Daralievski v Tac & Anor No. DCCIV-02-723
[2003] SADC 30
•26 February 2003
DARALIEVSKI v TRANSPORT ACCIDENT COMMISSION & ANOR
[2003] SADC 30Judge Lowrie
Civil
The plaintiff, Ms Valentina Daralievski, issued proceedings in this court on 15 May 2002 naming the Transport Accident Commission of Victoria (“TAC”) as the first defendant and Carew Counsel Pty Ltd as the second defendant, and pleaded her claim in the following manner:
“1.The Plaintiff’s professional association with the 1st defendant was regulated by the honourable Transport Accident Act 1986 and the terms and conditions as presented in its Claim form.
2.The Plaintiff’s professional association with the 2nd defendant was defined by terms and conditions as a Client retainer agreement to bring the plaintiff’s claim to conclusion and address treatment needs for injuries sustained on a Victorian road.
3.The catalyst of both professional associations was the joining of the parties subsequent to an accident 25 April, 1990. The description was a three car pile up, the negligent driver crossing the medium strip from the opposite direction. The Plaintiff sustained left sided bodily injuries and had the need to seek the provision of services from both defendants.
4.The Plaintiff was unaware she was suffering the effects of a post traumatic stress disorder (“hereafter PTSD”) as a result of this accident. In 1994, she was diagnosed by Dr James Drury, neuropsychologist and it was noted in his report that the condition was considered stabilized. The Plaintiff had limited the effects of this accident and remained employed until 1996.
5.The PTSD was assessed at 12% anxiety state in 1994 and supported by other reputable medical experts in rehabilitation medicine and psychiatry.
6.The 1st defendant engaged in insensitivity and deceit during its association and the 2nd defendant failed to ensure equality before the law, together with insensitivity and deceit.
7.The acts, errors, omissions by both defendants created unatural circumstances for the Plaintiff. Unatural to a personal injury Claim for processing on a personal injury matter. The defendants failed in their individual duty and injured the Plaintiff by inflicting mental cruelty by professional misconduct.
8.The Plaintiff claims compensation for loss of enjoyment of life and the amount is unspecified.”
On 21 August 2002, the plaintiff subsequently filed an amended statement of claim in which she repeated the allegations, as constituting negligence of the first defendant and as well negligence of the second defendant for failing to provide representation during her prior action.
Thereafter there were numerous interlocutory applications including an application by the first defendant that the claim be struck out and the claim dismissed or, alternatively, be stayed. The second defendant made a similar application. Defences were filed denying the relevant allegations of negligence and a further plea denying that the District Court was the appropriate forum and, alternatively, that the statement of claim did not disclose a cause of action.
Thereafter considerable affidavit material was placed on the file, and, the matter argued before Master Rice. Master Rice delivered his comprehensive reasons on 27 November 2002.
The Master at this hearing dealt with three applications. Firstly, by the second defendant seeking an order that the claim be dismissed and/or stayed. Secondly, the first defendant sought a similar order. The third application was by the plaintiff seeking an order to stay the defendants’ applications.
The Master dealt with the nature of the plaintiff’s allegations. The defendants argued that the claim was incomprehensible and the allegations scandalous and, in any event, the District Court of South Australia was not the forum. The second defendant further pleaded that it had not acted in any improper or negligent manner. The second defendant also pleaded that it had not breached the plaintiff’s retainer and never been guilty of any negligent advice in and about its instructions culminating in the plaintiff accepting the settlement sum negotiated in mediation proceedings in Melbourne in August 2001.
The Master summarised the main events surrounding the Victorian litigation as:
“April 1990
Plaintiff injured in motor vehicle accident in Victoria. Plaintiff living and working in Victoria at this time
24/2/93
Second defendant retained. Proceedings issued in the TAC to enforce claim for compensation which was otherwise refused
1994
Plaintiff returns to South Australia
19/9/97
Proceedings issued in County Court of Victoria
2/2000
Judgment by the Court of Appeal overturning refusal by the County Court of Victoria to grant leave pursuant to s93 of the Transport Accident Act
9/8/01
Matter proceeds to mediation. Plaintiff’s claim settled for $175,000 inclusive of costs and interest and in addition other disbursements paid by TAC. Deed executed
15/5/02
Proceedings issued in the District Court of South Australia....”
The Master dealt with the voluminous affidavit material before him.
I have perused the affidavits in support of the various applications including the plaintiff’s very detailed affidavit of some 32 pages in response to the plaintiff’s pleadings.
The Master dealt with the principles surrounding the application of section 20(3) of the Service and Execution of Process Act 1992 (Cwth) that in effect gives a court a discretion to stay an action:
“.... if it (the court) is satisfied that a court of another State that has jurisdiction to determine all matters in issue between the parties is the appropriate court to determine those matters”.
Section 20(4) sets out a number of factors, which are to be taken into account.
The Master then went on to consider the relevant principles and tests referred to in the authorities of Reid v Parade of Toys (1996) 186 LSJS 208 and Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1996) 186 LSJS 358 and (1997) 139 FLR 54 and the High Court decisions dealing with stays particularly the comments of Gibbs J (as he then was) in Cope Allman (Australia) Ltd v Celermajer (1968) 11 FLR 488 at 492 and 494 when he said (at page 492):
“However, the question that I am bound to pose to myself is not simply, ‘Which is the more convenient forum?’ The principles to be applied in such a case as this were laid down by the High Court in Maritime Insurance Co Ltd v Geelong Harbour Trust Commissioner (1908) 6 CLR 194.”
Gibbs J answered the question he posed at page 494:
“Before I may decline to exercise jurisdiction and deny to the plaintiff its prima facie right to proceed in this court I must be satisfied that there would be something amounting to vexation, oppression or injustice to the defendants. I am not so satisfied.”
The Master referred to the comments in the Rick Cobby judgments where the defendant bears an onus to establish a “clear and compelling basis for the relief sought”.
The factual background was not in dispute. The accident occurred in Victoria. The plaintiff was then working and living in Victoria. The plaintiff instructed solicitors and counsel in Victoria. All of the plaintiff’s medical evidence, as is apparent from the material in this case, was from Victoria. The initial action was determined pursuant to the relevant Transport Accident Commission legislation in Victoria that may well be at variance with, for instance, statutory legislation in that State.
The plaintiff contended to the Master that she was now not in any financial position to deal with the claim in Victoria.
From my observations of the plaintiff she has some background of legal knowledge as seen from her manner of expression.
The Master did comment:
“It is a complex action and is not likely to be one capable of being properly conducted by the plaintiff if self represented. I draw that conclusion not as an adverse criticism of the plaintiff but from her in court presentation. She repeatedly lost her way in points, failed to finish sentences, repeatedly changed to new points and was very emotional and non-analytical. Her work history is as a legal secretary and later private enquiry agent.”
The Master examined the relevant pleadings of the plaintiff and particularly the plea of the first defendant that it did not owe any duty of care to the plaintiff. The Master pointed out that during the whole of the rather lengthy perhaps unfortunate saga of the Victorian proceedings, including negotiations and mediation, the plaintiff was represented by Mr Carr, a solicitor from South Australia, Mr Carew, a solicitor from Victoria, and Mr Thompson and Mr Kaufman QC, both barristers in Victoria.
The Master commented:
“The plaintiff has had years to obtain and did obtain reports from competent medical experts. All evidence was presented at the mediation. The plaintiff was advised by senior counsel. The defendant made a best offer and the plaintiff accepted it. She was satisfied with it for about eight months. The first defendant cannot owe any fiduciary duty to the plaintiff.
It is difficult to see what the nature of the cause of action is.”
The Master then dealt with the relevant legal principles surrounding applications to strike out part of a claim. These decisions are in point. The Master accurately examined the relevant case material and applied those decisions in his reasons.
The Master eventually concluded:
“Conclusion - cause of action against first defendant
In the circumstances I cannot glean any sustainable cause of action even if it were adequately pleaded, against the first defendant. I have addressed this aspect of the matter from the plaintiff’s perspective as well as the defendants.
Even if the plaintiff’s application was to set aside the Deed and the $175,000 or a part thereof was placed in Court, the plaintiff would have to show that the Commission was not dealing at arms length with the second defendant and that it was in some way either conspiring with the second defendant or alternatively, intentionally misrepresented its position to such an extent that the plaintiff’s experienced solicitors and counsel were mislead as to the plaintiff’s rights.
The plaintiff was represented by two solicitors, one of whom she does not wish to join in the action and two barristers whom she does not wish to join also. I can see no possible justification for a claim of misleading and deceptive conduct under either the Trade Practices Act or Fair Trading Act.
Even looking at it from the plaintiff’s perspective I cannot see an arguable cause of action on any of the material presented. It is not capable of being improved by amendment based on the material presented. Accordingly the claim against the first defendant is dismissed pursuant to DCR 3.01.
Section 20 Services & Execution of Process Act - 1st defendant
In the alternative the first defendant seeks the same order as the second defendant on the issue of the stay. They rely upon the same information and arguments as the second defendant.
In the event that I am wrong on the dismissal of the plaintiff’s claim against the first defendant I have no hesitation in directing as against the first defendant that there ought to be a stay pursuant to s20 of SEPA for the same reasons raised regarding the second defendant.
Orders
1. On FDN 11 plaintiff’s claim against the first defendant is dismissed.
2.On FDN 5 and to the extent necessary of FDN 11, I stay the proceedings pursuant to s20 of the Service & Execution of Process Act.
2.1I make no order on paragraph 1 of FDN 5.
3.On the issue of costs the plaintiff should pay the first defendant’s costs of the action.
3.1 The plaintiff is to pay both parties costs on the applications in respect of the stay.
3.2 Certified fit for counsel.
3.3 In the event that there is some argument by the plaintiff contrary to that which is referred to by me I give the plaintiff liberty to put submissions to me on the issue of costs within 14 days. The defendants are to reply within 7 days.
3.4 Any final order for costs will be dealt with in writing on the material presented.
4.In respect of the application (FDN 8) the application is dismissed with no order as to costs.”
On 3 January 2003 the plaintiff filed an application in this court seeking, firstly, an extension of time in which to institute her appeal, and, then appealed the decision of Master Rice. The plaintiff filed an affidavit in which she stated that she disagreed with the reasons of the Master on the basis that she had an arguable and sustainable cause of action from the material she had presented and consequently sought a fresh hearing of her applications. She stated her position as:
“This request is on grounds of equal opportunity, as an individual who presented to the court in person. The inability to argue the merits of my case during last appearance was largely due to a lack of personal confidence. I came as a Plaintiff in person and was unprepared.”,
and referred to the Disability Discrimination Act 1992 (Cwth).
I do not propose to set out the basis of that affidavit, but, in effect, the plaintiff made allegations of misrepresentation by officers of the first defendant and negligent legal representation of the second defendant.
The matter came on before me on 29 January 2003 in the presence of the plaintiff, in person, and counsel representing the first and second defendants.
I outlined to the plaintiff that I had read all relevant material. I intimated that without hearing counsel for the defendants I proposed to make the order extending time in which she could make her appeal. That order was so made.
Ms Daralievski advised me that she was seeking a rehearing of the last argument. It was apparent that the plaintiff had a large amount of written material in various folders at the bar table and intimated that this material would be part of her discovery. The plaintiff said that since the hearing before Master Rice, she had endeavoured to coordinate her relevant material and viewed this material as making a difference as to how the matter was argued before the learned Master and/or his decision.
I intimated to the plaintiff that I would be prepared to examine that material.
Mr Coppola, counsel for the second defendant indicated that he had not seen this material. I intimated to the plaintiff that the parties must be in a position to examine this further material. A discussion then ensued about the cost of photocopying. It was agreed that Ms Daralievski, at the expense of the second defendant, would provide a copy of this material.
Ms Daralievski repeated that she believed this material was comprehensive in nature and was sufficient to answer many of the matters raised or relied on by Master Rice and maintained (inter alia) that the first defendant owed her a duty of care. Ms Daralievski addressed me on the points that she was making in regard to the issues in this appeal process.
With the agreement of the parties and the undertaking of the plaintiff to provide a copy of this further discoverable material, I adjourned the matter until 7 February 2003 for further argument.
The matter came on again before me on 7 February 2003.
I received a detailed letter dated 24 January 2003 from the plaintiff, which she had forwarded to the defendants’ solicitors. At the rehearing defence counsel intimated that they had perused the further documentary material.
The plaintiff also confirmed that she had forwarded to the solicitors what she referred to as an “open” letter dated 24 January 2003.
In the interim period I had received a letter from counsel for the second defendant dated 4 February 2003 outlining the matters relied on and seeking an order that the appeal be dismissed. Counsel for the first defendant placed a short summary of submissions before me seeking similar orders.
Ms Daralievski said she had prepared written submissions in response to the second defendant’s submissions and handed me a copy of that submission which I have now read.
I do not propose to set out the appellant’s submissions but the same appear in the transcript from pages 20 to 28.
Counsel for the defendants both intimated that the position was as set out in their brief written submissions to me.
I adjourned the matter to examine all of this material.
I have now examined the bound volumes of material the plaintiff has tendered, which accompanied the letter from the plaintiff on 29 January 2003. There were four bound volumes, headed “Strictly Confidential, Discovery 15 May 2002, Part I of III, Part II of III, Part III of III” and “The Schedule of Documents that accompany the Discovery Part I of III”.
I do not propose to in any way embark on a detailed analysis of that material. It is my opinion that such material would not have in any way influenced the Master in the manner in which he came to his decision. That material very much is concerned with the background factual situation and questions of damage and not directed to what I see as the issues in this case, namely, the duty of care aspect, and the appropriate forum for institution of these proceedings.
It is unclear whether the nature of the appeal before me by the plaintiff is against an interlocutory judgment or a final order. Certainly it must be viewed as a final order against the first defendant, but on the other hand it may well be viewed as an interlocutory judgment of the Master. Different considerations apply. I refer to section 43(2) of the District Court Act 1991 (SA) and rule 97.01 of the District Court Rules (SA). However, in deference to the plaintiff, my course of action has been very much to embark on a rehearing of the matter.
Having read all of the background I believe the Master identified all of the relevant issues and correctly the appropriate legal principles on all issues. In any event, the Master was entitled to permanently stay the proceedings against the first defendant. The new factual material would not have varied that finding.
I agree with a comment of one counsel that his factual findings are unassailable.
The recent High Court decision of Graham Barclay Oysters Pty Ltd v Ryan; Ryan v Great Lakes Council; State of New South Wales v Ryan [2002] HCA 54 (5 December 2002) would support the Master’s legal finding. This case dealt with the harvesting of contaminated oysters and negligence allegations against oyster grower, distributor, local council and state government. There were initial findings against the council and state. The High Court held that the council and state government owed no duty of care to the plaintiffs.
The findings in favour of the second defendant must be upheld. I note the rather forceful comments in paragraph 5 of the submissions. Counsel for the second defendant commented as follows:
“I emphasis that the plaintiff’s submission to His Honour that presentation of these documents would be ‘the entire case’ as I believe she submitted last week, is not sustainable. The case would necessarily involve lengthy and detailed oral evidence by the plaintiff and by whatever witnesses she chose to call at the hearing. Presumably, that would include Mr Carr, at least some medical practitioners and perhaps other lay witnesses. The evidence which would be led on behalf of Carew Counsel would be voluminous, including at least five lawyers, the mediator, officers of the TAC and medical witnesses, most of whom (as identified in the Master’s reasons) are resident in Victoria. Given the plaintiff’s parlous financial position, and the negligible prospect of a costs recovery against the plaintiff in the event of the action failing, it would be plainly oppressive to require the defendant to bring all of that evidence from Victoria to South Australis to litigate a case that has its genesis in a motor vehicle accident in Victoria, that was dealt with by Victorian lawyers under Victoria law and settled in Victoria pursuant to a Deed enforceable under Victorian law.”
It is for these reasons that I believe this appeal has no merit and the same is dismissed.
I make an order that the plaintiff pay the defendants’ costs to be taxed.
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