Hampouris v Coles Supermarkets Australia Pty Limited

[2020] NSWSC 1827

Supreme Court

New South Wales

Medium Neutral Citation:

Hampouris v Coles Supermarkets Australia Pty Limited [2020] NSWSC 1827

Hearing dates:

06 August 2020

Date of orders:

15 December 2020

Decision date:

15 December 2020

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The orders made by Registrar Kenna on 22 November 2018 are set aside.

(2) The proceedings are reinstated to the list.

(3) Pursuant to r 1.12 of the UCPR, I extend the time for the plaintiff to serve her Statement of Claim to 5:00pm 7 August 2020.

(4) Each party is to bear its own costs of this application.

(5) The plaintiff is to file and serve an updated, rule- compliant Amended Statement of Particulars on or before 8 February 2021.

(6) The defendant is to file and serve its Defence on or before 19 January 2021.

(7) The matter is listed for directions before Lonergan J at 9:30am on Tuesday 15 February 2021.

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings by court of its own motion— non-appearance of parties due to service of proceedings to outdated address — application to set aside orders made by the Registrar in the absence of the parties and reinstate proceedings — plaintiff unaware of non-appearance by solicitor and dismissal of proceedings — steps taken by the plaintiff personally to pursue the matter once statement of claim filed — plaintiff herself blameless - whether the defendant is prejudiced — whether a fair trial can be held — application of plaintiff to extend time for service of statement of claim

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Andresakis & Skouteris v Alexus Holding Pty Ltd (2006) 68 NSWLR 507

Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176

Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104

Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Pell v Hodges [2007] NSWCA 234

Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 135

Category:

Procedural and other rulings

Parties:

Maria Hampouris (Plaintiff)
Coles Supermarkets Australia Pty Limited (Defendant)

Representation:

Counsel:
M Campbell (Plaintiff)
N Polin SC (Defendant)

Solicitors:
Brydens Lawyers (Plaintiff)
McCulloch & Buggy Lawyers (Defendant)

File Number(s):

2018/287309

Publication restriction:

Nil

Judgment

1. The plaintiff seeks an order setting aside the Registrar’s dismissal of the proceedings of the Court’s own motion on 22 November 2018. Supplementary orders are also sought to formally reinstate the proceedings and to extend the time allowed for the plaintiff to serve her Statement of Claim that had been filed on 19 September 2018.

2. For the reasons that follow, I have determined that the orders sought by the plaintiff should be made and the proceedings should be reinstated and judicially case-managed to minimise any further delays.

Background and history of the litigation

3. The plaintiff slipped and fell at a Coles supermarket at Clarke Street, Earlwood, on 20 September 2015. She alleges in the Statement of Claim that the floor was contaminated with a slippery substance that had been partially cleaned by the defendant. She also alleges that the defendant had warning signs in place, but they did not extend to the area where the plaintiff slipped and fell.

4. The plaintiff alleges that she suffered a left comminuted olecranon fracture as well as some soft tissue injuries to her neck, knees and lower back. Coles staff assisted the plaintiff when she fell and the store was informed by telephone that the plaintiff had “broken her arm in three places”. An incident report was completed that contained the plaintiff’s contact details - address, phone number and other relevant information. The plaintiff retained a solicitor who filed the claim on the last day of the limitation period and then it seems, ineptly served the proceedings on the defendant at an out of date address.

5. There was no appearance for either party at either of the directions hearings in November 2018 so the Registrar struck out the Statement of Claim. The plaintiff was not informed this had happened until September 2019 at which point she retained the current solicitors and this application was filed in February 2020.

The plaintiff’s evidence

6. In her affidavit of 30 March 2020, the plaintiff says that she retained Ms Katarina Healey from Pryor Tzannes & Wallis on 22 October 2015 to seek legal advice. She left the running of the claim to Ms Healey and did whatever was asked of her.

7. On 16 May 2018 Ms Healey wrote to the plaintiff stating that her consultancy with that firm had ended and giving her three options, either to transfer the matter to her firm, GH Healey & Co, leave the matter with Pryor Tzannes & Wallis with the day-to-day carriage with another solicitor or to instruct a new firm of solicitors. The plaintiff decided to transfer the matter to GH Healey & Co for Ms Healey to continue acting.

8. The plaintiff was told in writing on 18 September 2018 that GH Healey & Co would file the Statement of Claim, Statement of Particulars and other relevant documents in the Supreme Court. On 19 September 2018 she was provided with a copy of those documents stamped as filed in the Supreme Court on 19 September 2018. She noted that the matter was listed before the Court on 8 November 2018 at 9:00am.

9. On about 13 November 2018 the plaintiff received a letter from the Court stating that there had been no appearance for her on 8 November 2018 and that if there was no appearance on 22 November 2018, when the matter was next listed, the matter would be dismissed.

10. The plaintiff appended to her affidavit the correspondence she had with Ms Healey as a result of this. On the day she received the letter from the Court she attached it to an email and required Ms Healey to call her urgently to discuss. The plaintiff says that she spoke with Ms Healey on 13 November 2018 and that Ms Healey apologised and assured her she would attend on 22 November 2018.

11. The plaintiff assumed Ms Healey had done so since she did not hear anything to the contrary from the Court or anyone else. On 6 December 2018 she sent an email to Ms Healey requesting the case timetable following the mention, and followed this up again on 12 December 2018. She had a telephone conversation with Ms Healey on 13 December 2018 or around that time, but could not now remember what was said in that conversation, other than that at no point did Ms Healey tell her that the matter had been dismissed by the Court.

12. The plaintiff wrote to Ms Healey on 23 January 2019 requesting an update. On 24 January 2019 Ms Healey responded saying that a barrister was being retained for the matter.

13. On 24 February 2019 the plaintiff wrote again by email requesting an update. She received no response.

14. She wrote again on 6 March 2019 requesting an update. There was various correspondence with Ms Healey in March, April, May, August and September 2019. A conference was appointed on 25 September 2019, at which time the plaintiff was told that her matter had been dismissed by the Court.

15. After that meeting the plaintiff sent an email to Ms Healey requesting information about a timeline for the matter to be listed in Court, including dates and outcomes and she required that to be provided to her by 2 October 2019.

16. The plaintiff was informed that the Statement of Claim had been served on the defendant in September 2018. An email dated 2 October 2019 confirmed that service date had been 24 September 2018.

17. On 30 October 2019 the plaintiff retained Bryden’s Lawyers, her current solicitors. Amongst other things, she attended a conference with counsel on 4 February 2020 and was shown CCTV footage of the fall. She stated that she always intended to pursue her rights in relation to the claim, and was shocked and disappointed to find that the matter had been dismissed. Had she known Ms Healey would allow that to happen, she would have engaged different solicitors.

18. The plaintiff was not cross-examined on any of the content of her affidavit and I accept her evidence in full.

19. The plaintiff also relied on affidavits of Ms Cruz, solicitor, dated 25 and 30 March 2020 as well as an affidavit of Ms Healey dated 5 August 2020.

20. Ms Cruz’s affidavit of 25 March 2020 sets out correspondence explaining delays in obtaining the file between when Brydens were retained on 30 October 2019 and having sufficient material to allow it to file the subject Notice of Motion on 20 February 2020.

21. Ms Cruz’s affidavit of 30 March 2020 deposed to and exhibited a letter dated 7 March 2016 from Pryor Tzannes & Wallis Solicitors to Coles requesting a copy of the CCTV footage of the plaintiff’s accident. There was a further letter dated 10 June 2016 following up on that request. Ms Cruz also deposed to having seen on the file of Pryor Tzannes & Wallis a file note dated 1 August 2016 referring to a DVD of the CCTV footage of the plaintiff’s fall having been seen.

22. The affidavit of Ms Healey stated that she recollected requesting the CCTV footage twice from Coles, and that on 24 September 2018 she sent a letter by registered mail to Coles Supermarkets Australia at an address in Perth, serving the sealed copies of the documents filed in the Supreme Court. Exhibit D, a Coles company search, indicates that as at 2016, the address in Perth to which the documents were sent, was at that time the Registered Office of Coles.

23. Ms Healey’s affidavit is silent on what was done after that, and she does not explain her conduct during 2019 and her failure until September 2019 to inform the plaintiff what had truly happened with the proceedings. There is no explanation given as to why the proceedings were not filed until just before the expiration of the limitation period.

Defendant’s evidence

24. The defendant relied upon two affidavits, one of Kathleen Mary Burt sworn 27 July 2020 and another of Ian Whitehead sworn 3 August 2020.

(a) Kathleen Mary Burt’s material

25. Ms Burt stated that she was employed by Coles Group Ltd in the capacity of Senior Claims Specialist and that she has carriage of these proceedings on behalf of Coles. She says that when the Notice of Motion was served in March 2020, she carried out a search of the electronic computer system and found an electronic file which contained various documents about the claim. The file included, relevantly, a Coles Incident Report dated 12 October 2015 which included the plaintiff’s name and address, described the claim as “slipped on cordial, injured left elbow, left knee and right knee” and next to the description “cause of accident” it is noted: “article/spillage not cleaned properly” followed by a handwritten addition in tiny writing which is not possible to read. There appears to be various figures noted including a large handwritten endorsement at the bottom of the page “$150,000”.

26. Also appended to the affidavit is a Customer Contact Summary dated 12 October 2015 apparently noting a call from the plaintiff’s mother stating “My daughter Maria, 21, had a serious accident on 20 Sept and we have a contact named David. We have no response from that contact” followed by a note “Apologised to customer. Obtain permission to speak to. Took customer’s details. Emailed claims process sent FYI to Wesfarmers. Customer satisfied”.

27. There is a six page formal document headed “Coles” endorsed with an incident number “0001376256”. That form includes various fields of information for completion. The address of the site of the fall, the time of the fall, the date the incident was reported, the time and where it happened is all completed. The area of the fall is described as “the meat selling area”. A description of the incident is recorded as follows:

“TM had mopped up some cordial that was spilt. Customer walked through and slipped. Customer advised that her left elbow, left knee and right knee was in pain. Customer went to hospital and was advised the elbow was fractured in three places and would need surgery and her knees will need scans.”

28. The address of the plaintiff is recorded and her injury type detailed as “fractured elbow, left, fractured in three places”. First aid is recorded as “ice pack. Put her arm in a bandage”. The name of the person who gave first aid is recorded.

29. The form has other fields that provide for specific details to be included under the heading “Slips trips and falls” but it appears this has not been completed, other than insertion of the word “yes” and to describe “footwear” as “heels”.

30. On the part of the form that deals with “witnesses/recordings” it is noted that the incident was captured on CCTV and the camera is noted as “DVR Camera 11. Meat case 2”.

31. Part C of the form, pages five and six, is headed “Investigation”. Fields such as “contributing factors” and “people involved” have not been completed except at the end under the heading “action details” where the following is recorded:

“Put signs up and made sure no one entered the area”.

That form stated that this was “assigned” to a person identified as Ray Turnbull. The status of the action is recorded as “completed”. The form is not dated. On the front page of the form the “site manager” is referred to as Raymond Turnbull.

32. On 12 October 2015 Coles Customer Care representative Jane Wallace sent an email to Risk Management Services attaching a “customer contact” regarding a slip accident that occurred at the Earlwood store. The email is annotated in handwriting “50,000. Get CCTV. SL”.

33. On 13 October 2015 there is an email exchange between Sarah Lukies, Liability Claims Coordinator, Group Insurance Wesfarmers and Susie Morando, Common Law and Public Liability Advisor requesting CCTV footage. In a reply email on 27 October 2015, Ms Morando confirms that she has the footage and “will drop it off Thursday afternoon”.

34. Also appended to the affidavit is a letter dated 7 March 2016 from Pryor Tzannes & Wallis to the Coles store at Earlwood, notifying Coles of the accident and seeking cooperation in obtaining the CCTV footage “so as to advise our client properly” and requesting Coles notify their public liability insurer.

35. A follow up letter was sent on 10 June 2016. An email of 14 June 2016 from Jodi Edgar to Sarah Lukies inquired whether she had a file.

36. A letter from “Wesfarmers Group Insurance” to Ms Healey requested “all correspondence be directed to the writer” and enclosed a “copy of CCTV footage as requested”.

(b) Ian Whitehead’s material

37. Ian Whitehead is an insurance adjuster/investigator retained by the defendant in April 2020 to carry out some investigations.

38. No explanation was provided as to why the defendant apparently did nothing to investigate the claim prior to 2020, despite being notified of the claim in 2015, the fact that the plaintiff’s arm had been fractured, that she had retained a solicitor to act on her behalf, and that a claim file was apparently opened.

39. Mr Whitehead deposed to his attempts to identify the person who carried out the cleaning prior to the plaintiff’s fall, to identify the store manager at the time, and obtain a roster of staff present. His affidavit appends various progress reports as to his investigations, including identifying the person who is alleged to have cleaned up the spillage - thought to be Mr Mohammed Mahant - (although he was not on the roster to work that day) - and stating that at the date of his affidavit he had “not been able to locate” Mr Mohammed Mahant despite having spoken to him at least once, and that Mr Mahant had “stopped responding to his phone calls and text messages”. The basis of that latter assertion is not explained and no information is included as to the asserted further efforts to contact Mr Mahant.

40. Ms Sherree Lean was interviewed. She assisted the plaintiff providing first aid after the fall. She is noted by Mr Whitehead to have an excellent recollection of the incident. She says in her quite detailed, signed statement provided to Mr Whitehead that she had been informed by a male team member who was about 20 years old that he had dropped a bottle of cordial and he had mopped up the spill and put up “wet floor” signs. When she assisted the injured plaintiff, she saw streaky liquid on the floor. The person who had mopped it told her that he had used a dry mop and no water. After the customer left Ms Lean instructed that person to mop the floor again, and to use water and detergent. She did not initially say the person concerned was Mr Mahant, describing the person as young, about 20 years old, and definitely male.

41. In an email dated 28 May 2020, Mr Whitehead informed the solicitor who retained him that he spoke to Mr Mahant who does not recall any such incident and that he, Mr Whitehead, was still inquiring as to who else it may have been.

42. Mr Whitehead’s report also refers to interviewing other potential witnesses who may have been working at the store at the time and who may have been the “young male Team Member” involved.

43. After review of the CCTV footage in July 2020, Ms Lean is said by Mr Whitehead to have identified Mr Mahant and a Sam Romeo as persons shown in the footage, but there is no further statement from Ms Lean that allows an assessment of whether she says it is Mr Mahant who did the “cleaning” or Mr Romeo, or what else she can say having now seen the footage.

44. Mr Whitehead’s material shows that there is an ongoing investigation, and that despite it only being commenced in April 2020, there is a wealth of relevant information still available to the defendant, and as yet not fully explored.

Relevant rules

45. Rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides that the court may set aside or vary a judgment or order after it has been entered if it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order.

46. Rule 6.2 of the UCPR provides for the proceedings to be commenced by statement of claim or summons, and requires that the originating process be served on each defendant.

47. Rule 6.2(4) provides that originating process - in this case the Statement of Claim filed in September 2018 - is valid for service for six months after the date upon which it is filed.

Plaintiff’s submissions

48. The only relevant period to scrutinise, given the application to extend time is for the service of the stale Statement of Claim, is action taken and reasons outlined as to what occurred between 18 September 2018 and February 2020. The proceedings were filed in time. There was an attempt at service on 19 September 2018 to an address from which correspondence had emanated from the defendant in 2016 and where that correspondence requested all future correspondence be addressed to that person. These are important factors to bear in mind.

49. Because this is not an application to extend the limitation period, cases that deal with that issue should be distinguished.

50. The plaintiff herself was blameless and regularly pursued her solicitor regarding next steps between November 2018 and September 2019 when the solicitor revealed the truth that the matter had been dismissed back in November 2018.

51. Tolcher v Gordon (2005) 53 ACSR 442; [2005] NSWCA 135 at [91] is support for the proposition that the only period the Court needs to consider is the period of time and steps taken once the Statement of Claim was filed:

“[91] In limitation period cases, the relevant time limit begins to run from the accrual of the cause of action. In want of prosecution cases, on the other hand, the relevant time period begins to run from the time proceedings are instituted. This difference reflects the period of delay that is relevant to the exercise of the court’s discretion in each case. In the case of the former, the court is being asked to exercise its discretion to extend the time within which a plaintiff is entitled to initiate proceedings. Thus, it is the delay in instituting the proceedings that is relevant. Such delay is to be measured from the time at which the plaintiff could first have instituted proceedings (that is, the time of the accrual of the cause of action). In the case of the latter, by contrast, the court is being asked to exercise its discretion to strike out proceedings on the grounds of inaction in prosecuting proceedings already commenced within the limitation period. Thus it is the delay in prosecuting the proceedings that is relevant. This delay is to be measured from the time at which the action was instituted (that is, the time of the filing of the statement of claim)”.

52. Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [41] effectively states that the Court should look at the length of the delay, reasons for the delay and the conduct of the parties. In this context the attempt at service is very important, as is the steps taken by the plaintiff herself to pursue the matter.

53. The available CCTV footage demonstrates certain key matters as evidenced by the stills from that footage tendered on the application (Exhibit E). The sequence of events is shown via the time stamps on the footage and appears on the face of it to reveal that at 16:48 there is a spill of what appears to be green liquid. At 16:52 there are clear images of a male person with a mop and bucket and shortly afterwards there are clear views of the plaintiff turning and falling in the same area.

54. The CCTV footage is of reasonable quality. It shows the area of the fall, the spillage, the person attempting to clean it and the signs placed around the area. This combined with the Duty Manager Ms Lean’s evidence and her good recollection of the event, as well as the contemporaneous incident report, means that the defendant can have a fair trial.

55. In terms of the damages case, the Court should infer that medical records will still be available - although no evidence was led that they in fact were available - and that given the accident was five years ago the Court should assume the records will be available given requirements to keep records imposed upon doctors and hospitals.

56. The fact that the plaintiff was a law student should not be a factor taken into account as relevant in circumstances where she relied upon her solicitor to take appropriate steps. Once she became aware that the solicitor had not, she took appropriate action, as set out in her affidavit, chasing up the solicitor when the directions hearing was missed, and then regularly pursuing the solicitor for updates. She did not know that the matter had been dismissed and once she found that out, she retained a new solicitor and pursued this application to reinstate the matter.

57. The defendant can still retain an expert to assess the floor. It knows what the substance was that was spilt. There is no evidence that the floor has changed. Tests can still be carried out.

58. Damages evidence can be served by the plaintiff almost immediately and there will be no further delay.

59. The size of the claim is not a valid issue to take into account and in any event is a matter for evidence and for the trial judge.

60. The claim has reasonable prospects of success and it would be “unfair not to allow the case to proceed where the plaintiff has an arguable case available”.

Defendant’s submissions

61. The defendant submitted that the absence of explanation as to what occurred between the solicitor being retained in late 2015 and the filing of the Statement of Claim in September 2018 is fatal to the application. It argued that the inference I should draw from the absence of such material is that it would not have assisted the plaintiff’s application: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418.

62. The Court therefore has an inadequate explanation as to what occurred over the first three years of the now almost five years since the fall and so the Court cannot find that the length of and reasons for the delay have been explained. The persons who could explain it, the former solicitor for the plaintiff and the plaintiff, have not done so in the affidavits from both tendered on the application.

63. Pell v Hodges [2007] NSWCA 234 is an illustration of how the Court should deal with the application. As stated by Handley AJA at [44]:

“In these circumstances delay within the limitation period is also relevant to the exercise of the discretion to extend time for service of proceedings. A plaintiff who issues proceedings just before the limitation period and only then has the merits of the case investigated should not have any expectation of obtaining an extension of time to enable investigations to continue. There should also be no expectation that time spent in this way after the statement of claim has been issued, especially after it has become stale, will be accepted as an adequate explanation for such delays. Her case is not improved if investigations were carried out with reasonable diligence, but proved negative.”

64. The defendant acknowledged however that Pell v Hodges is also authority for the proposition that the discretion to grant an extension of time under r 1.12 of the UCPR is unfettered and the defendant does not have a prima facie right to retain the benefit of expiry of a limitation period, nor does the plaintiff have a prima facie right to an extension because of a legitimate interest in the prosecution of her case.

65. In what is, in my view, an overstatement of the available evidence, the defendant insisted that the relevant witness was confined to the person tasked with cleaning up the spill on the day and he is “not going to be available to the defendant”, and he “can’t recall it” and so the defendant is irremediably prejudiced.

66. The lapse of time means that investigations on the floor surface have not been done. The defendant submits, somewhat volubly, that it has now “lost the opportunity to arrange for any useful expert evidence in relation to the question of liability”.

67. It was asserted that the lapse of time means that the defendant is prejudiced in its investigation of injuries and damages, and it has only been served with the Statement of Particulars “quite recently”. It is asserted, somewhat feverishly, that the defendant “cannot even start to gauge the level of prejudice it has suffered in relation to the question of damages in circumstances where it has not been served with any medical material in relation to the plaintiff’s alleged injuries.”

68. The defendant argued that the Court should not assume availability of CCTV footage is a panacea to the question of whether a fair trial can now be held given statements by the courts as to the care with which CCTV footage should be assessed and the fact that it does not provide a “single unambiguous answer”: Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [54]-[55]:

“[54] While the CCTV footage is undoubtedly useful, it is important to bear in mind the limitations of such evidence. Courts have repeatedly warned about the dangers of relying on photographic evidence, particularly in relation to perspective and distance. The warnings include the “sage advice” of Lord Reid that lawyers are not experts in reading or construing photographs and thus should generally not adopt their own interpretation of the photographic evidence on contested issues.

[55] Similar warnings have been given in relation to CCTV footage. In QBE v Orcher, for example, Tobias AJA said that the weight to be attached to CCTV footage:

‘is very much depend[e]nt on the quality and clarity of the images they depict as well as the context in which they were taken.

His Honour observed that CCTV footage can be quite misleading and was in that case because the footage was “very dynamic”.’” (footnotes omitted)

69. The defendant submitted that because this Court has only been shown the still images and not the CCTV footage, the Court “should not adopt its own interpretation of the photographic evidence on the contested issues” and should basically “place no reliance on the photos at all” other than that they confirm that the plaintiff fell.

70. The Court also can and should take into account the fact that the plaintiff clearly has a strong case in negligence against her solicitor so she will not be left entirely without remedy. It is a relevant consideration, and the weight of it depends on the circumstances. It cannot be dismissed as an impermissible consideration: Andresakis & Skouteris v Alexus Holding Pty Ltd (2006) 68 NSWLR 507 at [92] per McColl JA.

Decision

71. In my view the relevant delay has been explained. I accept that the solicitor tried to serve the proceedings the day after filing at an address she had reason to believe was the correct address. She was wrong and should have checked, but this is nothing like Pell v Hodges where tactical decisions were made that ended up causing problems for the litigant.

72. It is clear from the plaintiff’s affidavit that she wanted her case progressed. She instructed a solicitor within a month of her fall, the proceedings were filed in time and the solicitor made an effort to serve the proceedings promptly after filing. Whilst it would be interesting to have an explanation about why the proceedings were filed just before the expiration of the limitation period, it is not in my view necessary and certainly is not fatal.

73. The focus of my discretion should be the length of and reasons for the delay since filing. In effect, the proceedings were “served”, ineptly, very shortly after the limitation period expired. The solicitor missed the directions hearings that were listed in a surprisingly short time frame after the filing of the proceedings. She then failed to tell her client until almost another year elapsed. The length of the delay and the reasons for it are able to be inferred and do not need to be spelt out - the solicitor was inept.

74. Having said that, it is not an answer to the application to simply say the plaintiff can sue her solicitor. As is well known, such cases are complex and the damages limited to an assessment of the value of the loss of a chance of pursuing her action. This is very different to having her case heard and determined on its merits. It is however a factor that I must and have taken into account.

75. Counsel for the plaintiff submitted that it would be “unfair not to allow the case to proceed where the plaintiff has an arguable case available”. Whilst this is a relevant consideration, it is not the test. The key question is, to my mind, whether a fair trial can still be held given the delays that are adequately explained by the solicitor’s apparent ineptitude.

76. The defendant’s approach is to take and examine separately the difficulties it asserts it has with being able to deal in an ideal fashion with each distinct part of the litigation. There is however in my view no requirement for there to be able to be a perfect trial - even if such thing existed; just a fair trial.

77. There was unrealistic focus in the defendant’s submissions on what I consider to be an incomplete investigation and nothing more than preliminary approaches to the young male team member supposedly “responsible”. The reality is that the defendant is Coles, not that individual so the adequate defence of the claim is not wholly reliant on that one person’s evidence. Evidence of systems, including supervision, the availability of proper cleaning materials and equipment given the issue seems to have been a sticky floor where the substance spilt and only party cleaned, are all aspects that clearly can be the subject of evidence in the defence case. There is no suggestion that such evidence cannot be called. Indeed, to the contrary, the shift supervisor Ms Lean has an excellent recollection and has already provided detailed evidence in a signed statement covering a number of critical facts.

78. The combination of her detailed evidence enhanced and aided by what is shown on the CCTV footage stills indicates to me a fair trial can still be held on the issues relevant to the defendant’s liability.

79. The affidavit evidence of the investigator shows a partly completed investigation. He is far from having run out of leads and people to talk to. The efforts made to re-contact the young team member asserted to be responsible are only obliquely stated and are in my view incomplete. I am not prepared to find, as the defendant submits, that that person is “not available” to the defendant. It is my view that a fair trial can be held, based on the material already obtained, putting aside what may still be obtained with ongoing competent investigation.

80. There is no evidence that the floor at the Coles store has been changed and so cannot be tested by experts, should such testing be thought to be necessary. The defendant in opposing the application as it does should have tendered such evidence and no doubt would have done so if it was an available argument to press, given it has pressed almost every conceivable argument it could in order to argue against the relief that the plaintiff has sought.

81. The plaintiff’s mother advised Coles very soon after the fall about the injury sustained. There is on the court file, able to be uplifted if necessary, hospital records about the initial treatment of the plaintiff’s arm. The events are not so long ago that subpoenas issued to investigate all aspects of the damages claim would be unlikely to produce documents responsive. With a frank injury such as a fracture, there will no doubt be progress x-rays and consultations with orthopaedic surgeons, GPs and physiotherapists. Treatment may well still be continuing. There was no evidence of what the defendant has done to investigate damages, despite having the application served upon it many months before the hearing.

82. The UCPR regarding service of detailed particulars and expert evidence can be emphasised, and, if necessary, enforced by case management to bring the matter for trial as soon as practicable.

83. The proceedings have the hallmarks of a matter that could be case managed to an early resolution. The issues are not complex. Judicial case management may well see the matter with a hearing date by mid-2021. This would be less than 6 years after the events. There is nothing in the evidence, or in the submissions made, that leads me to suspect that a fair trial on damages issues cannot be held.

84. There is another matter to which I should refer and that is the public interest in maintaining the finality of litigation. The difficulty with strict application of that consideration to the circumstances here is that nobody was heard. That seems to me to be the bigger injustice potentially if the plaintiff’s application is rejected. The public interest is not served by simply refusing to look more broadly at the question of whether the circumstances are explained and whether it is too late for a fair trial, simply because of an understandable error of service and an unfortunate series of failures on the part of a solicitor.

Costs

85. Given the proceedings had been in effect struck out, the notice of motion and evidence in support was necessary for any reinstatement to be facilitated. In other words, this is not the type of application that can be furthered by consent between the parties.

86. The defendant had to consider the evidence and whether to oppose the application or not. I observe that very significant evidence was filed only the day before the hearing on both sides - the affidavit of Ms Healey for the plaintiff and the affidavit of Mr Whitehead for the defendant. The company search explaining the relevance of the wrong address used for service was tendered during the hearing, as were the still images from the CCTV footage.

87. The defendant chose to oppose the application and brief senior counsel to argue against reinstatement. There was an almost full day of argument and written submissions both before and after the oral argument. The defendant’s arguments have failed however the plaintiff is effectively seeking an indulgence from the Court.

88. In the circumstances, it seems to me that the usual rule that costs follow the event, is displaced. The order I propose to make is that each party pay its own costs of the application. If either party wishes to propose a different order, she or it should do so by filing and serving submissions in writing of not more than two pages by 22 December 2020, and I will deal with any application to vary the costs order at the directions hearing listed before me on 15 February 2021.

Orders

89. I make orders as follows:

1. The orders made by Registrar Kenna on 22 November 2018 are set aside.

2. The proceedings are reinstated to the list.

3. Pursuant to r 1.12 of the UCPR, I extend the time for the plaintiff to serve her Statement of Claim to 5:00pm 7 August 2020.

4. Each party is to bear its own costs of this application.

5. The plaintiff is to file and serve an updated, rule-compliant Amended Statement of Particulars on or before 8 February 2021.

6. The defendant is to file and serve its Defence on or before 19 January 2021.

7. The matter is listed for directions before Lonergan J at 9:30am on Tuesday 15 February 2021.

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Decision last updated: 15 December 2020