Smith v State of Tasmania
[2003] TASSC 92
•23 September 2003 (Orders)
[2003] TASSC 92
CITATION: Smith v State of Tasmania [2003] TASSC 92
PARTIES: SMITH, Leslie Joseph
v
THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 631/2000
515/2003
DELIVERED ON: 23 September 2003 (Orders)
2 October 2003 (Reasons)
DELIVERED AT: Hobart
HEARING DATES: 19, 22 September 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure - Supreme Court Procedure - Tasmania - Practice under Rules of Court - Commencement of Proceedings; originating process - Renewal of writ - Renewal out of time - Reasons for delay.
Woodcock v The State of Tasmania [2003] TASSC 81; Verdich v McKechnie [1981] Tas R 91, referred to.
Hingston v Katsikas [1963] VR 441, followed.
Supreme Court Rules 2000 (Tas), rr52, 107(2).
Aust Dig Procedure [266]
REPRESENTATION:
Counsel:
Applicant: C J Boland
Defendant: L J Neasey
Solicitors:
Applicant: C J Boland
Defendant: Director of Public Prosecutions
Judgment Number: [2003] TASSC 92
Number of Paragraphs: 26
Serial No 92/2003
File Nos 631/2000515/2003
LESLIE JOSEPH SMITH v THE STATE OF TASMANIA
REASONS FOR JUDGMENT SLICER J
(ORDERS) 23 September 2003
(REASONS) 2 October 2003
Separate applications in actions 631/2000 and 515/2003 have been heard together by order of the Court. In action 631/2000, the plaintiff seeks orders by application dated 18 September 2003, that:
"2the time within which the applicant may apply to renew the Writ be extended to the date hereof and that this application be deemed to be such an application.
3the Writ be renewed for a further period of six months from the date hereof.
4leave be granted to the Plaintiff to amend the endorsement on the Writ to read
'The Plaintiff's claim against you is for damages for personal injury as a result of your breach of contract, negligence and/or breach of a statutory duty between on or about the 25th September 1997 and 12th October 1997 at TAFE Tasmania situate at 75 Campbell Street, Hobart in Tasmania together with costs to be taxed'."
In action 515/2003 commenced by writ dated and filed on 19 September, the plaintiff seeks an order that:
"the date for the issue of the Writ in this matter be extended to 19 September 2003."
The writ in action 631/2000 claims:
"… damages for personal injury as a result of your negligence between the 25th September, 1997 and 12 October, 1997 at TAFE Tasmania situate at 75 Campbell Street, Hobart in Tasmania …"
whilst the writ in action 515/2003 seeks:
"… damages for personal injury as a result of your breach of contract, negligence and/or breach of a statutory duty between on or about the 25th September 1997 and on or about 12th October 1997 at TAFE Tasmania situate at 75 Campbell Street, Hobart in Tasmania …".
Because both pleadings depend on an allegation that there had been a tort committed on 25 September 1997 and the matters came before this Court on 19 and 22 September 2003, it was desirable to determine the applications instanter and these reasons, uncompleted as of the date of the orders, through necessity, state the basis of those determinations.
The plaintiff was employed by TAFE, a government agency, in September/October 1997. On 20 April 1998, he sought by notice, compensation in accordance with the provisions of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), following an event said to have occurred on 12 October 1997. His entitlement was disputed, and on 17 June 1998, the Workers Rehabilitation and Compensation Tribunal ("the Tribunal") determined that a genuine dispute existed in accordance with the Act, s81A and in November 1999 the matter was referred to the Tribunal in accordance with the Act, s42. A conciliation conference was held on 6 December 1999 but following its failure, no further action was taken by the plaintiff to pursue his claim for compensation.
In his affidavit sworn on 22 September 2003, the plaintiff deposed:
"2 I first consulted the firm Simon Parsons & Co on or about 14 February 2000 and saw a Ms Katherine O'Donnell. I first consulted that firm, because I had been appearing myself before the Workers Compensation Tribunal, which determined that a 'genuine dispute' was founded and therefore I was to appeal that decision. The Tribunal adjourned to enable me to obtained legal advice."
On 3 July 2000, Simon Parsons & Co advised the plaintiff that he "should consider taking proceedings for damages at common law". The firm advised the plaintiff by letter dated 14 August that:
"… if you wish to proceed with your claim we will need an up-front payment of $1000.00 in order to buy medical reports etc. We would also wish to remind that the given time for your claim runs out during September."
The sum was paid and on 25 September 2000, the writ was endorsed and filed.
The nature of the injury and its consequences, namely inability to return to work and financial dependency on a disability pension, are relevant to the exercise of discretion since it could not be said that he has had a plethora of resources with which he could pursue his cause. The plaintiff paid the filing fee on the writ on 7 September 2000 and the sum of $1,000 as security for costs on 7 October and 8 November 2000.
There is no evidence that the plaintiff's solicitors attempted to serve the writ. There was little communication between solicitor and client and no diligence shown by the solicitors in the furtherance of the plaintiff's case. The plaintiff saw a member of the firm on 7 September and following the filing of the writ, claims that on 25 September 2000, he was advised by the firm that his:
"… common law claim had been filed with the Supreme Court within time and that 'I could sit back and relax'."
The plaintiff was examined, by arrangement through his solicitors, by an independent medical consultant in February 2001. The plaintiff claims that during this period he continued, unsuccessfully, to attempt to progress his claim through his solicitors. Following complaints made to the firm, he says that a partner of the firm, stationed in Victoria, saw him, and in the words of the plaintiff:
"… said he would review my file and if 'we are to make some money, you'll make money' or words to that effect. He lead me to believe that he would pursue my claim."
About that time and certainly by August 2001, the firm of solicitors ceased to practice in Tasmania, and on 15 August 2001, advised the plaintiff:
"We have been forced by circumstances beyond our control to close our Hobart office.
The decision is regretted, but the process although complex is being approach in a methodical and controlled fashion. The files are in transit to Victoria. Our Victorian offices have the facilities and staff to deal with the transition process quickly.
Once reviewed, your file (which is receiving priority) will be actioned, either by us direct with barristers in Tasmania or through appointed agents in Tasmania.
We are doing everything in our power to expedite the process and bring your claim to a prompt and fruitful conclusion. We will correspond further with you shortly – if in the interim you have any concerns please list same and post to us in the enclosed prepaid envelope. A solicitor will be in contact as soon as possible.
Our apologies for any confusion or minor delay. Thank you for your patience."
That letter was followed by one dated 13 September, which stated:
"As you are aware there are some difficulties (not insurmountable but present) in dealing with your file from Victoria.
We have had a number of clients express a desire for more immediate or face to face contact rather than telephone, post and facsimile.
With the assistance of John Lewinski, senior partner at Wilson Dowd in Hobart we have been able to facilitate a transfer of your file without 'up front' payment. Wilson Dowd barristers & solicitors are located at 53-55 Davey Street, Hobart telephone 6234 3517. We have embarked on this action for you on the basis that a successful outcome is achievable – not to throw money away. If your actions prevent us from recovering our costs then we will look to you for payment of all.
At the beginning of November 2001 Wilson Dowd will be merging with Butler McIntyre & Butler and the new partnership of these two long standing respected legal firms will further enhance the ability to manage your legal requirements.
Wilson Dowd will liase with clients and enter into a fresh retainer agreement. Obviously, the previous retainer agreement will remain binding until that time.
In your case we recommend you take up this opportunity – we trust that this is acceptable – it involves you paying nothing at this point in time and will allow for a smooth and quick transition of the file.
We enclose an authority to transfer your file and a pre-paid envelope to return the signed authority to this office.
On its return the file will be immediately forwarded to Wilson Dowd, and an appointment will be arranged with an experienced solicitor to review and progress your matter.
If you have already approached another firm, they need only remit the authority (suitably amended as to their details only) and we will honour the authority in a similar time frame.
Unfortunately if the terms are not acceptable there will be delays as we will need to cost our file, and insist that disbursements incurred on your behalf be paid prior to the transfer being effected.
We recommend John Lewinski and his team at Wilson Dowd to you and urge your prompt response and compliance. We trust our preferred option is accepted by you – it involves you paying nothing now, and a smooth and speedy transition of your file.
They will accept your authorisation to conduct you claim on this basis, and we all look forward to its successful conclusion."
The plaintiff did not wish to be represented by the solicitor nominated and made complaint to the Law Society of Tasmania ("the Society"), following which he met with a barrister nominated by the Society who informed him of the difficulties associated with a "stale writ" and advised him to seek further representation. In May 2002, he consulted his present solicitor in relation to his claim and on 19 June, the terms of retainer were settled.
The plaintiff pursued his attempts to obtain redress from Simon Parsons & Co and to have his file returned. He was unsuccessful in both endeavours. Simon Parsons & Co has not as yet, on the material available to this Court, provided an account of moneys expended on the plaintiff behalf, nor has the file been returned.
Some criticism was directed at the plaintiff in his decision to attempt recovery of his file and the ensuing delay. Yet it must be remembered that the plaintiff was bereft of resource. It ought be borne in mind that the principles, but not necessarily the outcome, stated by the High Court in Deitrich v The Queen (1992) 177 CLR 292 apply only to the criminal law. The attempts made by the plaintiff, whilst futile, were reasonable and, given the responses, left him with few options. On 24 June 2002, the plaintiff's solicitor wrote to Simon Parsons & Co requesting the return of the file. On 27 June, the solicitors replied that "these files are currently at the Law Society of Tasmania". On 10 July, the Society replied, in answer to a letter by the plaintiff's solicitor dated 9 July 2002, that:
"The Society will use its best endeavours to obtain release of the files to you and … will advise you as to that in due course."
On 6 August 2002, the Society further advised that following its indication that it "would use [its] best endeavours to obtain release of Mr Smith's files" that the:
"… matter was considered by the Investigations Committee on 5 August 2002. Members discussed a number of similar matters where Simon Parsons & Co are refusing to release clients' files.
It was noted that Mr Simon Parsons and Mr Garry Singer, partners of Simon Parsons & Co currently hold practising certificates in Victoria. As they are refusing to release files to you, despite your client's authority, this is a mater which you can take up directly with their professional association, namely, the Law Institute of Victoria, as a conduct issue.
Accordingly, the Society's Investigations Committee recommends that you refer this matter to the Law Institute of Victoria as a formal complaint, for investigation. The Law Institute of Victoria's address is GPO Box 263C Melbourne, Victoria 3001."
The plaintiff apparently contacted the Victorian equivalent, which produced the response:
"I refer to our telephone conversation on 23 December 2002.
I subsequently spoke to a lady at the Law Society of Tasmania. I have been advised by Ms Jan Martin of the Law Society of Tasmania that that organisation is currently proceeding with a prosecution against Simon Parsons & Co in relation to the issues which had been raised in your complaint. As the matter proceeded in that direction in Tasmania, it is not appropriate for me to continue with an investigation in relation to the same issues.
I have therefore proceeded to close my file in relation to this matter and would suggest that you direct future queries to The Law Society of Tasmania to obtain an up-date on progress."
The inability of the plaintiff or his adviser to retrieve the file and properly pursue these applications is a significant matter. Whether provision of the plaintiff's file would enhance his cause is difficult to determine. But his action is against the State which has, by legislation, appointed the Society as the institution responsible for the maintenance of appropriate professional conduct. The Society has, quite properly, in its investigation of the conduct of Simon Parsons & Co, taken possession of the file of the plaintiff. His inability to retrieve the material ought not be to his detriment in an action against the State of Tasmania.
Supreme Court Rules 2000
The Supreme Court Rules 2000, r107(2), provides:
"(2) On the application of the plaintiff made whilst a writ is in force, the Court or a judge may order that the original writ and any concurrent writ be renewed for 6 months if a defendant named in the writ has not been served."
The term "whilst a writ is in force" was the subject of comment by Underwood J in Woodcock v The State of Tasmania [2003] TASSC 81 when he said, at par3:
"This application was not made 'whilst the writ was in force'. It was not made until just over eight months after the writ ceased to be in force. Rule 52 empowers the Court to enlarge the time for doing any act. No challenge was made to the learned Master's conclusion at par2 of his reasons for judgment, '… no reason has been advanced as to why time should not be enlarged for the bringing of the renewal application and so it follows that if renewal is appropriate, so too is the enlargement. See Lapham v Woods 66/1995'."
Rule 52 permits extension of time in terms:
"52 ¾ (1) The Court or a judge may extend or abridge the period for doing any act or taking any proceedings allowed or limited by these rules or by any order of the Court or a judge on any terms the Court or judge considers just.
(2) An extension of any period may be ordered although the application is made after the expiration of the period originally allowed or limited.
(3) The costs of an application and an order made under subrule (1) are to be borne by the applicant unless the Court or a judge otherwise orders."
Rule 107 is not confined to a period whilst the writ remains in force. In Hingston v Katsikas [1963] VR 441, Dean J, in identifying the import of the comparable Victoria Order LXIV, said at 442 – 443:
"But it may be said that the time allowed for making the application for renewing the writ is 12 months and that this time so appointed is one to which Order LXIV, r6 applies so as to empower the Court to enlarge it after it has expired. This appears to ignore the introductory words of the rule: 'No original writ of summons shall be in force for more than twelve months'; and also the general plan of the rule. But, however that may be, all the cases which have had to deal with this after the expiration of the period of 12 months, and they have all proceeded on the basis that by the combined effect of the two rules there is power to extend the time upon which an application made after it had expired. I propose to proceed upon the same basis."
The combined operation of the Rules affords power to permit the extension.
Prejudice
An officer of the defendant, employed as a Human Resources Consultant of TAFE, has deposed:
"(e)No further action was taken by Mr Smith to prosecute his claim for compensation.
(f)There is no indication on the file that Mr Smith was alleging that lack of training in the use of the polishing machines was a cause of his injury in that the machines tended to become off balance in use and that such was a cause of his injury.
(g)There is no suggestion or indication on the file that common law proceedings were instituted or to be instituted by the Applicant nor that he had such proceedings in contemplation.
(h)There is no indication on the file that the circumstances giving rise to the alleged injury have ever been investigated and it would be expected that if there had been an enquiry into the circumstances there would be documentation to that effect on the file."
The prejudice is real. It will be difficult for the defendant to locate and reconstruct the material necessary for the defence of the action. However, the material relevant to the claim for workers compensation still exists and the medical records pertaining to the operation in March 1998 discoverable. The identity of a potential witness, Ray Court, is known to both parties, and the then Occupational Health and Safety Officer of TAFE, Les Foley, is still available as a person who can assist the defendant.
Exercise of discretion
The plaintiff was cross-examined on his affidavits. He presented as an ordinary person with limited understanding of the legal process. He had placed his cause in the hands of others. He complained about inaction and pursued his concerns through the appropriate institution. He was not to know that a relatively simple matter of service had not been undertaken. He had paid money for a service to be provided and was neither passive nor indifferent to the progression of his action. The departure of the firm of Simon Parsons & Co was not of his making and the assurances given by a senior practitioner of that firm did nothing to alert him to anything other than delay, nor warn him of risk. He is in no way responsible for the loss of the files or the inability to recover them. It is true that he could have done more, but such is easy to say of a person bereft of resources. He is entitled to have his claim determined by the Courts.
The defendant is prejudiced by the failure of the plaintiff's solicitors to effect service. But the defendant is the State of Tasmania, with greater resources and access to archival material. A statutory authority of the State has investigated the complaint of the plaintiff about the conduct of these proceedings and is now unable to furnish the file which contains information relevant to these proceedings. This is not a claim lately discovered or pressed. Renewal of the writ is an appropriate exercise of discretion.
Concurrent proceedings
The solicitors for the plaintiff, quite property, commenced separate proceedings by writ filed on 19 September 2003 as a means of protecting the plaintiff's cause. The endorsement of the writ states:
"The Plaintiff's claim against you is for damages for personal injury as a result of your breach of contract, negligence and/or breach of a statutory duty between on or about the 25th September 1997 and on or about 12th October 1997 at TAFE Tasmania situate at 75 Campbell Street, Hobart in Tasmania together with costs to be taxed."
The writ seeks to enlarge the cause of action by the inclusion of claims based on contract and statutory duty. Prejudice to the defendant is enlarged by the pleading (Verdich v McKechnie [1981] Tas R 91). The plaintiff ought bear responsibility for his own failure to progress his claim and despite the failure of others, ought not have his position enhanced by leave to bring fresh proceedings with additional grounds. A further matter relevant to any exercise of discretion is consideration of the merits of his case. In his affidavit dated 22 September 2003, filed in support of his application, the plaintiff stated his instructions to be:
".1 whilst in my employ with TAFE and at the time I sustained my injuries I was using a Bramil floor polisher.
.2 I had used such polisher since 1986 and that I used such polisher most days for between 15 – 45 minutes.
.3 I was not given any instruction or training as to how such a polisher should be operated or used.
.4 my employer did not have any maintenance program for such polishers.
.5 the polishers were modified in the early 1990's so that different drives and pads could be fitted.
.6 in mid 1998 by chance I met a Mr Ray Court, a professional cleaner and teacher at the Wilson Training Centre who told me, and I believe him, that it was critical to store such polishers in a certain manner after use, particularly machines which had been modified to accommodate a range of drives and pads.
.7 the polishers were industrial polishers, heavy and extremely difficult to control, so much so that after I had used such a polisher, for a short time, approximately 5 – 10 minutes both of my hands would become bloodshot."
It could not be said that he has shown more than an arguable case. That alone ought not defeat his application, but together with the history of proceedings in action 631/2000 and their surrounding circumstances, my conclusion is that the application ought not be granted.
Orders
The orders made on 23 September 2003 in accordance with these reasons were:
Action 631/2000:
(1)The time within which the plaintiff may apply to renew the writ be extended to 18 September 2003 and the application deemed to be such an application.
(2)The writ be renewed for a period of six months from 18 September 2003.
(3)That the application, par4, be adjourned.
Action 515/2003:
The application dated 19 September 2003, be dismissed.
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