Mortimer v the State of South Australia No. Scciv-00-1205
[2001] SASC 37
•9 March 2001
MORTIMER v THE STATE OF SOUTH AUSTRALIA
[2001] SASC 37
Magistrates Appeal
(Civil)
1................ GRAY J............ ............. An order was made dismissing a damages claim for want of prosecution. This is an appeal against a magistrate's refusal to revoke that order.
Background
The appellant, Mr Mortimer, commenced proceedings in the Adelaide Magistrates Court on 2 April 1998. He alleged that on 4 April 1995 he was injured whilst working as a prisoner in the metal work shop at Mobilong prison.
On 28 October 1998 an Amended Statement of Claim was filed. Mr Mortimer further alleged that he had exacerbated a pre-existing back injury on 16 May 1995 whilst working at Mobilong prison. He also claimed that he sustained further aggravation to his back injury on 30 April 1996 whilst an inmate of the Cottages at Northfield Prison.
It was submitted that the respondent, the State of South Australia ("the defendant") was liable for a breach of its duty of care on each occasion. It was also said to be vicariously liable for the actions of the Department of Correctional Services.
Discovery, made by Mr Mortimer on 9 July 1998, included a letter from the Modbury Hospital dated 16 April 1996. Discovery by the defendant disclosed a medical instruction form, a report from Dr Brian Davidson - Benson Radiology, a letter from Dr Martin to the Prisoner Assessment Committee and an Offender Health Services Record.
On 29 July 1998 personal injury particulars were provided. They disclosed medical treatment from Dr Gahn, Mr Beard, Dr Martin, Dr Liew and Dr Frost.
Further personal injury particulars were provided on 27 January 1999. The injury was said to include muscular skeletal damage and sciatic nerve damage.
Mr Mortimer claimed that he was forced to wear a back brace at all times during the day and that he suffered a permanent limp. His symptoms included:
“pain and discomfort to back, pain and numbness in right leg, pain in left leg, pins and needles in both legs, pain in left testicle, psychiatric sequelae”
and
“depression due to ongoing pain and disability”.
The particulars disclosed that Mr Mortimer had been an in-patient at the Modbury Hospital for three to four days during 1996 and at the Waikerie Hospital for two days during October 1998. The names of three further medical practitioners involved in his treatment, Dr McDonald, Dr Osti and Dr McCarthy were also provided.
The defendant denied Mr Mortimer's claim. Its defence, in part, pleaded:
“3..... Save and except that the defendant admits that on 4 April 1995 the plaintiff was working in the metal shop at Mobilong Prison, the defendant denies the balance of the allegations contained in paragraph 1.4 of the Amended particulars of Claim as if such allegation was set out herein seriatim and specifically traversed. Further, the defendant states that:
3.1.. the plaintiff had a pre-existing back problem stemming from his teenage years when he was involved in a car accident which was exacerbated over the years as a result of the plaintiff’s weight lifting and participation in contact sports such as rugby;
3.2 despite seeking medical attention for the back complaint on 4 April 1995 the plaintiff did not inform medical officers that he had injured his back in the workshop, but rather that his lower back had been painful for the past two weeks and had increased in intensity on that date.
...
8...... Save and except that the defendant admits that on 16 May 1995 the plaintiff was undertaking a welding course at Mobilong Prison, the defendant denies the balance of the allegations contained in paragraph 2.4 of the Amended Particulars of Claim as if each such allegation was set out herein seriatim and specifically traversed. Further, the defendant states that despite seeking medical attention for the back complaint on 16 May 1995, the plaintiff did not inform medical officers that he had injured his back during the welding course but rather that his back pain was continuing and had worsened on that day. The defendant refers to and repeats the facts pleaded in paragraph 3 and sub paragraph 3.1 herein.
...
11.... As to the allegations contained in paragraph 3.4 of the Amended Particulars of Claim the defendant admits that the plaintiff slipped in the visit room of the Cottages on 30th day of April 1996 but, does not know and therefore denies the balance of the allegations contained therein.”
The defendant counterclaimed $8,021.00 being the amount of compensation paid pursuant to the Criminal Injuries Compensation Act 1978 (SA).
Interlocutory Process
On 12 February 1999 an order was made by a magistrate that the:
“plaintiff’s solicitors provide copy of any medical report in the plaintiff’s possession within 14 days of advice of this order. Those reports to be served upon the defendant’s solicitors. Matter adjourned to 5/3/99 at 9.45am. Defendant’s solicitors to notify plaintiff”.
The case came before the court on 5 March 1999. Mr Mortimer’s solicitors had not obtained any medical reports. The matter was adjourned until 1 June 1999 to enable the reports to be prepared.
On 1 June 1999 the court allowed "one final adjournment" to enable Mr Mortimer to obtain the reports. The defendant gave notice that if they were not provided within two months, the defendant would apply to have Mr Mortimer’s claim dismissed for want of prosecution.
On 31 August 1999 the case came on for further interlocutory hearing. The magistrate noted that Mr Mortimer’s solicitors had advised him to attend a medical examination on 22 November 1999. It was further noted that he did not have medical evidence to submit. The court informed Mr Mortimer’s solicitors that their client was facing a number of difficulties. The magistrate said that liability was in issue. In addition, he emphasised that even if damages were awarded, there would need to be deductions by reason of Mr Mortimer's pre-existing condition and the previous judgment in favour of the defendant with respect to the Criminal Injuries Compensation payment. The magistrate suggested that proceedings might not be worthwhile.
The defendant's application to strike out the claim was heard on 25 November 1999. Mr Mortimer’s solicitors did not attend. An order dismissing the claim was made pursuant to Rule 28 of the Magistrates Court (Civil) Rules 1992.
The Application to Reinstate the Action
On 3 July 2000, Mr Mortimer filed a Notice of Change of Solicitors. At the same time, an application was made to revoke the order striking out the claim ("the application to re-instate").
An affidavit in support was filed by Mr Mortimer's former solicitor. He had failed to note the date of the application to strike out the claim. He later learned that the claim had been dismissed. He reported that matter to Mr Mortimer and advised that he would attempt to have the judgment set aside.
The former solicitor also outlined the difficulty he had encountered when attempting to arrange an appointment for Mr Mortimer with a medical specialist. This difficulty stemmed from the Department of Correctional Services’s refusal to provide transport for Mr Mortimer.
Mr Mortimer also filed an affidavit. He explained that at all times, he wished to proceed with his claim as he believed it was a “good claim”. He had repeatedly contacted his solicitor in an attempt to ensure that his case progressed.
The application to reinstate was heard and dismissed on 21 November 2000. The learned magistrate (“the magistrate”) provided reasons as follows:
“The application for re-instatement will be dismissed for a number of reasons:
Firstly-......... it was originally contended that events, as to injury, took place in April 1995
-last August it was stated all other accidents were not being pursued other than a 1996 incident. Defendant has indicated some difficulties in now investigating.
Secondly- the Plaintiff and/or his solicitors have failed to comply with a number of orders as to the provision of medical reports. The plaintiff blames his solicitors. The situation is not clear - a report is now allegedly available - not produced to other side (?) - explanations for considerable delays not satisfactory.
Thirdly-......... report allegedly indicates maximum of plaintiff’s claim is $30,000. Even if Plaintiff is 100% successful number of factors will reduce claim to a much lower figure as:
a)a previous Judgment obtained against Plaintiff requires him to repay $8000 + to the Defendant,
b) liability is strongly in issue
c)the alleged injury aggravated pre-existing conditions of a very similar nature
d) costs appear to have been ordered against plaintiff in any event and, when taken into account with cost of proceedings all of above pursuit of this claim could be entirely uneconomic.
It is not appropriate that the public should 'fund' the plaintiff’s claim in all of the circumstances.”
The Appeal
Counsel for Mr Mortimer submitted that the order refusing to re-instate the claim should be set aside and that the claim should be reinstated.
The magistrate based his decision, in part, on Mr Mortimer's failure to comply with a number of orders regarding the provision of medical reports. This decision is incorrect. The only relevant order was for the production of medical reports in Mr Mortimer’s possession. There was no failure to comply with this order or any other order. At all relevant times, Mr Morimer had no reports. Counsel for the defendant accepted that there had not been a breach by Mr Mortimer of a court order. It follows, that the refusal to reinstate must be set aside and the matter be reconsidered by this court.
Further errors on the part of the magistrate have also been demonstrated.
The fact that only the 1996 claim was being pursued and that the defendant had indicated some difficulty in investigating that incident, were not grounds for refusing reinstatement. The 1996 incident had been raised by the amended statement of claim. This was a matter properly before the court.
The magistrate considered that a number of factors would reduce Mr Mortimer’s claim. He noted that liability was strongly in issue and that the alleged injury had aggravated a pre-existing condition of a similar nature. These matters may or may not have reduced the claim made. For the magistrate to conclude that such:
“factors will reduce claim to a much lower figure”
involved a predetermination of issues which should have been determined at trial.
The magistrate also considered that the claim would be reduced as
“a previous Judgment obtained against Plaintiff requires him to repay $8,000+ to the Defendant."
This reasoning is flawed. It fails to recognize that extinguishment of debt is a benefit.
The magistrate concluded that it was not appropriate for the public to fund Mr Mortimer's claim. It is not clear what was intended by this remark. Mr Mortimer is entitled to use the court along with any other member of the public. The remark of the magistrate undermines this right. The magistrate allowed this extraneous consideration to affect the exercise of his discretion. In so doing, he erred.
Reconsideration of the Application to reinstate
The order dismissing the action was made pursuant to Rule 28 of the Magistrates Court (Civil) Rules 1992 which provides:
“(3)…
(b) If it appears that an action is not being conducted with due expedition, the Court -
(i) on its own initiative, and upon due notice to the parties; or
(ii) on application of a party or the Registrar,
may make an order-
(iii) that is necessary or expedient to ensure that the action proceeds to trial as soon as possible (including the fixing of both time limits in respect of any subsequent proceedings and the trial date); or
(i) dismissing the action for want of prosecution.
…
(d) In determining whether an action is not being conducted with due expedition under paragraph (b) of this sub-rule, the Court may have regard to the principles of case flow management expressed in, or time limits fixed by,-
(i) the Supreme Court Rules 1987 in respect of the taking of any proceeding or the conduct of the action, as if such principles or time limits applied to a proceeding or action against the Court; or
(ii) Practice Direction.
The application to revoke the order was made under Rule 87 which provides:
“(1) The Court may set aside or vary a judgment (not being a final judgment)
(2) The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she-
(a) has an arguable case on the merits; and
(b) has a reasonable excuse for not having complied with these rules, or an order of the Court, or any time limit fixed by these rules or order of the Court, in respect of the action or proceeding. ”
The interpretation of Rule 87 was considered by Mullighan J in Langanis v Roberts[1] at (3):
“In the reasons for judgment given by me on this day in SA Repairs & Painting Pty. Ltd. v Trenka Pty. Ltd., I considered the true interpretation of R. 87. I need not repeat what I said in that case. It is sufficient to say that, in my view, a judgment in default is not a final judgment and so R. 87 applies to an application of this nature and before consideration may be given to exercising the discretion to set aside a judgment as provided in R. 87(1), the applicant must pass the threshold tests set out in R. 87(2). ”
[1] S 4043
I consider that an order revoking the dismissal and reinstating the action should be made for the following reasons:
........ Mr Mortimer has at all times wished to pursue his claim for damages. He instructed his solicitors to pursue his claim at or about the time the claim was struck out.
. Mr Mortimer pressed his solicitor about progress but rarely received any response. He was unaware of the application to dismiss, until after the order was made.
........ Mr Mortimer acted reasonably in allowing his solicitors some time to remedy the matter when he learned of the order of dismissal. When the solicitors procrastinated, he engaged new solicitors. The defendant’s counsel accepted that the new solicitors had acted promptly.
. The defendant has had Mr Mortimer examined by one of his treating doctors, Mr Beard. As a result, it has a report.
........ Since the dismissal of his action, Mr Mortimer has obtained a medical report from another treating specialist. The report has been provided to the defendant without delay.
. Counsel for the defendant conceded that no particular prejudice could be shown to his client.
........ The delay in arranging Mr Mortimer's medical examination was compounded by a dispute about the cost of transporting Mr Mortimer from gaol to the place of examination. It appears that Mr Mortimer’s former solicitor considered that the request of the Correctional Services Department was unreasonable and an abuse of process. This issue remains unresolved as Mr Mortimer apparently attended the appointment at a time when he was not in custody.
In considering Mr Mortimer’s position, I bear in mind that at the relevant times, he was in gaol. He encountered difficulty in attending to his affairs.
Counsel for the defendant relied heavily on Saunders v Esanda Finance Corporation Limited[2] and the following remarks of Lander J:
“It has been argued that the conduct to be considered for which excuse is sought, is that of the appellant, and that in those circumstances, if the default is that of the solicitor properly instructed, the party will usually not have to bear the consequences (Langanis v Roberts SC(SA) Mullighan J, 15 July 1993, unreported).
In a sense that is right but is not sufficient for a party merely to point to the default of his or her own solicitor to make out the second limb of rule 87(2)(b). The procedures of a court are not only for the guidance of the parties but also for the guidance of their agents, namely their legal advisers. A party, in my opinion, ordinarily must be bound by the action, or indeed, the inaction, of that party’s legal advisers. It is imperative for the orderly working of the Rules of Court that legal advisers understand that their failure to act when required will be to the detriment of their clients. If it was otherwise, costs apart, there would be no sanction upon the conduct of legal practitioners. A party cannot where it suits, distance himself or herself from his or her legal advisers and put the legal adviser in the position of a third party. To hold otherwise would mean that every time there was a default in the compliance with an order of the court or a rule of the court, by reason of the default of a party’s legal adviser, the party could claim that the party himself or herself was not in default.
It is not sufficient merely for a party to say that the fault was the party’s agent to enable the party to say that the party has established a reasonable excuse for not having complied with the rules.
In my opinion on a consideration of an application to set aside judgment, there is a distinction between a failure to observe an order or a rule of the court for which the party is personally liable, and a failure for which that party’s legal adviser is responsible. I think where the fault is that of the legal adviser, it will usually allow the party a better chance to obtain the relief but it will not be of itself ‘reasonable excuse’.”
[2] 31 May 1996, S5631
Mullighan J considered the issue of solicitor’s delay in Langanis v Roberts [3]. He said at (4):
“Despite the paucity of information in the affidavit of the appellant’s solicitors in support of the assertion that the appellant has a reasonable excuse for not filing the Defence in time, it appears that he did instruct his solicitors, but they did not act, within time. Usually, in this context, a party will not have to bear the consequences of the neglect of his solicitor: Collins Book Depot Pty. Ltd. v Bretherton [1938] VLR 40 at p. 44, Gamble v Killingsworth & Mclean Publishing Co. Pty Ltd. [1970] VR 161 and Kostokranellis v Allen [1974] VR 597, Taylor v Taylor (1979) 53 ALJR 629, Hill v Parke Davis & Co. Ltd. (1986) 41 SASR 349 at p. 354 and Davies v Pagett (1986) 70 ALR 793 are examples of neglect, and in some instances substantial neglect, on the part of legal practitioners and where the party in default has been permitted to prosecute or defend proceedings. Of course, these cases were not decided in the context of a threshold test before the exercise of a discretion is to be considered, but they do accept that the conduct to be excused is usually that of the litigant, not the solicitor. The delay of the solicitor, in the present case, although amounting to default, when measured in terms of time was only relatively slight and, in my view, the Learned Special Magistrate was correct in her conclusion that the appellant had established a reasonable excuse for not filing the Defence within time. ”
[3] S4043
In Davies v Pagett[4], Morling, Beaumont and Wilcox JJ emphasised the fundamental duty of the court to do justice between the parties. They said at (799):
"The 11 month delay in making the application to set aside the interlocutory judgments - a matter which weighed heavily with his Honour - is even more inexcusable. Any competent solicitor would have been aware of the importance, in the interests of his or her client, of making such an application forthwith. But not only did the particular solicitor handling the matter in the appellant's solicitors' Alice Springs office - apparently an associate of the firm - neglect his obvious duty; no action - certainly no effective action - was taken by the partner in the Darwin office of the firm, who was aware that the application had not yet been made, to ensure that the omission would speedily be rectified.
It is, however, another question whether concern about the extent of delays, either in a particular case or generally, should, in the absence of prejudice in the particular case, be taken into account in exercising a discretion to set aside a default judgment. The fundamental duty of the court is to do justice between the parties. It is, in turn, fundamental to that duty that the parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. Any limitation upon that opportunity will generally be justified only by the necessity to avoid prejudice to the interests of some other party, occasioned by misconduct, in the case, of the party upon whom the limitation is sought to be imposed. The temptation to impose a limitation through motives of professional discipline or general deterrence is readily understandable; but, in our opinion it is an erroneous exercise of the relevant discretion to yield to that temptation. The problem of delays in the courts, egregious as it is, must be dealt with in other ways: for example, by disciplinary actions against offending practitioners and by a comprehensive system of directions hearings or other pretrial procedures which enable the court to supervise progress - and, more pertinently, non-progress - in all actions."
[4] (1986-87) 70 ALR 793
The same principles were discussed by the High Court in The State of Queensland v J L Holdings Pty Ltd.[5] Dawson, Gaudron and McHugh JJ said at (155):
"Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion."
[5] (1997) 189 CLR 146
I am satisfied that the delays that occurred in this case were not caused by Mr Mortimer. If there be any fault, it lay with his former solicitor. This is not a case where Mr Mortimer stood by and did nothing, knowing of his solicitor’s default. At all times, he was actively seeking to have his claim advanced.
I consider that there are strong and cogent grounds to revoke the order dismissing the claim, reinstate the action and have the case proceed to trial.
On the appeal, both counsel submitted that Mr Mortimer’s former solicitor should bear the costs thrown away. However, the solicitor had not been given notice of Mr Mortimer’s application to reinstate his action.
I consider that the costs of the various attendances and applications in the magistrates court should be reserved to the trial magistrate. If the parties wish to pursue any claim against the plaintiff's former solicitor, notice must be given.
I make the following orders:
The appeal is allowed.
The order of Mr Gumpl SM of 25 November 1999 dismissing the action is set aside.
The action is reinstated.
The reinstated action be heard as soon as practicable.
The issue of responsibility of Mr Mortimer’s former solicitor for costs thrown away is reserved for consideration by the trial magistrate.
There is no order as to the costs of the appeal.
JUDGMENT CITATIONS LISTED
AS THEY APPEAR IN THE JUDGMENT
S 4043
31 May 1996, S5631
S4043
(1986-87) 70 ALR 793
(1997) 189 CLR 146
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5
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