Sovereign Grange Pty Ltd v Av Truck Services Pty Ltd
[2015] WADC 130
•5 NOVEMBER 2015
SOVEREIGN GRANGE PTY LTD -v- AV TRUCK SERVICES PTY LTD [2015] WADC 130
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 130 | |
| Case No: | CIV:4008/2010 | 16 SEPTEMBER 2015 | |
| Coram: | PRINCIPAL REGISTRAR MELVILLE | 5/11/15 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | SOVEREIGN GRANGE PTY LTD AV TRUCK SERVICES PTY LTD WESTERN STAR TRUCKS AUSTRALIA PTY LTD |
Catchwords: | Practice and procedure Application to set aside action dismissed for want of prosecution Exceptional circumstances |
Legislation: | District Court Rules 2005 r 44G |
Case References: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Elwood v Goodman [2014] WADC 143 Fairclough v Stewart-Rattray & Gawler Health Service [2012] SADC 3 Musolino v Osmond [1996] SADC 3526 R v Steggall [2005] VSCA 278 Rowe v Stoltze [2013] WASCA 92 The Owners of SP13443. 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) (Unreported, WADC, CIV 1718 of 2013, 14 April 2015) Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
AV TRUCK SERVICES PTY LTD
Defendant
WESTERN STAR TRUCKS AUSTRALIA PTY LTD
Third Party
Catchwords:
Practice and procedure - Application to set aside action dismissed for want of prosecution - Exceptional circumstances
Legislation:
District Court Rules 2005 r 44G
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Ms C Holyoak-Roberts
Defendant : Mr H O'Sullivan
Third Party : No appearance
Solicitors:
Plaintiff : Walker Hedges & Co
Defendant : SRB Legal
Third Party : Not applicable
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Elwood v Goodman [2014] WADC 143
Fairclough v Stewart-Rattray & Gawler Health Service [2012] SADC 3
Musolino v Osmond [1996] SADC 3526
R v Steggall [2005] VSCA 278
Rowe v Stoltze [2013] WASCA 92
The Owners of SP13443. 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) (Unreported, WADC, CIV 1718 of 2013, 14 April 2015)
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
1 PRINCIPAL REGISTRAR MELVILLE: This action was commenced by writ of summons issued 22 December 2010 for damages as a result of a truck purchased by the plaintiff from the defendant catching fire on 3 August 2008.
2 On 27 November 2014 the court issued a notice that the case was placed on the inactive cases list and that if it was to remain on the inactive cases list for six continuous months it would be taken to have been dismissed for want of prosecution.
3 The case remained on the inactive cases list for six continuous months and accordingly was dismissed for want of prosecution pursuant to provisions of the District Court Rules 2005 (DCR) r 44G(1) on 26 May 2015.
4 The plaintiff now brings an application under DCRr 44G(5) for an order setting aside the dismissal of the case. Pursuant to the provisions of that rule the court has a discretion, in exceptional circumstances, to set aside the dismissal. Accordingly, it is necessary to consider:
(a) do exceptional circumstances exist; and
(b) if so, should the court exercise its discretion to set aside the dismissal.
The law
5 There was some debate between the parties as to what the phrase 'exceptional circumstances' means. I was referred to a number of South Australian decisions, being Musolino v Osmond [1996] SADC 3526; and Fairclough v Stewart-Rattray & Gawler Health Service [2012] SADC 3; a New South Wales decision of Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 and two decisions of deputy registrars of this court in Elwood v Goodman [2014] WADC 143; and an unreported decision of The Owners of SP13443, 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) (Unreported, WADC, CIV 1718 of 2013, 14 April 2015).
6 In Musolino v Osmond an action was dismissed for want of prosecution due to a failure of the plaintiff's solicitors to have the case removed from the list of inactive cases. The case was subsequently reinstated, with the Master finding the inability of the plaintiffs to pursue their claim against the defendants in a fresh action because it was statute barred was a sufficient special or exceptional circumstance. On appeal, it was held this was not a special or exceptional circumstance. It was said that a special or exceptional circumstance was something which was unusual or atypical and that it must be causally related to the delay or default in question. An inability to sue again was not so causally related.
7 In Fairclough v Stewart-Rattray the plaintiff had again sought an order seeking reinstatement of her action that had been administratively dismissed for want of prosecution pursuant to r 123(4) of the District Court Civil Rules 2006. Those rules provided for reinstatement 'for special reasons'. At [6] of those reasons, it was held that several general principles could be extracted from the case law as to what was meant by that term. It was observed:
… first, factors which may constitute special reasons cannot be exhaustively determined all that can be said at large is that special is the antithesis of general; second, nothing which is a common or usual factor in the ordinary typical case can constitute a special reason; and third, there must be something extraordinary, unusual or atypical. It is clear that special reasons may exist in a particular case as a result of the existence of a single factor or a combination of factors though, in the latter case, none of them in isolation would be sufficient.
8 The court went on to observe that situation arose due to a number of contributing factors but that it was abundantly clear that no fault could be attributed to the plaintiff for the dismissal of her action: [39] – [40]. At [54] the court said:
I do not accept that the default of a plaintiff's solicitor could seldom amount to special reasons warranting reinstatement of an action. Such an approach is inconsistent with modern practice. As Lord Denning remarked in Salter v Rex & Cov Ghosh; 'we never like a litigant to suffer by the mistake of his lawyers'. Whether a court is justified in treating a solicitor's default, standing alone or in combination with other factors, as distinguishable from the general run of cases so as to amount to special reasons must be determined upon a consideration of the particular facts of the case.
9 At [74] – [75] in the Master's decision that there were no special reasons was overturned. The court went on to say:
I respectfully disagree with the Master's conclusion that there were no special reasons for reinstating the plaintiff's action. For the reasons I have expressed I believe that the circumstances which resulted in the dismissal of the plaintiff's action constituted special reasons. But for the failure of her solicitor to respond to the notices sent by the court the plaintiff would not have been put in the position of having to apply for her action to be reinstated.
Even if I am wrong in that regard I find that the following combination of factors amount to special reasons:
• The plaintiff was likely to have been granted an extension of time if her solicitor had responded to either of the notices sent on 4 June 2010 and 9 July 2010 by reason of her unstable condition and its relevance to quantum and possibly liability.
• Even if such an application had failed the plaintiff's action would have remained alive because she would have been put on notice that the proceedings had to be served by 10 September 2010 to avoid dismissal of the action for want of prosecution. In those circumstances the proceedings would have been served.
• The dismissal of the plaintiff's action was due to the plaintiff's solicitor's failure to respond to the notices sent on 4 June and 9 July. If he had applied for a renewal of the summons the plaintiff's action would have remained alive regardless of whether or not the application was successful.
• The dismissal of the plaintiff's action was due to no fault on the part of the plaintiff.
• Even if non service of the proceedings was not justified by reason of the plaintiff's unstable medical condition the plaintiff was not personally at fault.
• The plaintiff has not engaged in any conduct evincing a lack of desire to properly prosecute her claim.
10 In Yacoub v Pilkington (Australia) Ltd at [66] and [67] the New South Wales Court of Appeal said as follows:
Another question of construction concerned 'exceptional circumstances' in r 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]–[69], I gave consideration to the expression 'exceptional circumstances' in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of r 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262 ; [2000] 1 All ER 907 (at 1268; 912 - 913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
11 At [67]:
In the context of rule 31.18 UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56 – 59 Civil Procedure Act 2005.
12 The meaning of 'exceptional circumstances' has also been discussed by the Victorian Court of Appeal in R v Steggall [2005] VSCA 278. At [12] it was said:
I do not accept that the sentencing judge misconceived the meaning of 'exceptional circumstances' for the purposes of s 31(5A). In Owens v Stevens, Hedigan J said of the expression 'exceptional circumstances' in cl 15 of Sch 5 to the Magistrates Court Act 1989, that:
The use of the phrase 'exceptional circumstances' is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.
Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning 'unusual, special, out of the ordinary course'. This does not mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
The sentencing judge considered that those observations were equally applicable to s 31(5A) and, with respect, I agree with his Honour.
13 In Western Australia the position is governed by r 44G(1) which falls within pt 4 div 3(6) of the DCR. In Rowe v Stoltze [2013] WASCA 92, dealing with the submission that r 44G(1) was ultra vires because it denied a party the opportunity to have their case heard and determined on the merits and abrogated the rules of procedural fairness, the Court of Appeal said:
That latter submission greatly overstates the position. It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] - [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].
14 The Court of Appeal then went on to say pt 4 div 3(6) falls to be considered in that context, an approach which is consistent with the decisions in Yacoub and Steggall that any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation and the rationale of that particular statutory provision, and that the facts said to give rise to special circumstances must be examined in the light of the Act and the legislative intention.
15 Hence, the days in which a party may protect its position by issuing a writ within the limitation period and then progress their litigation through the courts at the public expense and at their leisure and convenience are long gone. There is now an obligation on the court, having regard to the public interest in the proper and efficient use of the scarce resources of the court and in the finality of litigation to move the latter along.
16 The Rules of the Supreme Court 1971 (RSC) governing practice and procedure apply to proceedings in the District Court of Western Australia to the extent the DCR do not provide. RSC O 1 r 4A and r 4B direct that the practice and procedure and the interlocutory processes of the court shall have as their goal the elimination of any lapse of time from the date of commencement of the proceedings to the determination thereof beyond that which is reasonably required and cases will be managed and supervised with a view to an efficient and timely disposal of business.
17 Part 4 div 3 of the DCR establishes a scheme whereby cases are actively case managed and supervised. Subdivision 6 imposes a statutory impetus to the efficient and timely disposal of business by effectively deeming actions as inactive unless certain milestones are met, such as by a party (not a party's solicitor) failing to enter an case for trial by a specified time and further failing to do so after having been given 14 days' notice of the default (r 44), or by failing to file a document for 12 months (r 44D). The consequence of a case becoming inactive is that unless the case is removed from the inactive cases list within 6 months it is deemed to be dismissed for want of prosecution.
18 The legislative thinking to be ascertained from that legislative scheme is that a failure to comply with these milestones or to file documents for 12 months, together with the case being admitted to the inactive cases list for 6 months without being removed after having been given notice of these developments by the court and having been advised of the consequences of a case remaining on the inactive cases list, is indicative of a lack of desire to pursue the litigation with any sense of purpose or determination and indicative of a desire to litigate at a time and at a pace that is inconsistent with, and incompatible with, the way Parliament and, in turn, the community, believe litigation should be conducted and court resources consumed and that the case should be dismissed. At the same time Parliament is cognisant of the fact that in some instances a party may not, on the face of it, have prosecuted their action for some good reason and that to dismiss the action for want of prosecution is inappropriate. However, in circumstances where nothing has happened for 18 months to progress the action through the court, after having been given notice of the default and the consequences of not rectifying the default within the prescribed time, more than a good reason is required. Exceptional circumstances are required. If all that Parliament required in these circumstances was a good reason to be provided to set aside the dismissal, it would have said so.
19 Counsel for the plaintiff relies heavily on the decisions of the District Court of South Australia in Musolino and in Fairclough in support of her argument. She submits there is no practical distinction between the need to find special reasons or special circumstances as required in the South Australian legislation and the requirement in this State's legislation to find exceptional circumstances. That is, the Western Australian requirement to find exceptional circumstances does not set a higher standard than the South Australian requirement to find special circumstances or special reasons. Accordingly it follows that if the South Australian decisions support the conclusion that the failure of a party's solicitor to take action to prevent his client's claim being dismissed for want of prosecution constitutes special circumstances or special reasons, a similar finding should be made in this case.
20 Having regard to the definitions of 'special' and 'exceptional' found in the Macquarie and the Oxford English Dictionaries in my view those words are synonyms for each other and that there is in this context no practical difference between them. In my view the cases cited from South Australia, New South Wales and Victoria are all to the same effect when it comes to prescribing the process for determining special reasons or exception circumstances. Common to the process is the proposition that each case must be determined on its own facts.
21 In Elwood v Goodman Deputy Registrar Kubacz of this court adopted the definition used in Musolino v Osmond,namely a circumstance is exceptional if it is unusual or atypical and causally related to the default in question. In that case, in the matrix of circumstances said to give rise to the conclusion there existed exceptional circumstances it was observed that the plaintiff had been engaged in settlement negotiations and it was not a case in which the plaintiff took no steps to progress the action. At [69] the learned deputy registrar observed:
These are issues which solicitors deal with on a daily basis in the litigation process whilst being mindful of court procedural requirements. To simply ignore court procedure whilst negotiations and the like are taking place, is not acceptable.
22 In The Owners of SP1344, 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) Deputy Registrar Harman took the view that exceptional would suggest something that was highly unusual, and not just over the line and atypical. Whilst he might have set the bar at a somewhat higher level than was set in Elwood v Goodman, he went on to express the view that there was nothing unusual or atypical in a solicitor failing to diarise activity or a plaintiff agreeing to hold up proceedings at some point to enable the process of settlement discussions, to take place. He observed that all of these are common place.
23 The latter two decisions are decisions of this court are, having regard to principles of comity, decisions I should follow unless of the view they are plainly wrong. Not only am I not of the view they are plainly wrong, in my opinion, they are correct.
24 This is not to say, the mere fact of inadvertence or default of a solicitor alone cannot be an exceptional circumstance. In this regard I would accept the observation made in Fairclough's case that whether a court is justified in treating a solicitor default, standing alone or in conjunction with other factors, as distinguishable from the general run of the mill cases so as to amount to special reasons must be determined upon a consideration of the particular facts of the case. It is quite possible that there may be some errors or inadvertence of a solicitor that result in the conclusion that exceptional circumstances exist, but they would need to be causally related to the default. Injury, accident, work pressures and family tragedies or events, either in themselves or in combination with other circumstances with some detailed explanation of them, and some detailed explanation showing the causal link to the default may be sufficient. However, if all that is required to show exceptional circumstance is the default or inadvertence of a solicitor, this approach has the danger of absolving a plaintiff from any personal responsibility in the pursuit of its action and r 44G's application to those parties who are legally represented will be limited and will more often catch only an unrepresented litigant within its operation.
25 In this regard I also observe that DCR r 38 and r 44A put the onus on the plaintiff and the parties to enter the action for trial and to file documents, not the parties' solicitors. Case management directions and interlocutory orders are almost invariably made against the parties, not their lawyers. These factors demonstrate it is at all times the parties who are responsible for the litigation. A litigant who invokes the court process provided at the public's expense assumes some responsibilities, which cannot be shrugged off by the simple expedient of engaging an agent.
26 However, the fact that the plaintiff can suffer considerable prejudice because the action will be statute barred is not a special circumstance having regard to the requirement that the circumstances have to be causally related to the default in order to be exceptional circumstances. The prejudice that the plaintiff suffers as the result of the dismissal of the action is a consequence of the default, not a cause of the default. This proposition is consistent with the decision in Musolino and the decisions of this court.
The evidence
27 The evidence in support of the application is constituted principally by two affidavits sworn by Brent Arthur Hedges, filed 15 July 2015 and 14 September 2015. Also in evidence was an affidavit of Byron Andrew Winburn-Clarke, partner of the defendant's solicitors.
28 In an exercise which requires me to have regard to individual factors and the totality of factors, it is necessary to consider the evidence relating to the whole of the proceedings including that constituted by the court record. The evidence reveals an action commenced by writ issued 22 December 2010 for damage to the plaintiff's truck on 3 August 2008. It was nearly 6 1/2 years from the date of the damage and nearly 4 1/2 years from the date of issue of the writ that the action was dismissed for want of prosecution.
29 On 29 November 2011, Western Star Trucks Australia Pty Ltd, the third party, entered an appearance.
30 On 30 November 2011, the court issued directions in relation to discovery between the plaintiff and defendant and directions as to the pleadings and discovery as between the defendant and the third party.
31 By consent orders dated 12 March 2012 and 15 June 2012, the entry for trial milestone was extended (as it was again on 5 July 2012). Finally the matter was placed on the inactive cases list on 26 August 2012.
32 On 19 February 2013, only a matter of weeks before it would have been dismissed for want of prosecution the plaintiff entered the matter for trial. This required the plaintiff to file a certificate that:
(a) it had been given discovery and inspection;
(b) it had complied with all directions and orders;
(c) no other interlocutory orders were needed; and
(d) the plaintiff had complied with RSC O 36A.
33 The RSC, by O 36A r 3 require a party seeking to adduce expert evidence at the trial to apply to the court for leave. In the case of a party entering the action for trial the application for leave is to be made out before entering it. By DCR r 37 the party entering the action for trial is required to file a Form 1. The Form 1 requires the plaintiff to certify it has complied with RSC O 36A. The entry for trial did not certify compliance with RSCO 36A.
34 The matter went to a pre-trial conference on 21 June 2013. As is apparent, this did not result in a settlement of the dispute and orders were made requiring that discovery be formalised by way of affidavit and, among other things, requiring the plaintiff to file and serve a report of any expert witness or the substance thereof by 30 July 2013 and requiring the defendant and third parties to do likewise by 21 August 2013. From that point, there has been no action on the court file by the plaintiff, other than a notice of change of address for service by the plaintiff's local agent filed on 6 May 2015, until the issue of this application on 15 July 2015, some two years later.
35 However, the affidavit evidence of Brent Arthur Hedges reveals that following the pre-trial conference on 21 June 2013, there were without prejudice discussions between the parties on 12 November 2014. These were adjourned to enable the third party to obtain expert evidence in the matter. The email from special counsel for the third party, to Mr Hedges of 1 December 2014 (annexure BAH2), suggests that notwithstanding orders made by the principal registrar on 1 June 2013, the third party had not obtained the expert evidence. The third party's special counsel expressed the view that 11 December was too soon to reconvene and suggested late January or early February 2015, it being the third party's preference to resume the negotiations and exhaust that process before committing to a full scale trial.
36 In my view, the lengthy history of the action to this point which is punctuated by extensions of time and non-compliance with orders demonstrates a complacent attitude that the court processes would be utilised at a time that was forensically or otherwise expedient to the parties generally and the plaintiff in particular.
37 Mr Hedges' evidence reveals, in BAH4, that by 1 December 2014 he was aware that this matter had been placed on the inactive cases list. He expressed an intention to take steps to have that matter rectified but to keep the focus on discussions. His intention to have the action removed from the inactive cases list is reflected in subsequent correspondence of 11 December 2014 to the solicitors for the defendant and the solicitors for the third party. He proposed that the matter be removed from the inactive cases list by the filing of consent orders and awaited the response of the solicitors for the defendant and third party, a response that never came.
38 I conclude that the evidence in this regard demonstrates an intention to have the matter removed from the inactive cases list but a failure to do so, the responsibility for which is the plaintiffs and its solicitors, and not a responsibility that can be shifted to the defendant's and third party's solicitors. Further, in my view, it involves a misconception that a matter can be removed from the inactive cases list simply by the consent of the parties and, again, an adherence to the now discredited view that it is left to the parties to prepare for trial and that they can utilise the court's and the public's time and money at their convenience. It demonstrates either a lack of understanding of, or commitment to, the statutory regime now in place for the disposal of litigation and the broader interests of the public in the administration of justice. The DCRr 44F empower a court to order a case to be taken off the inactive cases list if satisfied the case will be conducted in a timely way or for any other good reason. The consent orders at their highest might be regarded as reflecting the view of the parties that the case will in the future be conducted in a timely way, or there are some other good reason for the case to be removed from the inactive cases list. It does not follow that the fact the parties are of this view that the court will be satisfied that is the case as is required by r 44F(3).
39 The evidence then reveals that Mr Hedges' office closed on 23 December 2014 and did not reopen until 5 January 2015. Upon his return to his office in early January, he completed some unpacking and arranging of the new office. He deposes that on 18 and 19 January he was required to attend a mine site in central New South Wales to assist staff who were being interviewed in relation to a death. At this point I observe that some 13 days elapsed between 5 January 2015 and 18 January 2015 and it is difficult to see why no steps were taken to have this action removed from the inactive cases list within that period.
40 Mr Hedges then deposes that on 11, 12 and 13 February 2015 he was again required to attend a mine site in relation to the death of an employee. Again there is no explanation of what happened between 20 January 2015 and 11 February 2015, a period of some three weeks.
41 There is no explanation for the delay that occurred after 13 February 2015 other than:
(a) Mr Hedges' evidence that he completely overlooked the fact that he had received no reply to his correspondence from the defendant and third party that he sent in December 2014; and
(b) the death of his father of 19 May 2015, one week before the date on which the action was deemed dismissed pursuant to r 44G.
42 Tellingly, at par 12 of his affidavit of 15 July 2015, he admits that '… it was not until I received noticed from the court that the matter had been dismissed for inactivity that I realised that I had not taken the steps which I should have taken to remove the matter from the inactive list'.
43 I say 'tellingly', because there is nothing in that evidence from which I am prepared to find that but for the death of Mr Hedges' father he would have taken steps to have the action removed from the inactive cases list. Nor is there any explanation from Mr Hedges as to the effect the death of his father on his state of mind or emotional state, or as to the extent of his involvement in preparations related to the funeral and the affairs of his father's estate generally. Accordingly, I am unable to find the death of his father is causally related to the failure.
44 Also, in an action commenced by the plaintiff nearly 4 1/2 years previously and in respect of a cause of action that arose some 6 1/2 years previously, there is no affidavit from the plaintiff explaining what can only be described as its delay in prosecuting this action. The plaintiff's silence is deafening.
45 The lack of evidence from the plaintiff calls to the forefront of the mind the comments of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 which observed at [113] the times in which it was left to the parties to prepare for trial and seek the court's assistance as required are long gone. At [142] - [143], in contemplating how the delay may have come about the court said:
However, it is not possible to arrive at an assessment of the thinking underlying ANU's announcement. Indeed, it is irrelevant to do so. The tactics of barristers and their clients are influenced by the goals they are trying to achieve, and are moulded by pressures to which they are subject. Courts often have no more than an incomplete understanding of those goals and pressures.
But if barristers propose, it is courts which must dispose. …
46 At [156] the court expressed its concern about delay in the following words:
… A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? …
47 In my view the facts of this case are sufficiently analogous to the facts of the case in Elwood v Goodman and The Owners of SP13443, 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) to compel me to the same conclusion, that is, there is no individual exceptional matter, and no combination of ordinary factors which although individually of no particular significance when taken together are seen as exceptional. Even in the absence of those authorities in the circumstances of this case I would come to the same conclusion.
48 For these reasons I would dismiss the application.
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