Plane v Kaine
[2012] TASSC 77
•20 November 2012
[2012] TASSC 77
COURT: SUPREME COURT OF TASMANIA
CITATION: Plane v Kaine [2012] TASSC 77
PARTIES: PLANE, Valerie Joy
v
KAINE, Warren Glen
FILE NO/S: 27/2007
DELIVERED ON: 20 November 2012
DELIVERED AT: Hobart
HEARING DATE: 12 November 2012
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Procedure – Courts and judges generally – Courts – Dismissal of proceedings for want of prosecution – Whether substantial risk of prejudice established.
Attorney-General v Argo Pty Ltd (2001) TASSC 70, applied.
Aust Dig Procedure [33]
Limitation of Actions – Extension or postponement of limitation periods – Extension of time in personal injuries matters – Principles upon which discretion exercised – Writ filed out of time – Delay in applying for extension of time.
Limitation Act 1974 (Tas), s5(3).
Aust Dig Limitation of Actions [1085]
REPRESENTATION:
Counsel:
Plaintiff: K E Read SC
Defendant: S G Wright
Solicitors:
Plaintiff: Temple-Smith Partners
Defendant: Wright Gilmour
Judgment Number: [2012] TASSC 77
Number of paragraphs: 37
Serial No 77/2012
File No 27/2007
VALERIE JOY PLANE v WARREN GLEN KAINE
REASONS FOR JUDGMENT HOLT AsJ
20 November 2012
The applications
By her writ filed 24 April 2007, the plaintiff claims damages for personal injuries suffered as a result of the defendant punching her on 3 August 2003. The action was commenced out of time. The Limitation Act 1974, s5(1), provides that such actions shall not be brought after the expiration of three years from the date on which the cause of action accrued.
The writ was promptly served and a statement of claim delivered. In June 2007, the defendant delivered his defence in which he denied punching the plaintiff, denied that the plaintiff had suffered injury and pleaded the protection of the statutory time bar. In August 2007, the plaintiff's solicitor wrote to the defendant's solicitor inviting the defendant to abandon the limitation defence. The defendant did not agree to do so. There was no further communication from the plaintiff's solicitor until almost four years later in the form of the service of the plaintiff's affidavit sworn 25 July 2011, verifying her list of documents. In September 2011, the plaintiff delivered particulars of her claim for loss and damage. In November 2011, the plaintiff filed and served an interlocutory application seeking an order that the action be referred for mediation. An order accordingly was made with the consent of the defendant on 2 December. The mediation was held in May 2012, but the action did not settle.
On 3 August 2012, the defendant filed an application and supporting affidavit seeking dismissal of the claim for want of prosecution. On 13 August 2012, the plaintiff filed an application seeking an extension of time under the Limitation Act. Shortly thereafter the plaintiff's affidavits in support were filed. The parties agreed that the two applications should be heard and determined together.
The legal principles
The principles applicable on a consideration of a dismissal application were set out, with the concurrence of the other two appeal judges, by Blow J in Attorney-General v Argo Pty Ltd [2001] TASSC 70 at par[24]. They are as follows:
· The power to dismiss exists as part of the general or inherent jurisdiction of the court and has not been conferred by statute or rule of court.
· The guiding principle is that a dismissal order will be made if the justice of the occasion demands it. There are no rigid or inflexible rules, but guidelines have been developed in the case law.
· Particular factors to be taken into account are:
othe length of the delay,
othe explanation for it,
oany prejudice to the defendant, resulting from delay, that has arisen or might arise if the action proceeds,
osubstantial pre-writ delay compels a plaintiff, having issued the writ, to proceed with expedition in the prosecution of the claim.
The relevant power to extend the time for the brining of the plaintiff's action is contained in the Limitation Act, s5(3), and the considerations relevant to the exercise of that power are set out in the decision of the Full Court in Hill v Iluka Corporation Ltd [2002] TASSC 113 at pars[20] – [23]. They are as follows:
· The guiding principle is that an extension of time will be granted where the justice of the case demands it.
· All of the circumstances of the case are to be taken into account.
· Particular factors to be taken into account are:
owhether there is an arguable case,
othe length of the delay,
othe explanation for it, and
othe degree of prejudice to the defendant which the delay in issuing the writ has caused or will cause.
Although limitation legislation is concerned with the time within which proceedings may be commenced, post-writ delay, for example resulting from the late filing of an extension of time application, may be taken into account insofar as it may contribute to any injustice suffered as a result of the pre-writ delay. Norris v McGeachy [2010] TASFC 4, per Blow J at par[26].
Accordingly, it can be seen that there is substantial overlap in the matters to be taken into account in the consideration of both the dismissal application and the extension of time application.
Although on the dismissal application the defendant carries the overall onus and on the extension of time application the plaintiff carries the overall onus, in both applications, on the issue of prejudice, the defendant carries the evidentiary burden. This was made clear in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. There McHugh J said at 555 that the existence of prejudice is presumed by the legislation, and Dawson J agreed at 544. However they were in the minority on this point. Toohey and Gummow JJ, at 547, endorsed the position stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VR 788 at 793, namely:
"It is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice."
Kirby J said at 566 – 567:
"… because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of specific prejudice pertinent to the exercise of the court's discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of specific prejudice lies on the party making any such suggestion. This is what is meant by the 'evidentiary onus' resting on a proposed defendant in relation to such an issue."
If delay gives rise to a substantial risk that it is not possible to have a fair trial, or that the chances of a fair trial have become unlikely, there is plainly prejudice to the defendant. There may be other prejudice, for example where a defendant arranges his affairs on the assumption that an action will not be commenced or continued. Such other prejudice may conveniently be referred to as oppression.
Prejudice – What impact has delay had on the chances of a fair trial?
As earlier observed, the defendant carries the evidentiary onus on the question of whether or not delay has put in jeopardy the fair trial of the action. It is necessary to begin by identifying the case which the plaintiff here intends to present at trial and the defence to the claim.
The plaintiff made a statutory declaration on the day of the alleged incident setting out in detail her version of events. The statutory declaration is as follows:
"I Valerie Joy PLANE
of Police Headquarters, Burnie,
do solemnly and sincerely declare that –
My full name is Valerie Joy PLANE I am a Constable in Tasmania Police currently attached to Burnie Uniform.
On Sunday the 3rd of August 2003, I was working in the company of Constable MURPHY in the Burnie CBD. Constable MURPHY and I were parked across from Sirocco's night club in Wilmot Street.
At approximately 0240 hrs Constable MURPHY and I attended the main entrance of Sirocco's due to a young male offender hitting out at door security. The male offender was Blair Darcey KAINE, I arrested him for Disorderly Conduct and both Constable MURPHY and I escorted him back to the police vehicle that was parked across from Sirocco's on Wilmot street. As Constable MURPHY and I, placed Blair KAINE into the rear seat of the vehicle, his father Warren Glen KAINE the defendant came over to the Police vehicle. I could smell that the defendant was heavily effected [sic] by alcohol. He became very aggressive towards police.
The defendant demanded to know why his son had been arrested by police, Constable MURPHY informed him that his son had been arrested for disorderly conduct. And that Constable MURPHY and I were taking him back to Burnie station. In answer to this the defendant became more aggressive and demanded police let his son go, he attempted to pull at us but was stopped by his daughter.
Warren KAINE then went around to the drivers side of the police vehicle and started to remove the bar lights from the police vehicle by lifting at them using force that was rocking the vehicle. I saw this antisocial behaviour and went around to were he was at the bar lights to stop his action.
As the defendant saw me he turned towards me with his fists clenched and raised, he proceeded to punch at me landing two blows to my throat consecutively. Constable MURPHY upon seeing this came to my assistance, Constable MURPHY approached the defendant to grab hold of his arms but the defendants looked towards Constable MURPHY raise his right arm and use his elbow to strike Constable MURPHY to the left side of his face.
I asked the security staff from Siroccos to assist both myself and Constable MURPHY to place the defendant on the ground. While on the ground the defendant continued to display antisocial behaviour and Constable MURPHY and I placed handcuffs on to restrain him. Other police officers then arrived and assisted us to control the defendant's behaviour. The defendant continued to kick out at Constable MURPHY during this time and yell abuse.
Constable BRYAN and Constable MURPHY rolled the defendant over so they could assist him to his feet, as they did this the defendant called Constable MURPHY a 'Cunt' and spat towards his face. The saliva landed on Constable MURPHY's police uniform. We then assisted the defendant to his feet and placed him into the divisional van for transport back to Burnie station.
During our efforts at controlling the defendants behaviour Blair KAINE was able to escape police custody and decamp from the vehicle and run east along Wilmot Street.
On arrival at Burnie station the defendant continued to be aggressive towards police by kicking out at Constables BRYAN and MURPHY, as they attempted to remove him from the rear of the divisional van. He was taken into the charge room by Constable MURPHY and myself to be formally charged.
While Constable MURPHY and I were holding the defendant in the charge room, Constable PEARCE was in the process of searching the defendant before being placed in the cells. During the search process the defendant kicked Constable PEARCE to his left shin.
The defendant was placed into a cell and detained for a period of time.
I make this solemn declaration under the Oaths Act 2001 at Burnie this third day of August 2003
Signed (Valerie Plane)
Before me Commissioner for Declarations" (Typographical errors included.)
On 2 September 2003, the defendant was charged with a number of offences relating to the alleged incident. He engaged criminal barrister Mr Richardson to represent him, and on 10 November 2004 entered pleas of guilty to the following:
"… engaging in disorderly conduct, namely by swearing, abusing and resisting police officers, attempting to remove the bar lights from the police vehicle."
"… assaulting Valerie Joy Plane a police officer in the execution of her duty, by punching her once to the throat." (This charge was amended at the time of the plea by replacing the word "twice" with the word "once".)
"… assaulting Roger Karl Pearce a police officer in the execution of his duty, by kicking him to his lower left leg."
"… resisting Paul Benjamin Murphy a police officer in the execution of his duty, by kicking, spitting and punching."
In her particulars the plaintiff claims to have suffered an injury to her cervical spine resulting in symptoms including pain, neck stiffness, headaches and difficulty sleeping. Her particulars outline the alleged impact that these symptoms have had on her earning capacity; home-life and recreational pursuits.
In evidence is a report from neurosurgeon Mr John Liddell, dated 25 August 2004. It says in part:
"I saw Mrs Plane – at the request of Dr Ghassan Markabawi, on the 16th of August 2004, and noted that she was a 39 year old left handed police officer with ongoing left neck and upper limb discomfort, following a work-related assault that occurred on the 3rd of August 2003.
HISTORY
I understood that she had been well in the past. In that respect, she told me that she had not experienced any such discomfort – nor had she sustained any injuries to her neck, prior to the incident in question.
At that time, she was allegedly punched twice in the throat whilst attempting to arrest someone in Burnie – as a result of which, her head was pushed backwards. I understood that she coughed for some hours. She also developed some discomfort in the back of her neck.
The latter settled. Nevertheless, some months later, she began to experience intermittent episodes of pain in the back of her neck – especially on the left, with radiation to her shoulder, and down the inside of her left arm, to her middle, ring and little fingers. She also had some paraesthesias in a similar distribution. However, she had no specific weakness, and no other symptoms of note.
Her pain appeared to be aggravated by neck extension. In that respect, she told me that she experienced difficulty painting ceilings, etc. I also noted that her symptoms were particularly troublesome at night-time.
I understood that she had a couple of days off work because of neck stiffness. However, that did not appear to have been a major problem for her. Furthermore, the situation overall, appeared to be improving.
…
OPINION
I believe that Mrs Plane quite likely sustained an injury to her cervical spine, and presumably, an injury to her throat, as a consequence of the alleged work-related assault in question, and I believe that her ongoing symptoms are consistent with that diagnosis.
She has radiological evidence of significant degenerative changes at C4/5 and C5/6. Nevertheless, on the basis of the available information, I believe that those changes were quite likely rendered symptomatic by the incident in question.
Inasmuch as she continues to experience significant symptoms twelve months post-injury, I expect that she will quite likely continue to experience significant symptoms for some time. Furthermore, I could not entirely rule out the possibility of her requiring further investigations, and/or treatment at some point in the future."
The plaintiff underwent surgery on 6 November 2008 for the removal of the discs at C5/6 and C6/7.
As I said earlier in these reasons, the defendant's pleaded defence consists solely of a denial that the assault occurred; a denial that there was resultant injury and a plea under the Limitation Act. The defendant's affidavit was read into evidence. On the question of prejudice it is as follow:
"10Having not heard anything in this matter from September 2007 until April of 2011, I thought that this matter was not being proceeded with.
11I have asked my solicitors, Wright Gilmour, to seek from Mr Greg Richardson, who represented me in charges of assault related to this matter in 2004, for a copy of my file. I have been advised by my solicitors and verily believe that the file has been destroyed given the elapse of time.
12I feel that I am prejudice in my defence in relation to this matter as I am unable to find witnesses to the matter or obtain copies of material that was on my file regarding the charges in August of 2003, which contained copies of charge room footage and other information that would assist me in my defence.
13Given the delay in prosecuting this matter, I believe I will be denied a fair trial and the opportunity to properly defend the matter.
14I deny any conduct on my behalf of the 3rd of August 2003 could have caused the injuries that Ms Plane now complains of. I believe that there could be a number of intervening factors that may have caused injury that she now alleges she suffers arising from other potential causes." (Typographical errors included.)
Neither in his affidavit, nor under cross-examination did the defendant deny punching the plaintiff. He said under cross-examination that he did not know whether or not he hit the plaintiff. He said he may have done but that the plaintiff was "belting" him with a baton. He said that his son and daughter were present during the incident and that his son still lives at home and his daughter lives in Burnie. He confirmed that they were available as witnesses. He gave no evidence that they are now unable to recall the events the subject of the claim.
The documents which the defendant said had been contained on Mr Richardson's file which might assist him were the charge room footage; photographs of injuries to his face and hospital records relating to those injuries. He agreed, however, that the incident the subject of the action did not occur in the charge room. He said that his daughter had taken the photographs, subsequently given to Mr Richardson, but he had made no enquiries of his daughter to ascertain whether she had retained copies of the photographs or was able to re-produce copies. He was unaware of any attempts to retrieve his hospital records from the hospital.
As to the denial that the plaintiff's neck injury was the result of the defendant having punched her in the throat, there was no evidence presented that medical witnesses, either because of the lack of a reliable history or medical records would be adversely affected by the passage of time in considering whether the plaintiff's neck injury was attributable to the plaintiff having been punched in the throat.
I take into account that with the passage of time memories fade and that evidence may have disappeared without anybody now knowing that it ever existed. However, even when considering the matter in this context, I am unpersuaded that the defendant has discharged his evidentiary burden of putting forward sufficient facts or matters upon which a conclusion might be reached that there is a substantial risk that because of delay a fair trial is no longer possible or that the chances of a fair trial are unlikely.
For the purposes of the dismissal application, the defendant has not demonstrated prejudice relating to a fair trial, and for the purposes of the extension of time application, in the absence of the defendant demonstrating prejudice, I am satisfied that the chances of a fair trial have not become unlikely.
Oppression
I accept the defendant's evidence that because a lengthy period of almost four years passed by without the plaintiff's solicitor communicating with the defendant's solicitor that the defendant thought that the action was not being pursued. The revival of the case after such a long period of inactivity does cause some oppression but there is no evidence of significant oppression such as might have been the case if, for example, the defendant had organised his affairs on the assumption that the case would not be pursued.
The delay and the reasons for it
The plaintiff's evidence was that by April 2004 her symptoms had developed so that she had pain spreading from her neck into her shoulders. In August 2004, she obtained a report from neurosurgeon Mr Liddell confirming an injury to the cervical spine with the symptoms consistent with the patient having been punched in the throat a year earlier. A claim for workers compensation had been lodged but not accepted. Notwithstanding these matters, when the defendant pleaded guilty to the charge involving the plaintiff in November 2004, no application was made under the Sentencing Act 1997, s68, for a compensation order. The plaintiff had engaged a solicitor to represent her in her workers compensation claim. That claim was settled with the assistance of the solicitor in June 2005. The plaintiff then contacted a new solicitor who, in December 2006, made a claim for compensation under the Victims of Crime Assistance Act 1976. The application was rejected in January 2007. The plaintiff's solicitor then ascertained that the defendant owned a house and discussed with the plaintiff the possibility of an action for damages being brought. The plaintiff was advised that significant cost might be involved. The plaintiff thought about the advice and then instructed her solicitor on 20 April 2007 to issue a writ on her behalf. The writ issued a few days later.
Within a few weeks of the defence being delivered, which pleaded the protection of the Limitation Act, the plaintiff's solicitor obtained advice from counsel. Counsel advised that the relevant limitation period for the commencement of an action in battery was six years, and, although there was also a claim in negligence, that it was not necessary to bring an application for an extension of time as the battery claim would be sufficient. The plaintiff left the claim in abeyance.
In March 2011, the decision of W v Eaton [2011] TASSC 4 was published. There it was determined that the time within which an action for damages for injury arising from an intentional tort is subject to a three year, and not a six year, limitation period for commencement. Counsel, having regard to Eaton, then advised that the application to extend time could be undertaken at trial and he recommended that the matter be progressed towards mediation. An order referring the action for mediation was made in December 2011, and the mediation concluded, without a settlement, in May 2012.
Counsel then advised that the application to extend time should be brought prior to the trial. The plaintiff issued instructions accordingly, and by July 2012, the necessary affidavits to support the application had been prepared in draft form. On 3 August 2012, the defendant's dismissal application, along with a supporting affidavit was filed. On 13 August, the plaintiff's extension of time application was filed and the last of her supporting affidavits was filed in September.
There is no evidence from the plaintiff as to whether she was aware that she might bring an action for damages prior to discussing the possibility of an action with her solicitor after her criminal injuries compensation application failed in January 2007. If she was unaware of such a possibility earlier than January 2007, it would be expected that her affidavit would have contained that evidence. She was represented by a solicitor and senior counsel. It is an important matter, unlikely to have been overlooked. I infer from the absence of evidence to the contrary that the plaintiff knew before the expiry of the three year limitation period that she might bring a claim.
By August 2004, the plaintiff's symptoms were significant and she had the report of a neurosurgeon stating that those symptoms were consistent with her having been punched in the throat. There is no evidence that the plaintiff was unaware that time limits applied to such claims, or that she had thought prior to the expiry of the three year limitation period that the time limit was greater than three years.
I conclude that the failure to bring the action within time has not been satisfactorily explained.
As to the period before the expiry of the three year limitation period in August 2006 and the issue of the writ in April 2007, the delay was not lengthy and partly attributed to the plaintiff pursuing a claim under the Victims of Crime Assistance Act. The plaintiff had been told that the action would be costly and it is understandable that she took time to consider her position prior to instructing her solicitor to issue the writ after her criminal injuries compensation claim was rejected in January 2007. This period of delay has been satisfactorily explained.
The plaintiff took no steps to progress her action between mid-2007 and mid-2011 other than to keep her solicitor informed of her condition and have the solicitor obtain medical reports. This four year period of substantial inactivity was explained by the plaintiff to be due to counsel advising in July 2007 that the action had been commenced within time. She gave evidence that she was content with the delay because she lived in an isolated area with three small children and believed the defendant to be prone to violence and was scared of him.
I do not regard the plaintiff's explanation as excusing the very lengthy period of delay. As observed by Blow J in Argo (supra) at par[24]:
"… pre-writ delay is relevant, in that it compels a plaintiff who has delayed substantially before issuing a writ to proceed with expedition in the prosecution of his or her claim."
The delay in bringing the application for an extension of time was the result of counsel's initial advice in 2007 that the action had been brought within time and counsel's subsequent advice in 2011 after the publication of the decision in Eaton to prepare the matter for mediation before pursuing such an application. The extension of time application was prepared and pursued within a reasonable time after the mediation failed. I regard this aspect of the delay to have been satisfactorily explained.
The existence of an arguable case
The defendant pleaded guilty to the charge of punching the plaintiff. The claim based upon an intentional tort is actionable without proof of damage. In any event, the plaintiff has presented medical evidence linking substantial injury to the defendant's alleged conduct. It is clear that the plaintiff has an arguable case.
The exercise of the discretions
The plaintiff has an arguable case. The defendant has failed to satisfy his evidentiary burden of demonstrating that by reason of the plaintiff's delay there is a substantial risk that it is not possible to have a fair trial, or that the chances of a fair trial have become unlikely. These are significant matters in favour of the plaintiff. Against these matters, however, are the facts that the reason for not commencing the proceedings within time has not been satisfactorily explained. The post-writ period of delay between mid-2007 and mid-2011 was inordinate and inexcusable. These features are significant, but not as significant as they would have been had the delay been for the purpose of disadvantaging the defendant, or had the delay occurred in the face of the defendant having taken active steps to endeavour to progress the case. A discretionary judgment must be exercised based upon these findings and also taking into account the general oppression and the general deterioration in the quality of justice which results from delay and the rationales which lie behind limitation legislation. I conclude, on balance, that the justice of the case lies with dismissing the application to strike the claim out for want of prosecution and extending time under the Limitation Act.
Orders
1 The defendant's application, filed 3 August 2012, for an order that the plaintiff's claim be struck out for want of prosecution is dismissed.
2 The time within which the plaintiff's action may be commenced is extended to the date of the issue of the writ, namely 24 April 2007.
I will hear counsel, if requested, on the matter of costs.
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