Micallef v ICI Australia Operations Pty Ltd

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      Micallef v ICI Australia Operations Pty Ltd & Anor [2001]  NSWCA 274

FILE NUMBER(S):
40522/00
40060/00

HEARING DATE(S):               8 August 2001

JUDGMENT DATE: 27/08/2001

PARTIES:
Elizabeth Micallef (Appellant)
ICI Australia Operations Pty Ltd (First Respondent)
Fibremakers Australia Pty Ltd (Second Respondent)

JUDGMENT OF:       Sheller JA Heydon JA Studdert AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 10710/97

LOWER COURT JUDICIAL OFFICER:     Garling DCJ

COUNSEL:
G T W Miller QC/M G McHugh (Appellant)
J N West QC/G B Evans (First Respondent)
P J Deakin QC/N Newton (Second Respondent)

SOLICITORS:
G H Healey & Co - Glebe (Appellant)
N W Aussel (First Respondent)
Pricewaterhousecoopers Legal (Second Respondent)

CATCHWORDS:
Civil Practice and Procedure - Dismissal for want of prosecution - Whether exercise of discretion of District Court Judge to strike out proceedings miscarried - Circumstances when appellate court will allow appeal against interlocutory judgment on practice and procedure - Where three District Court orders to file updated particulars were breached by plaintiff who failed to file the particulars by the dates specified in the orders - District Court Rules 1973 (NSW), Part 18 rule 3(1) - D

LEGISLATION CITED:
Arbitration (Civil Actions) Act 1983
District Court Act 1973
Supreme Court Act 1970

DECISION:
See paras 94 and 95

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40522/00

CA 40060/00
  DC 10710/97

SHELLER JA
  HEYDON JA
  STUDDERT AJA

Monday, 27 August 2001

ELIZABETH MICALLEF v
ICI AUSTRALIA OPERATIONS PTY LTD and
FIBREMAKERS AUSTRALIA PTY LTD

Civil Practice and Procedure - Dismissal for want of prosecution - Whether exercise of discretion of District Court Judge to strike out proceedings miscarried - Circumstances when appellate court will allow appeal against interlocutory judgment on practice and procedure - Where three District Court orders to file updated particulars were breached by plaintiff who failed to file the particulars by the dates specified in the orders - District Court Rules 1973 (NSW), Part 18 rule 3(1)

On 3 April 1989 the plaintiff (the appellant before the Court of Appeal) filed a Statement of Claim in the Common Law Division of the Supreme Court alleging that she suffered injuries as a result of her former employment with the defendants (the first and second respondents to the appeal).  On 9 June 1995 a Registrar made directions requiring the plaintiff to file particulars by 14 July 1995. There was delay in compliance. On 2 and 24 June 1997 the first defendant’s solicitor complained by letter to the plaintiff’s solicitor about a lack of updated particulars and threatened to apply to have the proceedings struck out.

On 3 December 1997 the proceedings were transferred to the District Court. A District Court Registrar ordered the plaintiff to provide updated particulars within two months of 25 March 1998. She did not provide the particulars. On 25 August 1998 the defendants formally complained to an Assistant Registrar and the plaintiff was further ordered to provide updated particulars by 1 October 1998 and…

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Details
Case
[2001] NSWCA 274
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against the dismissal of proceedings for want of prosecution. The plaintiff, who had commenced proceedings in the Supreme Court of New South Wales in 1989 alleging injuries sustained during her employment, appealed against orders made by a District Court Judge in March and December 1999 that struck out her claim. The appeal was brought before the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the District Court Judge had erred in the exercise of his discretion to dismiss the plaintiff's proceedings for want of prosecution. This involved determining whether the judge had applied the correct legal principles and whether his findings of fact were supported by the evidence, particularly in light of the plaintiff's repeated breaches of court orders regarding the filing of particulars and medical reports.

The District Court Judge had found that the plaintiff had demonstrated a total lack of diligence and had repeatedly failed to comply with court orders, including three specific orders to update particulars. The judge noted that the particulars of the plaintiff's claim had significantly changed over time, introducing new allegations, including the development of an alcohol problem, and increasing claimed losses, without corresponding updated medical evidence being provided to the defendants. The judge also considered the prejudice suffered by the defendants, including the sale of a factory relevant to the allegations and the difficulty in meeting claims due to the passage of time. He concluded that the case obstructed the court's ability to manage its lists and that dismissal was warranted under Part 18 of the District Court Rules 1973 (NSW). The Court of Appeal found no error in the District Court Judge's reasoning or application of legal principles.

The Court of Appeal dismissed the appeal, upholding the District Court Judge's orders striking out the plaintiff's proceedings for want of prosecution. The plaintiff was ordered to pay the defendants' costs.

Orders

Orders of the court

See paras 94 and 95

Background

Background to the litigation

The two Notices of Appeal are in identical terms. However, counsel for the plaintiff in this appeal accepted in oral argument that if the plaintiff’s attack on the reasoning that led to the 12 March 1999 orders failed, she could not succeed in her challenge to the orders of 16 December 1999. Accordingly, it is only necessary to consider the reasons for judgment delivered on 12 March 1999. Background In evaluating the reasoning of Garling DCJ which led him to make the orders of 12 March 1999, it is necessary to consider the procedural background as it emerged from the court records and the materials before him. The materials before him consisted of the two Notices of Motion filed by the defendants; the court files relating to proceedings as they were in the Supreme Court (which appear to have become incomplete and disordered over the years and as they have been moved about); the court files relating to proceedings as they were in the District Court; an affidavit filed by the solicitor for the first defendant dated 15 February 1999; an affidavit filed by the solicitor for the second defendant which expressed concurrence with the affidavit of the solicitor for the first defendant; an earlier affidavit filed on behalf of the first defendant recording breach of an order by the plaintiff; and two statements dated 8 October 1998 and 25 February 1999. (These statements were filed pursuant to a standard direction by a District Court Registrar in the following form:“If ANY PARTY is not ready to take a hearing date on the date it is listed before the List Judge then AT LEAST 5 DAYS PRIOR to that date you must file a statement setting out the reasons why the matter is not ready to obtain a hearing date.”)The affidavits of the solicitors for the defendants were not contradicted or qualified by evidence filed on behalf of the plaintiff, and neither deponent was cross-examined. The material revealed the following. The plaintiff was born in 1950. At some date which is unclear, the defendants, according to Defences they filed in the Supreme Court, began making workers’ compensation payments to the plaintiff. On 3 April 1989 the plaintiff filed a Statement of Claim in the Common Law Division of the Supreme Court of New South Wales. It alleged that from 14 May 1984 to 30 September 1984 the first defendant employed the plaintiff and from 1 October 1984 to June 1987 the second defendant employed the plaintiff. It alleged that she was employed as a converting operator in the yarn recovery section of a factory. It alleged that in her employment she suffered injuries for two reasons. The first reason alleged was that she was required to work on a bobbin winder and bobbin stripper machine: that work involved excessive and repetitive strain to her arms, and required her to stand and squat repeatedly during the course of her working day. The second reason alleged was that she was required to walk through the laboratory section of the factory, and as she walked through it, she inhaled fumes that came from chemicals in the laboratory. It was alleged that the defendants were negligent, and twenty-eight particulars were given in the Statement of Claim. It was also alleged that the defendants had been in breach of statutory duty, and ten particulars of that were given in the Statement of Claim. Six particulars of injury were given. The Statement of Claim was filed nearly five years after the plaintiff’s employment in which the torts were alleged to have occurred commenced, and nearly two years after that employment ceased.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The response of the District Court to the plaintiff’s inactivity was to list the matter on 26 February 1999 for the same purpose as that underlying the two Notices of Motion. Garling DCJ’s Judgment On 26 February 1999 before Garling DCJ argument took place which was recorded over thirteen pages of transcript. He reserved judgment until 12 March 1999. In view of the attacks made on it, it is necessary to set out the key parts of the reasons for judgment delivered by Garling DCJ on 12 March 1999. “The matter was before the Supreme Court. There were numerous appearances before that Court which are documented on the file. The matter was transferred to the District Court. On 25 March 1998 it came before this Court. An order was made that Part 12 particulars were to be updated and documents in support filed within a period which is unclear on the face of it, but I think was two months. Certainly it was no longer than that. 25 August 1998, no updated Part 12 particulars filed. Listed to show cause why it should not be struck out for want of prosecution. Plaintiff to update Part 12s by 1 October 1998. 8 October 1998, listed before the list judge. Court advised ready for hearing, listed for arbitration 1 February 1999. 20 November 1998 back before the Court. Arbitration date vacated. Judge of this Court orders: ‘Direct the plaintiff to file Part 9 particulars within 28 days of today. Direct the plaintiff to serve medicals by 4pm on 6 February 1999.’ Note: ‘The plaintiff failed to comply with the previous directions to provide particulars. Plaintiff is to pay costs.’ Listed before this Court, 26 February 1999. On 25 February 1999, as happens the day before, the plaintiff suddenly files Part 12 particulars. Again in breach of a court order. That is, I think, now the third or fourth breach of court orders. They make new allegations. As I understand it the last particulars were filed in the Supreme Court, they being particulars pursuant to part 33 rule 8(a) on 7 August 1997, well over three years ago.There were six categories of injuries in 1995. They had grown to eight by 1999. There were forty-nine allegations of disabilities in 1995. That had increased to fifty-eight by 1999. There were new allegations. In fact, one of the allegations is that the plaintiff has developed an alcohol problem as a result of the injuries in 1984 to 1987. Future out of pocket expenses are just set out as ‘to be particularised’. Loss of income, in 1995 there was one hundred dollars nett for a limited period, one thousand two hundred dollars, and then a continuing amount claimed. Now that has increased from three hundred and fifty to somewhere between three hundred and fifty and five hundred dollars per week. The plaintiff, in addition, now claims interest. Whilst the Court could probably deal with that, that interest goes back, I take it, to the eighties. I am told there has been no updated medicals, experts report. It is a jury trial. The defendants say ‘we are prejudiced by these delays, we are prejudiced by the failure to comply with court orders’. Both defendants set out the various ways in which they say they are prejudiced. The first defendant, among other things, says ‘The factory was sold in 1990. Some of the allegations would be very hard to meet because of the sale of the factory. Some of those allegations are set out in the doctor’s report. We do not know anything else about them. There are numerous other doctors’ reports referred to in other doctors’ reports. We have not seen those. We do not know what case we have to meet or we did not know until 1999 and we are prejudiced by all these delays.’ The second defendant makes the same submissions and also points out that the Court has been told that the part 12 particulars had not changed from 1995 where indeed they had changed to a significant degree.The plaintiff argues that in actual fact they have done nothing other than get this case prepared for hearing. Some of the substantial delays are caused by it being listed in the Supreme Court as a jury trial, and I accept that there would have been some delays there, however, I point out that certainly since it was before this Court we have been making every effort, since March 1998, about a year, to get the plaintiff to take a date. It is said on the plaintiff’s behalf: ‘We were always ready to proceed. We would have proceeded on what we had given the defendant, and it is only that the defendants are insisting on knowing what case they have to meet that this matter has been adjourned.’ I read, in part, what is put to me. ‘I note that [the solicitor] for the first defendant, brought an application on 20 November 1998 for the arbitration hearing to be adjourned on the basis the particulars had not been updated. In my respectful submission this was an artificial attempt to avoid the hearing date. The defendant was successful in its application and sought and obtained costs.’”The material lastly appearing in quotation marks comprises paragraph 14 of the Statement dated 25 February 1999 filed by the solicitor for the plaintiff in response to the “show cause information sheet”. “Indeed, the defendant was successful and a judge of this Court considered that application and granted the adjournment and granted the adjournment obviously because orders of this Court had been breached. ‘It is further submitted that this was an endeavour on the part of the first defendant to avoid a hearing date in a matter which has been languishing for some years as it has been marked for jury trial. The plaintiff is ready to proceed with her claim’, et cetera.”The material in quotation marks comprises paragraph 15 of the Statement dated 25 February 1999.“’In addition, on several occasions it has been pointed out to the defendants that the particulars already in the file encapsulate the plaintiff’s claim and any updated re-filing of particulars would simply contain a repetition of particulars already provided and medical reports already served.’”The material in quotation marks comprises paragraph 17 of the Statement dated 25 February 1999.“I point out that that statement is totally inaccurate. Those particulars change the case. In my view this case falls into the category of those cases which should be struck out for want of prosecution.”This does not follow the language of Part 18 rule 3(1), but the plaintiff rightly made no point about that on this appeal: Garling DCJ had made it clear from the outset that he conceived himself to be dealing with the question of dismissal under Part 18 rule 3(1). “It should be struck out for these reasons. The extremely long delay in bringing this case on for hearing. What appears to be a total lack of diligence on behalf of the plaintiff. A number of noncompliances with court orders. Prejudice suffered by the defendant. In addition to that I have given judgments in this Court relating to the management of this Court’s Lists and I have clearly indicated that this Court will take into account as one of the matters they would consider when assessing whether a matter should be struck out for want of prosecution as to whether or not they are able to manage a case in accordance with the rules of this Court. This case falls right into that category of cases which I have said are not being prepared and are obstructing this Court’s attempts to get cases on for hearing.Accordingly, this case is dismissed pursuant to Part 18. The plaintiff is to pay the defendant’s costs.”Notice of Appeal

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.