Mander Forklift Pty Ltd v Singles
[2014] ACTCA 44
•8 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Mander Forklift Pty Ltd v Singles |
Citation: | [2014] ACTCA 44 |
Hearing Date: | 12 August 2014 |
DecisionDate: | 8 October 2014 |
Before: | Gilmour J, Walmsley AJ and Robinson AJ |
Decision: | Appeal allowed with costs. |
Category: | Principal judgment. |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Interference with discretion of court below – general principles – functions of appellate court |
Cases Cited: | Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 |
Parties: | Mander Forklift Pty Ltd (Appellant) Rodney Francis Singles (Respondent) |
Representation: | Counsel Mr B. Meagher SC (Appellant) Mr M. Neil QC with Mr R. Di Michiel (Respondent) |
| Solicitors Dibbs Barker (Appellant) Gathercole & Associates (Respondent) | |
File Number: | ACTCA 50 of 2013 |
Decision under appeal: | Court/Tribunal: ACTSC Before: Nield AJ Date of Decision: 31 July 2013 Case Title: Rodney Francis Singles v Mander Forklift Pty Ltd (No 2) Citation: [2013] ACTSC 150 |
THE COURT:
Background
These proceedings are an appeal against the orders made on 31 July 2013 by Acting Justice Nield whereby His Honour allowed an appeal against the decision of Master Harper given on 30 March 2012.
Master Harper had heard an application brought by Rodney Francis Singles (the Plaintiff) to reinstate his proceedings under rule 76 of the Court Procedures Rules 2006 (ACT) (the Rules) which proceedings had been taken to have been dismissed by operation of rule 75(2) of the Rules.
Those rules are in the following terms:
75 When proceeding taken to be dismissed
...
(2) Also, a proceeding is taken to be dismissed in relation to a party if the party does not take a step in the proceeding before the end of 1 year after the day the last step was taken in the proceeding.
...
76 Reinstating dismissed proceeding
(1) A person whose proceeding has been dismissed under rule 75 may apply to the court to reinstate the proceeding.
(2) The court may reinstate the proceeding if it is in the interests of justice to reinstate the proceeding.
...
It is convenient to set out a brief chronology of “steps in the proceedings”. The Plaintiff commenced an action on 9 August 2000. He claimed damages for personal injury which he suffered while loading a pallet by the use of a pallet truck whilst employed by Australia Post. According to his Originating Application the pallet truck malfunctioned and the Plaintiff’s injuries were said to be caused by the negligence of Mander Forklift Pty Ltd (the Defendant), who had supplied the truck to Australia Post, in not adequately maintaining the pallet truck. The injury is said to have occurred on 26 July 1997.
The Defendant filed an appearance and a defence in March 2001. No admissions were made in the defence.
By 14 August 2003, the Defendant had sent a certificate of readiness to the Plaintiff pursuant to Practice Direction No. 1 of 1990 (the predecessor of current rule 1306).The Defendant then asked the Registrar to fix a listing conference in circumstances where the Plaintiff had not returned a certificate of readiness. The Listing Conference was adjourned a number of times and on 1 April 2004 the proceedings were stood over generally by the Deputy-Registrar with parties at liberty to restore the proceedings to the active cases list on 3 days’ notice. Neither party took up this option.
Rule 75 came into effect on 1 July 2006.
No step in the proceedings was taken and by reason of the operation of that rule the proceedings were automatically dismissed on 2 July 2006.
It is common ground that there was no “step in the proceedings” as that term is understood, until 10 January 2012 when the application for reinstatement was filed.
10. In the meantime, the Plaintiff’s solicitor was continuing to prepare for trial, albeit making slow progress, until December 2010 when he first became aware that the proceedings had been dismissed. No notification was sent by the court; nor was the court required to send, at that time, either a warning that the case could be dismissed or that the case had actually been dismissed.
Application before Master Harper
11. On the hearing before Master Harper, the Plaintiff read two affidavits. They were both sworn by the solicitor for the Plaintiff. These affidavits set out the following:
· the circumstances of the incident and the injuries;
· the fact that the forklift truck concerned was now unable to be identified;
· that medical reports had been obtained;
· the engagement of an expert engineer and circumstances of delay;
· a chronology of activity on behalf of the Plaintiff;
· that there was some evidence that the Defendant had investigated the incident and obtained workers compensation files from Australia Post in 2002 which included incident reports and witness statements; and
· that in December 2010 the Plaintiff’s solicitor became aware for the first time the matter had been struck out and the Plaintiff’s solicitor had been unaware of the rule of court which led to this circumstance.
12. The Defendant did not call any evidence and from that fact it was open to His Honour to conclude the Defendant had not suffered any specific prejudice which might have otherwise resulted because of the circumstances of the matter. There was an evidentiary onus on the Defendant to raise such prejudice.
13. The Master correctly stated that a party who invokes rule 76 carries the burden of showing that it is “in the interests of justice” to reinstate the proceedings. The rule does not provide any elaboration on this expression. A number of cases have set out criteria to which the court should have regard when exercising the discretion. Because of the limited matters which are in controversy in this appeal it is not necessary to set out and draw from those cases.
14. The Master made no finding of actual prejudice but found prejudice to the Defendant could be assumed simply from the nature of the cause of action and the length of time since the cause of action arose “now almost 15 years ago”. The Master gave as authority for this proposition Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 544 per Dawson J.
15. The Master also referred to the often quoted passage from the judgment of McHugh J in Brisbane South at 551 where observations are made upon delay and the consequent deterioration of justice through that delay, albeit, the Master noted, that these observations were made in the context of an application to extend a limitation period.
16. Referring to the observations of McHugh J, the Master stated:
23. That passage is particularly apposite in circumstances where it is nearly fifteen years since the injury. It can be assumed that after such a lapse of time the defendant will be at a disadvantage in relation to both liability and quantum.
24. The fact that the plaintiff could have kept this action from being notionally dismissed by filing a notice annually is not to the point. The factors which are significant are the length of time since the cause of action arose; the length of time since the litigation was commenced; the fact that the litigation has been characterised by lengthy delays attributable to the plaintiff or his solicitors; the lack of a satisfactory explanation for the delay; and the likelihood of prejudice to the defendant.
25. In an application to reinstate, often a crucial consideration will be whether a fair trial remains possible. It is not for the defendant to establish that it does not, but rather for the plaintiff to satisfy the court that it does. I am not satisfied that, after fifteen years, a fair trial remains possible. Nor am I satisfied that in any event, having regard to the other factors I have listed, the plaintiff has made out a case for the reinstatement of the action.
Appeal before Acting Justice Nield
17. The Plaintiff appealed from the decision of Master Harper. The grounds of appeal were:
(i) the Master gave too much weight to the assumed prejudice to the defendant in balancing the merits required by rule 76 of the Court Procedures Rules 2006 in the reinstatement application.
(ii) it is in the interests of justice to reinstate the proceedings.
18. It should be noted that the ground of appeal in (i) above, on its face, runs contrary to the decision in House v the King (1936) 55 CLR 499. It was common ground that Master Harper’s decision was a discretionary judgment and could not be overturned except on principles enunciated by Dixon, Evatt and McTiernan JJ in House v the King. As to the ground in (ii), this is a conclusion and will have no operation until a vitiating error is otherwise found in the judgment.
19. The appeal came before Acting Justice Nield. For relevant purposes, the same body of evidence was before the court on the appeal.
20. Acting Justice Nield upheld the appeal. Under a heading “Result” His Honour said:
33. In the result, I am satisfied that Master Harper’s exercise of his discretion miscarried. I consider that he did not give enough weight to the fact that the proceedings were stood over generally on 1 April 2004 pursuant to an order of the court. Also, I consider that he gave too much weight to the mere passage of time without considering whether the passage of time prejudiced Mander Forklift. Furthermore, I consider that he gave too much weight to the presumption that Mander Forklift had suffered prejudice without considering whether, in fact, it had suffered prejudice. Moreover, I regret to say that Master Harper appears to have overlooked the fact that on 14 August 2003 the then solicitor for Mander Forklift sent a certificate of readiness to the appellant’s then solicitor. I assume, as I have said already, from this that Mander Forklift’s then solicitor regarded Mander Forklift as being ready for the hearing of the appellant’s claim. There is nothing in the evidence which shows that the position of Mander Forklift has changed since 14 August 2003. Thus, I am satisfied that leave to appeal should be granted to the appellant to appeal against the decision of Master Harper.
34. I am satisfied, having regard to what I have said about the court’s order of 1 April 2004, the passage of time, prejudice, a fair trial and the effect of Mander Forklift’s then solicitors signing of the certificate of readiness, that it is in the interests of justice that the appellant’s claim be reinstated to the court’s active cases list.
Consideration
21. It can be seen that the Master’s decision was set aside on account of three instances concerning the weight to be given to factors and one instance of overlooking a fact.
22. The Master did not refer in his judgment to the fact that on 14 August 2003 the then solicitor for Mander Forklift sent a certificate of readiness to the appellant’s then solicitor. It received the briefest mention before Master Harper (AB 181 line 12). It was not the subject of a ground of appeal. It is a fair inference from the sending of such a certificate that the solicitor for Mander Forklift regarded Mander Forklift as being ready for the hearing of the appellant’s then known claim. However, it is not the case that Master Harper found that there was specific prejudice from the delay. He found an “assumed” prejudice and this was the subject of the ground of appeal. To say that “There is nothing in the evidence which shows that the position of Mander Forklift has changed since 14 August 2003” is not to negate an assumed prejudice. There was between the time of the incident in 1997 and the hearing before Master Harper a period of some 14 years and 8 months.
23. The principles to be applied from House v the King (1936) 55 CLR 499, 504 were not in dispute between the parties before Acting Justice Nield. Indeed, His Honour set them out in his judgment at par [24]:
24. ... In House v the King (1936) 55 CLR 499 at 504 the court said:
“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
24. The Application to reinstate the proceeding involved Master Harper making a discretionary judgment. He was, upon orthodox principles, entitled to give relevant factors such weight as he thought they deserved in the circumstances of the case. A judge on appeal from such a judgment has no authority to substitute his or her view as to the weight to be given to the same factors in coming to a conclusion that the discretionary judgment is in error.
25. Latham CJ in Lovell v Lovell [1950] 81 CLR 513 at 519 observed that when an appellate tribunal is considering questions of weight referrable to a discretionary judgment it is not in the same position as the primary judge. He explained that in the absence of exclusion of relevant considerations, or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the Court.
26. This formulation was adopted by McLure JA (Steytler P agreeing) in Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 at [36].
27. No such contention was put by the appellant nor were there grounds for it to have been put.
28. An allegation that a judge did not give sufficient weight to a particular matter in the exercise of a discretion is not the kind of error which attracts appellate intervention: Comcare v Post Logistics Australasia Pty Ltd (2013) 294 ALR 747 at [39]. The same in our opinion is the case where it is contended, as in this appeal, that too much weight was given to a matter.
29. There was in this case no appealable error going to the exercise of the Master’s discretion. The primary judge was in error in concluding to the contrary.
30. The appeal to Nield AJ ought to have been dismissed with costs.
Orders
31. The orders of the Court are:
(i) Allow the appeal to the Court of Appeal from Acting Justice Nield;
(ii) Set aside the orders made by Acting Justice Nield;
(iii) That, in lieu thereof, the appeal to Acting Justice Nield be dismissed; and
(iv) That the Respondent pay the Appellant’s costs of the appeal and the costs before Acting Justice Nield.
I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.
Associate:
Date: 8 October 2014
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