to the plaintiff s solicitors on 12 April 1998 enquiring about the progress of the action. In June 1998 it appears that the plaintiffs solicitors learnt for the first time that Tafcom Pty Ltd had been deregistered on 5 September 1991. The solicitors wrote to the insurer suggesting that there was no D0int in '~llrsuing Tafcom and seeking confirmation that the plaintiff w~.s )1()t re(lPir~o to prosecute further any proceedings tor leave to proceed against it. The insurer then instructed its own solicitors. 18. An application for leave to proceed in the action against F A Pidgeon & Sons Pty Limited was dismissed by Byrne J in chambers on 29 July 1998. His Honour concluded that the considerable delay between 1988 (his Honour did not have the benefit of the detailed analysis of the partnerships and 1986 was probably the last enquiry) was partly due to the inactivity of the -- 10 of 13 -- 8 plaintiff and partly due to the inactivity of and difficulties being experienced by his lawyers. He concluded that a 3 year delay in notifying F A Pidgeon & Sons or the Board of an intention to assert that an injury had been sustained on 21 May 1982 posed problems by the time the writ was '.' issued. He concluded that the prejudice persisted and declined to give leave because there was a risk that a fair trial could not be had. 19. A settlement conference was arranged with the insurer's solicitors for 10 December 1998, which was adjourned because the plaintiffs solicitors were awaiting a further orthopaedic report. The insurer's solicitors suggested that the plaintiff make application for leave to proceed in this (~'I action. The plaintiff s solicitors seem to be under a misapprehension that the statement of claim had been delivered to the defendants but were reminded that that had not occurred. 20. The approach to applications of this kind are well known. Order 90 rule 9 provides that when 3 years have elapsed from the time when the last proceeding was taken no fresh proceeding shall be taken without the order of the court. It is for an applicant to show that there is good reason for excepting the particular proceeding from the general prohibition which that rule imposes, William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 at 496. The C: provision of a satisfactory explanation for the delay is a relevant matter for the court to take into account although it is not a condition precedent to the granting of leave, Campbell v United has been pointed out on many occasions the action is the plaintiff s and while the conduct of an applicant's solicitor is relevant to the question of delay and its prejudicial effect that is not as important as the conduct of the applicant, Keioskie v Workers' Compensation Board of Queensland CA No.46 of 1992 umeported decision of 15 September 1992 per Thomas J at p.7 and the cases referred to therein by his Honour. -- 11 of 13 -- i 9 defendant will suffer prejudice as a result of the delay such that there is a risk that a fair trial may not be had, Borg v Muscat [1972] Qd R 253; Wilson v Bynon, supra; Dempsey v Dauber (1990) 1 Qd R 419. In the latter case Connolly J observed at p. 420: "In my judgment, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order." 22. As to delay, the plaintiff was cross-examined about his contact with Mr Philp but added ( little, if anything, to what is in his affidavit. It is, I think, plain that while the solicitors were responsible for doing nothing to advance the actions, the plaintiff himself made no effort to ( progress his causes between 1986 and 1993. There have been further delays since then, but not attributable to him. The plaintiff said he trusted his solicitor t~ get on with "the job that he was engaged to do". There was some contact by correspondence between 1996 and 1998. It seems clear that the delay in respect of the present matter was largely due to the inactivity or somewhat misguided activity on the part of his present solicitor and difficulties with counsel. Mr Philp deposes that he has no recollection of the plaintiff either in respect of the personal injuries action nor in respect of representing him to an assault charge in 1986. He would ! ' be able to give instructions to his solicitors in respect of very formal or inconsequential matters. Mr Millican is most unlikely to have had anything to do with the plaintiff s dealings with the firm. Mr Davies is presently in prison bUl the conversations with him deposed to by Mr Philp in which he denies ever having had the file relating to the plaintiff or any recollection of the plaintiff does n01lead one to hav~ any optimism that he would be likely to recall anything at all. I have been given no information as to what is contained on the recently found file. This prejudice, if there is any, since there may be nothing to recall, is of the defendants own making in, it seems, doing very little. -- 12 of 13 -- 24. 25. 26. 27. 10 Because the present action involves an assessment of the value of the lost chance which the plaintiff had to pursue his actions against FA Pidgeon & Sons Pty Ltd and against Tafcom Pty Ltd there are, in effect, trials within a trial. The question then is to what extent is the prejudice that is plainly associated with attempting to reconstruct these work-related incidents to be brought into account as a factor here. As Bryne J observed, there was prejudice from the time the writ issued in the Pidgeon matter because no notice had been given to the employer of the alleged injury until the writ was served. The other and, it seems, more serious incident while working for Tafcom has never been investigated by reference to company employment records and so forth. But in each case the actions were placed in the hands of the defendant solicitors and had they performed their task the plaintiffs actions were not at risk of being lost for failure to prosecute C-') them as occurred with the Pidgeon action. The statement of claim has been with the indemnity insurers since 1996. It seems unlikely that the overall delay since April 1995 has contributed to any prejudice. The delay between 1986 and 1993 can be attributed to both the plaintiff and the solicitors, but to take a date at random from which time a concerned plaintiff might have put some pressure on his solicitors, say 1988, I think it fair to assume that Mr Philp and Mr Davies would have little to recall because nothing seems to have been done on the file. The prejudice which must inevitably come from attempting to assess the plaintiff s chances from the commencement of the actions and ought not to be a factor operating against the plaintiff in his application for leave to proceed against the defendant solicitors. I give the plaintiffleave to proceed pursuant to 0.90 r.9 of the Rules. I will hear submissions as to costs. -- 13 of 13 --