Spark v Rogers [No 2]
[2016] WADC 121
•18 AUGUST 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SPARK -v- ROGERS [No 2] [2016] WADC 121
CORAM: PRINCIPAL REGISTRAR MELVILLE
HEARD: 26 JULY 2016
DELIVERED : 18 AUGUST 2016
FILE NO/S: CIV 2835 of 2011
BETWEEN: JULIA DEBRA SPARK
Plaintiff
AND
MATTHEW BRUCE ROGERS
Defendant
Catchwords:
Application to set aside case dismissed for want of prosecution - Meaning of exceptional circumstances - Turns on its own facts
Legislation:
District Court Rules 2005 r 44G
Result:
Application dismissed
Representation:
Counsel:
Plaintiff: Mr R W Bower
Defendant: Mr R P Camm
Solicitors:
Plaintiff: Corser & Corser
Defendant: Camm & Associates
Case(s) referred to in judgment(s):
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73
The Owners of SP13443, 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133
PRINCIPAL REGISTRAR MELVILLE:
Introduction
The court record shows that this action commenced by way of the issue of a writ on 30 August 2011 by which the plaintiff sought damages for injuries suffered as a result of an alleged assault by the defendant on 25 September 2009. At the time the plaintiff was employed by the Perth Football Club and the defendant played for that club.
Because no document had been filed on the case for 12 months the action was placed on the inactive cases list. On 30 May 2016 the action was automatically dismissed for want of prosecution pursuant to District Court Rules 2005 (DCR) r 44G(1) due to it having remained on the inactive cases list for six continuous months.
The plaintiff now applies pursuant to DCR r 44G(4) for an order setting aside the dismissal. By r 44G(5) the court has a discretion in exceptional circumstances and on such terms as it thinks just, to do so.
Are there exceptional circumstances?
What is meant by the expression 'exceptional circumstances' has been addressed recently by two decisions of this court in Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73 and The Owners of SP13443, 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133.
Those two authorities stand for the proposition that for circumstances to be 'exceptional' they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique or unprecedented or very rare. However, by way of comparison and contrast, they will not be exceptional if they are regularly or routinely or normally encountered.
In Sovereign Grange Pty Ltd Wager J observed that the exceptional circumstances must be causally related to the dismissal of the action. She went on to observe that exceptional circumstances may relate to a single exceptional matter or a combination of ordinary facts that when taken together in combination must be regarded as amounting to exceptional circumstances. Wager J observed that each case must be determined on its own facts. She also observed that mere inadvertence or inattention by a solicitor would ordinarily not constitute an exceptional circumstance that would absolve the plaintiff from any personal responsibility to pursue the action ([11] – [16]).
Davis J in The Owners of SP13443, 129-133 Eighth Avenue, Maylands said [48]:
Further, I consider that the exceptional circumstances must be causally related to the dismissal of the action. It is not sufficient that the applicant plaintiff establishes that there are exceptional circumstances generally in relation to the subject matter of the action itself, or that the plaintiff may be deprived of the opportunity of pursuing any action because of the expiry of the limitation period. What must be established is that the circumstances which led to the dismissal of the action are exceptional.
At [49] Davis J observed that there would be no exceptional circumstances where the plaintiff has manifested a lack of interest or will to prosecute the action, or it has simply lain dormant, hanging over the head of the defendant and clogging up the administration of the court.
At [54] Davis J said, if exceptional circumstances are established this enlivens the discretion of the court. That discretion should be exercised having regard to the interests of justice which will involve considerations as to the explanation for the delay, the merits of the plaintiff's case and the respective prejudice to the parties. At [52] Davis J observed the burden of establishing exceptional circumstances lies on the applicant.
In my view it is not necessary that the exceptional circumstances be the sole cause of the dismissal of that action. The exceptional circumstances need only be a material contributor to the action being dismissed to be regarded as causally related to the dismissal. This approach to causation is consistent with the law in other areas involving a determination of causation.
The circumstances in which this matter came to be placed on the inactive cases list and then to be dismissed for want of prosecution are ascertainable by reference to the court record and affidavits filed in this matter, more particularly the affidavits of the plaintiff sworn 27 May 2016, 1 July 2016 and 22 July 2016, together with an affidavit sworn by the defendant on 20 July 2016.
On 8 May 2012 a defence was filed and on 20 August 2012 leave was given to the plaintiff to amend the statement of claim to include an allegation of negligence.
On 21 September 2012 the action was entered for trial following which the defence was amended to plead that the plaintiff had already been compensated for her injuries. This plea was based on the fact that the plaintiff had entered into a deed with her employer, the Perth Football Club, to settle her workers' compensation and common law entitlements. The deed was dated 19 August 2010. It was part of the terms of the deed that the Perth Football Club and its employees and agents would be released from liability.
In November 2012 a pre‑trial conference was convened following which the action was referred to a listing conference in February 2013.
However, on 4 January 2013, the defendant made an application for summary judgment based on the argument that the plaintiff was not entitled to pursue an action against him in view of the terms of the deed of release she had signed. The summary judgment application was dismissed on 17 April 2013. The dismissal of the summary judgment application means no more than the issue raised by the defendant was to be decided at trial.
The defendant then amended his defence by clearly and unequivocally stating that the settlement of the plaintiff's workers' compensation and common law claim against the Perth Football Club included any claim she might have had against him on the basis he was an employee of the football club.
Over the next several months there was a change of solicitors for the plaintiff and various procedural hearings relating to the listing of the matter, an unsuccessful application to join further defendants to the action, and finally on 10 September 2014 a trial by a judge of this court of a preliminary issue, namely this question of whether the deed of release applied to the defendant.
On 28 November 2014 the court handed down its findings that the release did not apply to the defendant and it was from that point that there was no activity in the action.
On 30 November 2015 a notice was issued by the court to the parties' solicitors advising that as no document had been filed in the case in the preceding 12 months the case was placed on the inactive cases list. The parties were advised that if the case remained on the inactive cases list for six continuous months it would be taken to be dismissed for want of prosecution. By DCR r 44D(2) the practitioner is required to notify his or her client, as soon as practicable, of these facts. There is no evidence this was not done.
By a chamber summons dated 27 May 2016 the plaintiff applied for orders that the case be removed from the inactive cases list. The application did not come on for hearing until 28 June 2016. In the meantime a notice had issued on 1 June 2016 advising the case had been dismissed for want of prosecution pursuant to District Court Rules r 44G.
On 28 June 2016 the application to remove the case from the inactive cases list was dismissed due to the fact it had been overtaken by events. On 1 July 2016 the plaintiff applied for an order setting aside the dismissal.
In her affidavit of 27 May 2016 sworn in support of the application to remove the case from the inactive cases list the plaintiff gave evidence as to the effect the personal injuries had on her physical capabilities and set out the major financial factors that had affected her since she was injured. She deposes that following the accident she returned to work before she was dismissed from her employment with the Perth Football Club in March 2010. She set out in brief and general terms the difficulty she had in subsequently finding work which she attributed to her injuries and the workers' compensation claim. She went on to explain how following a settlement for a workers' compensation claim she went from job to job struggling with her injuries and the emotional strain associated with providing for herself and three dependant daughters. She also deposed to mounting legal bills and the fact she contemplated taking her own life following receipt of an invoice from her solicitors. She swore that these debts deterred her from pursing the action against the defendant. However she does not explain how or why the mounting legal bills deterred her from pursuing the claim and gives no detail as to the amount owing or as to her income or financial position. I infer from this she was concerned at the size of the accounts for the work done to that point and was even more concerned at the prospect of the further fees she would be liable for as the case progressed up to and including trial.
She also gave evidence as to her inability to work in her chosen profession, the need to employ people to assist her in cleaning and gardening and the current challenges she has in maintaining her current employment in which she works 40 – 50 hours per week. At par 23 she said she was concerned she would have great difficulty obtaining alternate employment if she lost this job.
Additionally, she says factors that distracted her from advancing the action of the past 18 months are the fact that her aged parents are in poor health which has been worrying, distracting, upsetting and time consuming for her and the fact she was assailed and harassed by journalists and film crews who following the decision of the court handed down on 28 November 2014 'aggressively demanded that I speak to them about my action against the defendant'. She found this experience frightening and distressing and was concerned the publicity would jeopardise her employment.
Finally, at par 27 of her affidavit she testifies that she has now resolved to request the court to permit her to continue with the action because her symptoms are worsening and she is concerned she might be dismissed from her employment or otherwise be unable to carry on her employment, so leaving her without an income.
In my view the physical restrictions of which the plaintiff gives evidence and the challenges they present in her carrying out her work duties are of limited relevance. They are not themselves extraordinary factors. They are regularly, or routinely, or normally encountered in personal injury actions of this type. Nor in my opinion do they directly bear on the reason why the action came to be dismissed. However they are of relevance insofar as they explain why the need to maintain her current employment is so important to her. It is not difficult to understand that where a person is highly dependent on maintaining their current employment for their future economic and financial security they would be hesitant to take any action that would jeopardise it. In this case it is not difficult to understand the plaintiff, who as a result of her injuries is significantly disadvantaged in her ability to compete in the labour market, might have been disinclined to pursue other activities, such as pursuing this litigation, if that would have the effect of her losing her employment. To that extent it is my view the physical injuries and the impact they have had on her life and future security of employment are relevant to explaining the plaintiff's state of mind over the last 18 months, her state of mind being more particularly a fear of losing her employment, this in turn being causally connected to the action being dismissed.
In par 27 of her affidavit the plaintiff said she received advice from her solicitors that the action was about to be dismissed because she had not proceeded with it for so long. However, she does not say when she received that advice and there is no explanation for the delay between the notice on 30 November that the matter would go on the inactive cases list, and the issue of the chamber summons of 27 May 2016 together with the affidavit sworn the same date.
The defendant filed an affidavit of 20 July 2016. That affidavit shows the plaintiff has been engaged in employment which included giving speeches or seminars, that the plaintiff had an accident in or about late 2013, and that she was engaged in jumping off a bridge at Victoria Falls in Zambia on 3 April 2016. At annexure MBR-4 is found a copy of a document written by the plaintiff headed 'Our Family Newsletter'. The newsletter reflects that the plaintiff had obtained, in 2012, employment with her current employer. She also refers to three people who I infer are her children. It appears that in 2012 those three children had obtained employment and so I further infer that as of the end of 2012 the 'ongoing emotional strain' of providing for her three dependent children 'who were then living with me' to which she deposes had significantly, if not entirely, ameliorated.
Finally he gives evidence that in his opinion he will suffer significant prejudice if this matter proceeds to trial because he says most of the witnesses who will be relied upon no longer play football for, or work or have any involvement with the Perth Football Club, that he is unable to readily contact them, the requirements of continuing to meet these court commitments are significant given his present employment and football commitments, that due to the length of time that has passed since the accident it is likely that the witnesses' recollection of the incident will have been affected and it will cost him considerable money to defend the action.
There is no dispute that the plaintiff is and has been working and is and has been living an active life. In my opinion the only relevance this evidence has on the question of whether there are exceptional circumstances and any causal connection between the circumstances the plaintiff found herself in and the matter being inactive for 18 months, is the fact the plaintiff found time to go on holidays overseas in preference to finding time to ensure the action was removed from the inactive cases list.
The issues the defendant raises in his affidavit as to prejudice are relevant to whether the discretion to set aside the dismissal should be exercised in the event there is a finding of 'exceptional circumstances'.
In my view the salient causal factors advanced as giving rise to this matter being dismissed for want of prosecution are:
(a)the plaintiff was reluctant to proceed due to a fear of the publicity the action would cause and her perception of a threat posed to her job security and financial security;
(b)she was feeling, in her words, suicidal as a result of the legal bills that were amounting up;
(c)she had very elderly parents who are unwell and has had to devote time and attention to them and no doubt experience a degree of worry about them;
(d)she was concerned as to her ability to meet the legal fees she had incurred. I infer that if she was concerned as to her ability to meet her existing fees, she would have had more concern when she must have necessarily turned her mind to the further legal fees to be incurred.
In my view most of these factors are not unusual. It is not unusual to have old and unwell parents. I have no doubt that her concerns as to their welfare would have been a higher priority than pursuing this litigation. However, I am given no detail as to how intrusive these concerns were and no real explanation how they caused no action to be taken on this case for some 18 months. I infer these concerns created a state of lassitude when it came to pursuing this litigation. It is not unusual to be concerned about the cost and future costs of litigation. In fact it must be accepted the plaintiff went into this with her eyes wide open and made a conscious decision to accept the risks of litigation including the risk of being successful against a defendant who might have no means of paying. She commenced this action in 2011, after having been dismissed from her employment with Perth Football Club and seemingly at a time when her financial security was shaky due to difficulty in maintaining employment and before obtaining employment with her current employer in 2012.
I find the plaintiff's explanation that she was reluctant to pursue this case because of the cost, at a time when she had been in steady employment with her current employer for 2 years to the time the decision on the preliminary issue was delivered, 3 years to the time the case was placed on the inactive cases list and 3 ½ years to the time it was deemed dismissed for want of prosecution, and during which time she was no longer responsible for the financial security of her children, to be inconsistent with her willingness to commence the case in 2011 when having difficulty in obtaining employment and with three dependent children on her hands.
I find the evidence as to the plaintiff's suicidal thoughts lacking in detail, which is a problem for someone who carries the burden of proving exceptional circumstances. I am given no information as to the nature and quality of the thoughts; why her mind should turn to these thoughts, particularly when she had successfully beaten off two attempts to have her claim quickly dismissed; how frequently she had the thoughts; and when previously she had them and when she last had them. There is no corroborating evidence by way of medical treatment or opinion and I find myself unable to assess how significant these thoughts were and how they caused her to allow her claim to become dismissed. I accept nevertheless the plaintiff had a poor state of mind brought about by these circumstances that robbed her of motivation and energy to pursue her claim at some point in the time line.
I find that the attention the press gave the plaintiff after the decision of 28 November 2014 caused her concern about her employment and long‑term financial security. I regard this level of publicity for a person pursing a damages claim for personal injury to be unusual.
As can be seen, I have some difficulty with the quality of the evidence given by the plaintiff in her affidavit. However the real challenge to the application is whether these circumstances to which she deposes:
(a)led to the dismissal of the action; and
(b)are exceptional.
In a narrow sense it can be said the circumstances the plaintiff found herself in were unusual. One does not commonly see a plaintiff at or about one and the same time confronted by the media and feeling their employment and future jeopardised thereby, and coping with significant ill health of two elderly parents.
In a broader sense, it can be said that these factors together with a concern about the future costs of the litigation and the security of her ongoing employment brought her to the state where she lost interest in pursuing the case.
Further in her affidavit of 1 July 2016 the plaintiff says all of these factors still exist. Notwithstanding the continued existence of these factors, the plaintiff is now able to engage in the legal process with a view to having the dismissal of the action set aside and progressing the action to trial, with the same exposure to the publicity and potential threat to her job security, the same exposure to legal fees and the same anxiety and worry in relation to the health of her parents. I find that position inconsistent with the explanation for the delay in prosecuting this action over an 18 month period and ability to travel to Africa in April of 2016 for a wedding. In light of this inconsistency, the plaintiff has failed to discharge the burden of proving the dismissal of her case has been caused by the circumstances she describes, irrespective of whether they should otherwise be regarded as exceptional.
However, I conclude these facts fall squarely within the circumstances described by Davis J in [49] in The Owners of SP13443, namely that there would be no exceptional circumstances where the plaintiff has manifested a lack of interest or will to prosecute the action and it has simply lain dormant hanging over the head of the defendant. I find that the plaintiff for whatever reason arrived at a state of mind in which she was no longer interested in pursuing this action and preferred to devote her time, energy and money elsewhere. I find there are no exceptional circumstances.
2
1