Abbott v Lee

[1988] TASSC 77

Serial No B9/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:               Abbott v Lee [1988] TASSC 77; B9/1988

PARTIES:  ABBOTT
  v
  LEE

FILE NO/S:  125/1987
DELIVERED ON:  23 March 1988
JUDGMENT OF:  Nettlefold J

Judgment Number:  B9/1988
Number of paragraphs:  15

Serial No B9/1988

List "B"

File No LCA 125/1987

ABBOTT v LEE

REASONS FOR JUDGMENT  NETTLEFOLD J

23 March 1988

1. The plaintiff lodged in the Court of Requests at Hobart a summons to appear to a plaint, the summons being dated 24 April 1986. In the annexed grounds and particulars it was alleged, in substance, that the plaintiff owned a Toyota Corona motor vehicle registered number AL0154 and the defendant drove a motor vehicle which collided with the plaintiff‘s vehicle. It was alleged that the collision occurred on 2 February 1986 at approximately 10.50 a.m. when the plaintiff's vehicle was being driven by his daughter, one Michelle Lisa Abbott, in a northerly direction along Roslyn Avenue near number 112 Roslyn Avenue. It was alleged that the defendant‘s vehicle at that time and place was also being driven in a northerly direction and a collision occurred. It was alleged that the collision was caused by the negligence of the defendant, numerous particulars of the alleged negligence being given. The claim was for the alleged cost of repairing the plaintiff's vehicle, $1,126.80.

1. The defendant filed a defence which, in effect, denied negligence and raised a counterclaim for $1,425.92 alleging that the damage to the defendant‘s vehicle was caused by negligence of the driver of the plaintiff's vehicle who, it was alleged, was the servant or agent of the plaintiff.

1. I do not think it is necessary to discuss the details of the material before the court concerning this accident. It is sufficient to say that it is clear that there is an arguable case to support the view that the collision was caused or contributed to by the negligence of the defendant and there is no material to support the view that the plaintiff‘s daughter was driving as his servant or agent.

1. There is evidence that a solicitor employed by the firm then acting for the plaintiff was handed the file relating to the plaintiff's case in or about the middle of January 1987. He was informed that the case was ready for hearing. He instructed an apprentice–at–law to call the case on for hearing in the February sittings of the court. He swears that he was not made aware of the date on which the matter was listed for hearing. In fact it had been listed for hearing on 27 February 1987 and there was no appearance for the plaintiff. On that day the plaintiff‘s claim was struck out and interlocutory judgment was entered for the defendant on the counterclaim. The practitioner swears that he was not advised on that day by the practitioner appearing for the defendant that this had occurred. He swears that it is his understanding that the plaintiff had not been notified that the matter was listed for hearing on that day. The practitioner further swears that, at some time after 26 March 1987, he received notice from the court that the case was set down for hearing as an assessment of damages on Friday 10 April 1987. The practitioner swears that he felt that there must have been some administrative error in the court, he not being aware of the proceedings on 27 February 1987. This practitioner swears that he did not become aware of these proceedings until 8 April 1987. He swears that he discussed the matter at this stage with two senior practitioners in his firm when it was resolved that an application ought to be made to the court to set aside the orders which had been made on 27 February 1987.

1. An application to set aside the orders of 27 February 1987 was lodged on 8 April 1987 and served on 10 April 1987 with affidavits in support.

1. This practitioner swears that he believes the application was heard by Mr. Commissioner Bryan on 15 April and 11 June 1987 and dismissed on the latter date on the ground that there was no jurisdiction to deal with the application. He swears that he next had dealings with this matter during the week ending 18 September 1987. He was instructed by partners in his firm to seek counsel's opinion on the chances of appealing successfully against the orders of 27 February 1987. Ultimately, he got an appointment with counsel on 9 October 1987. During the week ending 16 October 1987 he recalls having discussions with a partner in his firm when it was resolved that an appeal ought to be lodged in relation to the orders of 27 February 1987. He swears that he drafted the relevant documentation for the appeal on 19 and 20 October 1987. He swears that, on the basis of his instructions from the plaintiff, he holds the opinion that the plaintiff‘s case against the defendant is a strong one and that he knows of no undue prejudice which might be occasioned to the defendant if the orders of 27 February 1987 were set aside.

1. One of the partners in this firm swears that he appeared before Mr Commissioner Bryan on 15 April 1987 and argued that the Commissioner had no jurisdiction to make the orders he did on 27 February 1987 and, in the alternative, those orders should be set aside in the interests of justice. The learned Commissioner heard argument and adjourned the matter to enable him to consider his decision. The learned Commissioner resolved to hear further argument on 11 June 1987. On that date the Commissioner ruled that he had no jurisdiction to hear the application. Mr. Sweeney admits that he did not give sufficient attention to the file after this decision and it was not until the third week in September that he discussed the matter with a senior partner when it was resolved to get counsel's opinion with a view to an appeal to this Court. Apart from discussion about the form the necessary affidavits should take he had no further dealings with the matter. He swears that, during the time he had the carriage of the matter, any delay was the result of his fault and not in any way a result of the fault of the plaintiff in the action.

1. The plaintiff in the action, Mr Abbott, on 10 April 1987 swore an affidavit in support of an application to a Commissioner of the Court of Requests to have the orders of 27 February 1987 set aside. In that affidavit, inter alia, he swore that he was aware that his daughter appeared in court in November 1986 but that the hearing did not take place because of a lack of the court time. He swore also that he was not notified by his solicitors that the 27 February 1987 was the date for the hearing of the case.

1. In an affidavit of 13 November 1987 the plaintiff swears that the contents of the affidavit of 10 April 1987 were true. He swears that, following the swearing of that affidavit he left the matter in the hands of his solicitors. He also swears that he knows of no undue prejudice which might be occasioned the defendant if the orders of 27 February 1987 are set aside.

1. The driver of the plaintiff‘s vehicle has sworn an affidavit dated 12 November 1987. In that she swears, inter alia, that she had sworn an affidavit on 10 April 1987, the contents of which remained true and correct. In the latter affidavit, which is an annexure to the affidavit of 12 November 1987, she details the circumstances of the accident. She further swears in the latter affidavit that the case was listed for hearing on 24 November 1986 and that, on that day, she attended with her solicitor before Mr. Commissioner Bryan. However, because of lack of time the case could not be heard. In the latter affidavit she swears that at no time did she receive any notification from her solicitors that the case was listed for hearing on 27 February 1987. She had been advised by a solicitor in November 1986 that it might be some time before the case was heard because of the Christmas "adjournment" (vacation) and that is why she did not contact her solicitors before 27 February 1987 to see whether a new date was allocated. She swears that she was relying on the solicitors to tell her of any new date for the hearing and, following the swearing of her affidavit on 10 April 1987 she left the matter in the hands of her father's solicitors.

1. I turn to the interlocutory application dated 20 October 1987 which seeks the following orders:–

"1        That the time within which Notice of Appeal may be filed and served against the Orders of Mr. Commissioner Sikk on the 27th day of February 1987, whereby it was adjudged that the Plaintiff‘s claim be struck out and that Judgment be entered for the Defendant on his Counterclaim for damages to be assessed and costs to be taxed, be extended upon such terms as the Court seems fit.

2         Such further or other Orders as the Court deems meet."

1. I am satisfied that as between the parties it is just to grant that application. The plaintiff has an arguable case for relief. No specific prejudice to the respondent is alleged. The allegation is merely that there is "general prejudice" resulting from the delay. I am satisfied that the appellant does give a reasonable explanation of the delay. It was not at all unreasonable for him to leave the conduct of the matter in the hands of his solicitors. Any lapse of time was not such as to make it unreasonable for him to continue to rely on the solicitors. Laymen are aware that, for a whole variety of reasons, it often takes a long time to finalise court cases. When he became aware of the making of the ex parte orders I infer that he accepted advice from his solicitors and looked to them to resolve the problem in whatever way was found to be technically appropriate. I am satisfied that, in taking that approach he behaved reasonably. There was no obvious alternate course which guaranteed any better result. Unfortunately, it is clear that there was delay and carelessness in the office of the plaintiff's solicitors but, in all the circumstances of this case, that should not lead to the plaintiff being denied an extension of time.

1. I now turn to deal with the notice of appeal dated 20 October 1987. I propose to uphold ground (d) of that notice. The learned Commissioner was in error when he ordered that there be judgment for the defendant against the plaintiff on the counterclaim. He was in error because there was no evidence that the plaintiff‘s daughter was driving as the servant or agent of the plaintiff so as to make the plaintiff vicariously liable for any damage caused by her negligence.

1. But I reject the other grounds which were argued. I accept Mr. Worsley's argument on that aspect of the case. I accept his argument to the effect that s.20 of the Local Courts Act 1896 gives a wide and flexible power of adjournment, sufficiently wide and flexible to cover what occurred here. On 24 November 1986 Mr. Commissioner Bryan made an order "Adjourned to the next court. Order for priority". I infer that the learned Commissioner intended that that order should be carried out in accordance with long established practice. He intended that the administrative officers of the court should allot another date and advise the parties of that date in the usual way. The words "order for priority" constitute a ruling affecting the parties and intended to be acted on by the administrators. When the administrators allocate dates in accordance with the long established and well known practice they can be taken to be acting with the acquiescence of the Commissioners of the Court. When Mr Sikk struck out the plaintiff‘s claim on 27 February 1987 he had jurisdiction to do so pursuant to s69 of the Act. He was exercising jurisdiction at an adjournment of the action.

1. For these reasons there will be the following orders:–

1That the time within which Notice of Appeal may be filed and served against the Orders of Mr Commissioner Sikk on the 27 February 1987 be extended for such period as will validate the notice of appeal dated 20 October 1987.

2The order of 27 February 1987 directing judgment for the defendant on the counterclaim is set aside.