Nelson v Geary - [2017] VSC 228

IN THE SUPREME COURT OF VICTORIA

AT LATROBE VALLEY
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2015 00548

JOHN WALTER NELSON	First Plaintiff
SUZANNE KAYE NELSON	Second Plaintiff
- and -
MICHAEL HARVEY	First Defendant
FLEUR HARVEY	Second Defendant
GERALD PATRICK GEARY	Third Defendant
BARBARA MAREE GEARY	Fourth Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2017
DATE OF RULING:	28 April 2017
CASE MAY BE CITED AS:	Nelson and anor v Geary and ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 228

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PRACTICE AND PROCEDURE – Plaintiffs issued claim against the defendants in negligence for operating a water pump in hot weather on ‘Black Saturday’ causing loss and damage to Plaintiffs – Relevant events occurred in 2009 and writ issued 2015 – Defendants made an application for dismissal for want of prosecution – Rule 24.01(a) of the Supreme Court (General Civil Procedure) Rules 2015 – Relevant considerations – Conduct – Effluxion of time – Inordinate and inexcusable delay – Prejudice – Slaveska v Elenchevski [2013] VSCA 283 applied – Chan & Ors v Chen & Ors [2013] VSC 538 applied – Sullivan v Greyfriars Pty Ltd [2015] VSCA 196 applied – Ss 7, 8, 9 and 25 of the Civil Procedure Rules 2010 – Overarching Purpose – Inordinate and inexcusable delay established – Serious prejudice to Defendants not established – Defendants’ application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs	Mr T Jeffrie	Semmens, Hatch and Andersen
For the First and Second Defendants	Ms R Kaye	Norris Coates Lawyers
For the Third and Fourth Defendants	Ms R Kaye	Lander & Rogers

HER HONOUR:

The issue in dispute is whether or not this proceeding should be dismissed for want of prosecution.

The issue has arisen because of the failure of the plaintiffs to file a statement of claim (‘SOC’) in compliance with the rules. In circumstances such as these, where an indorsement on a claim on writ does not constitute a SOC within the meaning of r 5.04(3), r 14.02 of the Supreme Court (General Civil Procedure) Rules 2015 (’the Rules’) requires that a SOC be filed 30 days after the defendant’s appearance.

During the hearing of this application, the Court was assisted by the very able submissions of both counsel. At the conclusion of oral submissions, orders were made dismissing the application to dismiss for want of prosecution. The reasons for the decision now follow.

What claims are made?

It is necessary to consider the indorsement on the writ. This proceeding allegedly arises on the date known in Victoria as ‘Black Saturday’ – 7 February 2009. The plaintiffs, Mr and Ms Nelson, are dairy farmers and lessees. The first and second defendants, Mr and Ms Harvey, are neighbours. The third and fourth defendants, Mr and Ms Geary, own the property occupied by the Harveys.

It is alleged that on 7 February 2009, the Harveys operated a water pump in hot weather. The operation of the pump allegedly caused a fire which…

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 Nelson v Geary

Details

AGLC: Nelson v Geary [2017] VSC 228
Case: [2017] VSC 228
Decision Date: 28 April 2017

CaseChat Overview and Summary

In the matter of Nelson v Geary, the plaintiffs brought a claim against the defendants for negligence, alleging that the defendants' operation of a water pump in hot weather on Black Saturday in 2009 caused loss and damage to the plaintiffs. The writ for the proceedings was issued in 2015, and the defendants subsequently applied for dismissal of the claim for want of prosecution. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the delay in bringing the claim to trial constituted inordinate and inexcusable delay warranting dismissal under Rule 24.01(a) of the Supreme Court (General Civil Procedure) Rules 2015. The court had to consider the overarching purpose of the Civil Procedure Act 2010 and relevant case law, particularly Slaveska v Elenchevski [2013] VSCA 283, Chan & Ors v Chen & Ors [2013] VSC 538, and Sullivan v Greyfriars Pty Ltd [2015] VSCA 196.

The court examined the factors relevant to determining inordinate and inexcusable delay, including the conduct of the plaintiffs, the time that had elapsed since the events giving rise to the claim, and the prejudice caused to the defendants by the delay. The plaintiffs had exhibited a pattern of inordinate and inexcusable delay, which was a significant factor in the court's decision. However, the court found that the defendants had not demonstrated the requisite level of prejudice that would warrant dismissal of the claim. The court held that while the delay was inordinate and inexcusable, it did not result in serious prejudice to the defendants, and thus the application for dismissal was dismissed. The overarching purpose of the Civil Procedure Act 2010, which includes ensuring cases are dealt with justly and without delay, was also considered in reaching the decision.

In light of the above, the court dismissed the defendants' application for dismissal for want of prosecution. The plaintiffs were permitted to continue with their claim, and the case proceeded to the substantive merits. The court's decision emphasised the importance of timely prosecution of claims while also recognising the need to balance the interests of both parties in accordance with the overarching purpose of the Civil Procedure Act 2010.

Orders