Rodney Francis Singles v Mander Forklift Pty Limited

[2012] ACTSC 48

RODNEY FRANCIS SINGLES v MANDER FORKLIFT PTY LIMITED
[2012] ACTSC 48 (30 March 2012)

PRACTICE AND PROCEDURE – Court Procedures Rules 2006, rules 75 and 76 – proceeding taken to be dismissed by operation of rule 75 – application to reinstate proceeding – claim for damages for personal injury – factors to be taken into account – fifteen years since cause of action arose – presumed prejudice to defendant arising from delay – interests of justice – application to reinstate refused.

Court Procedures Rules 2006, rr 75, 76

Equuscorp Pty Limited v Lah [2009] ACTSC 113
Rumble v GPT Re Limited [2012] ACTSC 39
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Tyler v Custom Credit Corp Limited [2000] QCA 178
Maxwell v Murphy (1957) 96 CLR 261
Fisher v Hebburn Limited (1960) 105 CLR 188
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

No.  SC 502 of 2000

Judge:             Master Harper
Supreme Court of the ACT

Date:              30 March 2012

IN THE SUPREME COURT OF THE     )
  )          No.  SC 502 of 2000
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:RODNEY FRANCIS SINGLES

Plaintiff

AND:MANDER FORKLIFT PTY LIMITED

ACN 001 460 304

Defendant

ORDER

Judge:  Master Harper
Date:  30 March 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. the application in proceeding be dismissed.

2. the plaintiff pay the defendant’s costs of the application.

1. This is an application by the plaintiff for an order under r 76 of the Court Procedures Rules 2006 that the action be reinstated. The action is taken to have been dismissed under r 75. The applicable subrules are as follows:

   75        When proceeding taken to be dismissed

(2)Also, a proceeding is taken to be dismissed in relation to a party if the party does not take a step in the proceeding before the end of 1 year after the day the last step was taken in the proceeding.

(3)For subrule (2), the filing in the court of a notice of intention to proceed in relation to a proceeding is taken to be a step in the proceeding.

(4)           A proceeding is taken to be dismissed under subrule (1) or (2) on the day after the day the relevant 1-year period mentioned in the subrule ends.

Example
There is 1 plaintiff and 1 defendant to a proceeding. The defendant takes a step in the proceeding on 1 July 2006. If the plaintiff fails to take the next step on or before 1 July 2007, the proceeding is taken to be dismissed on 2 July 2007.
Note     An example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

76        Reinstating dismissed proceeding

(1)A person whose proceeding has been dismissed under rule 75 may apply to the court to reinstate the proceeding.

1.The court may reinstate the proceeding if it is in the interests of justice to reinstate the proceeding.

2.A proceeding that has been dismissed under rule 75 (2) is reinstated if, before the end of 1 year after the day the proceeding is dismissed, a party to the proceeding files a document in the proceeding.

3.The party filing the document must serve a copy of the document on each other active party to the proceeding not later than 3 days after the day the document is filed.

4.For any time limit (including a limitation period), a proceeding that is reinstated is taken to have started on the day the originating process for the proceeding was filed in the court and is taken never to have been dismissed.

1. The plaintiff commenced the action on 9 August 2000, claiming damages for personal injury which he suffered while loading a pallet with the use of a pallet truck which malfunctioned, in the course of his employment with Australia Post.  The plaintiff asserts in the statement of claim that the truck was supplied by the defendant and was defective.

2. The originating application was filed by a Sydney solicitor through Canberra agents.

3. An appearance was entered and a defence filed in March 2001.  The defence simply denied all of the facts alleged in the statement of claim.

4. The next document filed was an application by the solicitors for the defendant to the Registrar asking for the fixing of a listing conference in circumstances where the defendant had served a certificate of readiness on the plaintiff which the plaintiff had not returned.  The Registrar fixed a listing conference for 9 October 2003.  The evidence is that the listing conference was adjourned a number of times, and on 1 April 2004 was stood over generally.

5. No document was filed thereafter until the present application in proceeding on 10 January 2012.

6. On 2 March 2012 the present solicitors for the defendant filed a notice of change of solicitor, the previous solicitors having effectively ceased to have practised in the area following an international merger.

7. The application is supported by two affidavits by the Sydney solicitor for the plaintiff.  There is no affidavit by the plaintiff himself, or by any solicitor from the office of the Canberra agents.

8. The Sydney solicitor, Mr Hasson, deposes that he was continuing, after April 2004, to engage in legal work on the matter by way of preparation, including engaging an engineer to provide an expert report as to the circumstances of the injury.  He engaged the engineer in December 2005.  The engineer was out of Australia for various periods working on other projects.  In May 2009 Mr Hasson engaged another engineer to complete the task.  He received the report from the second engineer in November 2010 and sent it by way of service to the then solicitors for the defendant in March 2011. 

9. During 2009 Mr Hasson qualified a forensic psychiatrist and an orthopaedic surgeon, each of whom provided a report.

10. Mr Hasson annexed to his first affidavit a chronology of activity on the file.  This included obtaining reports from investigators and corresponding with the then solicitors for the defendant; requesting reports from doctors and communications with the engineer, with Australia Post and with ACT Workcover; and views at the scene of the accident with each of the engineers.  During 2010 Mr Hasson conferred with counsel.  In March 2011 he served the engineering report and medical reports on the previous solicitors for the defendant.  From May 2011 he was in communication with the present solicitors for the defendant, who informed him that the action was taken to have been struck out and that any application to reinstate it would be opposed.

11. Mr Hasson said that he was unaware of the introduction of the Court Procedure Rules 2006 and in particular of the introduction of r 75. He was unaware of this until December 2010, when he instructed his agents to file a subpoena addressed to Australia Post and was informed by his agents that the matter had been struck out. Neither he nor the agents had received any notice from the court about the striking out.

12. It appears that there was no communication between the plaintiff’s solicitors and the then defendant’s solicitors between August 2004 and March 2011, some four months after the plaintiff’s solicitors learned that the action was taken to have been struck out.

13. In the absence of any evidence from the plaintiff I must infer any evidence he might have given would not have assisted his case on the application for reinstatement.  I must draw the same inference from the absence of any evidence by any solicitor from the firm acting as Canberra agents for the plaintiff’s solicitors.

14. The principles to be applied on an application for reinstatement were expounded by Buchanan J in Equuscorp Pty Limited v Lah [2009] ACTSC 113 commencing at [27]. His Honour saw r 75 as aimed at encouraging or requiring the timely and efficient management of proceedings. As I said in Rumble v GPT Re Limited [2012] ACTSC 39, I suspect that the principal motivator for the introduction of the rule was to establish a mechanism for the removal of dormant proceedings from the court’s current files for statistical purposes, although undoubtedly the rule also has the effect referred to by his Honour. His Honour made the point that where an action would be liable to be struck out for want of prosecution if it were reinstated, reinstatement would be futile and would not be ordered. The reverse proposition did not follow: there was no presumption that an action should be reinstated simply because it would not be liable to be struck out for want of prosecution.

15. His Honour made it clear that the onus of persuading the court to reinstate was upon the moving party.  The defendant in such a case was, at the time of the application, shielded from the risk of further litigation, and in those circumstances the plaintiff carried a heavy onus of explanation for the delay.  The plaintiff carried the overall onus of showing that the interests of justice favoured reinstatement.  This required a satisfactory explanation for the delay, and the exclusion not only of the prima facie presumption of prejudice to a defendant arising from delay (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per Dawson J at 544) but also any particular prejudice to which the defendant could draw attention (Brisbane South per Toohey and Gummow JJ at 547).

16. Notwithstanding the difference in onus, most of the factors relevant to be taken into account on an application for dismissal for want of prosecution are equally applicable to a reinstatement application.  An extensive list of such factors was set out by Atkinson J in Tyler v Custom Credit Corp Limited [2000] QCA 178, a decision of the Court of Appeal of the Supreme Court of Queensland. Her Honour listed a number of factors, including the following:

    ·how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced.

    ·how long ago the litigation was commenced.

    ·what prospects the plaintiff has in the action.

    ·whether or not the litigation has been characterised by periods of delay.

    ·whether the delay is attributable to the plaintiff, the defendant, or both.

    ·how far the litigation has progressed.

    ·whether or not the delay has been caused by the plaintiff’s lawyers being dilatory (such dilatoriness will not necessarily be sheeted home to the client but it may be.  Delay for which an applicant is responsible is regarded as more difficult to explain than delay by his legal advisers).

    ·whether there is a satisfactory explanation for the delay.

    ·whether or not the delay has resulted in prejudice for the defendant leading to an inability to enjoy a fair trial.

17. The present action was commenced three years after the cause of action arose, in the context of a six-year limitation period.  No explanation is offered for that delay, but counsel for the defendant did not specifically mention it as a factor.  As I said in Rumble, the longer a plaintiff delays in commencing proceedings, the more closely the plaintiff can expect that future delays in the matter will be scrutinised.

18. In Equuscorp, Buchanan J took the view that when r 75 came into operation (on 1 July 2006) its effect was retrospective. The last step in Equuscorp had been taken on 20 August 1999, and his Honour held that the action was taken to have been struck out on 21 August 2000.  This finding was not crucial to his Honour’s decision, and I am not sure, with the greatest of respect, that it is correct.  Generally a legislative amendment will be interpreted not to have been intended to operate retrospectively where it might affect rights or liability: Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 267; Fisher v Hebburn Limited (1960) 105 CLR 188 per Fullagar J at 194, although the general rule has been held not to apply to legislation concerned with matters only of procedure. It is unnecessary for determination of the present application to take this question further, other than to note if Buchanan J’s dictum is correct, then the action is taken to have been dismissed in April 2005. If r 75 is interpreted as having prospective operation only, the date of notional dismissal would be 2 July 2007.

19. Also introduced on 1 July 2006 was r 21 which expresses the purpose of the Rules as to civil proceedings as to facilitate the just resolution of the real issues in civil proceedings with minimal delay and expense, and requires the court to apply the Rules with the objective of achieving the timely disposal of the proceedings, an objective which the parties must help the court to achieve.  The High Court of Australia held in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 that the purposes in r 21, including the minimisation of delay, were plainly intended to guide the exercise of discretion in the Rules generally: Gummow, Hayne, Crennan, Kiefel and Bell JJ at [72].

20. Counsel for the plaintiff submits that as a general proposition it is in the interests of justice that the rights of parties be determined on their merits rather than by procedural failure. He notes as relevant that the solicitors for the plaintiff were not notified by the court that the proceeding had been dismissed, and that the Sydney solicitor for the plaintiff was personally unaware of the existence of r 75, and was of the belief that the action remained alive although it had been stood over generally. If he had been aware of the rule he could have kept the action alive by the simple expedient of filing a notice every twelve months. It should also be seen as relevant that the plaintiff personally was not at fault, and that no evidence of prejudice had been adduced by the defendant.

21. Counsel for the defendant submits that actual prejudice can be found from the affidavit material relied on by the plaintiff, and from the court record itself.   There is in evidence a letter from the then solicitors for the defendant to the solicitors for the plaintiff in November 2003 stating that the defendant did not own the truck at the time of the accident and had been unable to locate it.  Prejudice will be assumed simply from the length of time since the cause of action arose, now almost fifteen years ago: see Brisbane South per Dawson J at 544. I take account of the fact that this is a personal injury claim against a defendant which was not the plaintiff’s employer, nor does it appear to have been the owner of the offending vehicle. After so long a period of time some prejudice is virtually inevitable. As McHugh J observed in Brisbane South at 551, in the context of an application to extend a limitation period:

    .   .   .   “[w]here there is delay the whole quality of justice deteriorates”.  Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed.  But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties.  Prejudice may exist without the parties or anybody else realising that it exists.  As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”.  So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed.  Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.  A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had had all the evidence concerning the matter, an opposite result may have ensued.  The longer the delay   .   .   .   the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

22. That passage is particularly apposite in circumstances where it is nearly fifteen years since the injury.  It can be assumed that after such a lapse of time the defendant will be at a disadvantage in relation to both liability and quantum.

23. The fact that the plaintiff could have kept this action from being notionally dismissed by filing a notice annually is not to the point.  The factors which are significant are the length of time since the cause of action arose; the length of time since the litigation was commenced; the fact that the litigation has been characterised by lengthy delays attributable to the plaintiff or his solicitors; the lack of a satisfactory explanation for the delay; and the likelihood of prejudice to the defendant.

24. In an application to reinstate, often a crucial consideration will be whether a fair trial remains possible.  It is not for the defendant to establish that it does not, but rather for the plaintiff to satisfy the court that it does.  I am not satisfied that, after fifteen years, a fair trial remains possible.  Nor am I satisfied that in any event, having regard to the other factors I have listed, the plaintiff has made out a case for the reinstatement of the action.

25. I take the opportunity to point out the potential for a conflict between the interests of the plaintiff and the interests and duty of his solicitors in bringing a reinstatement application in circumstances such as these. Whilst it may not be immediately apparent, the fact is that it is very much to the advantage of the solicitors that the action be reinstated. This is so even where there is some prospect that the plaintiff may be unsuccessful at trial. At the same time, it may be to the plaintiff’s personal advantage if the reinstatement application fails, because that may leave him with a cause of action against the solicitors, in which his prospects of success may be considerably better than his prospects against the defendant in the original action. Solicitors for a plaintiff whose action has been notionally dismissed under r 75 should give careful consideration to whether such a conflict may have arisen, and whether they may have a duty to advise the plaintiff to obtain separate representation or at least independent advice.

26. Partly arising from that consideration, the court will generally expect that a reinstatement application will be supported by an affidavit by the plaintiff and not just by the solicitor.  This will at the very least overcome any suspicion that the solicitors may not have informed the plaintiff that his action has been dismissed and that the application has been made.  More importantly it will inform the court as to any contribution the plaintiff may have personally made to the delay giving rise to the notional dismissal.

27. The application for reinstatement will be dismissed with costs.

    I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

    Associate:

    Date:     30 March 2012

Counsel for the plaintiff:  Mr F Tuscano

Solicitors for the plaintiff:  LHD Lawyers by their agents Ken Cush & Associates

Counsel for the defendant:  Mr SH Pilkinton
Solicitors for the defendant:  Dibbs Barker
Date of hearing:  23 March 2012
Date of judgment:  30 March 2012