Butler v Daood
[2017] ACTSC 253
•21 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Butler & Ors v Daood & Ors |
Citation: | [2017] ACTSC 253 |
Hearing Date(s): | 21 August 2017 |
DecisionDate: | 21 August 2017 |
ReasonsDate: | 1 September 2017 |
Before: | McWilliam AsJ |
Decision: | 1. The appeal is dismissed. 2. The appellants’ solicitors are to pay the third respondent’s costs as agreed or assessed. |
Catchwords: | PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) rr 75 and 76 – application for reinstatement of application taken to have been dismissed – personal injury claim – interests of justice – substantial delay – actual prejudice suffered by a defendant – appeal dismissed |
Legislation Cited: | Corporations Act 2001 (Cth) ss 601AD, 601AH Court Procedures Rules 2006 (ACT) rr 75, 76, 5012, 5014, 6019, 6256 Limitation Act 1985 (ACT) ss 16, 16B |
Cases Cited: | Barry Thomas Blunden v Commonwealth of Australia [2014] ACTSC 123 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Vlies v The Commonwealth [2004] QSC 404 |
Parties: | Robin Jane Butler (First Appellant) Melanie Cathleen Poole (Second Appellant) Rhiannon Catriona Poole (Third Appellant) Amelia Alice Poole, by her litigation guardian, Robin Butler (Fourth Appellant) R & D Counselling and Group Therapy Pty Limited (ACN 088 275 941) (T/as Psych & Soul Clinic) (First Respondent) Ross McNicol Colquhoun (Second Respondent) Dr Jassim Daood (Third Respondent) Phillipe Jacquot (Fourth Respondent) |
Representation: | Counsel Mr D Crowe (Appellants) Mr P Woulfe (Third Respondent) |
| Solicitors Blumers Personal Injury Lawyers (Appellants) DibbsBarker (Third Respondent) | |
File Number(s): | SC 191 of 2011 |
McWilliam AsJ:
On 21 August 2017, I dismissed an appeal from a decision of the Registrar delivered on 8 May 2017 to dismiss an application made pursuant to r 76 of the Court Procedures Rules 2006 (ACT) (Rules) to reinstate proceedings. These are the reasons for my decision.
The appeal is brought pursuant to r 5012 of the Rules. It was filed on 15 May 2017, within five working days of the Registrar’s decision, and is accordingly within time, pursuant to r 5014.
Under sub-r 6256(2), an appeal may be brought if a party is dissatisfied with the order, and pursuant to sub-r 6256(4) the appeal is a rehearing of the matter anew. Accordingly, the appellants do not have to prove error by the Registrar before this Court may intervene on appeal.
In support of the application to reinstate, the appellants read the Affidavits of Ms Jennifer Newman affirmed 5 April 2017 and Ms Nooraini Blumer affirmed 4 April 2017.
The third respondent (hereafter referred to as the third defendant) relied upon the Affidavit of Ms Louise Watson affirmed 8 May 2017.
The Claim
The Originating Claim was filed on 25 March 2011 (Claim). It sought damages for nervous shock and compensation to relatives arising from the death of Mr Michael Poole (the deceased) on 29 March 2008, allegedly due to negligent acts/omissions of the defendants.
The allegations of negligence in respect of the deceased arose from a rapid opiate detoxification program, which he undertook on 7 March 2008. The deceased suffered an aortic dissection aneurysm and a cerebral aneurysm shortly thereafter and was hospitalised. The deceased then suffered a stroke, and ultimately a bleed on the brain on 28 March 2008, with life support switched off the following day.
It will be seen from those dates that the Claim itself was filed shortly before the possible expiry of the three-year limitation period stipulated by s 16B of the Limitation Act 1985 (ACT) (Limitation Act) in respect of the claim for nervous shock, but well before the six-year limit in respect of wrongful conduct causing death, prescribed in s 16 of the Limitation Act.
The parties
Not all those listed as parties to the proceedings were active parties on the appeal.
The first appellant was the deceased’s wife, and withdrew her appeal before this Court.
The second, third and fourth appellants (hereafter referred to as the plaintiffs) are daughters of the deceased, and were the moving parties on the appeal. The fourth plaintiff is now over the age of 18 and no longer requires a litigation guardian. Had I allowed the appeal, a consequential order would have amended the name of the fourth plaintiff to that effect.
The first defendant was alleged to have operated the rehabilitation clinic attended by the deceased to undertake the detoxification treatment. It was deregistered on 16 November 2014.
The second defendant was a psychologist and a clinical director of the first defendant. He filed a Notice of acting in person on 17 May 2012. He did not appear at the hearing of the appeal.
The third defendant is a doctor who treated the deceased at the clinic at the relevant period and was the only active respondent on the appeal.
The fourth defendant was a registered nurse allegedly employed by the first defendant. He was never served with the Claim and cannot be found.
Counsel for the plaintiffs accepted that if the Court were minded to reinstate the proceedings, an order for reinstatement would only be made in respect of the second and third defendants.
Circumstances leading to the dismissal of the proceedings
The history of the matter, so far as the Court file is concerned, is that following commencement of the proceedings, Defences were filed by the first and second defendants on 14 June 2011, and by the third defendant on 14 September 2011 (although the document is dated 29 August 2011).
On 17 May 2012, the first and second defendants filed a Notice that they were now acting in person through the second defendant.
Thereafter, nothing was filed with the Court until 21 October 2015, when the legal representatives for the plaintiffs filed an Application in proceeding (with an Affidavit in support) seeking that the Defences of the first and second defendants be struck out.
On 20 November 2015, the Registrar notified the legal representatives for the plaintiffs and the third defendant that the proceedings had been struck out as against all defendants in accordance with r 75(2) of the Rules. Part of the Registrar’s correspondence states ‘[t]he plaintiffs will first need to seek to reinstate the matter in accordance with rule 76’.
On 6 April 2017, well over a year after that communication from the Registrar, the Application to reinstate was filed.
There are two matters the Court file does not record. The first is that on 27 February 2012 the third defendant served its medical evidence on the plaintiff.
The second matter is that in New South Wales a coronial inquest was taking place in respect of the deceased (along with two others) over the period 20 – 24 August 2012, with the issues for investigation including the cause of death, and the circumstances of the deceased’s discharge from the rehabilitation clinic of the first defendant. On 27 September 2012 the NSW State Coroner delivered her findings, some of which are referred to below.
Relevant principles
The Court’s power to reinstate
Under r 75, a proceeding is taken to be dismissed in relation to a defendant if (relevantly) a party does not take a step in the proceeding before the end of one year after the day the last step was taken in the proceeding (see sub-r 75(2)).
The Court has the power to reinstate the proceedings if it is in the interests of justice to do so, pursuant to sub-r 76(2) of the Rules.
The Rules do not prescribe any mandatory factors which the Court is obliged to consider when determining where the interests of justice lie. Each case depends on its own facts, and although useful guidance on considerations relevant to the Court’s discretion may be provided from decided cases of a similar kind, a discretion to relax the requirements of general rules (such as the operation of r 76 upon r 75 for presumptive dismissal) should not itself become entangled in a web of rules spun out of the Court’s discretionary decisions: Jess v Scott & Ors (1986) 12 FCR 187 at 196, referring to a similar point made by Walsh J in Martin v The Nominal Defendant (1954) 74 WN (NSW) 121 (Martin) at 123.
One category of cases of a similar kind considered by this Court derives from applications to dismiss proceedings for want of prosecution, given that such a circumstance bears a close relationship to an application for reinstatement: see Barry Thomas Blunden v Commonwealth of Australia [2014] ACTSC 123 (Blunden) per Refshauge J at [37]. There, his Honour listed a number of factors relied upon in Rumble v GPT Re Ltd [2012] ACTSC 39; 6 ACTLR 257 (Rumble) per Master Harper at [23], citing a list identified in Tyler v Custom Credit Corp Limited [2000] QCA 178 (Tyler) by Justice Atkinson at [2] in the context of an application for such a dismissal. The same list was cited recently in Seeto Kui (Holdings) Ltd v Chow [2015] QSC 193 at [24] in the context of an application for leave to proceed, pursuant to the counterpart rules of Court in Queensland.
Accepting the similarities, the practical and legal differences between an application for dismissal for want of prosecution and an application for reinstatement have also been consistently noted: see Blunden per Refshauge J at [38], Equuscorp Pty Limited v Lah [2009] ACTSC 113 (Equuscorp) per Buchanan J at [32]-[33]; Rumble per Harper M at [23] (who had earlier at [21] expressly followed Equuscorp).
Accordingly, the question of reinstatement does not stand or fall on whether an application to dismiss a proceeding for want of prosecution would be successful: see Caruso v Jafer & Anor (Unreported, Supreme Court of Victoria, Mandie J, 18 June 1998), with that principle approved in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2007] VSCA 75 at [31], and referred to in both Blunden at [42] and Equuscorp at [33]-[34].
It is unnecessary to detail the factors listed in the authorities referred to above. They may be broadly characterised as the Court considering the cause of, blame for and prejudice caused by the delay, to use the language of Moffitt P (with whom Hope and Mahoney JJA agreed) in Stollznow v Calvert [1980] 2 NSWLR 749 (Stollznow) at 752, when his Honour was comparing an application for dismissal with an application to extend a limitation period. Stollznow was also cited in Equuscorp at [35].
In the present case, I consider the key operative factors weighing in the balance of the Court’s discretion to be the length of delay, the explanation for the delay (including whether the delay was the result of deliberate conduct on the part of the plaintiffs or otherwise) and what prejudice arises from the delay. The plaintiffs bear the legal onus to satisfy the Court that the interests of justice lie in favour of reinstatement, although in the event that actual or specific prejudice is alleged, the evidential onus is on the defendant: Mander Forklift Pty Ltd v Singles [2014] ACTCA 44 at [12].
All of this assumes of course that the proceedings have reasonable prospects of success. The Court would obviously not reinstate proceedings that either did not disclose a reasonable cause of action, or that were plainly doomed to fail, although if the form of the pleading is the issue, that is a matter that can be remedied by the imposition of a condition of reinstatement (in accordance with r 6901), as I ordered recently in Hassan v Calvary Private Health Care Canberra Ltd [2017] ACTSC 219.
What constitutes a ‘step’
The competing submissions of counsel for each of the active parties make it necessary to consider what is a ‘step in the proceedings’. The rule has counterparts in other Australian jurisdictions and in England in similar or identical terms. It has been held that there is no relevant distinction between whether language such as ‘last proceeding’ or ‘last step’ in a proceeding is used: see Crane v State of Western Australia [2017] WASCA 31 (Crane) at [20] and the cases there-cited.
A ‘step’ is not defined in the Rules, but I draw from the authorities that it equates to something in the nature of a formal step in the prosecution of an action, being conduct the party is required or permitted to take, pursuant to either rules or orders of the court, for the purpose of advancing the case towards final judgment: Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 (Citicorp) at 594; Crane at [23]-[26] and the cases there-cited.
In Rumble at [11] Master Harper queried, but did not find it necessary to determine, whether a ‘step in the proceeding’ was limited to lodging or filing a document, as had been assumed by the parties in that case. In light of the meaning of ‘step’ recently discussed in Crane, and the application of the principle in respect of the counterpart rules in other jurisdictions (discussed in the following paragraph), I do not consider the filing or lodgement of a document to be determinative of whether a ‘step’ was taken.
Relevant to the circumstances of this case, the filing of a change in representation is not a step in the proceeding: Kaats v Caelars [1966] Qd R 482. Although a document is filed, that activity does not advance the case towards final judgment.
Conversely, while correspondence between parties does not, of itself, constitute a formal step (applying Citicorp at 594), the serving of a medical report as evidence upon which a party relies has been held to fall within the relevant definition in Queensland: Porzuczek v Toowoomba District Health Services [2007] QSC 177 (Porzuczek) at [15]-[16]. In this circumstance, the evidence has not been filed, but service is a formal process and the receipt by an opponent of a party’s evidence advances the case towards final judgment.
Applying those principles to the facts as set out above, the filing of a Notice by the first and second defendants advising there has been a change in representation (to the effect that they represent themselves) was not a step in the proceeding (as alleged by the plaintiffs), because it did not advance the case towards judgment.
Nor was the filing of a Defence in September 2011 the last step in the proceeding (as alleged by the third defendant) because after that date, on 27 February 2012, the third defendant served at least part of the medical evidence relied upon. Such evidence was not required to be filed and did advance the case towards judgment. It thus constitutes a step in the proceedings. Relevant to the circumstances of this case, this is to be distinguished from merely obtaining medical reports – it is the step of serving the evidence that advances the case and gives such conduct the necessary formality.
Accordingly, I find that by the operation of r 75, the proceedings were taken to have been dismissed on 27 February 2013, one year after service by the third defendant of his evidence.
The relevance and significance of a solicitor’s conduct
The authorities across the spectrum of applications to reinstate or extend time have had to grapple with circumstances where it is the solicitor’s lack of diligence that puts the plaintiff in a position of seeking the relevant indulgence of the Court. In considering the circumstances of this case set out below, it is appropriate to refer to some of the principles that emerge from those authorities.
First, the fault of a plaintiff’s solicitor in causing delay should not, as a matter of course, be attributed vicariously to the plaintiff: the blamelessness of a plaintiff personally, and the responsibility of his solicitor for the delay, is a fact very material: Stollznow at 753, citing Sophronv the Nominal Defendant (1957) 96 CLR 469 (Sophron) at 474-5.
Second, and conversely, it is not an invariable rule that in every case where a plaintiff is not personally to blame, but the fault lies with his/her solicitor, then an extension of time must necessarily and always be granted: see Martin at 125 (referred to with approval by the High Court in Sophron at 474).
Moreover, if it be said that it is not fair that the plaintiff should suffer from the transgressions of his legal advisers, then likewise it must also be said that it is not fair that a defendant should suffer from those same transgressions: Maric v Comcare (1993) 40 FCR 244 (Maric) per O’Loughlin J at 249-250.
Third, and perhaps consistently with the above statement in Maric, the availability of an alternative remedy, such as a negligence action against the solicitor, is a relevant circumstance when considering where the interests of justice lie on reinstatement: Muirhead v Uniting Church in Australia Property Trust [1999] QCA 513 (Muirhead) at [32]; Hightop Pty Ltd v Caffe Pty Ltd & Ors [2009] QSC 402 (Hightop) at [45].
However, its significance may vary from case to case. In Hightop at [45], Justice Lyons set out a number of matters that will affect the significance of that matter, including that evidence may have been lost with the passage of time so that there may be greater difficulty in securing a just trial between the plaintiff and the solicitor than in the claim which has gone stale.
Stefek v Garnama [2014] ACTSC 140 (Stefek) at [26] is to similar effect, where Master Mossop (as his Honour then was) held that it is the primary wrongdoer which should be looked to for compensation, although there may be occasions when a proper balance between the blame to be attributed to the plaintiff’s solicitor and prejudice to a defendant would mean that an applicant should be required to pursue his or her solicitors.
Fourth, a defendant in proceedings which have been instituted, and as in the present case, brought to issue on the pleadings, is in a quite different position from a defendant who may be unaware of the relevant occurrence: Stollznow at 753-4. It is too simplistic an approach to regard the preparation for and bringing the proceedings to trial as a one sided affair resting entirely on the plaintiff who has carriage of the action. A defendant who at least raises the delay and the potential prejudice if it continues ought be in a superior position to that of a defendant who has lain silent: Stollznow at 754.
Fifth, although a client should be able to rely on his solicitor, the incompetence of the plaintiff’s lawyer may not always provide a convincing answer because the circumstances may require the plaintiff to engage lawyers who would prosecute the case: Cooper v Hopgood and Ganim [1998] QCA 114; [1999] 2 Qd R 113 at 124; Vlies v The Commonwealth [2004] QSC 404; Porzuczek at [31]-[32].
It seems to me that where a delay is short and there is no prejudice to the defendants that cannot be remedied by costs, the consideration that the fault is that of the legal representatives may weigh higher in the balance so as to favour reinstatement. However, where the delay is lengthy and the presumptive prejudice is therefore higher, whether the solicitors or the plaintiffs themselves are to blame may carry much less weight and the Court may be more concerned with the state of the evidence available for a fair trial to take place.
Prospects of Success
The Originating Claim appears to disclose a reasonable cause of action. Counsel for the third defendant did not suggest otherwise.
Further, the Coroner’s Report of 27 September 2012, annexed to the Affidavit of Ms Newman affirmed 5 April 2017, records the following expert evidence in relation to the deceased:
In relation to Michael Poole, [the expert] thought it possible that Rapid Opioid Detoxification treatment could have caused or aggravated an initial haemorrhage from a cerebral aneurysm. Michael had many contra indications for treatment by Rapid Opioid Detoxification including a history of depression and no immediate home support in Sydney. Accordingly, he was not an appropriate patient for Rapid Opioid Detoxification from the outset.
His dependence on codeine should have been managed in the [expert’s] opinion by methadone, but he was given no alternative by Ross Colqhoun. Again, his medical assessment, in his case by Dr Daood, was ‘scanty in the extreme’ and did not remotely approach the standard expected for the assessment of a patient for Rapid Opioid Detoxification Treatment.
No physical examination was recorded, his observations during after care were far too infrequent and inadequate, and he was knowingly discharged by Ross Colquhoun to a boarding house with no supervision or assistance. That discharge was of very serious consequence as Michael [was] still delirious, [and] was highly vulnerable to a range of accidents and health problems without any appropriate help. He ought to have been managed in a medical ward, or a high dependency unit, with potential lifesaving benefit.
The Coroner’s findings included the following conclusion:
The medical and nursing staffing of the Clinic was extremely inadequate. Assessments, records and observations were cursory, and nursing staff were given almost no training and no supervision. It appears that a patient only had to present at the Clinic to be enthusiastically recommended for Rapid Opioid Detoxification no matter what their history or situation, without alternatives being discussed or considered or any information given on the risks involved.
The Clinic appears to have been run on a minimal expense basis, with patient care and staff skills very low in priority. Ross Colquhoun and the medical staff seem to have ignored the need for training or policy and protocol adherence, and the professional literature on the treatment widely available and disseminated. Their lack of after care for Michael Poole...was abysmal.
...
Michael Poole also should not have been considered suitable for reasons previously given. But had he been provided with careful medical and nursing care after the procedure, and on discharge strong support ensured, he may not have died as he did.
The Coroner recommended inter alia that her findings be forwarded to the Health Care Complaints Commission for consideration of proceedings being taken against Dr Daood. On the basis of the above, I find that the Claim as drafted has reasonable prospects of success.
On an application for reinstatement, a plaintiff generally does not bear any onus to satisfy the Court that a claim has good prospects of success: see Rumble at [30]-[31]. However, given the Coroner’s findings, I have separately considered and assumed in the plaintiffs’ favour that the Claim may well be strong and that this is a factor favouring reinstatement. It is not a claim that would be lightly shut out from further prosecution.
Delay
Even the most meritorious of cases may be prevented from reinstatement because of other overriding factors. Here, the proceedings were presumptively dismissed on 27 February 2013.
The overall delay between the service of the medical evidence and the Application to reinstate was more than five years. Nine years passed between the events that would be the subject of trial and the bringing of the Application to reinstate in March 2017. It will be more than a decade before any reinstated proceedings would be able to be heard. On any view, the delay is substantial.
It need hardly be said that delay renders more difficult the determination of factual issues. Dim memories and unavailable witnesses render the elucidation of the truth more difficult, to the prejudice of the parties and to the quality of justice provided by the courts: Stollznow at 754.
Consequently, the greater the delay, the closer the Court will likely scrutinise whether the explanation justifies the indulgence of the Court.
Explanation for delay
An explanation for the delay has been given (set out below), and it is credible, but I find that it is ultimately unsatisfactory in terms of justifying any exercise of the Court’s discretion in favour of reinstatement.
The evidence is in essence that the solicitor with responsibility for the daily carriage of the matter failed to take any formal steps to progress the litigation and that the solicitor on record failed to take proper supervision of the matter so as to ensure its timely progress.
One might well understand parties awaiting the findings of the Coroner to be delivered in September 2012. It is what follows after that time that renders the explanation unsatisfactory.
I accept Ms Newman’s evidence (she was not cross-examined) as to the following conduct of the matter, for which she candidly takes full responsibility:
(a)Between December 2012 and February 2013, expert medical evidence was being obtained in respect of the second and third plaintiffs.
(b)Between May 2013 and September 2013, several attempts were made to find out the proper address for service in respect of the first and second defendants.
(c)In January 2014, a letter was sent to a third party located at what was thought to be the last known address for service of the first and second defendants, seeking any contact details for the second defendant.
(d)In May 2014, Ms Newman exchanged emails with the second defendant, who informed her that the first defendant had been wound up.
(e)For five months, no action was taken. Then on 22 October 2014, Ms Newman sought default judgment against the first and second defendants. Ms Newman deposes to forgetting that Defences for both the first and second defendants had been filed back in 2011, with the result that she could not in fact seek default judgment.
(f)In December 2014 and again in February 2015, Ms Newman sent a letter to the second defendant, threatening to strike out his Defence and seek default judgment.
(g)For the next 8 months, Ms Newman then claims to have been preparing the necessary affidavits to support a strike out application, which she says were ‘complex and took time to prepare’.
(h)On 21 October 2015, Ms Newman filed the Application to strike out the Defences of both the first and second defendants.
(i)On 29 October 2015, Ms Newman learned from an ASIC search that the first defendant had indeed been deregistered on 16 November 2014. Apparently oblivious to any legal consequence of deregistration (see s 601AD of the Corporations Act 2001 (Cth) (Corporations Act)), Ms Newman proceeded to send the Application on a number of addresses and the email address she had for the first and second defendants.
(j)Ms Newman sent the application to a person with the same name as the fourth defendant, at an address she had obtained in March 2011 (more than four years earlier), assuming it to be that of the fourth defendant. The correspondence exhibited to Ms Newman’s affidavit reveals that when the Claim was served (May 2011), the process server raised a concern that the person served was not the correct defendant. On receipt of the Application to strike out the Defences in October 2015, the recipient of the same name promptly informed Ms Newman that he was not the fourth defendant.
(k)Ms Newman also served the Application on the third defendant. As stated above, on 18 November 2015, the solicitors for the third defendant raised the presumptive dismissal with the plaintiff and the Court.
(l)On 20 November 2015, the Registrar of this Court confirmed that the proceedings had been presumptively dismissed.
(m)From November 2015 until August 2016, when she left the firm presently on record, Ms Newman deposes to seeking instructions from her clients, going on holidays and seeking advice from counsel (which she received in April 2016).
The solicitor on record deposes to failing to intervene in relation to the matter up until August 2016, and then to taking over carriage of the matter from that date, liaising with counsel, seeking an expert opinion on causation in October 2016, which she received in December 2016, with a supplementary report provided in February 2017, followed by the finalisation of the application for reinstatement.
The above history demonstrates that some legal work was being done on the matter. However, it also reveals that many months passed where no work was being done, and that what little attention the file did receive was focussed almost entirely on attempted but largely unsuccessful communications with the first and second defendants.
Further, and critically, the evidence before the Court indicates (and this was confirmed by the parties at the hearing) that there was absolutely no contact between the plaintiffs’ solicitors and the third defendant’s solicitors over a period of more than three years, from February 2012 when some medical evidence was served to October 2015 when the Application to strike out the Defences of other parties was filed. Despite the Registrar confirming the presumptive dismissal, no one wrote to the third defendant and communicated that any consideration was being given to an application to reinstate. A further year and a half passed before the Application to reinstate was filed.
Those circumstances warrant recalling Atkinson J’s observation in Tyler at [2] that:
...members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.
Notwithstanding the unsatisfactory conduct of the proceedings by the plaintiffs’ solicitors, both in allowing the proceedings to become stale and then as to what steps were taken once they discovered that fact, I have given very little weight to the fact that there may be an alternative remedy available against the plaintiffs’ solicitors. In part, this is because I am not satisfied that the plaintiffs’ solicitors are entirely to blame, even accepting their candid affidavits.
What is not before the Court is any evidence of any steps the plaintiffs were taking to require their solicitors to prosecute the matter on their behalf. Accepting that the plaintiffs no doubt relied on their solicitors, the delay of many years must have prompted at least some enquiries as to what was happening, yet there is no evidence from the plaintiffs of any communications they had with their solicitors.
Once they had been informed by Ms Newman in November 2015 that the claim had been presumptively dismissed, they still permitted more than a year to pass before their solicitors managed to file the necessary Application to reinstate. This lack of evidence of itself is not decisive, but it is very difficult to infer that there was any genuine intention on the part of the plaintiffs to prosecute the claim, such as to find that the fault lay entirely with their solicitors.
In the result, and applying the principle that a plaintiff ought not be made to suffer for a solicitor’s conduct, if I had been satisfied that the length of delay had no real impact on any potential fair hearing of the matter, then even though the above explanation is not satisfactory, it would not have operated to prevent reinstatement.
Prejudice
When assessing the prejudicial effects of delay it is relevant to consider the whole of the delay between the cause of action arising and a hearing of the proceedings if leave is granted, rather than the marginal delay between the end of the limitation period (or in this case the dismissal) and such a hearing: Stefek at [28], citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South) at 548-9, 554-5, 556; see also Sophron at 475.
While relevant in terms of prejudice to the plaintiffs, I have given little weight to the fact that the totality of the proceedings are now out of time under the Limitation Act. That circumstance alone would not be decisive: Muirhead at [12]-[13].
A material, and often the most important, question is whether, by reason of the time which has elapsed, a fair trial is possible: Brisbane South at 547-8, 550, 555; Laws v Web Scaffolding [2010] ACTCA 3 at [37].
In answering that question, and because of the length of delay, I have given significant weight to the presumptive prejudice that arises, identified by Justice McHugh in Brisbane South in particular at 551 where his Honour states:
Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. ... it must often happen that time will diminish the significance of a known act or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. ... The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
Brisbane South was concerned with the extension of a limitation period and as such, I have attempted to be careful in the weighing process to properly distinguish between cases which are yet to commence, so parties may not appreciate any need to preserve documents or record statements when witness memories are fresh, and cases which have commenced, so all parties are proceeding in the context of pending litigation.
The proceedings against the fourth defendant, who is also a material witness, were never served. Further, at the time the first defendant was deregistered, these proceedings were presumptively dismissed. There is insufficient evidence to satisfy the Court that at the time of deregistration, documents were carefully preserved with a view to the issues relevant to the plaintiffs’ claim. Accordingly, this is a case where McHugh J’s above comment in Brisbane South would have application, notwithstanding that the proceedings here had been commenced.
Added to this, there was evidence of actual prejudice. First, this is not a case where the litigation had progressed to the point where all the evidence was served and the matter was otherwise able to be set down for hearing. On the contrary, as at September 2013, Ms Newman deposed to the following: ‘I remained concerned that the absence of proper discovery from the first and second defendants could hinder the plaintiffs’ prosecution of their cases.’
The plaintiffs could not now obtain any discovery from the first defendant, let alone any proper discovery, if the proceedings were reinstated.
It is true (as submitted by counsel for the plaintiffs) that due to the Coronial inquest/report there are likely to be contemporaneous medical records and clinical notes. However, the difficulties inherent in relying on such evidence when a witness has no independent memory of the matters spoken of in the statement were referred to in Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd (No. 2) [1997] QCA 376; [1998] 2 Qd R 551 per Pincus JA at 557, cited in Porzuczek at [44].
Second (and compounding the first), at least one of the relevant witnesses cannot even be found (being the fourth defendant). Again, I accept counsel for the plaintiffs’ submission that it is the actual prejudice arising from the delay that must be considered, and that the fourth defendant was never properly served. However, the availability of relevant witnesses cannot be ignored when considering whether a fair trial is possible at this stage. The fact that the fourth defendant was also intended to be a party to the proceedings is a different matter. Communications with the fourth defendant have been expressly relied upon in the third defendant’s Defence (see [1(c)]) and he is therefore a relevant witness, who is unavailable.
Third, while the unavailability of the fourth defendant was always a hurdle the parties faced, that fact takes on a different complexion once the first defendant’s deregistration is added to the mix of considerations. Reinstatement of the first defendant years after the event requires leave of the Court in this case (see s 601AH of the Corporations Act), and will not be a simple process. Even if that were to occur, it says nothing about whether all the relevant documents of the first defendant will be readily available.
Just what the evidentiary difficulties now are is difficult to determine on the evidence before the Court. The third defendant (with the evidential onus) has not raised actual prejudice apart from relying on what emerges from the plaintiffs’ Affidavits on the matters which have already been addressed. There is no suggestion, for example, of any attempts made to contact relevant medical staff to ascertain the extent of their independent recollection of treatment provided to the deceased. The third defendant has also remained silent for years since filing his Defence, and accordingly, his position may be said to be significantly weaker than that of a defendant who actively engaged on the question of potential prejudice arising from delay.
The way that the third defendant put the prejudice arising from deregistration was to focus more on the fact that, in the event that any liability were found, he could no longer seek to avail himself of proportionate liability provisions, given the deregistration of the first defendant and unavailability of the fourth defendant. The Defence filed does not appear to allege any contribution or apportionment by those parties; however that submission must have some force if the proceedings were to go forward.
Conclusion
Weighing up all those matters, I considered that the events were now too long ago, with presumptive prejudice of significant concern and at least one material witness plainly unavailable. I considered that further prejudice arose from the expense and uncertainty of first reinstating the first defendant so as to bring it back into the proceedings and then preparing the matter for hearing in circumstances where there was insufficient evidence to confirm even whether the Coroner’s file was still in existence, let alone whether it constituted the totality of the material relevant to the Claim. In addition, the explanation for the delay was not sufficient to outweigh the prejudice referred to, particularly in the case of the third defendant, although I did consider whether the second defendant was in any different position.
Accordingly, I did not consider that the interests of justice favoured reinstatement.
As to the question of costs, before the Registrar the plaintiffs’ solicitors accepted that the costs of the application would be borne by them and at the hearing before me they agreed to the same order on appeal. The Court so ordered.
The Orders of the Court were:
1. The appeal be dismissed.
2. The appellants’ solicitors are to pay the third respondent’s costs of the appeal as agreed or assessed.
| I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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