Plane v Kaine - [2012] TASSC 77

[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…

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 Plane v Kaine

Details

AGLC: Plane v Kaine [2012] TASSC 77
Case: [2012] TASSC 77
Decision Date: 20 November 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Plane v Kaine revolves around the dismissal of proceedings due to a lack of prosecution. The plaintiff, Plane, sought to sue the defendant, Kaine, over matters related to alleged misconduct. The primary dispute centred on whether the proceedings should be dismissed for inactivity, with a specific focus on whether such a dismissal would cause substantial prejudice to the defendant.

The legal issues before the court included the interpretation of procedural rules governing the dismissal of proceedings for want of prosecution and the standard of proof required to establish substantial prejudice. The court had to determine whether the plaintiff's inactivity warranted dismissal and, if so, whether such a dismissal would indeed cause substantial prejudice to the defendant.

The court, in its reasoning, acknowledged the importance of maintaining an efficient and timely judicial process. It found that while the plaintiff had not advanced the proceedings for an extended period, the threshold for dismissal was not met because the defendant did not demonstrate substantial prejudice. The court emphasised that prejudice must be significant and not merely speculative. Given the evidence presented, the court concluded that the risk of prejudice was not sufficiently established to justify dismissal. Therefore, the court dismissed the application for the proceedings to be struck out.

Orders