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

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."

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.

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].

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

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.

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…

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 19
Decision Date: 16 May 2013

CaseChat Overview and Summary

The case of Dimmick v Coad arose in the Supreme Court of Tasmania and involved a dispute over the interpretation of procedural rules concerning time limits for taking steps in legal proceedings. The plaintiff, Dimmick, sought to enforce a settlement reached during a mediation process against the defendant, Coad. The central issue was whether participating in the mediation constituted a step taken in the proceeding, thereby potentially restarting the six-year time limit for enforcement under the relevant procedural rules.

The court was required to determine if the mediation constituted a step taken in the proceeding and if so, whether it could be considered a step that restarted the six-year limitation period. The court examined the language of the rules and the nature of the mediation process, considering whether it should be treated as a formal part of the litigation or as a separate, preparatory step.

The court concluded that the mediation did not constitute a step taken in the proceeding for the purposes of restarting the six-year limitation period. It held that mediation was a preliminary step intended to facilitate settlement and was not part of the formal litigation process. Consequently, the court ruled that the six-year limitation period was not restarted by the mediation, and since more than six years had elapsed since any other step was taken in the proceeding, Dimmick's claim was statute-barred.

The court's decision was that Dimmick's claim against Coad was dismissed due to the expiration of the six-year limitation period. The court did not find it necessary to consider other arguments presented by the parties.

Orders