Dimmick v Coad

[2013] TASSC 19

[2013] TASSC 19

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Dimmick v Coad [2013] TASSC 19

PARTIES:  DIMMICK, Brian Leonard
  v
  COAD, Gary John

FILE NO:  568/2004
DELIVERED ON:  16 May 2013
DELIVERED AT:  Hobart
HEARING DATES:  28 March & 16 May 2013
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Time – More than six years since a step taken in a proceeding – Whether participating in a mediation is a step taken in a proceeding.

Supreme Court Rules 2000 (Tas), r56.

Argo Pty Ltd v Attorney-General (No 3) (2004) 13 Tas R 69 followed.

Ives & Barker v Willans [1894] 2 Ch 478 distinguished.

Aust Dig Procedure [283]

REPRESENTATION:

Counsel:
           Plaintiff:  R A Browne
           Defendant:  M J Crisp
Solicitors:
           Plaintiff:  Fitzgerald & Browne
           Defendant:  Blissenden Lawyers

Judgment Number:  [2013] TASSC 19
Number of paragraphs:  12

Serial No 19/2013
File No 568/2004

BRIAN LEONARD DIMMICK v GARY JOHN COAD

REASONS FOR JUDGMENT  HOLT AsJ

16 May 2013

1. The plaintiff, who is suing for damages for personal injury, by letters dated 14 January and 26 February 2013 respectively applied for orders for discovery and the grant of leave to amend the statement of claim.  The defendant responded by applying, from the bar table, on the return of the applications, for an order staying the proceeding on the ground that  no step had been taken in the preceding six years.  The Supreme Court Rules 2000, r56(1) is as follows:

"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."

1. The only activity which the plaintiff contends amounted to a step in the proceeding and which occurred in the six years preceding the 2013 applications was the participation of the parties at a mediation conference on 28 February 2007. 

1. A step in a proceeding is "some step in the action, required by the rules of procedure, but not necessarily carried out in accordance with those Rules, to carry the action forward to a final judgment".  Argo Pty Ltd vAttorney-General (No 3) (2004) 13 Tas R 69 at par[27].

1. Counsel were unable to find any case where the question of whether a mediation conference was a step in a proceeding had been considered. 

1. Counsel for the plaintiff submitted that, as it is a requirement in order to have an action for damages for personal injury set down for trial that the parties discuss settlement, the mediation conference is a step in the action required by the rules to carry the action forward to a trial and final judgment.

1. Rule 541(1) relevantly provides:

"Before filing a certificate of readiness, the parties to an action must confer together to –

(a)      reach agreement on as many matters as possible; and

(b)      discuss the possibility of settlement of the action;  …"

1. Rule 544 provides that the parties must complete a certificate of readiness in accordance with the prescribed form.  Rule 547 provides that after the certificate of readiness is filed a pre-trial conference is to occur, unless on receipt of the certificate a judge orders that a pre-trial conference need not be held and that the action can be listed for trial.  The prescribed form for the certificate of readiness is in the Supreme Court Forms Rules 2000, Form 42 and in par1(h)(6) requires the parties to certify that the possibility of settlement had been seriously explored.

1. Generally, mere talk between solicitors does not amount to the taking of a step in a proceeding.  See Ives & Barker v Willans [1894] 2 Ch 478 at 484, per Lindley LJ. However, here in personal injury actions the rules require the parties to conduct settlement negotiations as a prerequisite to the action being set down for trial, and so such discussions between solicitors amount to a step required by the rules to carry the action forward to a final judgment.

1. There was no suggestion that the parties, through their solicitors, did not discuss the possibility of settlement at the mediation conference and I infer, from the nature of such conferences, that settlement was discussed.

1. Counsel for the defendant made a submission that the conduct of the mediation conference was not used by the plaintiff to advance the action to trial because the plaintiff did not comply with r521 which required him, immediately after the conclusion of the mediation, to notify the Court that a mediation had taken place and specifying the issues left to be tried.  I do not consider that the absence of the notification has any material impact.  Such a notice might, belatedly, issue at any time or the need for it might be overtaken by the contents of the certificate of readiness .  In any event the fact that the settlement discussions occurred at a mediation conference (where the rules impose the notice requirement) rather than simply at a conference between the solicitors (where no such notice is required) is immaterial so far as compliance with the requirements of r541 is concerned.

1. In view of my finding that the mediation conference on 28 February 2007 relevantly amounted to a step in the proceeding in which damages for personal injury are claimed, the plaintiff does not need leave to proceed under r56 and may have his applications for discovery and leave to amend the statement of claim heard and determined.

1. The defendant's application for a stay is dismissed.