French v McKenna
[2011] TASSC 44
•25 August 2011
[2011] TASSC 44
COURT: SUPREME COURT OF TASMANIA
CITATION: French v McKenna [2011] TASSC 44
PARTIES: FRENCH, Denise Monica
v
McKENNA, Wayne
FILE NO/S: 46/2006
DELIVERED ON: 25 August 2011
DELIVERED AT: Launceston
HEARING DATE: 25 August 2011
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Procedure – Supreme Court Procedure – Tasmania – Practice under Rules of Court – Other matters arising before trial – Non-compliance with order to deliver a statement of claim – Plaintiff's claim dismissed by operation of a self-executing order made by consent – Application to set aside the dismissal order – Jurisdiction to set aside consent order – Order set aside.
Supreme Court Rules 2000 (Tas), r374(b).
Brocx v Hughes (2008) WASC 34 followed.
Pumptech Tasmania Pty Ltd v CB&M Design Solutions Pty Ltd (No 2) (2009) TASSC 78 applied.
Aust Dig Procedure [277]
REPRESENTATION:
Counsel:
Plaintiff: P L Jackson
Defendant: C J Bartlett
Solicitors:
Plaintiff: C N Dockray Solicitors
Defendant: Bartletts
Judgment Number: [2011] TASSC 44
Number of paragraphs: 27
Serial No 44/2011
File No 46/2006
DENISE MONICA FRENCH v WAYNE McKENNA
EDITED REASONS FOR JUDGMENT HOLT AsJ
(DELIVERED ORALLY) 25 August 2011
Introduction
The plaintiff's claim has been dismissed and she has applied for an order setting aside or varying the dismissal order.
The background is as follows.
On 23 June 2006 a writ was filed wherein the plaintiff claimed damages for personal injury suffered in a motor vehicle accident on 25 June 2003. The unchallenged evidence is that the plaintiff, then aged 61, was the driver of a vehicle which was stationary behind another vehicle at an intersection in Ulverstone. The defendant was the driver of a vehicle which collided with a vehicle behind the plaintiff shunting it into the plaintiff's vehicle. The plaintiff had previously suffered lower back problems, but these were not seriously incapacitating. The motor vehicle accident caused the plaintiff's back condition to rapidly deteriorate to a stage where her lower back problems are now severely disabling.
On 20 October 2006 an order was made by consent requiring the plaintiff, within 28 days, to deliver a statement of claim containing full particulars of her claim for past, present and future losses, loss of earning capacity and loss of superannuation benefits.
This order would not have been made without the consent of the plaintiff as it required a level of information and detail inappropriate for inclusion in pleadings. The order would also have been inappropriate if the plaintiff's solicitor had not completed the necessary investigations to enable him to prepare the document, or did not have reasonable grounds for believing that such investigations could be completed promptly.
The order was not complied with and the plaintiff's solicitor did not apply for its vacation or variation. On 5 December 2006 the defendant applied for an order dismissing the plaintiff's claim. The application was made returnable on 16 February 2007. On that day a self-executing order was made by consent extending time for compliance with the October order to 9 March with the claim to be dismissed upon the filing of an affidavit of non-compliance.
It was inappropriate to consent to the self-executing order absent reasonable grounds for believing that compliance would be achieved by the due date.
Compliance was not achieved and on 13 March 2007 the defendant's solicitor filed an affidavit of non-compliance. On 19 March 2007 the dismissal order was formally entered.
On 26 June 2007 a notice was filed advising that a new solicitor had been appointed by the plaintiff. On 4 September 2007 the application to set aside the dismissal order was filed. On 12 September 2007 the hearing of that application was adjourned sine die by consent. Thereafter the plaintiff's new solicitor set about undertaking the investigations necessary for the preparation of the particulars of loss and damage as required by the original order. Those particulars were delivered on 14 May 2009. The defendant was requested to consent to an order setting aside the dismissal order, but no consent was forthcoming.
In April 2010 the plaintiff's solicitor asked for the application to be listed for directions. The plaintiff, however, was not ready to proceed and the directions hearing was adjourned several times. It was not until 20 May 2011 that all of the affidavits in support of the application were filed. On 16 June an order was made directing that the application be set down for hearing on a date to be advised in consultation with the solicitors for the parties. On 6 July the hearing was set down for today being 25 August.
The application
The application is made pursuant to the Supreme Court Rules 2000, r374(b)(ii), which is as follows:
"The Court or a judge may set aside or vary –
…
(b) any judgment or order entered, given or made on the failure of a party to –
…(ii) comply with an order to do any act or take any step."
This rule cannot be applied to consent orders where the consent confers on the beneficiary a contractual entitlement. The self-executing order was made by consent. The question is whether such an order can be set aside other than through separate proceedings attacking the validity or enforceability of a contract. The question was considered by Johnson J in Brocx v Hughes (2008) WASC 34 par48 where Her Honour said:
"In the literal sense, if a party consents to the making of a springing order then it is consenting to judgment in the event of non-compliance with the condition attached to the order for judgment. However, I consider those circumstances to differ from the situation where parties reach an agreement, and the orders obtained pursuant to that agreement are made by consent. As counsel for the plaintiff submitted, many procedural orders which are made by consent do not conclude binding contracts. In Cliffs Robe River Iron Associates v Dravo Pty Ltd [1988] WAR 322 the Full Court held that orders made by consent could be varied by the Court because consent by a party to an application made by the opposing party did not constitute a binding agreement between the parties. The situation was more accurately described as two solicitors conferring for the purpose of formulating an order which could be made without argument: Wallace J at 324 and Kennedy J at 328 referred to and adopted the following distinction drawn by Lord Denning in Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185 at pars189 – 190:
'There are two meanings to the words "by consent".... One meaning is this: the word consent may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words 'by consent' may mean "the parties hereto not objecting". In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without consent of the parties.'"
Rule 374 has its equivalent in the General Rules of Procedure in Civil Proceedings 1986 (Vic) r24.06. In Pumptech Tasmania Pty Ltd v CB&M Design Solutions Pty Ltd (No 2) [2009] TASSC 78 at pars60 – 63 and 75 Blow J considered the operation of the Tasmanian rule and referred without criticism or distinction to the principles which guide the exercise of the discretion taken from a number of Victorian cases. The principles can be summarised as follows:
(1)What must be shown is that the self-executing order has operated to deprive a party unjustly of the right to a trial.
(2)Where the original order was made without error the applicant must show that supervening events have caused the order to operate in a manner which has turned out to be unjust.
(3)In most cases it is a matter of degree whether the injustice is such as to justify interference.
(4)Ordinarily a party cannot expect a favourable exercise of the discretion unless at the time of the application the steps required by the self-executing order have been undertaken.
(5)The Court should have regard at least to the following matters:
(a)the circumstances in which the self-executing order was made;
(b)the reasons for non-compliance;
(c)the prejudice to the defaulting party if relief is not granted;
(d)the prejudice to the innocent party if relief is granted.
(6)The Court should not be astute to find excuses for the defaulting party, but if it is clearly demonstrated that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances the failure is not to be treated as contumelious and so necessarily disentitling.
(7)Where failure to comply is due to the fault of the party's solicitor, that fact is only a relevant factor rather than a decisive factor.
(8)The strengths and weaknesses of each parties' cases can be relevant to the exercise of the discretion.
(9)Case management principles are relevant.
The circumstances in which the order was made
The consent order was made without the plaintiff's solicitor having obtained the authority of the plaintiff to consent. She was available to give instructions, but her solicitor sought no instructions from her. At the time the solicitor consented on behalf of the plaintiff there was no realistic possibility of complying with the order which required full particulars of the claim for damages to be provided. The solicitor had not at that stage requested any medical reports or engaged assistance from persons having the expertise necessary to assist in the formulation of the particulars. Compliance being unlikely to be achieved, the order would not have been made had it been opposed and the Court informed that expert opinion was yet to be requested.
The reasons for non-compliance
The order having been made the plaintiff's solicitor did not inform the plaintiff of its content and did nothing other than to prepare a draft statement of claim on the last day for compliance. In particular, the solicitor did not request any expert reports or commence work on the particulars of damage. He did not apply for a variation or vacation of the order, but without the plaintiff's knowledge allowed the dismissal of her action to take effect and the dismissal order to be formally entered. There had been no history of lack of co-operation by the plaintiff with her solicitor or dilatoriness in the provision of information requested. By the time that the self-executing order was made the plaintiff had reason to believe that she was not in breach of any time limits. The solicitor's affidavit at pars16 – 18, which are unchallenged, is as follows:
"16On 31 January 2007, I wrote to Mrs French requesting that she make an appointment to finalise her Statement of Claim. I advised her that her matter was next in Court on 16 February 2007, concerning an Interlocutory Application for her matter to be dismissed due to the Statement of Claim not being filed. I assured her that this Application would be resisted on the basis that the Statement of Claim would be filed well before that date, along with a report from Dr Carey.
17On 7 February 2007, I met with Mrs French and obtained certain details of her treatment and medical condition. Mrs French provided further details by telephone on 9 February 2007.
18On 15 February 2007, I advised Mrs French in response to her telephone call that same day, that I had all the information I needed in advance of the Interlocutory Application to be heard on 16 February 2007."
The non-compliance was due to the consent order imposing an unrealistic timeframe and the plaintiff's solicitor not applying to have it varied or set aside.
Prejudice to the plaintiff if relief is not granted
The plaintiff's claim became absolutely time barred six year after the accident, namely, on 25 June 2009. She had a viable claim for substantial damages and suffers the substantial prejudice of not being able to pursue it, if relief is not granted.
Prejudice to the defendant if relief is granted
The defendant did not claim any specific prejudice and, in particular, did not claim that his chances of a fair trial had been materially diminished. Liability is unlikely to be in issue. On 20 October 2006 the defendant's solicitor wrote to the plaintiff's solicitor advising that upon receipt of a satisfactory statement of claim liability would be admitted. The defendant did not claim that the plaintiff's damages could not be fairly assessed. The evidence shows that there is much contemporaneous documentation of the plaintiff's symptoms and treatment. This is unlikely to be a case where fading memories will be called upon or where relevant witnesses are no longer available.
The grant of the relief sought will not cause any material prejudice to the defendant.
The strength of the plaintiff's claim for damages
The plaintiff's car was rear ended. The defendant has indicated that liability would be admitted. There is detailed medical evidence confirming the plaintiff's debilitating symptoms and attributing them to the motor vehicle accident.
The plaintiff appears to have a strong case to recover substantial damages.
Case management principles
The self-executing order was made by consent and was not the result of a judicial determination of the appropriate timeframe for the progression of the action. The non-compliance has had no impact on other cases in the list.
There is an interest in the Court ensuring that its orders are complied with or that where compliance becomes impossible or impracticable that the opponent is forewarned and the party who cannot comply seeks and obtains relief from the order. This, however, is just one feature to be considered on an application of this kind and the interests of case management should not operate to cause an injustice.
Jurisdiction
The plaintiff's solicitor did not have authority to consent to the order. It could not have been his intention to bind the plaintiff by contract. It is a case where the consent simply meant that the party giving it did not object as explained in Brocx. Accordingly, the order can be set aside or varied without the constraints which apply to contract cases.
Conclusion
The plaintiff's solicitor should not have consented to the order. Compliance was unlikely to be possible and he did not have his client's permission to consent on her behalf. The plaintiff having no knowledge that the order had been made cannot be held responsible for the supervening events, namely, her solicitor's failure to make any real attempt to achieve compliance and his failure to seek relief before the non-compliance occurred. If relief is not granted the plaintiff will lose her strong claim to recover substantial damages. No material prejudice will be caused to the defendant if relief is granted. This is not a case where the order could and should have been complied with or where the non-compliance has adversely impacted on the Court's duty to manage its business and so case management principles have no material impact on this assessment. There have been delays in issuing the writ and progressing this application, but there was no suggestion from the defendant that the plaintiff ought be held responsible for them or that resultant prejudice has occurred. The statement of claim and particulars have now been filed. The plaintiff is well advanced in preparation for a trial.
I am persuaded that the self-executing order has operated to deprive the plaintiff unjustly of her right to a trial and that, accordingly, the order should be set aside.
Order
The order made 16 February 2007 is set aside.
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