Gibbs v Royalblue Securities Pty Ltd
[2017] WADC 80
•16 JUNE 2017
GIBBS -v- ROYALBLUE SECURITIES PTY LTD [2017] WADC 80
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 80 | |
| Case No: | CIV:3021/2013 | 7 JUNE 2017 | |
| Coram: | PETRUSA DCJ | 16/06/17 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Dismissal of case set aside Action removed from inactive cases list | ||
| PDF Version |
| Parties: | RUTH GIBBS ROYALBLUE SECURITIES PTY LTD JOHN CHARLES VEGAR |
Catchwords: | Practice and procedure Inactive cases list Case dismissed pursuant to r 44G District Court Rules 2005 Application to set aside the dismissal of the case Rule 44G(5) Exceptional circumstances Exercise of discretion |
Legislation: | District Court Rules 2005 |
Case References: | FAI General Insurance v Southern Cross Exploration NL (1988) 165 CLR 268 Rowe v Stoltze [2013] WASCA 92 Sovereign Grange Ltd v AV Truck Services Pty Ltd [2016] WADC 73 Spark v Rogers [No 3] [2017] WADC 4 The Owners of SP13443, 129 – 133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ROYALBLUE SECURITIES PTY LTD
Defendant
JOHN CHARLES VEGAR
Third party
Catchwords:
Practice and procedure - Inactive cases list - Case dismissed pursuant to r 44G District Court Rules 2005 - Application to set aside the dismissal of the case - Rule 44G(5) - Exceptional circumstances - Exercise of discretion
Legislation:
District Court Rules 2005
Result:
Dismissal of case set aside
Action removed from inactive cases list
Representation:
Counsel:
Plaintiff : Mr N F Morrissey
Defendant : Ms W Glasser
Third party : Mr S D Hubbard
Solicitors:
Plaintiff : WA Legal Pty Ltd
Defendant : Mills Oakley
Third party : DLA Phillips Fox
Case(s) referred to in judgment(s):
FAI General Insurance v Southern Cross Exploration NL (1988) 165 CLR 268
Rowe v Stoltze [2013] WASCA 92
Sovereign Grange Ltd v AV Truck Services Pty Ltd [2016] WADC 73
Spark v Rogers [No 3] [2017] WADC 4
The Owners of SP13443, 129 – 133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133
1 PETRUSA DCJ: On 30 June 2016 the plaintiff applied to set aside the dismissal of this action consequent to it having been on the inactive cases list for a continuous period of six months (r 44G(1) of the District Court Rules 2005) (DCR).
2 Rule 44G(5) of the DCR provides that a court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case from the inactive cases list. I need to determine whether exceptional circumstances exist and, if so, whether the court should exercise its discretion to set aside the dismissal.
The law
3 The applicable law in this case is not in dispute. The meaning of the expression 'exceptional circumstances' in r 44G(5) and the proper interpretation of that provision has been the subject of recent analysis by Davis DCJ in The Owners of SP13443, 129 – 133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands(Survey Strata Plan 44698) [2015] WADC 133 [33] – [54] (Maylands). Her Honour's consideration was accepted and applied in Sovereign Grange Ltd v AV Truck Services Pty Ltd [2016] WADC 73 [5] – [17] (Wager DCJ) and Spark v Rogers [No 3] [2017] WADC 4 [36] – [42] (Parry DCJ).
4 In Maylands her Honour Judge Davis concluded that:
Having regard to the ordinary meaning of the word 'exceptional' all of the authorities and the principles of statutory construction, consider that for circumstances to be 'exceptional' under r 44G(5) they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique or unprecedented or very rare, however they will not be exceptional if they are regularly or routinely, or normally encountered. [40]
5 There is no particular circumstance that can be defined as exceptional. 'Exceptional circumstances' may relate to a single exceptional matter or to a combination of exceptional facts or a combination of ordinary facts that when taken together in combination may reasonably be regarded as amounting to exceptional circumstances. Each case must be determined on its own facts.
6 Rule 44G(5) is not remedial. It should be interpreted as giving the court a broader power to relieve against injustice: FAI General Insurance v Southern Cross Exploration NL (1988) 165 CLR 268, 283 - 284.
7 Inattention or inadvertence by a solicitor may in some cases be considered an exceptional circumstance, however, r 44G(5) must be considered in the context of case management. Consistent with the principles of case management in r 38 and r 44A of the DCR, the onus is on the party (not the party's solicitors) to enter the action for trial and to file documents. For this reason case management directions and interlocutory orders are made against the party not against the party's lawyer.
8 Mere inadvertence or inattention by a solicitor would ordinarily not constitute an exceptional circumstance that would absolve a plaintiff from any personal responsibility to pursue the action.
9 However, if the condition precedent is met, then the discretion to provide relief is enlivened. In relation to the exercise of discretion, her Honour Judge Davis said in Maylands [54]:
If it is established there are exceptional circumstances causally linked to the dismissal of the action, this will then enliven the discretion of the court to set aside that dismissal. That discretion should be exercised having regard to the interests of justice after considering factors such as;
(a) whether there has been any delay in bringing the r 44G(5) application to set aside the dismissal, and the reason for that delay; see Elwood v Goodman [59] – [64];
(b) the merits of the plaintiff's case (there being no point in reinstating the case that has no merit);
(c) the prejudice to the plaintiff if the dismissal of the action is not set aside (including the expiry of any relevant limitation period); and
(d) the prejudice to the defendant if the dismissal of the action is set aside.
10 The issues then for me to determine are:
1. whether there are exceptional circumstances causally related to the dismissal of the matter; and
2. if so, whether the court should exercise its discretion to set aside the dismissal.
11 Before moving to consider these matters it is convenient to set out the history of this matter.
Background
12 On 2 October 2010 the plaintiff suffered an injury to her right hand when a ceiling panel fell at her workplace. The defendant was the owner of the building where this occurred and the third party was the building manager.
13 The plaintiff did not commence her action until a writ of summons was filed on 16 September 2013. It is clear on the material before me, however, that between the date of the incident and the filing of the writ the plaintiff received ongoing medical treatment, including a number of operations.
14 Shortly after the writ was issued, a medical report from the plaintiff's physician, Dr Majedi, to her general practitioner dated 28 October 2013 outlined the following management plan:
...
2. She requires heavy-handed intervention in terms of regular nerve blocks, cleaning of the debris and hand therapy.
3. I think she will require a trial of spinal cord stimulation -/+ full implant.
4. I emphasise that if this is not treated ASAP she will lose her thumb and potentially the index finger.
5. At this stage I have decided to do a series of stellate ganglion blocks at Sir Charles Gairdner Hospital as I am very concerned of her prognosis.
6. Her case needs to be finalised ASAP as delaying this is going to cause permanent injury and loss of digits especially the thumb, which can be disastrous, and long-term rehabilitation.
15 It is apparent then at this stage that the plaintiff was facing the possibility of losing digits and undergoing trial treatment.
16 The writ was served within the next six months such that the entry of appearance was filed on 16 October 2014. The statement of claim was served on 7 October 2014 which was followed shortly thereafter by the defendant's request for particulars. The plaintiff responded to the request two weeks later on 12 December 2014. The defendant filed its defence on 3 March 2015 and at the same time filed a third party notice. The third party entered his appearance on 20 March 2015. The defendant's statement of claim against the third party was filed on 6 May 2015 with the defence and counterclaim to the third party proceedings being filed on 29 May 2015.
17 The plaintiff should then have entered the case for trial on 1 July 2015. It was accepted at hearing that the case was not, at this stage, ready for entry for trial. Accordingly, a consent order extending time for the entry for trial was filed on 10 July 2015 with the entry for trial date being extended to 18 September 2015.
18 The reply to the third party counterclaim was filed on 31 July 2015.
19 To this point the action had proceeded in a satisfactory way. The plaintiff, however, took no further steps in the action and the matter was placed on the inactive cases list on 7 October 2015.
20 The plaintiff, in fact, had to this point undergone a number of medical treatments which had failed to resolve her injury. On or about 15 May 2015 the plaintiff was informed by Dr Majedi that if she did not undergo a spinal cord stimulator surgery (a very invasive surgery), she would most likely lose her injured hand. Further, he informed her that he was not prepared to offer her spinal cord stimulation whilst she was in the process of compensation and litigation because it was his clinical experience that patients within this arena did poorly in terms of outcomes. This opinion was confirmed in a letter to the plaintiff's lawyers on 18 May 2015. In this correspondence Dr Majedi indicated that he was prepared to recommend other pain specialists who may not have the same policies in respect of litigation. The plaintiff, understandably, elected to remain with her long-term treating specialist and gave instructions to her legal advisers that she did not wish to pursue her action. These instructions were given on 29 May 2015.
21 It was in this context that no further steps were taken and the matter was placed on the inactive cases list.
22 It is clear though that the plaintiff underwent three operations: 7 September 2015, 16 November 2015 and 24 March 2016.
23 On 1 April 2016 the plaintiff's lawyers received instructions to bring an application to remove the matter from the inactive cases list. This was six days before the matter was due to be set aside pursuant to r 44G(1) DCR. It was a Friday. A chamber summons to remove the matter from the inactive cases list was filed by the plaintiff on 4 April 2016. The application was supported by an affidavit of Allan Gebarski dated 4 April 2016.
24 The matter was listed before a registrar of this court on 6 April 2016, the day before the matter was due to be set aside pursuant to r 44G(1) DCR.
25 Unfortunately, as a result of a clerical error, the chamber summons was not served on the third party and the registrar purported to extend time for the bringing of the application by seven days. This was done with the consent of the defendant who was represented at the hearing. A further seven-day extension was given on 13 April 2016 and the matter ultimately came before a registrar on 21 April 2016. On this day the third party appeared and drew the attention of the registrar to the decision of Rowe v Stoltze [2013] WASCA 92 which, at [25], makes it clear that an action is taken to have been dismissed under r 44G(1) DCR simply because it had been on the inactive cases list for six continuous months, regardless of how this had come about. Further, there was no power to grant an extension of the six-month period stipulated in r 44G(1) to enable a party to bring an application to remove the case from the inactive cases list: Rowe v Stoltze [31] - [32]. The matter had therefore been dismissed on 7 April 2016 by operation of r 44G(1) DCR.
26 The plaintiff filed this application to set aside the dismissal on 30 June 2016 and at this time it was listed before a registrar on 21 July 2016. The defendant and the third party were served with the application on 14 July 2016. On 21 July 2016 the matter was adjourned sine die on the understanding that it was to be heard by way of a special appointment and the court would be informed of unavailable dates. The matter was not re-listed until 4 April 2017. The listing was prompted by the third party who wrote to the court on 21 March 2017 seeking finalisation of the matter. On 4 April 2017 the matter was listed for hearing on 7 June 2017.
27 In the period from 21 July 2016 to 15 December 2016, the affidavit material before me reveals that a number of pieces of correspondence passed between the parties. The correspondence seeks unavailable dates so that an appropriate listing date could be obtained for the hearing of the matter. Further, the correspondence makes it clear that the plaintiff's solicitors' approach to this process did not comply with the practice directions of this court. They did not remedy this when the third party identified the non-compliance. It is equally clear that on 4 November 2016 the court was informed that the unavailable dates for all parties meant that a hearing date could not be listed in November or December of 2016. In addition, there were only seven days available in January 2017.
28 Following the letter to the court on 21 March 2017, the plaintiff filed two affidavits on 29 March 2017. Both affidavits were, however, sworn prior to this day. The affidavit of Holly Brown was sworn on 17 January 2017, whilst the plaintiff's affidavit was sworn on 3 March 2017.
29 Additional materials were filed with the court after this date by all parties. Those materials were a further affidavit of Allan Gebarski (on behalf of the plaintiff), an affidavit of Anna Michelle Crosby (on behalf of the third party) and submissions by each of the parties.
30 I return now to consider the application.
Are there exceptional circumstances?
31 In my view, the plaintiff has established that it is more probable than not that there are exceptional circumstances causally related to the dismissal of her action in this case.
32 I accept the submission of the defendant and third party, that there is nothing out of the ordinary, unusual, special or uncommon in personal injuries litigation:
(a) for plaintiffs to undergo medical treatment, even severe medical treatment, during the course of the litigation;
(b) for instructions to legal practitioners to be given late;
(c) for clerical errors to be made; and
(d) for litigants to make errors of law.
33 What is, however, exceptional is the combination of these events in the context of the plaintiff facing the risk of losing some or all of her hand because her long-term medical specialist will not provide 'last resort' medical treatment if the litigation remains on foot. It is an extraordinary matter for a medical specialist to refuse treatment if litigation is not discontinued. There is then, in my view, a causal link between this exceptional event and the matter being placed on the inactive cases list. I pause to note that the plaintiff's decision to remain in the care of the specialist familiar with her case, and with whom she had built a relationship, is entirely understandable and it would be unjust were she to be penalised for this.
34 In my view, the causative link is not broken by reason of what followed. This is because the subsequent matters only have significance because of the context in which they arose, namely the specialist's refusal to give medical treatment if the litigation remains on foot. An operation relevant to that treatment occurred as late as 24 March 2017. This explains why the instructions to bring the application to remove the matter from the inactive cases list were not given sooner. It is in this context that the clerical error and subsequent error of law were significant.
35 Given that I am satisfied that there are exceptional circumstances causatively related to the failure to prosecute the proceeding during the relevant time, my discretion to consider whether the matter should be re-instated is enlivened.
Exercise of discretion
36 That discretion must be exercised having regard to all relevant circumstances. Although the four matters identified by her Honour Judge Davis in Maylands [54] are to be considered, the matters for consideration in the exercise of discretion are not closed. The discretion is broad and unconfined and the list of matters for consideration in the exercise of discretion is not limited to those four matters or to any other matters.
37 I will, however, consider each of the matters raised by her Honour Judge Davis.
38 The first matter for consideration is whether there has been any delay in bringing the r 44G(5) application to set aside the dismissal and the reason for that delay. In this case there was a delay, first, in the filing of the application. It was not filed for some 10 weeks after it was realised the matter had been dismissed. There is no explanation for this delay.
39 There is, in addition, delay in bringing the matter on for hearing. In this regard, I note that at least part of the delay relates to the unavailability of counsel and the court. Further, there were some communications between the parties. The plaintiff, however, accepts there has been some unexplained delay in this regard.
40 Overall the plaintiff has delayed in having this issue resolved. This is, of course, not in itself decisive of the matter.
41 The second matter for consideration is the merit of the plaintiff's case, there being no point in re-instating a case that has no merit. It was not submitted to me by any party that the plaintiff's case is not meritorious. To the contrary, there was material before me, including submissions by the defendant, that the plaintiff received worker's compensation payments as a result of the incident the subject of these proceedings. Further, the medical material annexed to the affidavit of the plaintiff appears to be continuous and specifically attributes the onset of the injury with the incident the subject of the proceedings.
42 I am not satisfied that the plaintiff's case has no merit and am satisfied at this stage that there is an arguable case.
43 The third matter for consideration is the prejudice to the plaintiff in this case, Ms Gibbs. It is common ground that the plaintiff's cause of action would be statute barred, so that if the dismissal were not set aside then she would have no recourse against the defendant. I accept then that there is considerable prejudice to the plaintiff if the dismissal of the action is not set aside.
44 The fourth matter is the prejudice to the defendant and third party if dismissal of the action is set aside. It is submitted for both the defendant and the third party that the prejudice is, that:
1. Witnesses' recollection of relevant events will have faded.
2. There will be a significant gap in the expert medical evidence if the action commences after a lengthy delay.
3. Time has been wasted and unrecoverable costs incurred waiting for the plaintiff to have this chamber summons determined.
45 I accept that the delays in the matter will have some effect on the recollection of witnesses. However, there is no suggestion that up until the matter was placed on the inactive cases list on 18 October 2015 that any delay was not one contemplated in personal injuries actions. Further, both the defendant and the third party must have investigated the matter in order to be in a position to file their defence, statement of claim against the third party, defence and counterclaim and reply. In other words, they had an opportunity to contact relevant witnesses and to document their recollections. The issue is then whether the period from October 2016 to date is such that any diminution in the recall of witnesses is significant. In my view, though there is some prejudice, it is not one that is uncommon in litigation and the system makes allowances for this.
46 The defendant also raises the fact that the manager who dealt with the third party (and therefore a necessary witness) passed away some time in 2015 and they are thereby prejudiced. Unless his death occurred after 18 October 2015, then the defendant is in no worse position by reason of the delay than if the matter had proceeded in the usual way. Even had he died after this time, the fact remains that he would not have been available to give evidence at trial, it being conceded that this matter was nowhere near ready for trial in July 2015 nor, it seems, by 18 October 2015.
47 Next is the submission that prejudice flows from the significant gap in the expert medical evidence occasioned by the delay. First, the gap referred to is the time between when the reply to the third party counterclaim was filed on 31 July 2015 to date. Notably, it is said that the defendant and third party have lost the opportunity to have the plaintiff examined prior to any spinal cord stimulation treatment. As against this, it is also true that the entire medical history of the plaintiff is, or will be, available to the defendant and third party. The medical history, it would seem, is well documented. Further, it is accepted that the plaintiff has received worker's compensation, so her medical treatment would likely have received some scrutiny which will also, no doubt, be available to the defendant and third party.
48 I accept that in any case such as this there will be time wasted and unrecoverable costs incurred. This is a matter that can be dealt with by way of appropriate orders as to costs.
49 In balancing these matters, together with considerations of the court's board of power to relieve against injustice, in my view, in the exercise of the discretion, the application should be allowed, there being significant prejudice to the plaintiff if the application is not allowed and although there is prejudice to the defendant and the third party if the application is allowed, it is not, in my view, significant or extreme.
50 In addition, I am satisfied that the failure to respect the court's processes in prosecuting the proceedings effectively was related to the medical specialist's refusal to provide treatment to the plaintiff, who had been operating under the risk of losing her hand for an extended period of time. This fact is significant in explaining the periods of delay.
51 For these reasons, I make the following orders:
1. The dismissal of the case under r 44G(1) DCR is set aside pursuant to r 44G(5) DCR.
2. The action be removed from the inactive cases list.
52 I will hear the parties as to other programming orders that should be made and as to costs.
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