Coad v Dimmick - [2013] TASSC 48

[2013] TASSC 48

COURT: SUPREME COURT OF TASMANIA

CITATION: Coad v Dimmick [2013] TASSC 48

PARTIES:  COAD, Gary John
  v
  DIMMICK, Brian Leonard

FILE NO: 568/2004
JUDGMENT

APPEALED FROM: Dimmick v Coad [2013] TASSC 19

DELIVERED ON:  29 August 2013
HEARING DATE:  26 July 2013
JUDGMENT OF:  Porter J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Procedure under Rules of Court – Other matters arising before trial – Application for stay of proceedings – More than six years since a step taken in the proceeding – Court ordered mediation is a "step taken in a proceeding".

Supreme Court Rules 2000 (Tas), r56.
Argo Pty Ltd vState of Tasmania (No 3) (2004) 13 Tas R 69; Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272, considered.
Aust Dig Procedure [278]

REPRESENTATION:

Counsel:
             Appellant:  M E O'Farrell SC
             Respondent:  R Browne
Solicitors:
             Appellant:  Blissenden Lawyers
             Respondent:  FitzGerald & Browne

Judgment Number: [2013] TASSC 48
Number of paragraphs: 58

Serial No 48/2013
File No 568/204

GARY JOHN COAD v BRIAN LEONARD DIMMICK

REASONS FOR JUDGMENT PORTER J

29 August 2013

Introduction

This is an application for an extension of time to institute an appeal from a decision of the Associate Judge. The notice of appeal was filed but not served within the required time. As the respondent's principal argument as to the extension of time is that the appeal has no merit, I heard the application and the appeal together. It is common ground that if the appeal lacks any merit, the application fails. The order appealed from is one dismissing an application by the appellant, the defendant in an action, for a stay of proceedings.

The issue for determination in the appeal is whether court–annexed mediation, ordered by a judge of the Court, is a step in a proceeding within the meaning of r56 of the Supreme Court Rules 2000 (SCR). The rule provides as follows:

"56 Notice after delay of 6 years
(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."

For the reasons which follow, I consider that the appeal is without merit. It follows that the application to extend time should be dismissed.

Background

The respondent/plaintiff's action against the appellant is for damages for personal injuries. The writ was issued on 9 November 2004. On 14 November 2006, a judge made an order in terms of a consent memorandum filed by the parties on the same day. The letter sought an order "That the matter be listed for a Conciliation Conference". It is common ground that what was sought was an order referring the matter for mediation. On 1 December 2006, the Court Registrar notified the parties that the mediation would be conducted at the Court in Hobart…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] TASSC 48
Decision Date: 29 August 2013

CaseChat Overview and Summary

In the matter of Coad v Dimmick, the plaintiff sought to have the defendant's application for a stay of proceedings dismissed. The defendant, Dimmick, applied for a stay of proceedings on the basis that more than six years had elapsed since a step was taken in the proceeding. The case was heard in the Supreme Court of Tasmania. The plaintiff argued that the time period for seeking a stay of proceedings should not begin until the plaintiff had been formally served with the defendant's defence, as this was the first step taken in the proceeding.

The legal issue before the court was whether court-ordered mediation constituted a step taken in a proceeding for the purposes of determining the six-year limitation period for seeking a stay of proceedings. The court had to determine if the mediation process, which occurred more than six years before the defendant applied for a stay of proceedings, could be considered a step taken in the proceeding. The court was required to decide whether the mediation was an event that triggered the commencement of the limitation period for seeking a stay.

The court found that court-ordered mediation was a step taken in a proceeding. It held that the six-year limitation period for seeking a stay of proceedings began to run from the date of the mediation, not from the date of formal service of the defendant's defence. Consequently, the defendant's application for a stay of proceedings was time-barred. The court concluded that the mediation was a significant event in the proceedings, and therefore, it constituted a step taken in the proceeding. The application for a stay of proceedings was dismissed.

Orders