Boswell v Hazell Brothers Civil Contracting Pty Ltd
[2006] TASSC 42
•6 June 2006
[2006] TASSC 42
CITATION: Boswell v Hazell Brothers Civil Contracting Pty Ltd [2006] TASSC 42
PARTIES: BOSWELL, Kenneth Henry
v
HAZELL BROTHERS CIVIL CONTRACTING PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 84/2005
DELIVERED ON: 6 June 2006
DELIVERED AT: Hobart
HEARING DATE: 29 May 2006
JUDGMENT OF: Underwood CJ, Evans and Blow JJ
CATCHWORDS:
Appeal and New Trial – Interference with discretion of court below - In general – Judge mistaken or misled – Particular cases – Finding of fact not based on evidence – No evidence whether contribution proceedings instituted.
Rules of the Supreme Court 1965 (Tas), O18, r67.
Aust Dig Appeal and New Trial [50]
REPRESENTATION:
Counsel:
Appellant: B R McTaggart
Respondent: M E O'Farrell
Solicitors:
Appellant: Ogilvie Jennings
Respondent: Page Seager
Judgment Number: [2006] TASSC 42
Number of paragraphs: 16
Serial No 42/2006
File No FCA 84/2005
KENNETH HENRY BOSWELL v
HAZELL BROTHERS CIVIL CONTRACTING PTY LTD
REASONS FOR JUDGMENT UNDERWOOD CJ
EVANS J
BLOW J
6 June 2006
Orders of the Court
That the appeal be allowed.
That orders 1 and 3 made by the learned primary judge on 28 November 2005 be set aside.
That the appellant's interlocutory application filed on 20 May 2005, insofar as it relates to the respondent, be remitted for hearing and determination by another judge.
Serial No 42/2006
File No FCA 84/2005
KENNETH HENRY BOSWELL v
HAZELL BROTHERS CIVIL CONTRACTING PTY LTD
REASONS FOR JUDGMENT UNDERWOOD CJ
EVANS J
BLOW J
6 June 2006
The appellant claims to have been injured on 16 December 1991 in the course of employment by the respondent, a company that was allegedly undertaking demolition work for another company named Fletcher Construction Australia Ltd ("Fletcher Construction"). He sued both companies for damages in respect of his injuries. The writ was issued on 15 December 1994. No steps were taken in the action against either respondent after February 1996. On 20 May 2005, the appellant's solicitors filed an interlocutory application seeking an order permitting him to take further steps in the action against both defendants. Such an order was necessary by virtue of the Supreme Court Rules 2000 ("the 2000 Rules"), r56(1). The learned primary judge granted the order sought in respect of Fletcher Construction, but dismissed the application in relation to the respondent. This is an appeal from the order of dismissal.
Rule 56(1) provides as follows:
"56 (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."
The High Court dealt with a provision similar to r56 in William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490. McTiernan, Kitto, Taylor and Owen JJ said the following at 496 as to such a rule:
"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."
The learned primary judge gave thorough written reasons for her decision in which she considered the appellant's explanation for the delay in prosecuting the action, the question whether the appellant had an arguable case, and the question of what prejudice the respondent would suffer if the appellant were permitted to proceed against it. She gave details of substantial delays on the part of the appellant's solicitor. She considered the appellant's conduct, and concluded that "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." She made a finding that the appellant had at least an arguable case against the respondent. However she made a finding that the respondent would suffer significant prejudice if the appellant were allowed to proceed against it. She concluded that, by reason of that prejudice, he had failed to demonstrate that there was a "good reason for excepting the particular proceedings from the general prohibition" imposed by r56.
Her Honour's conclusions as to prejudice appear to have been based on the following:
· If the action were to proceed to trial, the respondent would suffer "general prejudice", in that a lapse of time must have an adverse effect on the memories of witnesses, and make it difficult to test versions of events.
· A witness named Millhouse had died. He was working with the appellant on the day of the injury, though he did not see the accident occur.
· Her Honour took it to be a fact that the respondent had not formally sought to obtain contribution from Fletcher Construction, and took it to be a fact that it had not done so because of the stance taken by the appellant in the litigation in relation to Fletcher Construction.
The appellant contends that there was no evidence before the learned primary judge as to whether or not the respondent had formally sought to obtain contribution from Fletcher Construction, and that she erred in making findings that contribution had not been formally sought and as to why contribution had not been formally sought.
Fletcher Construction did not file an appearance in the action. On 30 January 1996, the appellant entered default judgment against it for damages to be assessed. Prior to 1 June 2000, the procedure of the Court was governed by the Rules of the Supreme Court 1965 ("the 1965 Rules"). Under the 1965 Rules, O14, r6(2) provided that the assessment of damages as against a defendant suffering judgment by default was to proceed at the same time as the trial of the action against the other defendant. However the Court was given a discretion by O14, r6(3) to order that the assessment of damages as against the defaulting defendant was to proceed separately. There was evidence before the learned primary judge that the appellant's solicitor had told the respondent's solicitor that he intended to proceed with an assessment of damages as against Fletcher Construction. However there was no evidence as to whether or not contribution had been formally claimed by the appellant against the respondent. Under the 2000 Rules, proceedings for contribution between defendants have to be instituted by a notice which must be filed: r211(1). However the inspection of the file relating to this action (assuming such an inspection were permissible) would give no indication as to whether or not contribution proceedings had been commenced since the 1965 Rules did not require notices of contribution to be filed. Under O18, r67(1), the defendant making a claim for contribution was permitted to "issue and serve" the appropriate notice. There was no requirement that it be filed.
In her reasons, the learned primary judge referred to the alternatives that faced the appellant's solicitor, Mr Grueber, after default judgment had been obtained against Fletcher Construction, and continued as follows:
"I am satisfied that neither Mr Grueber, nor indeed any solicitor for the plaintiff, communicated to the second defendant's [the respondent's] solicitors at any time anything other than an apparent intention to pursue, as a priority, an assessment of damages against the first defendant [Fletcher Construction]. 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."
Her Honour's reference to the Wrongs Act concerns a limitation provision. Under s3(5) thereof, the limitation period for the institution of contribution proceedings expires 12 months after service of the writ on the defendant making the contribution claim. Under s3(6), the Court has power to extend that time.
The finding that the respondent had not formally sought to obtain contribution from Fletcher Construction was not open to the learned primary judge since there was no evidence of any such fact. The finding as to the reason for not formally claiming contribution – reliance on the appellant's apparent intention to pursue an assessment of damages against Fletcher Construction – must therefore also be regarded as erroneous.
Counsel for the respondent submitted to us that any errors on the part of the learned primary judge as to the lack of contribution proceedings, or as to the reason for the lack of them, were inconsequential, and that the appeal should not succeed. He argued to the effect that the appellant's action had been dormant for so long that in all probability an order under r56 permitting the appellant to proceed against the respondent would have compelled the respondent either to apply for an extension of time under the Wrongs Act, s3(6), if it had not instituted contribution proceedings, or, if it had instituted such proceedings, to seek an order under r56 permitting it to take further steps in those proceedings. He argued that, if it was the case that contribution proceedings had been instituted, it was likely that the respondent would not have taken any step in those proceedings for more than six years because of the appellant's delay and the indications that he proposed to proceed with an assessment of damages as against Fletcher Construction. We reject that submission. We do not know whether contribution proceedings were instituted. If they were, we do not know when a step was last taken in them. For example, the respondent could have delivered a statement of claim against Fletcher Construction in early 2000, when the 1965 Rules were still in force and the filing of copies of pleadings was not required.
From our reading of her Honour's reasons, it seems that she regarded the prejudice that the respondent would face in relation to the lack of contribution proceedings as more significant than the "general prejudice" and the prejudice relating to the death of Mr Millhouse. Her decision, insofar as it related to the respondent, was founded substantially on her erroneous findings of fact to the effect that the respondent had not instituted contribution proceedings, and that that was a result of reliance on the appellant's apparent willingness to proceed with an assessment of damages against Fletcher Construction. In our view those findings vitiated the exercise of her Honour's discretion. It will therefore be necessary for the application, insofar as it relates to the respondent, to be determined afresh.
Counsel for the respondent submitted that, if we concluded that the interlocutory application needed to be re-determined as against his client, the appropriate course was to remit the matter for determination by another judge. Counsel for the appellant, however, submitted that the appropriate course was for us to dispose of the matter ourselves. That course would save the parties the cost of a further hearing and bring about an earlier disposition of the r56 application. However there are a number of factors which, in our view, outweigh those factors in this case, and make it preferable for the matter to be determined by a single judge.
First of all, we think it is in the interests of justice for the parties to have a further opportunity to adduce evidence as to whether or not contribution proceedings were instituted and, if they were, as to what has happened in them. Secondly, there have been developments in the proceedings between the appellant and Fletcher Construction which, in our view, make it desirable that the appellant's interlocutory application be disposed of by a single judge who can be acquainted with the outcome of those developments. Fletcher Construction has recently obtained an order for the setting aside of the default judgment against it: Boswell v Fletcher Construction Australia Ltd [2006] TASSC 34. It appears from the reasons for judgment in relation to that order that the parties to those proceedings overlooked the provisions of the Civil Process Rules 1985, O1, r16. It remains to be seen whether the appellant will abandon his claim against Fletcher Construction, whether he can re-enter default judgment against that company, whether Fletcher Construction will defend the action, or whether some other course will be taken. The chances of the appellant having an adequate remedy against Fletcher Construction could be a significant factor for the purpose of the re-exercise of the discretion conferred by r56. A third factor weighing in favour of remitting the matter to a single judge is that a party aggrieved by a re-determination by a single judge would have a right of appeal, whereas a party aggrieved by a re-determination by this Court could appeal only if the High Court granted special leave. Because of those factors, we think it preferable not to re-determine the matter ourselves, but to remit the matter to a single judge for re-determination.
The appellant relied on other grounds of appeal that were not connected with the contribution issue. It was argued that the learned primary judge erred in law in that she proceeded on the basis that a plaintiff applying under r56 could not succeed unless that plaintiff showed inter alia that the defendants would not suffer prejudice in the proceedings if an order under r56 were made. We reject that submission on the basis that, reading her Honour's reasons as a whole, we are not persuaded that she misdirected herself as submitted. In par6 of her reasons she quoted a passage from Appleby v Mobil Oil Australia Ltd 120/1997, relating to the need for all the relevant circumstances to be balanced to see whether there was good reason for excepting the proceedings from the general prohibition that applies when no step has been taken for over six years. It was also submitted that the learned primary judge had attached undue weight to the prejudice resulting from the death of Mr Millhouse, that she had attached undue weight to the respondent's failure to apply for directions in relation to the action, and that she had erroneously treated that failure as relevant only to the mitigation of the consequences of the appellant's delay, and not to the question of prejudice. In view of the conclusions we have reached in relation to the grounds of appeal relating to contribution proceedings, we see no need to determine the grounds of appeal to which these other submissions relate.
The appeal will be allowed; the orders of the learned primary judge relating to the respondent will be set aside; and the interlocutory application will be remitted for re-determination, as against the respondent only, by another judge.
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