HEMPSELL v Westpoint Constructions Pty Ltd - [2006] WADC 91

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HEMPSELL -v- WESTPOINT CONSTRUCTIONS PTY LTD [2006] WADC 91

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 7 APRIL 2006

DELIVERED : 23 JUNE 2006

FILE NO/S: CIV 2450 of 2000

BETWEEN: STEPHEN JOHN HEMPSELL
Plaintiff
AND
WESTPOINT CONSTRUCTIONS PTY LTD
Defendant

Catchwords:

Practice - Application to dismiss for want of prosecution

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: No attendance
Defendant: Mr A Power

Solicitors:

Plaintiff: Bradford & Co
Defendant: Minter Ellison

Case(s) referred to in judgment(s):

Burkett v James [1978] AC 297

Case(s) also cited:

Carter v Standen, unreported; FC SCt of WA; Library No 970271; 28 May 1997
Hughes v Gales (1995) 14 WAR 434
Lewandowski v Lovell (1994) 11 WAR 124
Shtun v Zalejska [1996] 3 All ER 411
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93
Tricon Industries Pty Ltd v Abel Lemon & Co Pty Ltd (No 2) [1998] 2 Qd R 551
Ulowski v Miller [1968] SASR 277

DEPUTY REGISTRAR HARMAN: In this action the plaintiff claims for damages for loss arising from personal injury as a result of the defendant's negligence. At the relevant time the plaintiff alleges that he was moving heavy panels. The negligence of the defendant is contended for on the basis the building site upon which he was undertaking the work was cluttered, that he repeatedly moved the panels, that it did not provide the plaintiff with assistance, adequate warning or instruction in relation to the dangers associated with undertaking the work and that it was unsafe to undertake the work. As a result he claims that he sustained a low back and right leg injury. The defendant admits that the plaintiff was employed by a third party who had been contracted by the defendant to undertake work at the building site and alleges that the third party was an occupier of the site. It asserts that it exercised reasonable care in the selection of the third party to undertake the work and supervised the third party and as a consequence it would not be liable under relevant legislation for the negligence of the third party. It also pleads that the plaintiff contributed to his own injury in that he failed to take reasonable care for his own safety by failing to follow correct lifting procedures as outlined in the defendant's safety induction booklet. Otherwise it denies the plaintiff's claim.
The action was entered for trial in April 2000 and progressed to the point that it was listed for trial on dates in March 2003. The trial dates were vacated by order made 7 March 2003 and on the 27 October 2003 the plaintiff's former solicitors obtained an order that they be removed from the record.
By the application before me the defendant seeks to have the action struck out for want of prosecution. The application specifies that there has been an inordinate and inexcusable delay on the part of the plaintiff and that the delay will give rise to a substantial risk that it would not be possible to have a fair trial of the issues and would cause serious prejudice to the defendant. That formulation follows the second limb of the test for the exercise of jurisdiction to dismiss for want of prosecution expounded upon by Lord Diplock in Burkett v James [1978] AC 297.
The onus of persuasion is on the defendant. The plaintiff did not attend and was not represented at the hearing. Although the plaintiff's former solicitor's obtained an order that they cease to represent the plaintiff. It was made in the usual terms; that is, subject to compliance with the provisions of O 8 r 7 of the Supreme Court Rules by which the applicants were required to file a certificate to the effect that they had complied with the obligation to serve notice of the order upon all parties to the action. Such certification has not been filed.
In his affidavit of the 6 February 2006 Allan George Warner gives evidence that he served the plaintiff with a letter and documentation from the defendant's solicitor. The letter was dated the 13 January 2006 and it referred to the application having been before the Court on the 16 December 2005 at which time it had been adjourned to a special appointment for hearing. The documentation enclosed with that letter was a copy of a letter sent to the plaintiff dated 8 December 2005 which in turn had enclosed the application and the affidavit of Jacqueline Marie Kubacz sworn 6 December 2005. Warner deposes that the conversation that he then had with the plaintiff indicated his familiarity with the action, the application or both.
In his affidavit of 5 April 2006 Matiu Scott Molesworth describes service on the plaintiff on the previous day of a letter addressed to the plaintiff from the defendant's solicitors dated 24 March 2006 and an enclosure. I am not aware of the content of the letter or the nature of the enclosure. Molesworth describes the process by which he identified the plaintiff and the plaintiff's response to the service of the letter and its enclosure upon him. It was that what I take to have been both the letter and the enclosure were placed in a rubbish bin which the plaintiff then closed and returned inside his residence. On some basis that is not apparent to me Molesworth is able to depose that the letter and accompanying documentation related to another document that he does not identify that had then been recently served upon the plaintiff.
On the basis on that evidence I am satisfied that the plaintiff was served with at least the application and affidavit of Kubacz and was aware that the defendant had sought to have the application listed for a special appointment. On examining the court file it is evident that the plaintiff had been forwarded a copy of a letter informing the parties of the date for hearing the application at the same address at which both Warner and Molesworth attended upon the plaintiff. There is no indication that the letter has been returned undelivered. Why the registry took that course rather than communicating with his former solicitors is not apparent. On balance, despite the significance of the relief sought by the defendant, in my opinion it is appropriate to consider that the applicant was aware of the hearing date assigned to the application. It is conceivable that the other evidence that relates to the application, the affidavits of Nathan John Hepple, Jacqueline Marie Kubacz and Lisa Jean Linton each of 31 March 2006 were served by Molesworth as they had each been filed prior to the date of service by him. Whether I ought to be satisfied, I have reservations.
The events the subject of the pleadings occurred on 8 June 1999. The plaintiff has not filed any affidavit in opposition to the application and so the only evidence as to the events that have transpired since the trial dates were vacated is provided by the evidence in support of the plaintiff's former solicitor's application to be removed from the record, the evidence in support of the defendant's application for a stay of the proceedings which was listed for hearing on the 17 November 2003 and that filed in support of the application before me.
The evidence in support of the plaintiff's former solicitor's application puts forward the details of a conversation between a law clerk employed by those solicitors and the plaintiff which was to the effect that the solicitors were no longer acting for him. She is also the source of information conveyed by the deponent that the plaintiff had spoken to the defendant's solicitors in similar terms. On the application for a stay the defendant relied on the fact that it had made arrangements for medical reviews of the plaintiff to be conducted and that the plaintiff had failed to keep appointments fixed for those reviews. The evidence relates to events that occurred at the latest in September 2003.
In her affidavit of 6 December 2005 Kubacz deposes to what she describes as the last known positive act by the plaintiff being his attendance at a medical review for the defendant on 20 March 2004. The last action taken by the defendant in the action was under an offer to settle which is identified as having being made on 12 October 2004. Since it was made the defendant has received no response.
In my opinion in the absence of evidence from the plaintiff it is appropriate to conclude that since that time there has been a period of delay in the action. The length of that period is significant and in the absence of any explanation, is inordinate. In light of the reservation that I have expressed as to service of the balance of the affidavits I do not consider that there is much point in canvassing the balance of the applicant's case. There is no reason to consider that there is any feature of the application that would justify departure from the process of service that applies to any interlocutory application.
The action is one in which it is appropriate for the Court to consider whether it would be fairly tried in light of the length of the between the material date and the likely day of trial. Such a period of time would give rise to concern that memory would have faded. That said, it would be difficult to translate such an impact to the period of delay attributable to the plaintiffs recent inaction. The exchange between the plaintiff and Molesworth does give some impetus to consideration that in not dismissing the claim the Court would maintain it for no good reason. It is more probable than not that the plaintiff knew that his words and actions would be relayed to the Court. Be that as it may, they are not determinative of the issue to be considered. In my opinion it would not be inappropriate to act in accordance with what may be revealed by the plaintiff's attitude if a failure to act on his behalf within a reasonable period of time did not see the action progress to some form of resolution.
The only outstanding step in the proceedings that the plaintiff would presently be required to undertake is to file notice of intention to proceed. I propose that the plaintiff's intention be tested by requiring that such a notice be filed and served.