Morris-Harris-Keith v Hughes - [2019] NSWSC 665

Supreme Court

New South Wales

Medium Neutral Citation: Morris-Harris-Keith v Hughes [2019] NSWSC 665
Hearing dates: 4 June 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) The proceedings are dismissed pursuant to UCPR r 12.7(1).
(2) The plaintiff is to pay the defendants’ costs of the proceedings.
Catchwords: CIVIL PROCEDURE – summary disposal – application for dismissal of proceedings for want of due dispatch – UCPR r 12.7 – personal injury proceedings – proceedings fixed for hearing - where the plaintiff’s solicitors ceased to act one month before hearing – several adjournments granted to allow the plaintiff the opportunity to engage new solicitors – no new solicitors engaged – hearing date vacated - where the plaintiff was properly notified of the defendants’ intention to seek summary disposal – no steps taken by plaintiff for three month period - absence of contact from the plaintiff - plaintiff provided no evidence explaining his delay in prosecuting the proceedings – application granted
Legislation Cited: Civil Procedure Act (2005) NSW s 56
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 12.7
Work Health and Safety Act 2011 (NSW)
Cases Cited: Raymond Hoser v Christopher Hartcher [1999] NSWSC 527
Morris-Harris-Keith v Hughes [2019] NSWSC 581
State of New South Wales v Plaintiff A [2012] NSWCA 248
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Troy Morris-Harris-Keith (Plaintiff)
Michael Hughes (First Defendant)
Louise Hughes (Second Defendant)
Representation: Counsel:
No appearance (Plaintiff)
J Turnbull SC (Defendants)
Solicitors:
Self-represented (Plaintiff)
Holman Webb Lawyers (Defendants)

File Number(s): 2017/161843
Publication restriction: Nil

Judgment

The defendants, by notice of motion filed 27 May 2019, seek pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) that these proceedings be dismissed for failure to prosecute them with due dispatch.

The proceedings

The proceedings were commenced on 30 May 2017. The plaintiff claims damages for personal injuries suffered when he fell from the roof of the defendants’ house on 27 February 2016 and suffered injuries. The statement of claim pleads that the plaintiff was carrying out painting work on the roof of the house when he fell. The fall was caused when part of the roof area “gave way/buckled” causing the plaintiff to lose his balance and fall to the ground below. The statement of claim relied on common law breaches of a duty of care.
By an amended statement of claim filed 10 August 2018 the claim was expanded to allege (inter alia) breaches of the Work Health and Safety Act 2011 (NSW) and Regulations, the Residential Tenancies Act 2010 (NSW), various Standards, and the WorkCover NSW OHS Consultation Code of Practice 2001.
The plaintiff disclosed his injuries in his amended statement of particulars as being:

(a)   Three-column burst fracture of the L1 vertebrae;
(b)   Post traumatic stress disorder and depression;
(c)   Injury to the legs;
(d)   Secondary constipation; and
(e)   Scarring.

His ongoing disabilities can be described as physical limitations because of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morris-Harris-Keith v Hughes

Details

AGLC: Morris-Harris-Keith v Hughes [2019] NSWSC 665
Case: [2019] NSWSC 665
Decision Date: 07 June 2019

CaseChat Overview and Summary

In the matter of Morris-Harris-Keith v Hughes, the plaintiff, Morris-Harris-Keith, brought a personal injury claim against the defendant, Hughes. The dispute arose from a car accident, and the plaintiff sought compensation for injuries sustained. The case was heard in the Local Court of New South Wales. The defendant filed an application for summary disposal of the proceedings under UCPR rule 12.7, arguing that the plaintiff had not pursued the case with due diligence.

The court was required to determine whether the plaintiff's lack of progress in the proceedings constituted a failure to prosecute with due expedition, warranting the dismissal of the case. The key issue was whether the plaintiff had demonstrated a lack of due diligence by not engaging new solicitors and not taking any steps to progress the case for an extended period. The court had to consider whether the plaintiff's solicitors' withdrawal and the subsequent adjournments granted to the plaintiff to find new representation amounted to sufficient justification for the delay.

The court found that the plaintiff had not engaged new solicitors within the time frame provided and had failed to take any steps to advance the proceedings for a significant period. The plaintiff had been properly notified of the defendant's intention to seek summary disposal, yet made no attempt to contact the court or provide any explanation for the delay. The court concluded that the plaintiff's lack of action and absence of communication amounted to a failure to prosecute the proceedings with due expedition, and therefore granted the defendant's application for summary disposal.

Orders