McCloskey v Transport Accident Commission (Ruling)

[2014] VCC 2267

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No.  CI-10-03775
CI-10-06029

ROSIE McCLOSKEY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2014
DATE OF RULING:	7 November 2014 (Revised)
CASE MAY BE CITED AS:	McCloskey v Transport Accident Commission (Ruling)
MEDIUM NEUTRAL CITATION:	[2014] VCC 2267

RULING
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Subject:  TRANSPORT ACCIDENT

Catchwords:             Transport accident – plaintiff injured in two separate transport accidents – two separate Originating Motions filed seeking leave to bring a proceeding at common law – significant delay between the date of the filing of the Originating Motions and fixing the proceedings for trial – trial date fixed for 13 November 2014 – solicitors retained by the plaintiff who filed an Appearance on 6 November 2014 – application for vacation of the trial date

Legislation Cited:     Transport Accident Act 1986, s93(4)(d); County Court Civil Procedure Rules 2008

Ruling:  Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J King	Robinson Gill
For the Defendant	Mr S Pinkstone	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

1       The plaintiff alleges that she was injured in two separate transport accidents.  The first occurred on 1 April 2003.  The second occurred on 17 October 2004.

2 The plaintiff instructed Barbante & Associates, solicitors, to act on her behalf. The plaintiff filed an Originating Motion with respect to the first transport accident on 26 August 2010. She filed a second Originating Motion with respect to the second transport accident on 20 December 2010. In both proceedings, she sought the leave of the Court to bring a proceeding at common law pursuant to s93(4)(d) of the Transport Accident Act 1986.

3 Barbante & Associates filed a Notice of Ceasing to Act dated 23 August 2011, pursuant to Rule 20.03 of the County Court Civil Procedure Rules 2008, in relation to the Originating Motion filed 26 August 2010. The firm filed a second Notice of Ceasing to Act dated 21 March 2012 in relation to the Originating Motion filed 20 December 2010.

4       Following service of the Notices of Ceasing to Act, the plaintiff was then self-represented until 6 November 2014, when she retained Mr J King, solicitor, of Robinson Gill Solicitors.

5       The trial of both proceedings is fixed for 11 November 2014.  Mr King applied for orders to vacate the trial date, and for other procedural orders.  Mr Pinkstone, solicitor for the defendant in both proceedings, opposed the application.

6       After hearing the submissions made by both Mr King and Mr Pinkstone, I decided that the best course was to review the files in both proceedings, and to compose a short ruling in writing for the benefit of the plaintiff, who did not personally appear at the directions hearing.

Some relevant history

7       A perusal of the file reveals the following:

·        Both proceedings were fixed for trial on 16 August 2011.

·        The date of trial was vacated by an Order dated 28 June 2011.

·        The proceeding was re-fixed for trial on 27 August 2012.

·        The date of trial was vacated by an Order dated 20 July 2012.

·        On 8 February 2014, Judge Saccardo ordered that he would retain management of all of the pre-trial issues in the proceedings.  His Honour re-fixed the proceeding for trial on 11 November 2014 with priority.

·        Between the Order made on 8 February 2014, the proceeding was subject to directions hearings on 7 March 2014, 1 May 2014, 11 July 2014, 29 August 2014 and 3 October 2014.

·        The Orders made on 11 July 2014 and 3 October 2014 confirmed the date of trial.

8       At the directions hearing on 11 July 2014, the plaintiff was represented by her husband, Mr D McCloskey.  The plaintiff’s husband appeared at a Directions Hearing on 29 August 2014 when Judge Saccardo made an Order that the proceedings be listed for further directions on 3 October 2014.  Neither the plaintiff nor her husband appeared at the directions hearing on 3 October 2014.  My enquiries disclose that the plaintiff was sent a copy of the Orders made on 3 October 2014.

The effect of the Orders

9       What is clear to me is that numerous Orders have been made which make it abundantly clear what steps the plaintiff has been required to take in order to make herself ready for the trial of the proceedings.  Furthermore, since Judge Saccardo retained management of all of the pre-trial issues in the proceedings, he made a number of Orders which must have reinforced in the plaintiff’s mind that the trial date was looming and that any preparation she needed to undertake needed to be completed in a timely fashion.

The Plaintiff submissions

10      In my time at the Court, I have not seen a proceeding which has been given the degree of attention which these proceedings have been given.  Nor have I seen a proceeding given the close attention given to it by Judge Saccardo.  Despite the foregoing, Mr King informed me that the plaintiff is not ready for trial.  He submitted that the plaintiff needed an adjournment until some time next year to undertake the preparation of further affidavits and medical examinations in order to be ready for trial.

11      Mr Pinkstone submitted that the application to vacate the trial date should be refused, because the two transport accidents occurred a long time ago, in 2003 and 2004.  The plaintiff has refused to attend medical examinations organised by the defendant.  The aggregate effect of the lapse of time between the two transport accidents and the present, and the plaintiff’s refusal to be medically examined, has materially prejudiced the defendant’s capacity to prepare any meaningful response to the plaintiff’s proceedings.

Disposition

12      Mr King did not produce any evidence to satisfy me that the vacation of the trial date will serve any useful purpose.  What is clear from the short relevant history I summarised above is that both proceedings were filed in 2010.  The plaintiff did nothing to retain alternative representation after her former solicitor filed and served a Notice of Ceasing to Act.  She was content to allow the proceeding to meander on.  She serially ignored the encouragement given by Judge Saccardo to undertake relevant and necessary preparation for trial, and in particular, ignored two warnings contained in the Orders on 11 July 2014 and 3 October 2014 that the trial was fixed for 11 November 2014 and was expected to proceed on that date.

13      Judges appreciate that self-represented litigants are at a serious disadvantage and special attention must be given to self-represented litigants to assist them in preparing their proceeding for trial.  However, there is a point in time where patience of judges is exhausted when a self-represented litigant refuses to comply with orders and to pay due regard to the encouragement given by judges to undertake preparation in order to be ready for a trial.  This is one such case.

14      I am not prepared to accede to the application made by Mr King.  I have no confidence that the plaintiff will comply with any procedural orders.  I think the history of this proceeding thus far resonates with a refusal by the plaintiff to prosecute the proceeding with any serious interest.  Of course, the interest of the defendant cannot be ignored.  It has no doubt been put to considerable cost and expense in attending an extraordinarily large number of directions hearings, and undertaking the preparation it can to meet the case which the plaintiff intends to bring before the Court.  I agree with the submission made by Mr Pinkstone, that the defendant has been prejudiced by the lapse of time and the plaintiff’s refusal to attend medical examinations.

Orders

15      The orders I make are that the plaintiff’s application is refused, and that the plaintiff must pay the defendant’s costs of this application to be assessed by that Cost Court, in default of agreement.

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