Biasin v Transit Pty Ltd
[2015] VCC 992
•12 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
COMMON LAW DIVISION
Case No. CI-14-00534
| ROBERT BIASIN | Plaintiff |
| v | |
| TRANSIT PTY LTD | Defendant |
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JUDGE: | Her Honour Judge Hogan | |
WHERE HELD: | At Melbourne (sitting at Geelong) | |
DATE OF HEARING: | 26 May and 1 June 2015 | |
DATE OF JUDGMENT: | 12 June 2015 | |
CASE MAY BE CITED AS: | Biasin v Transit Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 992 | |
REASONS FOR JUDGMENT
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Subject:Application by defendant to have the plaintiff proceeding dismissed for failing to comply with Notice for Discovery and Interrogatories – Notice and Interrogatories not served within time specified in court orders, but significant delay on behalf of plaintiff and plaintiff solicitors – failure by plaintiff to amend his statement of claim when it was apparent that it was without proper basis – breach by plaintiff and plaintiff’s solicitors of overarching obligations in Civil Procedure Act – defendant’s application dismissed but defendant awarded indemnity costs against plaintiff’s solicitor.
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Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram | Melbourne Injury Lawyers |
| For the Defendant | Ms R. Kaye | Lander and Rogers |
HER HONOUR:
1 This is an application by the defendant pursuant to Rule 24.02(1)(a) or, alternatively, Rule 29.12.1(3)(a), seeking that the plaintiff's proceeding be dismissed because the plaintiff has failed to comply with an order for discovery and for answers to interrogatories.
2 It is supported by two affidavits sworn by the defendant's solicitor, Phillip Ian Kusiak, sworn on 25 May 2015 and 1 June 2015.
3 On 11 February 2014, the defendant was served with a writ issued by the plaintiff, with a statement of claim endorsed thereon. In essence, the plaintiff pleaded that the defendant was the occupier of premises known as the Transport Hotel, at which the plaintiff had sustained injury on or about 25 July 2010, when he slipped and fell on a wet and slippery floor surface inside the entrance of the premises.
4 The plaintiff alleged a number of particulars of negligence on the part of the defendant, principally related to the state of the surface of the floor being dangerous or of an inadequate non-slip surface, and the defendant failing to have an adequate system of inspecting and cleaning the floor surface. The plaintiff alleged that by reason of the defendant's negligence, he had sustained injuries for which he claimed damages.
5 The defendant promptly filed an appearance. Pursuant to Minutes signed by the parties, orders by consent were made in chambers by His Honour Judge Misso on 2 May 2014. The proceeding was set down for trial on 8 July 2015, and a timetable for the taking of various interlocutory steps was incorporated in the orders. Any Notice for Discovery was to be served by 6 June 2014 and complied with by 18 July 2014, and leave was granted to serve Interrogatories by 15 August 2014.
6 What occurred thereafter is a protracted series of events, as set out in Mr Kusiak's two affidavits and in two affidavits filed in opposition to the defendant's application sworn by the plaintiff's solicitor Katherine Ann Wilson, on 25 May 2015 and 26 May 2015 respectively.
7 It is not in dispute that, well over one year ago, namely, on 24 April 2014, the defendant's solicitor, Mr Kusiak, advised the plaintiff's solicitor by telephone that he was instructed that the injury to the plaintiff on 25 July 2010 had not occurred when the plaintiff slipped on the floor inside the defendant's premises as alleged in the plaintiff's statement of claim. Rather, the defendant instructed that the plaintiff was intoxicated and aggressive and had been asked to leave the defendant's premises and, as shown in CCTV footage, he was injured outside the premises in an incident with a security officer, which security officer was employed by a "separate entity" to the defendant.
8 Under cover of a letter dated 28 May 2014, the defendant's solicitor forwarded to the plaintiff's solicitor a copy of the CCTV footage, the crowd control register dated 25 July 2010, an ambulance report dated 25 July 2010 and a St Vincent's Health Triage form dated 25 July 2010. In that letter, the defendant made an offer that, if the plaintiff discontinued, his claim the defendant would bear its own costs to date.
9 Both of Ms Wilson's affidavits were filed only on the first day of the defendant's application, namely 26 May 2015. It was only in response to the defendant's application that Ms Wilson, in her affidavit sworn on 25 May 2015, sought the leave of the court to amend the plaintiff's statement of claim and exhibited a proposed amended statement of claim and asked for the trial date of 8 July 2015 to be vacated. No notice of such application has ever been given to the court. The proposed statement of claim bears little resemblance to the statement of claim endorsed on the writ served in February last year. It alleges a duty of care of the defendant to ensure that the plaintiff would not be unreasonably exposed to the risk of injury by security staff employed at the Transport Hotel and claims that the plaintiff was assaulted by security staff. The particulars of negligence alleged have nothing to do with a dangerous or non-slip floor, but, rather, allege a failure by the defendant to have adequate security measures and to monitor, supervise and train security personnel; permitting the plaintiff to be assaulted by security personnel; and unnecessarily removing the plaintiff from the premises and exerting unnecessary force upon him.
10 At my request, Ms Wilson, solicitor for the plaintiff, attended court to give oral evidence. She stated that that she did not view the CCTV footage forwarded by the defendant to her office on 28 May 2014 until September 2014. She stated that she was on leave from 12 June 2014 until 22 or 23 August 2014. She stated that while she was away Mr Michael Schaeffer, solicitor, had the management of her file. For reasons which were not explained, Mr Schaeffer, on 7 July 2014, wrote to the defendant’s solicitor stating that the plaintiff had viewed the CCTV footage and "We are instructed to proceed with this matter and request that you file and serve your defence without further delay."
11 Under cover of a letter dated 18 August 2014 the defendant’s solicitors served a defence upon the plaintiff's solicitors and, again, forwarded to them a copy of the CCTV footage and other material which it had forwarded under cover of their letter dated 28 May 2014. The letter stated, "We request that you please provide within 14 days the basis upon which your client alleges that he slipped and fell on a wet and slippery floor surface at our client's premises, having regard to the enclosed material."
12 On 16 September 2014, the defendant served a letter upon the plaintiff's solicitors enclosing a Notice for Discovery dated 15 September 2014. On 17 September 2014, Mr Kusiak telephoned Ms Terzioglu at the office of the plaintiff's solicitor requesting a response to his letter of 18 August 2014.
13 On 19 September 2014, Ms Wilson telephoned Mr Kusiak, stating that the potential inconsistencies had been raised with the client and she sought more time to respond. Thereafter, on five occasions in October 2014 the defendant's solicitors, by telephone, email or letter, endeavoured to ascertain what the plaintiff was doing about his claim.
14 Ms Wilson stated in her oral evidence that Ms Terzioglu of her office had recorded, in a file note, dated 14 October 2014, a discussion of that day with Mr Kusiak in which she stated "Please keep," (my emphasis) "interlocutory steps on hold until I get the client's instructions." In response to a question from me, Ms Wilson stated that this file note seemed to indicate that interlocutory steps were already suspended. Ms Wilson stated, "That makes complete sense to me, but there had been no discussion about this from the defendant." However, she conceded that, had an extension been requested by the defendant, she would have consented to it. This was because her own understanding was that, either the plaintiff would accept the defendant's offer to withdraw his claim and each party bear their own costs, or, alternatively, it would be necessary to amend the plaintiff's statement of claim.
15 Mr Kusiak's note of the conversation on 14 October 2014 with Ms Terzioglu is that he had told her that "we are likely to be pressed to file and serve interrogatories" and that she had said, "It's a matter for us," meaning it is a matter for the defendant.
16 In the event, no further communication was received from the plaintiff's solicitors for some months. So, on 29 January 2015, the defendant's solicitor served interrogatories upon the plaintiff's solicitors. Thereafter, no response was received from the plaintiff's solicitors, notwithstanding that the defendant's solicitors in March and April 2015 made six further attempts by letter or telephone to elicit a response, including service on 23 April 2015 of formal Notices of Default in making discovery and answering interrogatories.
17 Only after the defendant, on 5 May 2015, had sought a directions hearing to have the plaintiff's claim dismissed, did the plaintiff's solicitors, by letter dated 6 May 2015, indicate that they had instructions to amend the statement of claim. After several requests from the defendant, a proposed amended statement of claim, which did not comply with Rule 36.05(4), ultimately, was sent to the defendant’s solicitors on 18 May 2015. Finally, one in proper form, highlighting the proposed amendments was sent on 22 May 2015.
18 On behalf of the plaintiff, it is argued that the court should not dismiss his proceeding because both the Notice for Discovery and Interrogatories were not served within the time ordered by Judge Misso in the orders made by consent on 2 May 2014. Reliance is placed upon Rule 34A.03, which brings this proceeding within the common law division list. Thus, it is argued, that Rule 34A.17 applies to prohibit discovery or service of interrogatories other than in accordance with court orders.
19 On behalf of the defendant, it is conceded that Rule 34A.01 makes it plain that Order 34A takes precedence over other rules, including Rule 24 and Rule 29. However, it is argued that Judge Misso's orders allowed for both discovery and interrogatories and the fact that they were not served in time, does not make these interlocutory steps invalid. In any event, the plaintiff's solicitors, by their conduct, impliedly had consented to an extension of the time for taking these interlocutory steps allowed by Judge Misso's orders.
20 I must say that the conduct of the plaintiff's claim appears to have been characterised by inertia and incompetence. There was a repeated failure to respond to calls, letters and emails from the defendant's solicitors after they had alerted the plaintiff's solicitors to the presence of the CCTV footage and other material supportive of their instructions that the plaintiff was not injured in the way pleaded in the statement of claim (by slipping and falling on a wet and slippery floor surface inside the entrance of the defendant's premises).
21 Despite two affidavits sworn by Ms Wilson and oral evidence spanning two days of the hearing of the defendant's application, (25 May and 1 June 2015), there is no explanation as to why Ms Wilson did not view the CCTV footage sent by the defendant's solicitors on 28 May 2014 and seek instructions from the plaintiff prior to her going on leave on 12 June 2014. There is no explanation as to why Mr Schaeffer, having viewed the CCTV footage, insisted in his letter dated 7 July 2014, that the defendant should file a defence to the plaintiff's statement of claim, which he and the plaintiff must have realised did not have a proper factual basis. This is contrary to the overarching obligations imposed on the plaintiff and his legal practitioner under the Civil Procedure Act 2010.
22 The conduct of the plaintiff's solicitors appears to breach many other overarching obligations including that in s.19 (not to take any step unless reasonably believed to be necessary to facilitate the resolution or determination of the proceeding), that in s.20 (to cooperate in the conduct of a civil proceeding), that in s.21 (not to engage in conduct which is misleading or deceptive), that in s.22 (to use reasonable endeavours to resolve a dispute) and that in s.25 (to act promptly and minimise delay).
23 There is no adequate explanation for the delay by the plaintiff or his solicitors, including such matters as to why, after Ms Wilson briefed counsel for advice on 1 September 2014, counsel provided advice dated 7 November 2014 under "a misapprehension that proceedings had not yet been issued."[1]
[1] Paragraph 18 of Ms Wilson’s affidavit sworn 25 May 2015.
24 There is no explanation as to why, in the light of that misapprehension, it took over five months, (namely, until 21 April 2015) to arrange for the plaintiff and Ms Wilson to further confer with counsel to clear up the apparent misapprehension.
25 Ms Wilson's affidavit states that, following this second conference with counsel, the plaintiff instructed her to proceed with his case and to amend the statement of claim.[2] There is no explanation as to why it took a further month, namely until 18 May 2015, to forward a proposed amended statement of claim to the defendant, even then, not in a proper form which highlighted the amendments.
[2] Paragraph 19
26 There is no explanation as to why no application was made to the court for leave to make such amendments. It is extraordinary that such a request should have comeonly by way of a paragraph in the affidavit of Ms Wilson sworn on 25 May 2015 in opposition to the defendant's application to dismiss the plaintiff's claim. Indeed, that affidavit was only filed and served on 26 May 2015, the day upon which the defendant's application was listed for hearing.There still has not been any formal notification to the court that the plaintiff requests a hearing date for an application to amend his statement of claim.
27 The incident in which the plaintiff alleges he was injured occurred on or about 25 July 2010. It is common ground that the statute of limitations for any claim in negligence has expired. This includes, in the event that the plaintiff's amendments to the statement of claim were to be permitted, any claim which the defendant may wish to make against a third party, namely, the security company employing the security officer now alleged to have assaulted the plaintiff on 25 July 2010.
28 The period under s.24 of the Wrongs Act in which the defendant might have commenced contribution proceedings in negligence against the security company has expired. In the event that the plaintiff is permitted to amend his statement of claim, the defendant would be confined to bringing third party proceedings in contract which, as Ms Kaye for the defendant pointed out, involves the complexity of proving the terms of the contract; breach of the terms, and that any injury, loss or damage found to have been sustained by the plaintiff flows from the breach by the security company or its employees of the contract with the defendant.
29 In stark contrast to the dilatory and incompetent behaviour of the plaintiff and his solicitors, the solicitors for the defendant appear consistently to have endeavoured to, either resolve the plaintiff's proceeding, or, when met with repeated lack of communication from the plaintiff's solicitors, take interlocutory steps to ensure that the matter could progress to hearing.
30 The defendant's solicitors were put in a difficult position by the plaintiff and his solicitors. By the time Mr Schaeffer on 7 July 2014, responded to the defendant's letter of 28 May 2014 by insisting, (inexplicably) that the defendant file a defence, the date by which Judge Misso had ordered that a Notice of Discovery should be served, 6 June 2014, had passed. Clearly, it would have been most unusual and inappropriate for the defendant to have served a Notice for Discovery in this case until such time as a defence had been filed. Normally a defendant would not serve interrogatories until discovery had been obtained from a plaintiff. As this was not forthcoming, after the defendant served a Notice for Discovery, on 15 September 2014, and there was a dearth of communication from the plaintiff or his solicitors, the defendant then served Interrogatories on 29 January 2015. Of course, this interlocutory step was also out of time because Judge Misso's orders had set 15 August 2014 as the date by which Interrogatories should be served.
31 I have carefully considered the sequence of events put before me in the affidavit material relied upon by each of the parties, as well as the oral evidence given by Ms Wilson and Mr Kusiak. Mr Kusiak's evidence was given on the second day of the hearing, namely, 1 June 2015. Mr Kusiak, in accordance with his second affidavit which had been sworn by him on that same day, gave oral evidence on oath that he did not seek an extension of the time from the court to serve a Notice for Discovery or Interrogatories because he did not believe it was necessary, due to the solicitors for the plaintiff having tacitly agreed to extend the time by asking for time to consider their client's position. I accept that Mr Kusiak did believe that the solicitors for the plaintiff had impliedly consented to an extension of time and that the plaintiff's solicitors had impliedly done so. In my view, this is the only interpretation of the file note of Ms Terzioglu dated 14 October 2014, "Please keep (my emphasis) interlocutory steps on hold until I get the client's instructions". The use of the word "keep" implies that interlocutory steps were already on hold at the request of the plaintiff's solicitors, which is in accordance with the evidence from Ms Wilson. In response to Mr Kusiak telling Ms Terzioglu that he was likely to be pressed to serve interrogatories, Ms Terzioglu stated that it was a matter for the defendants. This in no way indicated that the plaintiffs took issue with that course or that the plaintiff would not respond to interlocutory steps taken by the defendant.
32 Thus, I conclude that the defendant was induced to serve a Notice for Discovery and Interrogatories out of time by reason of the request of the plaintiff's solicitors for time to consider the plaintiff's position and that the matter has dragged on and on, without progress due to the inaction and incompetence and discourtesy (in failing to answer repeated communications from the defendant) of the plaintiff's solicitors. However, although I find that the defendant's solicitor, at all times, has acted in a professional and diligent manner by seeking to either resolve or expedite the matter, this is not conclusive of the defendant's application.
33 Order 34A is specific in its terms that it overrides all other orders (Rule 34A.01). That order sets up a judge-controlled list, (Rule 34A.14), and Rule 34A.17 is couched in mandatory terms as follows:
"Unless the court otherwise orders, a party shall not [my emphasis]
(a), be required to make discovery of documents;
(b), serve written interrogatories."
34 The sanction for failing to comply with a Notice for Discovery or failing to answer Interrogatories is potentially a dire one, namely, that of the plaintiff's proceeding being dismissed. The provisions dealing with failure to comply with default notices in relation to either discovery or interrogatories make it plain that the default must be to comply, "within the time limited by these Rules or fixed by any order of the court", (Rule 29.12.1 and Rule 30.09.1 or, alternatively, Rule 24.02).
35 In my view, the Rules make it plain that it is intended that the judge controlling the common law list should strictly control the interlocutory process of discovery and interrogatories. Where the consequence for failing to comply with an interlocutory step is as serious as dismissal of a proceeding, it is important that the steps leading to such a consequence be strictly in compliance with the rules or court orders.
36 The conduct of the plaintiff and his solicitors led the defendant's solicitors to reasonably believe that there would not be a problem with the serving of a Notice for Discovery or Interrogatories out of the time specified in Judge Misso's order. Indeed, the plaintiff's own conduct made it impossible for the defendant to comply with these orders. However, when it finally became apparent that the plaintiff's solicitors were not responding to communications from the defendant, requesting compliance with the Notice for Discovery and Answers to Interrogatories, the appropriate course should have been for the defendant to seek a directions hearing and a new order of the court requiring the plaintiff's compliance with these interlocutory steps. Unfortunately, because of the appallingly dilatory behaviour on the part of the plaintiff and the plaintiff's solicitors, the defendant, ultimately, was notified of the plaintiff's decision to seek to amend his statement of claim only two days after the defendant had already arranged with the court for a hearing date for the defendant’s application.
37 In the circumstances, I cannot accede to the defendant's application to dismiss the plaintiff's claim. However, I consider I should manifest the court's strong disapproval of the conduct of the plaintiff and the plaintiff's solicitors by awarding to the defendant the costs of this application and costs thrown away by the entirety of the work by way of correspondence and telephone calls and interlocutory steps which are now rendered unnecessary. I consider that the conduct of the plaintiff's solicitors has been so beneath the requisite professional standard and so in breach of their overarching obligations under the Civil Procedure Act that this is a case where I should order indemnity costs and that the defendant's costs be paid by the plaintiff's solicitors. However, I must give the plaintiff's solicitors the right to be heard on this issue before making any such order.
38 As for the plaintiff's request to amend his statement of claim, I make it clear that there must be an application made to the court with affidavit material in support of such application. I would anticipate that would comprise affidavits from the plaintiff, himself, and the plaintiff's solicitors and any other relevant source. The application, in my view, is a very vexed one, as the Statute of Limitations has now expired. It seems to me that what the plaintiff is seeking to do is to amend the statement of claim to plead an entirely new cause of action, which is out of time. It seems, also, as has been flagged by Ms Kaye, that there may be unrectifiable prejudice which has been suffered on the part of the defendant. However, those will be matters to be determined by the judge hearing the application, which will need to be set down as a substantive hearing.
39 I order that the plaintiff file and serve such application, together with all affidavit material in support of it, within 14 days of today's date. I order that the hearing date for this matter, namely 8 July 2015, be vacated and that the proceeding be adjourned sine die pending the plaintiff's application to amend his statement of claim.
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