Spark v Rogers [No 3]
[2017] WADC 4
•9 JANUARY 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SPARK -v- ROGERS [No 3] [2017] WADC 4
CORAM: PARRY DCJ
HEARD: 14 DECEMBER 2016
DELIVERED : 14 DECEMBER 2016
PUBLISHED : 9 JANUARY 2017
FILE NO/S: CIV 2835 of 2011
BETWEEN: JULIA DEBRA SPARK
Appellant
AND
MATTHEW BRUCE ROGERS
Respondent
Catchwords:
Appeal from registrar - Practice and procedure - Inactive cases list - Case placed on inactive cases list and dismissed for want of prosecution pursuant to r 44G(1) District Court Rules 2005 - Application to set aside dismissal pursuant to s 44G(5) District Court Rules 2005 - Whether exceptional circumstances - Evidence of psychiatric or psychological factors at time of failure to prosecute proceeding - Evidence presented on appeal but not at first instance - Nature of appeal
Legislation:
District Court Rules 2005 (WA) r 15(1), r 15(2), r 15(4a), r 15(6), r 44G(1), r 44G(5)
Result:
Appeal allowed
Decision of principal registrar set aside
Dismissal of proceeding for want of prosecution set aside
Action removed from inactive cases list
Representation:
Counsel:
Appellant: Mr R W Bower
Respondent: Mr R P Camm
Solicitors:
Appellant: Corser & Corser
Respondent: Camm & Associates
Case(s) referred to in judgment(s):
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [2016] WADC 73
Spark v Rogers [2014] WADC 164
Spark v Rogers [No 2] [2016] WADC 121
The Owners of SP 13443, 129 ‑ 133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133
PARRY DCJ: (This judgment was delivered extemporaneously on 14 December 2016 and edited from transcript).
Introduction
Ms Julia Spark seeks to appeal, pursuant to r 15(1) of the District Court Rules 2005 (DCR), from a decision of Principal Registrar Melville made on 18 August 2016.
In that decision, Principal Registrar Melville dismissed Ms Spark's application made under r 44G(5) DCR to set aside the dismissal of the proceeding that Ms Spark has brought against Mr Matthew Rogers under r 44G(1) DCR.
Rule 44G(1) DCR states as follows:
A case that is on the Inactive Cases list for 6 continuous months is taken to have been dismissed for want of prosecution.
Rule 44G(5) DCR states as follows:
The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).
The principal registrar was not satisfied that exceptional circumstances existed and dismissed Ms Spark's application: see Spark v Rogers [No 2] [2016] WADC 121.
Rule 15(1) DCR confers a right of appeal to a judge upon a party who is 'dissatisfied with a decision of a registrar'. Rule 15(6) DCR states that 'the appeal is to be by way of a new hearing of the matter that was before the registrar'. In other words, an appeal under r 15 DCR involves a hearing de novo, that is, a fresh consideration of the matter that was before the registrar, or in this case the principal registrar, on the basis of the evidence and submissions before the judge, which includes, but is not confined to, the evidence and submissions that were before the registrar.
Mr R P Camm, counsel for Mr Rogers, submits that Ms Spark bears the onus of establishing not only that there are exceptional circumstances in this case and that the court should exercise its discretion (if exceptional circumstances are established) in favour of setting aside the dismissal of the action, but also that the decision of Principal Registrar Melville is incorrect.
I certainly accept the submission that Ms Spark bears the onus of proving on a balance of probabilities that there are exceptional circumstances in this case which are causally related to the failure on her part to prosecute the proceeding while it was on the inactive cases list and when it was dismissed for want of prosecution.
However, I do not accept the submission that Ms Spark bears the onus of proving that the decision of Principal Registrar Melville is incorrect.
The nature of an appeal under r 15 DCR is, as I have said, a hearing de novo. No error on the part of the principal registrar must be established. Relevantly, in this case, the appeal is by way of a new hearing of Ms Spark's application under r 44G(5) DCR to set aside the dismissal of the case under r 44G(1) DCR.
Both parties rely on affidavit evidence, which includes the affidavit evidence before the principal registrar and in addition further affidavit evidence filed in the appeal. Ms Spark relies on four affidavits sworn by herself on 27 May 2016, 1 July 2016, 22 July 2016 and 12 December 2016, together with affidavits of Mr Andrew Bower sworn on 16 November 2016, attaching an expert report of Professor Paul Skerritt, a psychiatrist, dated 9 November 2016, and the affidavit of Ms Pirihira Berryman sworn on 15 September 2016. Mr Rogers relies on his affidavits sworn on 20 July 2016 and 1 December 2016.
Application to extend time for service of appeal notice
There is a threshold matter, namely an application for extension of time for service of the notice of appeal to 8 September 2016. Under r 15(2) DCR:
The appeal must be commenced within 10 days after the date of the decision or such longer period as a judge or legally qualified registrar may allow.
The principal registrar's decision which is the subject of the present appeal was made on 18 August 2016 and the appeal was commenced within time on 26 August 2016.
On Monday, 29 August 2016, the solicitor for Ms Spark signed a letter to Mr Rogers' solicitors enclosing the notice of appeal by way of service. That letter and its enclosure was emailed to Mr Rogers' solicitor's firm that day, that is on 29 August 2016. However, owing to an administrative error within the law firm, the letter itself was not posted until 6 September 2016 and was not received with the enclosed notice of appeal until 8 September 2016.
Rule 15(4a) DCR states as follows:
On receiving notice from the Court of the date of the hearing of the appeal, a party who appeals under this rule must serve notice of the hearing date on each other party within 5 days after the date on which the party received that notice from the Court.
In this case, although informal notice was given of the hearing date and although informal notice was given of the notice of appeal, the notice of appeal was not formally served until 8 September 2016 and notice of the hearing date was not given or served until 8 September 2016 which is outside the period prescribed.
I consider that time for service of the appeal notice should be extended to 8 September 2016 for the following reasons.
First, the period of delay is not significant.
Secondly, there is a satisfactory explanation for the delay, namely the error on the part of an employee within the law firm.
Thirdly, for reasons that I will give in relation to the appeal itself, there is an arguable case for review on appeal.
Fourthly, there is no substantive prejudice to Mr Rogers in extending the time for service of the appeal notice to 8 September 2016. Counsel for Mr Rogers did not argue otherwise.
Background to and conduct of the litigation
This proceeding concerns an allegation of an incident involving Mr Rogers and Ms Spark which allegedly occurred on 25 September 2009 resulting in personal injury to Ms Spark.
Ms Spark contends and pleads and has given evidence in her affidavits in support of the present application to the effect that during the early hours of the morning on 25 September 2009 at the premises of the Perth Football Club in Lathlain, while she was the functions and events manager of the club and Mr Rogers was a player within the team of the club, Mr Rogers grabbed her by the right arm and threw her on the floor.
Ms Spark alleges and pleads and states in her affidavits in support of this application that she landed on her back and sustained injury to her neck, shoulder and lower back. She says that she continues to suffer daily pain from that injury and that that injury has and continues to affect her ability to perform daily tasks and other activities.
Mr Rogers denies that he threw Ms Spark to the ground and denies that Ms Spark has sustained injury as a result of the alleged incident. Mr Rogers also denies that there are any continuing consequences of any alleged incident.
On 30 August 2011, Ms Spark commenced this proceeding against Mr Rogers seeking damages for personal injury arising out of the alleged incident on 25 September 2009. On 8 May 2012, a defence was filed and, on 20 August 2012, the court granted Ms Spark leave to file an amended statement of claim to include an allegation of negligence.
The action was entered for trial on 21 September 2012. However, on 4 January 2013, Mr Rogers applied for summary judgment, and that application was heard and dismissed on 17 April 2013.
Subsequently, Mr Rogers raised a preliminary issue in the proceeding as to whether a deed of release between Ms Spark and the Perth Football Club in relation to common law and workers' compensation claims applied to preclude Ms Spark from proceeding against Mr Rogers personally.
The preliminary issue was heard by his Honour Judge Goetze on 10 September 2014. His Honour reserved his decision and published it on 28 November 2014: see Spark v Rogers [2014] WADC 164.
Goetze DCJ determined that the deed of release did not apply to Mr Rogers, and that Ms Spark's claim against him is therefore not barred by that deed.
From 28 November 2014 until 27 May 2016, a period of 18 months, Ms Spark did not prosecute the proceeding, and no document was filed by either party in the proceeding.
On 30 November 2015, a little over 12 months after the judgment of Goetze DCJ, the court issued notice to the parties' solicitors advising that, because no document had been filed in the case in the preceding 12 months, the case was placed on the inactive cases list, and advising that if the case remained on that list for six continuous months, it would be dismissed for want of prosecution.
On 27 May 2016, Ms Spark applied for an order that the case be removed from the inactive cases list. However, on 1 June 2016, notice was issued by the court that the case had been dismissed for want of prosecution pursuant to r 44G(1) DCR.
On 28 June 2016, Ms Spark's application to remove the case from the inactive cases list was dismissed as it had been overtaken by the dismissal of the proceeding for want of prosecution.
On 1 July 2016, Ms Spark applied pursuant to r 44G(5) DCR for an order setting aside the dismissal of the case under r 44G(1). That application was heard by Principal Registrar Melville on 26 July 2016. The principal registrar reserved his decision and published it on 18 August 2016. As noted earlier, the principal registrar dismissed the application.
Legal framework and principles
As noted earlier, r 44G(5) DCR states as follows:
The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).
The meaning of the statutory expression 'exceptional circumstances' in r 44G(5) and the proper interpretation of that provision generally was the subject of recent, considered analysis by Davis DCJ in The Owners of SP 13443, 129 ‑ 133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133 [33] ‑ [54] (Maylands); see also Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [2016] WADC 73 [5] ‑ [17] (Wager DCJ).
Davis DCJ held in Maylands as follows [40]:
Having regard to the ordinary meaning of the word 'exceptional', all of the authorities and the principles of statutory construction, I consider that for circumstances to be 'exceptional' under r 44G(5) they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique, or unprecedented, or very rare, however they will not be exceptional if they are regularly, or routinely, or normally encountered.
Furthermore, as her Honour held [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.
As her Honour also held in Maylands [52] ‑ [53]:
The burden lies on the applicant plaintiff to establish the exceptional circumstances.
'Exceptional circumstances' may relate to a single exceptional matter, or may relate to a combination of exceptional factors, or a combination of ordinary factors. It may be that each individual factor or circumstance is unexceptional, but when taken together in combination they may reasonably be regarded as amounting to exceptional circumstances: Griffiths v The Queen (1989) 167 CLR 372, 379 (Brennan and Dawson JJ).
The party applying for an order under r 44G(5) DCR must prove, on the balance of probabilities, that exceptional circumstances were causally connected to the dismissal of the action in order for the court to be able to exercise a discretion as to whether to set aside the dismissal of the case under r 44G(1) DCR. The establishment of exceptional circumstances causally related to the dismissal of the action is, therefore, a condition precedent to the availability of the discretion.
Davis DCJ held as follows in Maylands in relation to the exercise of discretion [54]:
If it is established that there are exceptional circumstances causally related to the dismissal of the action, this will then enliven the discretion of the court to set aside that dismissal. That discretion should be exercised having regard to the interests of justice after considering factors such as:
(a)whether there has been any delay in bringing the r 44G(5) application to set aside the dismissal, and the reason for that delay: see Elwood v Goodman [59] – [64];
(b)the merits of the plaintiff's case (there being no point in reinstating a case that has no merit);
(c)the prejudice to the plaintiff if the dismissal of the action is not set aside (including the expiry of any relevant limitation period); and
(d)the prejudice to the defendant if the dismissal of the action is set aside.
Are there exceptional circumstances?
In my view, Ms Spark has established that it is more probable than not that there are exceptional circumstances causally related to the dismissal of her action in this case.
Firstly, and most significantly, as noted earlier, there is an expert report by Professor Paul Skerritt, a psychiatrist and clinical professor at the University of Western Australia, that is placed before the court on the appeal, but which was not before the principal registrar. In Professor Skerritt's report of 9 November 2016 he states that he has seen Ms Spark in psychiatric consultation on 7 October 2016 and 13 October 2016. Professor Skerritt says that the assessment of Ms Spark was 'extraordinarily difficult' because of a situation 'referred to as alexithymia or an inability to express feelings in terms of words'.
Professor Skerritt explained that:
It required a great deal of careful probing to establish that she did actually have psychiatric symptoms which I will outline.
Professor Skerritt's report states as follows:
…
The death of her husband Darryl on the 31st July 2006 and his preceding terminal illness marked the beginning of a sequence of significant life events. She described sadness and loneliness provoked by the death of her husband at which time she was supporting her growing up children and did not want to burden them with her feelings. She coped by throwing herself into her job as a catering manager at Perth Football Club. She was studying law at the same time and indeed qualified just before the alleged assault on the 25th of September 2009. She did with difficulty however describe depressive symptoms of some significance even amounting to suicidal thoughts, during this time and her ability to cover them by activity that might have been described as phrenetic at times. She told me that she had been given antidepressants by her general practitioner but was rather vague about the nature of them and the supposed ill-effects.
The assault itself led to several physical complaints and a great deal of pain. This is commonly associated with depression although she did not think so herself. She was more inclined to attribute such symptoms as were admitted to the rather the complicated relationships that were disrupted by the assault and consequent legal matters.
Then serious illness in her parents was another matter with which she had to cope. She described herself through this time 'in survival mode' and functioning of [sic] 'autopilot'. She described depressive symptoms with self‑deprecatory and pessimistic thoughts to the point sometimes of thinking that life was not worth living. Her sleep was disturbed with thoughts going around in her head and wakening at 4 am. These were typical features of a depressive illness rather than a normal reaction to the circumstances. Anxiety symptoms did not amount to panic attacks but consisted of the circular worries known to the American Psychiatric Association as generalised anxiety disorder.
These symptoms were present perhaps from about the death of her husband but notably fluctuated. There were times when the symptoms would go into remission and she could find enjoyment in life and indeed at times she described herself as 'elated'. In such circumstance one enquires about the possibility of illness being bipolar although I could not find any confirmation of this.
After the alleged assault and despite her physical symptoms she threw herself into her present job as a sort of overcompensation for the depressive symptoms which she could barely admit to herself. I think that this process of denial and of fluctuation in her conditions explained the apparent contradictions such as failing to lodge documents to do with her case while in a similar time she was taking a holiday.
I tried to press her on what was in her mind when she failed to submit the documents in question particularly in view of the fact that she was now a graduated lawyer if not a licensed legal practitioner. She found it very difficult to tell me exactly what her thinking was at the time but I think it reasonable to suggest that the depressive symptoms coupled with the distraction into overactivity, led her to such a failure. This was about the best explanation that she could give me in a very disjointed history. I believe that I have covered points 1 ‑ 4 in your letter. I think that she could most certainly do with psychiatric treatment perhaps pursued a little more systematically than the previous attempt. I will be happy to communicate with her general practitioner in this respect.
(emphasis added)
Thus, Dr Skerritt's opinion is that it is reasonable to suggest that 'the depressive symptoms coupled with the distraction into overactivity' led Ms Spark to a failure to submit documents, that is, to prosecute this proceeding.
Mr Rogers submits that the weight which may be given to the Skerritt report is insubstantial in the circumstances of this case, given certain matters. First, what counsel describes as the 'recency of the consultation', namely in October 2016, whereas the critical period of inactivity in this case was in November 2014 to May 2016.
Secondly, counsel refers to the assumptions in the letter from Professor Skerritt that Mr Rogers assaulted Ms Spark and threw her on the floor, which Mr Rogers does not accept.
Thirdly, counsel refers to what he described as the 'ambiguous findings' of Professor Skerritt.
In my view Professor Skerritt clearly expresses the opinion that Ms Spark's psychiatric or psychological condition, namely depressive symptoms coupled with the distraction to overactivity, led to her failure to submit documents, that is to prosecute this proceeding during the period of inactivity.
Mr Camm submits on behalf of Mr Rogers that because the psychiatric assessments by Professor Skerritt did not occur until after the period in question, Professor Skerritt's assessment and opinion should carry little weight. However, Professor Skerritt's report clearly goes to explain inactivity by Ms Spark during the period in question when she did not file documents. Professor Skerritt is qualified to express that opinion and, in my view, it is significant in the context of this particular application in establishing exceptional circumstances that are causally related to the failure of Ms Spark to prosecute her case during the period of inactivity from November 2014 to May 2016.
The fact that there are assumptions in the letter from Ms Spark's solicitor to Professor Skerritt which are disputed does not, in my view, materially affect the weight to be given to Professor Skerritt's opinion in the context of the present application. Firstly, Professor Skerritt said in his report on a number of occasions that the assault was 'alleged'. Secondly, in my view, the assumption does not bear on Professor Skerritt's opinion that it is reasonable to suggest that the depressive symptoms coupled with the distraction into overactivity led to Ms Spark's failure to properly prosecute this proceeding in the critical period, November 2014 to May 2016.
Mr Camm also submits that Professor Skerritt's opinion should not be accepted in light of other evidence and, in particular, the evidence presented by Mr Rogers of Internet searches of social media which show that during the period November 2014 to May 2016 and, in particular, during the first part of 2016, Ms Spark travelled to Africa, travelled for work and occupied a senior position in her work which required her to, among other things, undertake public speaking engagements and generally to work.
However, in my view Professor Skerritt's opinion materially explains what might otherwise be regarded as an inconsistency. Professor Skerritt clearly says that the symptoms of Ms Spark's psychiatric or psychological condition fluctuated over time and that an element of her condition was to throw herself into her work. Indeed, Professor Skerritt says in his report:
I think that this process of denial and fluctuation in her conditions explain the apparent contradiction such as failing to lodge documents to do with her case while in a similar time she was taking a holiday.
Although Professor Skerritt has not been cross‑examined in this appeal, in light of his qualifications and his clearly expressed opinion, I accept that his evidence meaningfully explains why Ms Spark did not prosecute the proceedings and also explains the apparent inconsistency.
Although, as I have explained, Ms Spark does not bear an onus of proving that Principal Registrar Melville's decision was incorrect, I note that Principal Registrar Melville expressed concerns about the inconsistency or apparent inconsistency of Ms Spark not actively or at all pursuing this proceeding while at the same time she actively pursued other aspects of her life. That apparent inconsistency clearly troubled the principal registrar. However, as I have said, the principal registrar did not have the benefit of Professor Skerritt's opinion and in my view Professor Skerritt's opinion addresses the apparent inconsistency that troubled the principal registrar.
In my view, the expert report of Professor Skerritt establishes exceptional circumstances that are causally connected or related to the failure in this case.
Furthermore, the affidavit evidence of Ms Spark which was considered and was before the principal registrar addresses certain matters which, in my view, in combination and certainly when taken together with the opinion of Professor Skerritt as to the psychiatric or psychological condition from which Ms Spark was suffering, does establish exceptional circumstances causally connected to the failure to prosecute the proceedings during the critical period in question.
Firstly, Ms Spark states in the affidavit sworn on 27 May 2016 that she had mounting legal bills and contemplated taking her life when receiving an invoice from her lawyers. Mounting legal bills is not in itself exceptional circumstances in litigation. However, when taken together with the evidence of Professor Skerritt, in my view, this evidence of contemplating taking one's life assumes greater significance than it had before the principal registrar.
Furthermore, in the same affidavit, Ms Spark gives evidence that there were two further or additional factors that distracted her from advancing her action over the period of 18 months preceding the date of the affidavit, which is the critical period of failure to prosecute the proceeding in this case.
The first is that Ms Spark's parents, both aged 82, were in hospital awaiting placements in nursing homes. Ms Spark gave evidence that her father suffers from dementia and that her mother had five admissions to hospital in the space of five months for bowel cancer, a heart attack, bowel surgery and bowel obstructions. She gave evidence that that had been:
worrying, distracting, upsetting and time-consuming for my sister Deirdre and me to witness our parents' deterioration and to attend to their needs as a result of these matters.
Having elderly parents is not in itself an exceptional circumstance. However, it is certainly arguable that having two elderly parents with such extreme health concerns at the same time would have been distracting and in my view, taken with the other circumstances, although not in itself, but taken with the other circumstances would constitute exceptional circumstances causally connected to the failure to prosecute the proceeding.
The second matter referred to in that affidavit was the quite extreme publicity to which Ms Spark was subject following the decision of Goetze DCJ, apparently as a result of Mr Rogers being a football player. She says that she was:
assailed and harassed by journalists and television film crews who aggressively demanded that I speak to them about my action against the defendant.
That occurred immediately after Judge Goetze's judgment on the preliminary issue was published. She also said that she received multiple phone calls at home from journalists 'insisting' that she be interviewed and that, when she was at the Perth domestic airport flying to Port Hedland for work purposes, she found journalists and people with cameras waiting for her. They were from a news program. And she says that they tried to physically impede her entrance to the terminal building and 'aggressively posed questions to me about the facts of the case'.
She says that the television news report was broadcast later that day which showed her trying to get into the airport terminal and appearing to be distressed and the verbal commentary referred to her action against Mr Rogers. She gave evidence that:
This experience was frightening and distressing, and the thought of further publicity about the action made me very worried that my employment would be in jeopardy. Consequently I became fearful of pushing ahead with the action.
Although not in itself sufficient, in my view, to constitute exceptional circumstances, when taken together with the other factors to which I have referred, in my view, this extreme publicity constitutes exceptional circumstances causally related to the dismissal of the proceeding for want of prosecution.
In my view, Ms Spark's psychiatric or psychological condition referred to by Professor Skerritt as leading to her failure to, in effect, prosecute the proceeding, is out of the ordinary, unusual, special or uncommon and is certainly not regularly or routinely or normally encountered, and is, on the report of Professor Skerritt, causally related to the dismissal of the action.
Furthermore, in my view, the combination of the other factors, namely the contemplation of taking her life as a result of despair occasioned by receiving an invoice from her solicitors, the combined and extreme nature of the illness or illnesses of her parents, and the extreme publicity apparently generated by this case following the publication of Goetze DCJ's judgment, in combination, are out of the ordinary, unusual, special or uncommon, and not regularly or routinely or normally encountered. And each of those matters is causally related to the dismissal of the action, certainly in combination.
Mr Camm also submits that the factors referred to could not be considered as exceptional circumstances causally related to the failure to prosecute the proceeding in the relevant period, because those factors continue to exist following that period, during which time this application ‑ or more correctly, the application to set aside the dismissal and this appeal ‑ have been brought and are being pursued by Ms Spark. However, in my view, the fact that those factors continue to exist does not negate their existence and their significance during the critical period November 2014 to May 2016.
Exercise of discretion
As I am satisfied that there are exceptional circumstances which are causally related to the failure to prosecute the proceeding during the relevant time, a discretion arises for consideration. That discretion must be exercised having regard to all relevant circumstances. Although Judge Davis identified the four matters for consideration in Maylands [54], the matters for consideration in the exercise of discretion are not closed. The discretion is broad and unconfined and the list of matters for consideration in the exercise of discretion is not limited to the four matters identified by her Honour or to any other matters.
I will address each of the four matters identified by her Honour and other matters raised by the parties.
The first matter for consideration is whether there has been any delay in bringing the r 44G(5) application to set aside the dismissal and the reason for delay. In this case, there has been no delay in bringing the r 44G(5) applications. It was brought immediately after the proceeding was dismissed and indeed was preceded by the application to reinstate the matter from the inactive cases list, which application was overtaken.
The second matter for consideration is the merits of the plaintiff's case, there being no point in reinstating a case that has no merit. Mr Rogers, through his counsel, submits that Ms Spark's allegations are unsupported by documentary evidence and that the merits of her case are questionable.
Ms Spark has now provided some documentary evidence annexed to her most recent affidavit, although it is historical evidence, in that it relates to the period from 2009 to 2011. That evidence, Mr Camm submitted on behalf of Mr Rogers, is not sufficient because the first medical report was obtained some 11 weeks after the alleged incident and the period of those reports concludes in 2011.
However, in my view, these reports provide some documentary evidence in support of the plaintiff's case. In addition, as I have said, Ms Spark has given affidavit evidence in this application to the effect that she was assaulted by Mr Rogers and that she has sustained injury and continuing consequences of injury. It cannot be said that there is no merit in the plaintiff's case. It appears, from the evidence before the court, at this stage, that it is an arguable case.
Mr Camm also relies, as I have said earlier, on social media evidence which shows that Ms Spark has actively pursued social and work commitments, particularly in recent years. Mr Camm submits, on behalf of Mr Rogers, that that demonstrates that the plaintiff's case is weak if the matter should go to trial. However, the evidence of Professor Skerritt is significant in this respect also, because it shows that the symptoms – at least in relation to psychological symptoms ‑ have been intermittent and fluctuating. It also shows that Ms Spark throwing herself into work is somewhat of a compensation.
In my view, of course, the merits of the plaintiff's claim would be addressed if the matter proceeds to trial and the social media evidence will no doubt form part of the defendant's case at trial. However, I am not satisfied that the plaintiff's case has no merit and indeed I am, at this stage, satisfied that there is an arguable case in relation to having sustained an injury.
The third matter for consideration is the prejudice to the plaintiff in this case, Ms Spark. It is common ground that Ms Spark's cause of action has become statute‑barred, so that if this proceeding was not reinstated ‑ or more correctly, if the dismissal were not set aside - then she would have no recourse against Mr Rogers.
Mr Rogers submits that is no fault of his. It is Ms Spark's doing. However, I note that some time during the course of this proceeding has been taken in applications made by Mr Rogers, as he was perfectly entitled to do, for summary judgment and for preliminary issue determination.
Those matters, as I say, took some considerable time to resolve. It may well be that if those applications had not been brought, this proceeding would now be concluded. In any case, I accept that there is prejudice to Ms Spark ‑ indeed quite considerable prejudice ‑ if the dismissal of the action is not set aside.
The fourth matter identified by her Honour Davis DCJ in Maylands is the prejudice to the defendant if dismissal of the action is set aside. It is submitted on behalf of Mr Rogers that there would be significant prejudice to him if the dismissal of the action is set aside. In his affidavit sworn in 20 July 2016, Mr Rogers states that he would suffer significant prejudice if the dismissal of the action were set aside as matters now stand. Indeed, it was submitted on his behalf that he would suffer 'extreme prejudice'.
The factors identified by Mr Rogers and stressed by his counsel are, first, that most of the witnesses who will be relied on are no longer with the Perth Football Club and Mr Rogers would be unable to readily contact them. And further, that he himself is no longer associated with the club and therefore would have difficulty contacting or obtaining evidence from witnesses associated with the club.
Furthermore, a number of the witnesses have now moved interstate. Ms Spark has given evidence that she has been able to identify four witnesses who were present, she says, at the time of the incident, via social media and to obtain at least some contact details for them. Those contact details show that a number of those witnesses reside in different parts of Australia. However, it also shows that those people appear to be contactable via social media.
I also note that before the matter was placed into the inactive cases list on 30 November 2015, just over a year ago, the proceeding was active in the sense, either actively pursued by the parties or at least not in the inactive cases for a period of a number of years. During that period there was ample opportunity to contact witnesses and obtain evidence and one would think that in prosecuting or in defending a proceeding, potential witnesses would have been identified and proofed.
In any case, the evidence is that a number of witnesses are able to be contacted or at least have contact details in Australia.
Certainly, there would be some prejudice to Mr Rogers if he wishes to contact those witnesses and obtain evidence from them, given that they are resident in different States. However, in my view, that is not extreme or exceptional prejudice, nor significant prejudice, given that leave can be obtained from the court and one would think it would be sensible to provide leave for such witnesses to give evidence by video‑link. But in any case, in my view, the fact that witnesses are elsewhere located in Australia, in all the circumstances, is not a significant or extreme prejudice.
Mr Rogers also submits that, given the length of time since the incident in question, which was in September 2009, now over seven years ago, that witnesses' recollection of the events in issue, if the matter went to trial, would be affected by that effluxion of time. That is clearly, probably correct.
However, as I have said, there has been significant opportunity while the matter was active, and indeed while the matter was being contested, to obtain witnesses' recollections. And furthermore, witnesses' recollections are hardly likely to be significantly worse now than they were in November 2015.
Further, Mr Rogers says that a number of witnesses reside interstate and that is common ground. He refers, in particular, to a witness, Mr Lees, the general manager of the football club, residing interstate. However, Ms Spark gives evidence that Mr Lees was not present at the time of the incident.
Mr Rogers also refers, understandably and no doubt correctly, to the significant costs of having defended this proceeding. It is submitted on his behalf that there is considerable prejudice in this case because of those considerable costs, particularly given that he was not responsible for the failure to prosecute the proceeding during the period of 18 months from November 2014.
However, as I have noted, Mr Rogers made interlocutory applications in this proceeding which were unsuccessful and no doubt costs were incurred in that regard as well. The prosecution or the further defence of this proceeding will no doubt result in additional costs to him and I take that into account. However, I do not regard that as giving rise to significant or extreme prejudice.
Mr Rogers says, and I have no reason not to accept and I do accept, that having had to defend this proceeding has given rise to deleterious effects on his personal, professional and sporting life. I have no doubt that having to defend litigation is stressful and adversely affects one's life. However, it is not, in my view, extreme prejudice even taking into account the appellant's failure to prosecute the proceeding.
Finally Mr Rogers submits that Ms Spark has failed to provide a satisfactory explanation for the period of delay and has failed to provide a satisfactory explanation for the delay of bringing this matter on for a determination by the court.
However, for reasons I have given, the exceptional circumstances in this case, and in particular the exceptional circumstances in terms of the psychiatric or psychological condition sustained by Ms Spark, does provide an explanation for the delay, that explanation not having been before the principal registrar.
Furthermore in my view, it cannot be fairly said against Ms Spark that she has failed to prosecute the proceeding throughout the whole of the history of the case. It is quite clear from the court file that there was an active prosecution of the proceeding for a period of years after the commencement of the proceeding. And although it is correct that the matter has not proceeded to trial, there were interlocutory applications made by Mr Rogers which prevented that from happening sooner. The most recent interlocutory application, namely the preliminary issue, was actively prosecuted, or more correctly defended, by Ms Spark and successfully so.
Conclusion
For these reasons, in my view, in the circumstances of this case and on the basis of the evidence now before the court, the plaintiff, Ms Spark, has established on a balance of probabilities that there are exceptional circumstances which are causally related to the failure on her part to prosecute the proceeding within the period of 18 months from November 2014 until May 2016.
Furthermore, in my view, the court's discretion which therefore arises for consideration should appropriately be exercised in the interests of justice so as to set aside the dismissal of the case under r 44G(1).
The court's processes and the timetables prescribed are to be respected by parties. In this case, it is frankly conceded on behalf of Ms Spark that her conduct involved a failure to respect the court's processes.
However, I am satisfied that that failure to respect the court's processes by prosecuting the proceeding effectively was related to a psychiatric or psychological condition. In my view, that is significant in both explaining that period of delay, and providing exceptional circumstances.
Furthermore, in my view, in the exercise of discretion, the application should be allowed, there being significant prejudice to Ms Spark, if the application is not allowed, and although there being prejudice to Mr Rogers if the application is allowed, it is not in my view significant or extreme.
For these reasons, I make the following orders:
1.The time for service of the appeal notice is extended to 8 September 2016.
2.The appeal is allowed.
3.The order made by Principal Registrar Melville on 18 August 2016 dismissing the plaintiff's application to set aside the dismissal of the action for want of prosecution is set aside.
4.The dismissal of the case under r 44G(1) DCR is set aside pursuant to r 44G(5) DCR.
5.The action be removed from the inactive cases list.
[The parties addressed in relation to costs]
Now, I come to the question of costs. The appellant seeks costs on the basis that costs should follow the result. The result being that the appeal has been successful. The respondent submits that, in fact, in the alternative, either the appellant should pay at least part of the respondent's costs, if not the whole of the costs, or alternatively, costs should be costs in the cause. This is because, firstly, the fact that there had to be an application before Principal Registrar Melville and the fact that there had to be an application on the appeal before me arises from Ms Spark's default and secondly, the result today was heavily influenced by Professor Skerritt's report which was only obtained in November or thereabouts.
In my view, unusually, costs should not follow the result today. While that is the general rule in litigation, it is not invariable where the justice of the case dictates otherwise.
In my view, the justice of this case does dictate otherwise and that is because the genesis of all of this was the plaintiff's default. As I have said, there is an explanation, as it now transpires, for that default but nevertheless, the defendant is blameless in relation to the failure to prosecute the proceeding during the period of inactivity and should not, in my view, have to pay for the appellant's costs, either of the hearing before the principal registrar, or today.
It was not a situation where the application before the principal registrar was so strong that reasonably, although there was a default that occasioned it, a defendant should have simply said, 'Yes, we consent to reinstatement'.
And in relation to that matter that's been dealt with today, as counsel for Mr Rogers quite correctly observed, the result may well have been quite different if Professor Skerritt's report had not been obtained, and that's only been obtained now. I don't think it's reasonable to say that the defendant should have said when he saw that report, having succeeded before the principal registrar, that this matter should not have proceeded to a contested hearing today.
We are here because of the appellant's default and the appellant has been significantly assisted in her case today by relatively recent evidence. In all of those circumstances, in my view, the justice of the case is that costs should be costs in the cause. In making that determination, I do note Mr R W Bower's argument that the issues today are, to some extent, discreet. Nevertheless, the application that is before the court today is, as it turns out, essential in the conduct of the matter from the plaintiff's perspective and ultimately these costs should be determined as part of the costs of the proceeding.
The court orders:
Costs of the application under r 44(5) DCR and of this appeal be costs in the cause.
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