July 28, 2022

A guest injured in the driveway of The Star Gold Coast after loading luggage onto a trolley has convinced an appeal court that a trial judge’s dismissal of his $2 mil damages ask involved a gross denial of procedural fairness to him as a self-represented litigant.

John Kleeman was about to check in with partner Liana Jackson in November 2015 when the footbrake on their loaded up luggage trolley failed, causing it all to roll and pin him against the rear of his car as it was about to be driven off to be parked by the hotel valet.

His claim against the hotel for the L5- S1 spinal injury and chronic back pain he sustained was dismissed by the Queensland Supreme Court in October 2020 three days after he took a toilet break during giving evidence and never returned to the witness stand.

He failed to turn up in person or by phone on the second, third or fourth days of the trial – as he was directed to do by Justice Soraya Ryan – and failed to supply evidence that her honour thought adequately explained his absence.

Kleeman had in fact emailed a medical certificate to the case manager on the second day signed by Dr White – an online GP – stating that his patient was “suffering from a medical condition and will be unfit to continue their usual occupational duties”.

Although then invited to attend the trial the following day by telephone, he emailed in to say he was “not in a position to communicate today” as “I have gastro”.

Likewise, he failed to appear of day 4. On the defendant’s application for a dismissal, judgement was entered against the plaintiff at lunchtime that day.

He filed a notice of appeal out of time in January 2021 contending – as he had been incapacitated due to “Extreme Medical reasons” – it was in the interests of justice to set aside the dismissal so he could resume the prosecution of his case.

The appeal judges agreed the Doctors on Demand medical certificate “was a completely inadequate response” – in the context of the extensive public and private resources invested in a four-day trial – as it did not describe his “usual occupational duties” or his “medical condition”.

Justice Hugh Fraser in delivering the lead judgment had though, “serious reservations” about the making of directions to a party to appear and an order dismissing a claim the absence of a plaintiff who had not been served with the application or the supporting material relied on.

“In my respectful opinion, the way in which r 370 was applied in this case involved a denial of procedural fairness to the applicant”.

The trial judge was however justified – he ruled – in dismissing the proceedings on another ground namely that to allow them to remain on foot “and to be revived at the whim of the plaintiff” would constitute an unacceptable delay amounting to an abuse of process.

“It follows that the respondents were entitled to an order dismissing the applicant’s claim simply because the applicant failed to fulfil his onus of proving his claim at the trial”.

Kleeman also appealed Justice Ryan’s refusal to grant him an adjournment at the start of the trial which Justice Fraser was prepared to accept as “fairly arguable”.

“Full weight must be given to the fundamental requirement of procedural fairness that a party must be given the opportunity of being heard,” he observed.

That said, he refused to exercise his discretion to extend the time to file the appeal by the requisite two months because the evidence against the veracity of the claim was compelling.

In particular his claims of having to cease work as a consequence of the trolley collision were directly inconsistent with evidence he gave in Ms Jackson’s NSW injury compensation claim where he had sworn – according to a transcript produced by the hotel’s insurer – he had stopped work in early 2015 to become her full time carer.

“I would not exercise the discretion to set aside the order dismissing the applicant’s claim”.

Kleeman was ordered to pay The Star’s legal costs of the trial and the appeal.

Kleeman v The Star Entertainment Group Limited & Anor [2022] QCA 119 Sofronoff P and Fraser and Mullins JJA, 5 July 2022

Categories: Road & footpath injuries , Holiday & Travel Law

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