Boswell v Fletcher Construction Australia Limited
[2005] TASSC 116
•28 November 2005
[2005] TASSC 116
CITATION: Boswell v Fletcher Construction Australia Limited & Anor [2005] TASSC 116
PARTIES: BOSWELL, Kenneth Henry
v
FLETCHER CONSTRUCTION AUSTRALIA LIMITED
HAZELL BROTHERS CIVIL CONTRACTING PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 2043/1994
DELIVERED ON: 28 November 2005
DELIVERED AT: Hobart
HEARING DATE: 10, 19 October 2005
JUDGMENT OF: Tennent J
CATCHWORDS:
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Time - Leave to take fresh proceedings in the action - Delay exceeding six years since last step taken - Factors relevant in the exercise of discretion to grant leave.
William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490; Appleby v Mobil Oil Australia Ltd 120/1997; Argo Pty Ltd v Page Seager (A Firm) [2000] TASSC 89; Koziol v Gargel [1999] TASSC 12; Aylett v Her Majesty's Attorney-General for the State of Tasmania & Ors [2003] TASSC 68, referred to.
Supreme Court Rules 2000 (Tas), r56.
Aust Dig Procedure [283]
REPRESENTATION:
Counsel:
Plaintiff: B R McTaggart
First Defendant: No appearance
Second Defendant: M E O'Farrell
Solicitors:
Plaintiff: Ogilvie Jennings
First Defendant: No appearance
Second Defendant: Page Seager
Judgment Number: [2005] TASSC 116
Number of paragraphs: 76
Serial No 116/2005
File No 2043/1994
KENNETH HENRY BOSWELL v FLETCHER CONSTRUCTION AUSTRALIA LIMITED
and HAZELL BROTHERS CIVIL CONTRACTING PTY LTD
REASONS FOR JUDGMENT TENNENT J
28 November 2005
Introduction
The Supreme Court Rules 2000 ("the Rules"), r56(1), provides:
"(1) If a step, other than an application on which no order has been made, has not been taken in a proceeding for 6 years since the last step was taken, a party may not take any further step in the proceeding without the order of the Court or a judge."
No step has been taken in these proceedings since February 1996. The plaintiff is therefore precluded from taking any further step unless he has the leave of the Court. He now applies for that leave.
The application for leave
The first defendant took no part in the application.
Counsel for the plaintiff relied on affidavits sworn by Richard Grueber, a solicitor, on 5 July and 1 August 2005, the plaintiff on 4 July and 23 August 2005, Judy Prokopiec, a records manager for Workplace Standards Tasmania, on 4 July 2005 and Leigh Mackey on 7 October 2005. Notice to cross-examine was given in respect of Mr Grueber and the plaintiff and both gave oral evidence.
The second defendant relied on an affidavit of Nicholas Sweeney sworn 20 July 2005. He was not cross-examined.
The law
The principles to be applied in an application under the Rules, r56, are not in dispute. In William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490, the High Court dealt with a similar provision. At 496 it was said (per McTiernan, Kitto, Taylor and Owen JJ):
"What it does is to forbid the further prosecution of proceedings in which no step has been taken for six years unless leave is given to continue them, and it follows that it is for an applicant for leave to show that there is good reason for excepting the particular proceedings from the general prohibition which the rule imposes."
In Appleby v Mobil Oil Australia Ltd 120/1997, Underwood J (as he then was) dealt with an application under the Rules of the Supreme Court 1965, O79, r11(2), the predecessor of r56. He said at 1:
"Although the rule imposes no fetter upon the exercise of the judicial discretion, it must be exercised judicially in accordance with recognised principles."
He went on to say, having referred to the passage above from Crosby's case:
"The question of whether there is good reason for making the order will, of course, depend upon the circumstances of each case, but generally speaking, relevant factors will be whether there is a reasonable excuse for the delay (Campbell v United Pacific Transport Pty Ltd and Others [1966] Qd R 465) and whether the respondent will suffer prejudice if the order is made. With respect to the latter, Connolly J said in Dempsey v Dorber [1990] 1 Qd R 418 at 420:
'The other factor which will always be relevant where an application is made under O90 r9 is whether the defendant is likely to suffer prejudice as a result of the delay. Sometimes, as in William Crosby, an examination of the history of the matter will reveal that the age of the dispute, its complexity, the nature of the evidence which will be required and the like make it inevitable that the defendant will be prejudiced in the preparation and conduct of the action. Thus it is commonly recognised that a witness action, which depends upon the recollection of those who must swear to events and conversations, presents a situation in which the trial of the issues becomes increasingly difficult and unsatisfactory with the passing of time. This will be so, even if it is not possible to point to the unavailability, for whatever reason, of a particular witness or the loss of relevant records.'
A relevant matter may be the nature of the applicant's case. An order will be an exercise in futility if it appears that the applicant will not be successful in the litigation even if an order giving leave to proceed is made. All the relevant circumstances have to be balanced to see whether there is good reason for excepting the proceedings from the general prohibition against taking proceedings after the expiration of six years."
The principles outlined by Underwood J have been applied in subsequent cases including those which have dealt with the current rule such as Argo Pty Ltd v Page Seager (A Firm) [2000] TASSC 89.
In summary, the onus is firmly on the plaintiff to show that:
·there is a reasonable explanation for his delay in the proceedings,
·he has an arguable case against each defendant, and
·that the defendants will not suffer prejudice in the proceedings if an order is made.
The evidence
The plaintiff was injured when scaffolding on which he was working fell over at a work site on 16 December 1991. The scaffolding had been erected on a wooden floor and it appears a section of the floor gave way. At the time, the plaintiff was employed by the second defendant who was contracted to the first defendant to provide services at the particular site. The accident was investigated by a representative of Workplace Standards Tasmania, a Mr Peter Berry. Mr Berry provided a report. His file remains intact, although the witness statements on it are not particularly detailed. He left the employ of that authority in about 1998 and there was no evidence as to whether or not he might still be available.
Another employee of the second defendant, Mr Keven Hayers, was also injured in the same accident. From a reading of the Workplace Standards file attached to the affidavit of Ms Prokopiec, it is apparent that the only witnesses to the actual collapse of the scaffolding which caused the workers' injuries were the two men injured. The file contains only one other statement other than those from the two injured men and that is a statement of a Greg Millhouse. He did not see the events which led up to the accident nor the accident itself. His statement says he heard a noise like something falling, looked down and saw the scaffolding had fallen and the two men were on the floor.
Mr Millhouse's statement is very brief and does not, for example, indicate what, if any, knowledge he may have had of working conditions before the accident or of the setting up of the scaffolding.
Mr Millhouse died in April 2001. There was no evidence he had been interviewed by either the plaintiff's or the second defendant's solicitors.
The plaintiff was off work full time for three months and then returned to work with the second defendant on light duties. He remained employed there for over five years until his employment was terminated in December 1997. He has been in receipt of a Centrelink disability pension since January 1998. The plaintiff made a claim for workers compensation, which was accepted. He was paid weekly benefits until he reached the limit of such benefits. The bulk of his medical costs was also paid.
The plaintiff sought legal advice at an early opportunity. This is apparent from the Workplace Standards file because his solicitors obtained an authority from him and wrote to Workplace Standards in the first half of 1992 seeking statements from their file. It appears, however, the plaintiff had little contact otherwise with his solicitors up to when a writ was filed. A writ claiming common law damages from both the plaintiff employer and the company to whom it was contracted, that is, both defendants, was filed on behalf of the plaintiff on 15 December 1994. The limitation period for such an action was just about to expire. The plaintiff was aware service of the writ could be delayed for a year from filing.
On 28 February 1995 the solicitors for the second defendant, having become aware of the filing of the writ although it was not served, wrote to the plaintiff's solicitors suggesting a conference to discuss settlement. Those solicitors had been instructed by the workers compensation insurer of the second defendant. That conference did not immediately occur because the plaintiff's solicitors said they were not ready.
On 5 June 1995 Mr Grueber from the plaintiff's solicitors, who then appeared to be "minding" the plaintiff's file for another solicitor in his firm, sent a medical report to the second defendant's solicitors. He also said he would be seeing the plaintiff shortly and then would confer. Later the same month Mr Grueber indicated he was ready to confer, subject to the availability of another report.
On 7 July 1995 the second defendant's solicitors wrote to the first defendant advising them of the pending court proceedings. They also gave notice that the second defendant would seek reimbursement from the first defendant for workers compensation payments already paid to the plaintiff and indemnity and/or contribution in respect of any common law damages which the plaintiff might recover.
Late in September 1995 the plaintiff and Mr Grueber met with the second defendant's solicitors and discussed settlement of both the workers compensation and common law claims. I infer these discussions could not be finalised because further particulars of loss and damage were still required.
On 7 December 1995 the writ was served on the first defendant. On 11 December 1995 the solicitors for the second defendant accepted service of the writ. Particulars had still not been supplied. The first defendant filed no appearance and a judgment by default for damages to be assessed was obtained by the plaintiff against it on 31 January 1996. The second defendant filed an appearance, a statement of claim was filed and a defence delivered by the second defendant on 16 February 1996.
Four months after the defence was delivered, the second defendant's solicitors wrote to the plaintiff's solicitors asking if the first defendant had sought to set aside the judgment against it and, if not, what steps were being taken to proceed to assessment of damages. Mr Grueber responded by telephone saying he would proceed with an assessment. The second defendant's solicitors heard nothing and wrote follow-up letters. On 4 October they made a without prejudice offer to settle the plaintiff's claims. There was no response at all despite follow-up letters until 20 February 1997, that is, over another four months later, when Mr Grueber told the second defendant solicitor he had to "do some work on it".
On 21 April 1997 Mr Grueber said he was having the plaintiff reviewed by a doctor early in May 1997 and hoped to have an assessment of damages listed about July that year. Despite follow up letters, the second defendant's solicitors heard nothing until early November when Mr Grueber indicated he would get the matter on as soon as he could, but doubted it would be until the following year. Despite further follow up letters from the second defendant's solicitors to the plaintiff's solicitors, the next contact made with them was when Mr Grueber told them on 11 December 1998, that is, over a year later, that the plaintiff was in Western Australia and he would look at the "interlocutory situation". The second defendant's solicitors took that to mean a reference to an assessment of damages.
In February 1999 the second defendant's solicitors made another without prejudice offer. There was no reply. In November 1999 the second defendant's solicitors wrote to the plaintiff's solicitors asking if there was any realistic prospect of the case ever being listed and if the plaintiff was interested in settling any workers compensation claim. On 8 December 1999 Mr Grueber requested details about compensation paid and said he was "potentially interested" in "us giving them some money and that's partly why they wanted the information."
Nothing further having happened, on 30 May 2000 the second defendant's solicitors wrote to Mr Grueber in the following terms:
"Can you please let us know if it is your client's intention to proceed with his assessment of damages or not.
Both you and your predecessor told us on many occasions that it was your client's intention to proceed in relation to the assessment of damages. Both you and your predecessor have told us on many occasions that you were taking steps in this regard.
We look forward to receiving your response."
There was no response. On 14 September 2000 there was a conversation between the second defendant's solicitor and Mr Grueber and Mr Grueber was described as being "non-committal about getting the matter on for hearing." By August 2001 the plaintiff's solicitors had not responded to further correspondence. The second defendant's solicitors therefore arranged to have the plaintiff medically examined in Western Australia on a date in September. After that date, Mr Grueber advised he would speak to his client. However, by 17 November the second defendant's solicitors had heard nothing and wrote again. They received no response to that letter until 23 March 2002. Mr Grueber then told the second defendant's solicitor he needed to update his medicals and his client was to see two of his doctors again.
Despite a follow up letter and telephone call, Mr Grueber did not get back to the second defendant's solicitors. In February 2003, the second defendant's solicitors, having become concerned about potential prejudice to their client by the delay, instructed loss assessors to find witnesses. It was then they discovered the death of Mr Millhouse. In June 2003 they arranged for the plaintiff to be assessed by an orthopaedic surgeon. On 28 August 2003 the second defendant's solicitors made a without prejudice offer to settle. They also advised that it was proposed to stop paying the plaintiff's medical expenses come the end of September. On 8 September 2003 the second defendant's solicitors wrote to the plaintiff's solicitors advising that the surgeon had noted that the plaintiff's condition was not causally related to the 1991 injury.
On 11 September 2003 the second defendant's solicitors wrote to the plaintiff's solicitors proposing a meeting to confer about the claim. The plaintiff had contacted the second defendant's insurer direct, concerned about his medical expenses and indicated he was coming to Tasmania in October. On 26 September the second defendant's solicitor spoke to Mr Grueber. Mr Grueber was told that in the view of the second defendant's solicitor, their client did not have any common law exposure. Notwithstanding that, Mr Grueber said he was not interested in any offer until his client had had his medical reviews. Mr Grueber was told then that he needed the Court's leave to proceed with the plaintiff's claim. This advice was confirmed in a letter of 20 October. Further letters were written without response.
On 9 March 2004 the second defendant's solicitors wrote again to the plaintiff's solicitors. They said:
"The only reason that my client has not applied to the Court to strike out your client's claim for want of prosecution is that it seems to us that because of the Supreme Court Rules your client is in any event prevented from pursuing his claim against my client unless the leave of the Court were obtained. I cannot see how the leave of the Court would be obtained bearing in mind the history of this matter.
Nevertheless I repeat that my client is still interested in attempting to resolve its exposure under the Workers Rehabilitation and Compensation Act 1988. I cannot understand why your client is not interested in at least discussing this matter with us."
On 5 July 2004, there having been no reply to that letter, the second defendant's solicitors advised Mr Grueber their client proposed to contact the plaintiff direct. The insurer did just that by letter dated 6 July 2004. By letter dated 12 July 2004 Mr Grueber sent three medical reports dated October 2003 and January 2004 to the second defendant's solicitors. He also advised he had given certain advice to the plaintiff and hoped to have instructions shortly.
In October the plaintiff contacted the insurer direct. As a consequence, the second defendant's solicitors wrote to Mr Grueber advising of that and indicating they were still willing to negotiate. They received no reply. On 18 February 2005 the solicitors for the second defendant advised Mr Grueber they had been instructed to close their file. Again there was no reply. The present interlocutory application was served on 26 May 2005.
Mr Grueber was what can most politely be described as an unsatisfactory witness. It was clear that the affidavits which he swore were prepared by someone else and that he just signed them without any personal effort to verify by reference to his firm's files whether any of the material was correct. His answers to questions were vague and generally unhelpful. He told counsel for the second defendant in answer to one enquiry that he did not draw the affidavits he swore and that he was effectively interviewed by another practitioner for the purpose of their preparation. He was asked if documents were put to him during this process and he said the practitioner had the file but he could not recall what they went through. Having said that both his oral and written material was consistent with what appears to have been his position in this matter from very early on and "that is, I simply can't face this file".
Statements which appear at pars4, 5 and 6 of his affidavit sworn 5 July 2005, for example, are self-serving and inconsistent with his inability to recall detail about the file. They suggest reconstruction. The only other use which can be made of Mr Grueber's affidavits is that they provide some indication of contact between his firm and the plaintiff.
Mr Grueber's affidavit of 5 July 2005 discloses that the plaintiff tried to contact him by telephone, letter or email on various dates between October 1996 and April 2005 to find out what was happening with his matter. I infer that on none of the dates which appear in pars8, 9 and 10 of that affidavit did Mr Grueber personally deal with the plaintiff. On other dates which appear in par11 of the same affidavit, Mr Grueber actually appears to have spoken to the plaintiff. The various dates are listed below:
Attempts by plaintiff to contact Mr Grueber:
1996
7 October, 20 November, 23 December
1997
5 May, 11 July, 30 October, 18 December
1998
3 and 16 March, 7 May, 20 November, 7 December
1999
9 and 19 February, 16 and 29 March, 10, 13 and 19 May, 20 July, 15 November, 2 December
2000
10 and 11 January, 14 and 23 February, 6 and 11 April, 11 May, 1 August, 4 October, 4 December
2001
22 January, 27 June
2002
7, 23 and 27 February
2003
9 September, 7 and 16 December
2004
14 January, 8 (twice), 28 and 30 April, 9 June, 12 July, 7 October, 2 November, 20 December
2005
19 January, 13 April.
Actual contact:
1996
24 April, 9 May, 12, 13,19 and 25 September, 2 and 19 October
1997
16 January, 30 April, 18 and 24 July, 1, 8 and 16 December
1998
8 April, 7 and 29 May, 1 June
1999
10 May
2000
14 and 17 January, 17 and 19 April, 6 September, 6 December
2001
18 April, 12 November
2002
17 February, 1 March, 8 April, 20 and 23 December
2003
18 July, 8 September, 3 and 7 October, 17 November, 15 and 22 December
2004
13 April, 18 October
2005
13 April.
There was no material put before the court to indicate what, if any, letters Mr Grueber may have sent to the plaintiff. While it might be possible by reference to the above dates and other information to assume some contact by the plaintiff with his solicitors was in response to letters written by them, there is no evidence at all to confirm it.
As to his handling of the plaintiff's file, Mr Grueber said:
"13 I found it difficult talking to Mr Boswell. Whenever I thought about the file I trembled. I would feel hot and uncomfortable. Whenever I saw a note or a message concerning the file I would experience this physical reaction.
14 The longer this went on the worse it became. I would wake up at night thinking about Mr Boswell's claim. I would dread going to work in the morning in case Mr Boswell phoned or a document came in on the file. I had thoughts about leaving the law because of this particular file. At the same time the remainder of my practice was progressing normally.
15 On the occasions that Mr Boswell would contact me for an update, I would reassure him that these claims take time and have to go through a number of steps. I would put him off. It was not the case that I would ignore Mr Boswell's calls. I responded to his calls.
16 By letter dated 9 March 2004 from the practitioners for Hazell Brothers, Mr Nick Sweeney of Page Seager, I was advised that Mr Boswell was prevented from pursuing his claim in the absence of the leave of the court as a result of the delay. It had not occurred to me prior to receiving this letter that Mr Boswell could be prevented from pursuing his claim by reason of the delay. The letter was a shock. The application of Rule 56 had not occurred to me as there had been contact with Hazell Brothers' solicitor from time to time and I had not previously had occasion to consider the Rule.
17 I did not communicate to Mr Boswell that he could now no longer pursue his claim in the absence of the leave from the court. I avoided the issue. I felt frozen and not able to do anything in response to the elapse of time. I also felt unable to talk to any of my partners at Ogilvie Jennings and tell them what had transpired.
18 I felt unable to make sensible decisions in respect to the file. I felt hugely embarrassed and shameful that the situation had reached the point that it had. I had a feeling that the situation would come to a head but I felt unable to bring it to a head myself.
…
21 Particulars had been drafted and updated by myself on a couple of occasions but had never been served. There was no specific reason why I could not finalise and serve them. This was an example of my inability to progress the matter."
Mr Grueber spoke to the plaintiff on 13 April 2005. He said he told him he could no longer deal with his matter and suggested he speak to Ms Mackey, another lawyer in the same firm. He said the plaintiff was angry and upset.
While the plaintiff's case has at all times effectively been dealt with by the same firm, there have been solicitors, both before and since Mr Grueber, who have had actual carriage of it. Details of the plaintiff's contact with the firm before that with Mr Grueber were not provided by the solicitors to the Court and the only material about that was from the plaintiff himself. Some of the material from the plaintiff does not marry with that from Mr Grueber which I have to infer is from the file held by the plaintiff's solicitors.
For example, the plaintiff told the Court that about three months before the expiration of the time for serving the writ (this had to have been about September 1995), he met with Mr Grueber who told him that he needed witness statements. The Workplace Standards file suggests that its report and witness statements had been provided to the solicitors in 1992. The plaintiff also said that he instructed Mr Grueber about a week before the expiry date in respect of service (this had to have been late November or early December 1995) to serve the writ after Mr Grueber told him he needed more statements. This contact has not been deposed to by Mr Grueber.
As to the progress of his matter from there, the plaintiff said:
"18 In the years following service of the Writ I kept in regular contact with Mr Grueber. Whenever he wanted me to do something I did it promptly. I had no reason to believe my case was not advancing properly.
19 It was my understanding that the claim would take a long time to resolve. I knew someone who had had a similar claim which had taken 7 to 8 years to complete from the time he sued. I therefore had this period in mind for how long it would take for my matter to be finalised.
20 On 11 June 1998 I left Tasmania and moved to Perth Western Australia.
21 In approximately 1999 I was becoming frustrated and angry as I could not get in contact with Mr Grueber to find out how my claim was progressing. When I called Mr Grueber I would often only be able to speak with his secretary. The messages I left with her for Mr Grueber to call me were often not answered.
22 I rang and spoke to the Manager at Ogilvie Jennings, Mr Peter Rowe, and also on another occasion with one of Mr Grueber's partners, Mary Imlach. I recall complaining to Peter Rowe and Ms Mary Imlach that I was not happy with the way Mr Grueber was handling my claim. I was getting no response from him and things were taking too long. Mr Rowe's response was that he would look into it and get back to me. When I called him again he said he had spoken to Mr Grueber and there was nothing else he could do. Mary Imlach's response was that she would speak to Mr Grueber and get the matter moving. I asked Ms Imlach if someone else could be given my case as I felt Mr Grueber was not giving it much attention. Ms Imlach advised me that it would be in my best interests to leave it with Mr Grueber as there would be further delay if it went to someone else. After speaking to Ms Imlach I requested Mr Grueber to keep me informed as to how my case was progressing and the possible duration of my case but he did not.
23 In approximately January 2005 I telephoned the Tasmanian Law Society and was sent a complaint form to complete by email. Before I had filled in the complaint form I received a call from Martyn Hagen of the Tasmanian Law Society who told me he would get someone from Ogilvie Jennings to call me.
24 The next day Malcolm Schyvens from Ogilvie Jennings called me and I told him I was sick of nothing happening on my file. He told me that he would get another partner of the firm who was experienced in matters of litigation to look into my matter and call me.
25 A few days later I received a telephone call from Leigh Mackey of Ogilvie Jennings who told me that she had looked at my file and that as no step had been taken in the action for over 6 years, I could not proceed with my claim without the leave of the court. This was the first time that I was aware that no step in my action had been taken for over 6 years, and as a result I could no longer pursue my action without the leave of the court. I instructed Ms Mackey to seek leave."
The first defendant has taken no part in these proceedings at all. The plaintiff's solicitors, apart from obtaining the judgment by default, have taken no other step in respect of the first defendant.
Explanation for Delay
There can be absolutely no doubt that there has been a significant delay on the part of the plaintiff in these proceedings. It is now 14 years since the incident which gave rise to the plaintiff's claim and 9½ years since the last formal step in the proceedings. There can also be no doubt that the primary cause for the delay in this matter was Mr Grueber's behaviour in relation to it. His actions are inexcusable. They are rendered more so from the perspective that it must have been painfully obvious from the correspondence he continued to receive from the defendant's solicitors that he was not doing what he should have been and that his client's position was being prejudiced. That neither he nor someone else in his firm, once they became aware of the problem, did anything to immediately fix it, is incomprehensible.
As to the issue of delay, the Court must determine whether Mr Grueber's inaction is the entire cause for the delay and, if so, do the circumstances described by him as giving rise to his inaction constitute "a reasonable explanation for delay" in themselves. The solicitors for the second defendant have submitted that, while conceding Mr Grueber's inaction was the primary cause of the delay, the plaintiff must personally bear some responsibility for failing to do something about his solicitor's inaction when he was clearly aware of it.
Counsel for the second defendant identified three specific periods of delay. These were the time between the cause of action and service of writ (December 1991 to December 1995), the time between service of the writ and the effluxion of the six-year time limit (December 1995 to February 2002) and the time after that (February 2002 to May 2005 when this application was filed).
As to the first period, delay at this stage of proceedings is a relevant matter. I have little explanation for the delay in this period. However, I accept in this period the plaintiff was still employed by the second defendant and may have been uncertain as to the eventual consequences of his accident, the plaintiff had expectations that any action in respect of his accident would take a long time, and the second defendant's solicitors do not appear to have agitated the matter until early 1995. In those circumstances, in my view, the plaintiff should not be prejudiced by any delay in this period. However, as Slicer J said in Argo Pty Ltd v Page Seager (A Firm) (supra) at par37:
"…the lapse of time in the commencement of proceedings imposes an obligation that they proceed with due diligence and might increase the prejudice suffered by a defendant (Dept Transport v Chris Smaller Ltd (1989) 1 AC 1197."
As to the second period and generally, counsel for the plaintiff relied on the inaction of the solicitor, Mr Grueber, as the primary cause for delay and submitted that delay should not prejudice the plaintiff. He further submitted that there was nothing in the plaintiff's behaviour personally which should prejudice his position. He submitted that the plaintiff himself took every step reasonably open to him to move his matter along and that:
·the plaintiff had no reason to believe his case was not advancing properly;
·the plaintiff kept in regular contact with his solicitors;
·when he felt he was not getting things done, the plaintiff contacted Mr Grueber's practice manager, another partner in the firm, the Law Society and indeed the second defendant's insurer direct;
·it was not until Mr Grueber's advice to him of 13 April 2005 that he knew his matter was not proceeding as it should; and
·that he instructed Ms Mackey to make the application for leave to proceed quickly once he was aware of the problem.
Counsel for the plaintiff also relied on what he said was the behaviour of the second defendant's solicitors. He submitted that they were not blameless as far as the delay was concerned because at no time did they apply to the Court for a timetable. He also submitted by reference to r348, and its predecessor, that the assessment of damages against the first defendant could not have proceeded in isolation in any event. He submitted that without an order of the Court it could only be dealt with at the time of a trial of issues against the second defendant and nobody had ever applied for an order to have the assessment proceed independently.
In Argo Pty Ltd & Ors v Page Seager (A Firm) (supra), at pars50 to 54, Slicer J summarised authorities which dealt with the issue of inaction by a defendant. He noted at par52 that:
"… there has been some divergence of opinion as to the responsibility of a defendant to take steps in order to minimise prejudice or to advance the matter to trial where there has been inactivity on the part of a plaintiff."
In the present case, while the second defendant clearly did not seek a timetable or apply under r348, it repeatedly pressed the plaintiff's solicitors by letter and telephone calls. While its inaction in the sense of failing to invoke pretrial procedures is a factor to be considered, I am mindful of the words of Wright J in Koziol v Gargel [1999] TASSC 12, to which Slicer J referred:
"It must be remembered that despite the availability of pre–trial mechanisms, proceedings of this kind are still adversarial. Furthermore, it must be borne in mind that a defendant is usually brought reluctantly to court and, unless he has a counterclaim, stands to gain little or nothing except peace of mind, even if the proceedings are resolved in his favour. In my opinion, a plaintiff … has a clear obligation to advance proceedings at a reasonable pace and to avoid conduct which carries the risk of prejudice to his opponent."
I do not accept that any failure by the second defendant's solicitors to apply for directions should be a matter upon which the plaintiff can rely to any significant degree in this matter to effectively mitigate the consequences of his delay.
As to Mr Grueber's inaction, it clearly was the primary cause of the delay. In Aylett v Her Majesty's Attorney-General for the State of Tasmania & Ors [2003] TASSC 68 at par12, Cox CJ said of a solicitor's delay:
"Delay by an applicant's advisor does not fall into the same category as delay on the part of the applicant himself."
His Honour canvassed a number of authorities. Clearly he took the view that personal delay, as opposed to that of a solicitor, would have a far greater impact against a plaintiff insofar as succeeding on an application such as the present.
As to the plaintiff's personal behaviour, I do not accept that he had no reason to believe his case was not advancing properly or that it was not until Mr Grueber's advice to him in April 2005 that he knew his matter was not proceeding as it should. If regard is had to what the plaintiff said in pars21 and 22 of his affidavit of 4 July 2005, it is clear that as early as 1999 he perceived there was a problem. He had to have been alerted to a problem, at least in September 2003, because he contacted the insurer direct after hearing about the possibility of his medical expenses not being paid. I have no evidence that the correspondence from the second defendant's solicitors of October 2003 and March 2004 to the plaintiff's solicitors was passed on to the plaintiff. If it had been, that would obviously have shown there was a problem. He was aware of a problem in July 2004 because the insurer wrote to him direct. He was also aware of a problem in December 2004 or January 2005 because he contacted the Law Society to complain about Mr Grueber.
The issue is - does this knowledge on his part and his failure to take some step other than what he did, preclude him from relying on Mr Grueber's behaviour as a reasonable explanation for delay? I am of the view it does not. The plaintiff is not a well-educated man. He sought legal help and was entitled to rely on it. He made regular contact with his solicitors and he believed his claim would take years to resolve. While he became angry at what he perceived was inaction, the solicitors, in the form of Mr Grueber in clearly misleading him at times that things were progressing when they were not, and Mr Grueber's colleagues in persuading him to stay with the firm, contributed to his decision to stay with the firm and accept what they were doing. He was at times slow to react. However, I am satisfied his behaviour was not such as to disentitle him from relying on his solicitor's behaviour as a reasonable explanation for the delay in these proceedings.
The above comments apply equally to the third period of delay identified by the second defendant's solicitors.
Arguable Case
This issue does not arise insofar as the application by the plaintiff against the first defendant is concerned because liability has already been determined. As to the second defendant, its counsel said little about the issue, save that his client did not concede that the evidence available on this application was sufficient to establish a prima facie case against it.
I am not required to be satisfied the plaintiff would succeed against the second defendant, only that there is an arguable case. Counsel for the plaintiff submitted that this was a case where it could not be said it would be an exercise in futility to grant leave because the plaintiff could not succeed. He submitted the plaintiff's case might yet be strengthened by pre-trial procedures and he identified in his written submissions certain material which might support his client's case.
I am satisfied, having regard to the material contained in those submissions, which largely comes from material in the Workplace Standards file, that the plaintiff does have at least an arguable case against the second defendant.
Prejudice
There are issues of general and specific prejudice to be considered. They impact somewhat differently on each defendant.
As to general prejudice, 14 years have passed since the accident which gave rise to this claim. Such a lapse of time must have an adverse effect on the memories of witnesses and make it difficult for the second defendant to test versions of events. This effect on memory may also flow in respect of medical witnesses, some of whom were initially involved with the plaintiff many years ago.
As to specific prejudice, insofar as the first defendant was concerned, counsel for the plaintiff submitted it had not raised any prejudice it might suffer. While I accept that, it still behoves the plaintiff to satisfy the Court objectively that prejudice will not flow to the first defendant. As to this defendant, the only issue is assessment of damages. The primary material required for the Court in such an assessment will be from medical experts. The plaintiff has been medically examined by doctors instructed by both his own solicitors and the second defendant's solicitors on a number of occasions over the years since the accident. There is no paucity of such evidence. There may be an argument that because some examinations are many years old, the relevant medical practitioners may have little detailed memory of the plaintiff and his condition, save by reference to written reports.
However, that is speculation given the first defendant has not raised any such matter. In the absence of any matter being raised and given the number of examinations which have occurred, I am not satisfied any specific prejudice has flowed to the first defendant by the delay.
Insofar as the second defendant was concerned, counsel for the plaintiff submitted that it had knowledge of the accident from very early on by reference to the accepted workers compensation claim and its access to the Workplace Standards file. That file still existed. Further, it had had the plaintiff medically examined on a number of occasions over the years and had had provided to it medical reports obtained by the plaintiff's solicitors. Its solicitors had also conferred with the plaintiff and his solicitor in 1995.
Counsel further submitted that the death of Mr Millhouse was of little moment because the second defendant had Mr Millhouse's statement and he did not see the accident anyway. Further, no material had been put before the Court to indicate what, if any, evidence Mr Millhouse might have been able to give that could not be given by, for example Mr Hayers, or another worker Mr Glover. Counsel also argued that any costs the second defendant's solicitors had incurred in trying to settle this matter would have been incurred in any event and so such costs should not be regarded as raising any prejudice to the second defendant.
On the other hand, counsel for the second defendant argued that the two specific matters which caused prejudice to the second defendant were the death of Mr Millhouse and the plaintiff's failure to pursue the first defendant to an assessment.
As to the first of these matters, the Workplace Standards file discloses that Mr Millhouse did not see the accident but heard it and went immediately to the scene. His statement on that file is short and has little detail. It may be that, had he been available for cross-examination, he might be able to provide more information about what led up to the accident. His non-availability prevents the second defendant from seeking that information or from testing the plaintiff's statements by reference to information which Mr Millhouse might have had.
As to the potential witness Mr Glover, he does not appear to have been interviewed by Workplace Standards. References to him in their file suggest he did not see the accident but came to the scene shortly after. The plaintiff has provided no material to indicate Mr Glover might be able to fill any gap left by Mr Millhouse's absence.
As to the failure of the plaintiff to pursue the first defendant to an assessment, since January 1996 the plaintiff has had the benefit of a judgment against the first defendant for damages to be assessed. Since shortly thereafter he has also had a denial on the part of the second defendant of liability. He has, as a consequence, had certain options for a number of years. These were:
·He could have proceeded to trial on liability. Had he done so and obtained a judgment against the second defendant, he could have then proceeded to assessment and effectively left it up to the defendants to argue between themselves as to who was going to pay.
·Had he failed to establish liability on such a trial, in any event he could have proceeded to assessment against the first defendant.
·As an alternative to the above steps, he could have sought an order from the Court pursuant to r348 to allow him to proceed to assessment against the first defendant separate from any trial as to liability. It may have been that were he successful in that and in ultimately recovering damages from the first defendant, he may not have proceeded further against the second defendant.
He, of course, did nothing. I have no evidence the plaintiff could not succeed or might not have succeeded in an application pursuant to r348. I am satisfied that neither Mr Grueber, nor indeed any solicitor for the plaintiff, communicated to the second defendant's solicitors at any time anything other than an apparent intention to pursue, as a priority, an assessment of damages against the first defendant. The second defendant, in relying on that position, has not formally sought to obtain contribution from the first defendant. As was submitted, there would have been no need.
The second defendant is now in the position that if leave is granted to the plaintiff to proceed in this matter, it faces a trial on liability. It will therefore have to make an application itself for an extension of time under the Wrongs Act 1954, s3(6), or obtain leave to proceed to obtain contribution from the first defendant. The success of such applications is a matter for the discretion of the Court. The second defendant may be unsuccessful. It will, in any event, incur costs in making such applications.
The second defendant, I am satisfied, has, as a consequence, been significantly prejudiced by the failure of the plaintiff to pursue his claim.
Conclusions
As against the second defendant
While there may be an arguable case against this defendant and an explanation for delay which, in all the circumstances, I have found was a reasonable one, I am satisfied that this defendant would suffer significant prejudice if the plaintiff is allowed to proceed against it.
In my view, by reason of that prejudice, the plaintiff has failed to demonstrate that there is, in the words of the High Court in William Crosby, a "good reason for excepting the particular proceedings from the general prohibition" which r56 imposes.
Insofar as the second defendant is concerned, the application of the plaintiff pursuant to r56 must fail.
As against the first defendant
This defendant took no part in this application and has done nothing at all so far as the substantive proceedings are concerned. I am of the view the plaintiff's position as against the first defendant is different. There is an explanation for delay and the issue of an arguable case does not really arise. This defendant has raised no prejudice and none of any significance would seem to exist apart from the impact of delay on memory.
Is there any other prejudice arising from the refusal of the plaintiff's application against the second defendant? By reason of that refusal, if the plaintiff were allowed to proceed against the first defendant, he would be free to proceed to assessment. It might be argued that in those circumstances this defendant too will suffer the same sort of prejudice canvassed in respect of the second defendant relating to contribution proceedings. However, by reason of the first defendant's complete inactivity as far as these proceedings are concerned, it is arguable it never intended to seek such contribution and so there is no prejudice.
Given the complete lack of involvement of the first defendant in these proceedings, I am not satisfied such prejudice does exist for it.
In those circumstances, the application of the plaintiff pursuant to r56 against this defendant should succeed.
Orders
1 The application of the plaintiff insofar as it relates to the second defendant is dismissed.
2 Pursuant to r56, the plaintiff have leave to take a step in these proceedings against the first defendant.
0
3
1