Bebic v Hammond

[1991] TASSC 155

Serial No B41/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Bebic v Hammond [1991] TASSC 155; B41/1991

PARTIES:  BEBIC
  v
  HAMMOND

FILE NO/S:  749/1985
DELIVERED ON:  13 August 1991
JUDGMENT OF:  Underwood J
CATCHWORDS

Practice — Jurisdiction of the Supreme Court — Practice after Supreme Court Civil Procedure Act 1932 — Abuse of process of court — Dismissal for want of prosecution — Inherent jurisdiction.

Judgment Number:  B41/1991
Number of paragraphs:  18

Serial No B41/1991
List "B"
File No 749/1985

BEBIC v HAMMOND

REASONS FOR JUDGMENT  UNDERWOOD J

13 August 1991

1. This application to dismiss the plaintiff's claim for want of prosecution is the product of a litany of neglect by the plaintiff's Tasmanian legal advisers for almost a decade. This litigation is a clear example of the need for court control over proceedings during the pre–trial stage.

1. On 31 January 1980 the respondent (hereafter referred to as the plaintiff), ordinarily a resident of Victoria, was involved in a motor vehicle accident at the intersection of Barrack and Collins Streets, Hobart. The vehicle he was driving collided with a vehicle driven by the defendant. On 12 March of that year he instructed Melbourne solicitors, Messrs Cleary, Ross and Doherty to act on his behalf to recover damages for injury and loss sustained in the accident. Correspondence ensued between that firm and the Motor Accidents Insurance Board, the Royal Hobart Hospital and the Tasmanian Police. On 3 November 1982 Messrs Cleary, Ross and Doherty wrote to Messrs Ogilvie, McKenna in Hobart and instructed that firm to act as their Tasmanian agents. On 17 December 1982 the former instructed the latter to issue a writ. This was done but an incorrect party was made the defendant and, due to omission, the writ was not served within the time prescribed by the Rules of Court. These errors necessitated an application pursuant to the Limitation Act 1974, s5(3) to extend the time to commence proceedings against the correct defendant. This application was determined by me on 1 April 1985 by an order that the time limited by s5(1) of the Act be extended until 15 April 1985. The writ was issued on 2 April 1985.

1. In the eleven months between April 1985 and March 1986, the action was made ready for trial. Within that time, the pleadings closed, discovery was made, particulars delivered and the plaintiff examined by the defendant's medical advisers. Such timely pre–trial action was in no small measure due to the constant vigilance of the defendant's legal advisers who were compelled to resort to applications for orders for the delivery of particulars and discovery as the plaintiff's solicitor was then in default.

1. On 23 January 1986 the defendant's solicitor, Mr Gunson, considered that the proceedings had reached the stage where a certificate of readiness could be completed and he accordingly wrote to the plaintiff's Tasmanian solicitor, Mr Chopping, nominating 17 February 1986 as the date for a compulsory conference. Mr Chopping failed to attend this conference. Mr Gunson wrote to him again and this time nominated 25 February 1986 as the date for the compulsory conference. One minute before the appointed time Mr Chopping telephoned Mr Gunson to advise that he was unable to attend as he was in the Criminal Court. Mr Gunson persisted and eventually, the conference took place on 19 March 1986. At that conference, Mr Gunson was in possession of reports from the defendant's medical advisers, Dr Pargiter, psychiatrist and the late Dr Duffy, neurosurgeon. The gist of both reports was to the effect that the plaintiff was presently suffering from little, if any, disability as a result of the motor vehicle accident in 1980. Mr Gunson advised Mr Chopping in general terms of the contents of these reports and the compulsory conference concluded on the basis that Mr Chopping would prepare a certificate of readiness and send it to Mr Gunson for signature. Within a fortnight Mr Gunson sent Mr Chopping copies of Drs Pargiter and Duffy's reports. On 10 June 1986 Mr Chopping sent Mr Gunson written details of the plaintiff's wage and sickness records. There was no further communication between the Tasmanian solicitors for either party for eight months. On 5 February 1987 Mr Gunson spoke to Mr Chopping and asked what he was doing about the outstanding matters following the compulsory conference in March the preceding year. The following is deposed to by Mr Gunson in his affidavit:

"He [Mr Chopping] told me that he had written to his instructing solicitors in Melbourne, Messrs Cleary, Ross and Doherty. He advised me that he had written to them several times and had not heard from them in response. He asked as to my attitude on liability and I advised him that my client's instructions were that liability would be disputed in view of the circumstances of the accident and no concessions would be made in this regard. In the course of that conversation, Mr Chopping asked me what my client's attitude to costs would be if his client was to discontinue the action. I advised him that I would recommend to my client that it meets its own costs if the plaintiff discontinued the action."

1. Mr Gunson heard nothing further for four years. On 28 October 1988 he closed his file. On 4 April 1991 he received a letter from Mr Lewinski of Messrs Wilson, Dowd enclosing a notice of change of solicitors.

1. After Messrs Cleary, Ross and Doherty supplied details of the plaintiff's wage and sickness records in June 1986, that firm had no contact with Mr Chopping until 16 April 1987 when there was a telephone conversation between an employee of the Melbourne solicitors and Mr Chopping. According to the affidavit of Mr Reidy of Messrs Cleary, Ross and Doherty there is a diary note of that conversation which indicates that:

"Mr Chopping stated that the case was almost ready to be set down; that we must provide discovery; that this was automatic and had to be done. There was no need he said for details of all documents. After discovery we would serve a notice of intention to proceed and the case would be listed. He stated that if a certificate of readiness was filed then, that the case would probably be heard in August of 1987. He stated that we would also need full up to date details of the claim concerning the assessment, i.e. up to date medical reports, past economic loss, future economic loss and other damages. He stated that there would be no pre–trial conference, just a hearing. He stated that he had all necessary details concerning liability on the facts. He said that he had the witnesses organised, he just needed details concerning quantum."

As discovery had been made and at least some particulars delivered by that time, the terms of the diary note are a little hard to understand. According to Mr Reidy's affidavit there was, at 5 February 1987 "no outstanding request for instructions from Ogilvie, McKenna". Mr Reidy also deposed that there were no instructions to Mr Chopping to canvas the matter of the plaintiff's discontinuance of the action and the defendant's consequent attitude on costs on such a discontinuance. Mr Reidy further deposed that such matter had not been canvassed between his office and the plaintiff.

1. The plaintiff was interviewed by a solicitor of Messrs Cleary, Ross and Doherty on 28 April 1987 when up to date instructions were obtained and, eight days later, forwarded to Messrs Ogilvie, McKenna. On 11 May 1987 Messrs Ogilvie, McKenna wrote to their instructing solicitors in Melbourne and requested further medical reports. Within three days the Melbourne solicitors advised that the plaintiff was being examined by a named surgeon and that a report would follow shortly. The report was sent to Messrs Ogilvie, McKenna on 27 July 1987 and at the same time advice sought (inter alia) whether a further medical report should be obtained. Over the next few months there was some further correspondence between Messrs Cleary, Ross and Doherty and Messrs Ogilvie, McKenna and, on 27 October 1987, the former wrote to the latter confirming they held no documents other than those discovered on 10 January 1986 and requested advice with respect to the future progress of the action. Over the next five months Messrs Cleary, Ross and Doherty wrote to Messrs Ogilvie, McKenna on three occasions unsuccessfully seeking a response to the letter of 27 October 1987.

1. On 4 May 1988 Mr Reidy obtained the plaintiff's instructions to employ solicitors other than Messrs Ogilvie, McKenna to act on his behalf. However, five days after receipt of those instructions, Mr Reidy received a letter from Messrs Ogilvie, McKenna responding to their letter written over six months earlier and stating in part, that if the matter was to be taken to trial "the procedural requirements which that entails are not particularly onerous and we believe that we could fix a date within six months from the date hereof at the latest". On 23 August 1988, Mr Reidy was consulted by Mr Bebic about this and instructions were given to continue to instruct Messrs Ogilvie, McKenna and to proceed to trial as soon as possible. Those instructions were passed to Messrs Ogilvie, McKenna by letter of 26 August 1988. During early 1989 there followed another series of unanswered letters from Messrs Cleary, Ross and Doherty and on 19 June 1989 the plaintiff instructed Mr Reidy to engage other solicitors in Tasmania.

1. On 28 June 1989 Mr Reidy instructed Messrs Wilson, Dowd to collect the file from Messrs Ogilvie, McKenna and to act on behalf of the plaintiff. On the same day, Mr Reidy sent Messrs Ogilvie, McKenna the plaintiff's signed authority for the transfer of the file. Mr Lewinski of Messrs Wilson, Dowd, took the instructions. Initially, he acted promptly but, on seeking the file from Messrs Ogilvie, McKenna, was advised by that firm that they had not received any authority from the plaintiff. Mr Reidy resolved this difficulty by promptly sending Mr Lewinski a copy of the letter and authority that had been sent to Messrs Ogilvie, McKenna on 28 June 1989. Thereafter, Mr Lewinski did nothing at all for ten months and ignored three letters he received from Messrs Cleary, Ross and Doherty during that period requesting "particulars of the current situation". At the end of that ten month period Mr Lewinski wrote to Messrs Ogilvie, McKenna requesting the file and it was sent within a few days. On its receipt Mr Lewinski did nothing for two months. In the middle of that period he received another letter from Messrs Cleary, Ross and Doherty enquiring about the action. On 12 September 1990 Mr Lewinski sent a letter of advice by facsimile to Melbourne the last paragraph of which said, "If your client does wish the matter to proceed to a hearing (in either the Supreme Court or the Court of Requests) then we do not regard that any further steps need be taken."

1. On 11 October 1990 Mr Reidy discussed settlement with the plaintiff and on 31 October sent his instructions to proceed with the action to Mr Lewinski. Mr Lewinski did nothing for five months except, on 1 March, write a letter addressed to the defendant's solicitors advising that Wilson, Dowd were the new solicitors for the plaintiff. However, for some unknown reason that letter never left Mr Lewinski's office and it was retyped on 4 April 1991 and sent to Mr Gunson. During this period of delay Mr Reidy sent three letters and left two telephone messages for Mr Lewinski but all went unanswered. On 22 May 1991 this application was filed.

1. In summary:

1Leaving aside the fact that initially, proceedings were commenced against the wrong defendant, there was delay in prosecuting the action which made an application under the Limitation Act necessary.

2For most of 1985 and early 1986 when the action progressed to the stage where a compulsory conference could be held, the initiative was largely left to the defendant's solicitors.

3Thereafter, there has been inordinate delay by the solicitors on the record for the plaintiff. With respect to this five year period of delay:

(a)there has been no explanation at all from Mr Chopping;

(b)there has been no reasonable explanation from Mr Lewinski;

(c)no blame for it can be attached to either the plaintiff or his Melbourne legal advisers who acted throughout with reasonable diligence, the latter relying upon their Tasmanian agents to look after their client's interest.

1. The nature of the discretion to be exercised on an application to dismiss for want of prosecution has been authoritatively determined in this State by TheCloser Settlement Board v Thomas [1982] Tas R 179. Neasey J said at p186:

"The exercise of the discretion in a summons of this kind is to be determined according to the overall justice of the matter, which depends upon all its facts and circumstances. The exercise of the court's discretion is not to be confined by fixed rules. The nature of this exercise of discretion does, however, require close consideration to be given to some of the same factors which are of importance in an application to extend time after the expiration of a statutory limitation period; namely, the extent and quality of delay, whether the primary responsibility for it lies with party or his legal advisers, and the extent and nature of prejudice to one party or the other."

1. I had occasion to examine that case and other authorities in Gutteridge, Haskins & Davey Pty Ltd v Seaview Properties Pty Ltd & Ors, B31/1990 and I refer to my reasons in that judgment at p7 and following. It is appropriate to repeat here my summary of the effect of the judgment of Cross J in Calvert v Stollznow which is not reported although the appeal is reported at [1980] 2 NSWLR 749.

"In his judgment in Calvert v Stollznow (supra), Cross J referred to the following matters:

(i)        Prejudice if the action is allowed to proceed

(a)the length of delay since the cause of action arose

(b)the delay between the cause of action and commencement of proceedings

(c)the degree to which circumstances have changed since the relevant events occurred

(d)changes in the insurance position (I have some reservations about the relevance or at least, the weight of this factor)

(e)the prior attitude of the defendant (or plaintiff in the case of a counter–claim)

(ii)the prejudice to the plaintiff (defendant) if the action (counter–claim) is dismissed

(a)the plaintiff's (defendant's) personal degree of fault for the delay

(b)the explanation and/or excuse for the delay

(c)the degree to which the party in default has kept the other informed of the cause of the delay."

1. In both Gutteridge, Haskins & Davey and TheCloser Settlement Board case reference is made to the Rules of Court, O32A, r8, which entitle a party not in default to apply to a judge for directions and thereby achieve the speedy disposition of a case. The point of that reference is that, whilst a defendant (or plaintiff where there is a counter–claim) is entitled to "let a sleeping dog lie", thereby seeking an advantage from the plaintiff's delay, his or her right to later place reliance on that delay is diminished by the procedural remedy, always available, to apply under O32A, r8, for orders which will prevent prejudice being suffered. However, there are two significant factors in this application which, together with the long, largely unexplained delay, mitigate against the strength of that proposition.

1. Firstly, the defendant has suffered actual prejudice by reason of the untimely death of Dr Duffy in early 1990. The late Dr Duffy's report dated 7 October 1985 is exhibited to Mr Gunson's affidavit. It concludes, "I believe that the likelihood is that he [the plaintiff] sustained no organic injury which could be responsible for his present complaints." Had the plaintiff's action been prosecuted in timely manner, Dr Duffy would have been available to give evidence. The Evidence Act, ss81C and 81D make provision for the admission of Dr Duffy's report but, such admission is subject to the satisfaction of certain statutory conditions and may be prevented if the trial judge considers that the opinions expressed should not be admitted into evidence without being tested by cross–examination. It may be that another suitably qualified medical practitioner can examine the plaintiff now and, having done so, may be able to express the same opinion as Dr Duffy did six years ago. However, having regard to the lapse of time and the occurrence of any intervening relevant events, this may not be possible.

1. Secondly, the conversation between Mr Gunson and Mr Chopping on 5 February 1987 and the circumstances that preceded it were such that a reasonable solicitor acting for the defendant would have been entitled to assume that the plaintiff's inactivity after February 1987 was a result of a conscious decision to abandon the claim and accordingly, no application under O32A, r8, was necessary. The plaintiff had always given the appearance of not being enthusiastic about prosecuting his claim; throughout, liability had been a substantial issue between the parties and the conversation in February followed shortly after delivery to the plaintiff's advisors of two written medical opinions that there was little, if any, disability causally related to the accident.

1. These two matters together with all the other matters to which I have referred satisfy me that the order sought should be made. I should add for completeness, although this question was not canvassed before me, that I have considered the fact that the Motor Accidents Insurance Board would have to satisfy any judgment the plaintiff may obtain. However, any significance that matter has in the exercise of the discretion is offset by the fact that there is no material before me tending to establish that the Board would not be entitled to recover from the defendant any amount it paid in satisfaction of the statutory obligation imposed upon it.

1. The plaintiff's claim for damages against the defendant is dismissed for want of prosecution.