Percey v Calvert
[2004] TASSC 115
•14 October 2004
[2004] TASSC 115
CITATION: Percey v Calvert [2004] TASSC 115
PARTIES: PERCEY, Cheryl Anne
v
CALVERT, Harvey Bryant
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 977/1996
DELIVERED ON: 14 October 2004
DELIVERED AT: Hobart
HEARING DATE: 5 October 2004
JUDGMENT OF: Evans J
CATCHWORDS:
Procedure – Costs – Departing from the general rule – Other cases – Refusal of leave to proceed after six year delay.
Aust Dig Procedure [601]
REPRESENTATION:
Counsel:
Appellant: R J Howroyd
Respondent: D J Gunson SC
Solicitors:
Appellant: Bennett Howroyd
Respondent: Gunson Williams
Judgment Number: [2004] TASSC 115
Number of paragraphs: 13
Serial No 115/2004
File No 977/1996
CHERYL ANNE PERCEY v HARVEY BRYANT CALVERT
REASONS FOR JUDGMENT EVANS J
14 October 2004
The appellant, having failed to take a step for six years in her action against the respondent, applied for leave to proceed pursuant to the Supreme Court Rules 2000, r56(1), which provides:
"56 (1) If a step, other than an application on which no order has been made, has not been taken in a proceeding for 6 years since the last step was taken, a party may not take any further step in the proceeding without the order of the Court or a judge."
The appellant appeals against the Master's dismissal of her application.
The appellant's action is for damages for injuries she received in a motor vehicle accident which occurred on 15 July 1993 when she was travelling in a vehicle driven by the respondent. I will refer to the appellant as "the plaintiff" and the respondent as "the defendant".
The plaintiff consulted a solicitor shortly after the accident and within less than one month, on 10 August 1993, her solicitor elicited an admission of liability for the accident from the defendant's solicitors. The plaintiff’s solicitor obtained details of her claim and under cover of a letter of 15 February 1996, her solicitor provided the defendant's solicitors with particulars of the claim, together with copies of seven medical reports from four different doctors. Thereafter the defendant's solicitors were provided with two further reports from another doctor. On 20 June 1996, the plaintiff instituted her action against the defendant and he appeared to her writ on 25 June 1996. By letter dated 10 February 1997, the plaintiff's solicitor advised the defendant's solicitors that the medical reports and particulars of claim that had been provided constituted the plaintiff's entire claim and invited an offer of settlement. In consequence the defendant's solicitors arranged an appointment for the plaintiff to be examined by a Hobart medical practitioner on 21 March 1997. That appointment was cancelled as the plaintiff moved to Sydney in early 1997. Ultimately an appointment was made for her examination on 15 January 1998, that being a date when the plaintiff's solicitor said she would be available. The plaintiff did not attend that appointment and on 23 January 1998, the defendant applied for an order that the plaintiff's action be stayed until such time as she submitted to a medical examination by Dr Tim Stewart. An order to that effect was made on 18 February 1998. At this time the plaintiff's solicitor filed and served notice of ceasing to act for her.
In 1999, the plaintiff returned to Tasmania. She consulted her former solicitor and was advised that he was not prepared to act for her until she paid his account. On 18 February 2002, the plaintiff consulted her current solicitor, who, on 30 April 2002, agreed to act for her. It was not, however, until 4 November 2003 that the plaintiff submitted to a medical examination by Dr Stewart and the order staying her action was thereby discharged. By that time, she was, by reason of r56(1), barred from proceeding with her action without the leave of the Court. It was over six years since June 1996 when she issued and served her writ and the defendant filed his appearance, which was when the last step was taken in her action. It was properly not contended on behalf of the plaintiff that the defendant's application for a stay of the proceedings in February 1998 was a step in the proceeding for the purposes of r56(1). A step in a proceeding is a procedural step, required by the Supreme Court Rules, but not necessarily carried out in accordance with the Rules, to carry the action forward to final judgment. An application for a stay of proceedings, like an application to strike out a statement of claim, is not a means of carrying the proceedings forward to judgment but a means of barring its progress and is accordingly not a step in the proceedings for the purposes of r56(1), Argo Pty Ltd v Attorney-General (No 3) [2004] TASSC 51 [18 – 27].
Rule 56(1) is in broadly similar terms to the High Court Rules, O60, r12(2), and the Rules of the Supreme Court (Qld), O99, r9, in the different forms which that rule took at the time of the two Queensland decisions to which I will refer. In William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 at 496, McTiernan, Kitto, Taylor and Owen JJ said as to the purposes of the relevant High Court rule:
"Its purpose is not to enable the Court to insist that an action shall proceed and to fix times within which further steps shall be taken. What it does is to forbid the further prosecution of proceedings in which no step has been taken for six years unless leave is given to continue them, and it follows that it is for an applicant for leave to show that there is good reason for excepting the particular proceedings from the general prohibition which the rule imposes."
The question whether good reason has been shown depends on all the circumstances of the case. There must be some positive reason for concluding that it would be just to allow an applicant to proceed with the action, Campbell v United Pacific Transport Pty Ltd & Ors [1966] Qd R 465 at 472. Relevant factors include the explanation for the delay, the merits of the applicant's action and prejudice. In Dempsey v Dorber [1991] Qd R 418, Connolly J, with whom Carter and Moynihan JJ agreed, said at 420:
"On an application for leave to proceed under 090 r9, the applicant for leave must 'show that there is good reason for excepting the particular proceedings from the general prohibition' on the taking of a fresh proceeding without the order of a court or a judge in a case in which three years have elapsed from the time when the last proceeding was taken. See William Crosby & Co Pty Ltd v Commonwealth (1963) 109 CLR 490 at 496. This test was reaffirmed by the High Court in Australian Broadcasting Commission v Industrial Court of South Australia (1985) 159 CLR 536. The question whether there is good reason for making such an order obviously involves a consideration of all relevant matters and the question whether there was reasonable excuse for the delay is unquestionably a relevant matter. See Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 and indeed it has loomed large in he consideration by the Full Court of an application under 090 r9. In my judgment, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order.
The other factor which will always be relevant where an application is made under 090 r9 is whether the defendant is likely to suffer prejudice as a result of the delay. Sometimes, as in William Crosby, an examination of the history of the matter will reveal that the age of the dispute, its complexity, the nature of the evidence which will be required and the like make it inevitable that the defendant will be prejudiced in the preparation and conduct of the action. Thus it is commonly recognised that a witness action, which depends upon the recollection of those who must swear to events and conversations, presents a situation in which the trial of the issues becomes increasingly difficult and unsatisfactory with the passing of time. This will be so, even if it is not possible to point to the unavailability, for whatever reason, of a particular witness or the loss of relevant records."
The observations of Connolly J in relation to prejudice are most apposite. In the circumstances of this case, prejudice to the defendant is a potentially significant factor, as is the plaintiff's explanation for her failure to progress her claim between February 1997 and February 2002. Her delay subsequent to that date can be attributed to her solicitor and should not be held against her. Liability having been admitted, there is no question about the merit of her claim.
In explaining her failure to press her claim between February 1997 and February 2002, the plaintiff referred to: time spent out of the State; family problems, including her parents' poor health; her son's involvement in a motor vehicle accident and his drug addiction; and her psychological problems and related problems, including her abuse of alcohol and drugs. In February 1999, she was told by her former solicitor that he would not assist her further until she paid his outstanding account. In her affidavit in support of her application, the plaintiff stated that she did not have any money or the means of paying the account and had not been employed since her accident. She, in substance, said that this stopped her from doing anything to progress her claim until, at her son's suggestion, she saw her present solicitor in February 2002. With reference to her cross-examination on her assertion that lack of funds contributed to her failure to progress her action, the Master said:
"It emerged in cross-examination that throughout the period of delay the plaintiff has been the recipient of Centrelink benefits. That whilst in Sydney in 1997 and 1998 she worked consistently in the sex industry on a good night earning as much as $300. She admitted that she did not declare her earnings to Centrelink or the tax office so that everything she earned she kept in addition to the Centrelink pension. She admitted that after her return to Tasmania commencing in 2000 and continuing until 2003 she worked in the sex industry under the name 'Clorissa' advertising her services regularly. She charged $100 per half hour and did not tell Centrelink or the tax office and so continued to receive tax free the proceeds derived from providing sexual services and the pension. She did not explain why none of this money was used to fund her legal case. I am not persuaded that the reason for the delay included to any material extent financial constraints. The plaintiff simply took no interest in pursuing her action for many years."
This finding of the Master was not challenged by the plaintiff's counsel.
In rejecting the plaintiff's application, the Master concluded:
"If this matter progresses the defendant will be potentially exposed to a large number of serious complaints which the plaintiff may attribute in part or in whole to the accident. This was the case even before the period of inactivity began and it appears that the various doctors have always had trouble obtaining a reliable history from the plaintiff. It seems to me that the chances of now obtaining a reliable history are remote. In the ten years or so since the accident the plaintiff has abused alcohol and drugs. She admitted in cross-examination that she has a very poor memory with real difficulty recalling events, dates of events, the names of doctors she has seen and the symptoms which caused her to visit various doctors over the years. Added to this is the problem of the plaintiff being willing to make assertions without proper care. For example, at one point in cross-examination she told counsel for the defendant that she had not received a letter sent by her solicitors to her Sydney address in April 1995 when within a week or so she had in fact written to the solicitors acknowledging receipt of that letter. The plaintiff's honesty generally provides an added complication. Certainly she has a track record of dishonesty at least insofar as her tax and pension affairs are concerned having failed to disclose substantial earnings over many years derived from working in the sex industry.
Counsel for the plaintiff submitted that if the matter proceeds the plaintiff's compensation will be assessed by a reference to the objective medical evidence available and that accordingly I should infer that the claim will not be a large one and that a fair trial can still occur notwithstanding the long period of delay. The submission assumes that unless corroborated the plaintiff's account of her symptoms over the years will not be accepted. Certainly that is a reasonable possibility, but this is not the trial of the action and it is not for me to pre-empt what the tribunal of fact will or will not have regard to.
Although the defendant has not identified any specific prejudice such as the prejudice which would arise where witnesses or documents are no longer available (and often the court will infer from the lack of such evidence that there is no material prejudice), in the circumstances of this case, I find myself unable to make the inference that delay has not resulted in the chances of a fair trial becoming unlikely. The circumstances being those outlined earlier, namely, the fact that the plaintiff has not had treatment for her alleged injuries for many years; the lack of availability of a clear and reliable medical history; the large variety of symptoms and complaints which the plaintiff may wish to attribute to the car accident; the plaintiff's admission that her memory is poor; the plaintiff's willingness to make assertions without due reflection and care and the plaintiff's lack of honesty as indicated by her non-disclosure of significant income to either the tax office or Centrelink.
It is for the plaintiff to show that there is good reason for excepting her claim from the general prohibition imposed by r56. As I have said the plaintiff was less than candid when she put forward in her affidavit financial reasons as explaining in part the delay without disclosing apparently significant earnings over a long period of time in the sex industry. I do not consider that living outside Tasmania; psychological problems and alcohol and drug abuse provide a satisfactory excuse for the delay. On the evidence before me these features all existed prior to the issue of the writ and did not prevent the plaintiff advancing her claim in the seemingly satisfactory way in which she did in the two or three years following the accident. In the circumstances of this case I have not been prepared from the lack evidence of specific prejudice to infer that there will be no material prejudice. Although the plaintiff was a passenger in the car involved in the accident and an admission of liability has been made so that the plaintiff's claim has some merit I remain unpersuaded that the justice of the case rests with granting to the plaintiff leave to take the next step in the proceeding."
This appeal is to be decided on the basis that it is a re-hearing in which I must exercise my own discretion. I am not bound by the Master's decision, although I should give his decision the weight that it deserves, in particular the fact that he saw and heard the plaintiff, whereas I did not. See In re K R Wood & Co [1962] Tas SR 227, Butler v Electrolytic Zinc Co of Australia Ltd [1975] Tas SR 9 and Sheedy v Curtain 37/1977. In this case, the defendant did not let sleeping dogs lie in the hope that the plaintiff’s action would expire. In that situation, it ill behoves a defendant to complain of prejudice. Here, in order to progress the action, the defendant sought to have the plaintiff medically examined and he pursued his efforts to that end to the point of obtaining an order staying the action until the plaintiff submitted to an examination. If, as the plaintiff asserts, she was not aware of the potential consequences of her delay, this was in no way the result of the defendant's acquiescence to her inaction. Had she maintained reasonable contact with her former solicitor, it is inevitable that she would have been aware of the risk she was running. My review of the evidence leaves me in agreement with the reasons of the Master for dismissing the plaintiff's application. In all the circumstances, the plaintiff has not shown that it would be just to allow her to proceed.
Upon the dismissal of the plaintiff's application for leave to proceed, the orders the defendant obtained from the Master included orders that:
1 the plaintiff pay the defendant's costs of the application; and
2 the plaintiff pay the defendant's costs of the action to date.
The plaintiff appeals against the latter order. In making that order, the Master, in substance, said that: the outcome was effectively that the defendant had succeeded in resisting the plaintiff's claim; in practical terms, the event of the claim is that the plaintiff has lost; and costs should follow the event. As with the appeal against the dismissal of the plaintiff's application for leave to proceed, I must exercise my own discretion in relation to the order in dispute, although I should pay due regard to the Master's decision.
Whilst the practical effect of the rejection of the plaintiff's application for leave to proceed is that she will not succeed on her action, that is not the legal effect of the dismissal. The dismissal does not finally dispose of the rights of the parties. In theory, successive applications may be brought for leave to proceed, Campbell v United Pacific Transport Pty Ltd & Ors (supra) and Aylett v Attorney-General (Tas) & Ors (2003) 11 Tas R 315. If such an application is made and succeeds, liability having been admitted, the plaintiff will succeed on her action. Against the event of this highly unlikely occurrence, it may be said that to make an order that the plaintiff pay the defendant's costs of the action is premature and inappropriate. I am not persuaded that such a remote possibility should necessarily deny the defendant of the benefit of an order for the costs of the action, however, this possibility is a matter that should be taken into account. Of more significance to me is the fact that liability is not in issue, it having been admitted. To my mind, this substantially dilutes the weight to be given to the event that is said to justify the making of the order for the costs of the action. That event is the reality that the plaintiff will not succeed with her action, it is not the defendant’s establishment that he is not liable to her. The defendant's good fortune is that, by reason of the plaintiff's dilatoriness, he will not have to pay her damages referable to an accident as to which his liability is beyond dispute. In my view, this outcome should not be equated with the situation of a party who has established that he or she is not liable to a claimant. The situation of the defendant in this case can more properly be equated to that of a plaintiff whose claim for damages is confined to damages for pain or suffering, for any bodily or mental harm, or for curtailment of expectation of life, and who dies subsequent to instituting proceedings as a consequence of the act or omission which gave rise to the cause of action. By reason of such a plaintiff's death, in reality, the defendant will successfully defend the action as the deceased plaintiff's estate will not be able to recover any damages, the Administration and Probate Act 1935, s27(3)(c)(ii). Nevertheless, in my view, this would not as a matter of course entitle the defendant to an order for the costs of the aborted action unless it could also be shown that it was unlikely that the deceased plaintiff would have established that the defendant was liable for the act or omission that gave rise to the cause of action.
I am not persuaded that the defendant is entitled to an order that the plaintiff pay his costs of the action to date. That order is set aside. The appeal is otherwise dismissed.
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