Stone v TAHOUNE - [2007] WADC 11

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: STONE -v- TAHOUNE [2007] WADC 11

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 23 JANUARY 2007

DELIVERED : 21 FEBRUARY 2007

FILE NO/S: CIV 2309 of 2005

BETWEEN: DANIEL ROBERT STONE
Plaintiff
AND
FATIMA TAHOUNE
Defendant

Catchwords:

Practice - Western Australia - Inherent jurisdiction to strike out an action for want of prosecution - Failure of plaintiff to enter action for trial

Legislation:

District Court Rules 2005, r 45(3), r 45(4), r 37(1)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr P Fraser
Defendant: Mr M Kavenagh

Solicitors:

Plaintiff: Ilberys
Defendant: Greenland Brooksby

Case(s) referred to in judgment(s):

Birkett v James [1978] AC 297
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Case(s) also cited:

The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93

DEPUTY REGISTRAR HARMAN: On 17 October 2005 the plaintiff commenced the action under which he claims damages for loss arising from personal injury sustained as a result of a motor vehicle accident. By her defence the defendant puts liability and quantum in issue.
Rule 37 (1) of the District Court Rules 2005 provides as follows:
"The plaintiff must enter the case for trial on or before the date for entry for trial in the timetable applicable to the case."
By notice dated 7 March 2006 given in the terms of Form 2 in Schedule 1 to the Rules, the plaintiff was informed that unless the action was entered for trial before 22 March 2006, it would be designated as inactive.
Rule 45 expounds the consequences of such designation as follows:
"(2)The plaintiff must not file a Form 1 to list the case for trial or any other document (other than an application under subrule (3)) without the leave of the Court.
(3)Within 21 days after the date specified in a Form 2, the plaintiff must apply for leave to list the case for trial or to be excused from doing so.
(4)If-
(a) no application is made under subrule (3): or
(b)on an application made under subrule (3), leave is refused or the plaintiff is not excused,
a party that is not in default may apply for judgment in that party's favour to be entered without a trial.
(5)If the Court grant leave on an application under subrule (3) and is satisfied that there is no reason for the case to be inactive, it must order that the case is no longer inactive."
The plaintiff has not entered the action for trial and accordingly it became inactive.
On 27 April 2006 the defendant brought an application under r 45(4) seeking to have the action struck out. She relied upon the plaintiff then being in default of r45 (3). She contended that whatever the mechanism was that had been established by r45, the plaintiff’s default should attract some adverse consequence.
The often cited passage from the reasons given by Diplock LJ in Birkett v James [1978] AC 297 stands for the proposition that prior to striking out an action a court would have judged that to do so would be a proportional response to some act or omission. The passage also provides some useful markers for the purpose of such an assessment. It is as follows:
"The power should be exercised only where the Court is satisfied either (1) that the default has been intentional and contumelious, eg disobedience to a peremptory order of the court or conduct amounting to an abuse of process of the court; or (2) (a) that there has been inordinate and excusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."
I considered that it would only be upon a finding of similar gravity to those countenanced by Diplock LJ that a court would not permit disposition in the usual manner of a dispute brought before it.
In effect the plaintiff submitted that his default in entering the action for trial had been intentional. He offered no explanation for having breached r 45(3). Although each of r 37 (1) and r 45 (3) are expressed in mandatory terms, in my opinion no rule that would operate at such a relatively late stage in an action would properly either be constituted as or be taken to have the effect of an order. The fact that those rules are integral to both the process by which the court monitors the progress of actions and the mechanism by which the status of an action is determined, would not elevate the significance of his default. In the case of r 37, the procedural step to which it refers is one that can only be taken upon a party certifying that in all respects the case is ready for trial. The prospect of inattention to one side, any breach of the rule would be accounted for by the fact that the process of preparing the case for trial had been wide of the mark established by the timetable to which the rule refers. As for r 45(3), it simply provides the mechanism by which a case that was "inactive" would be accorded the status "active". The significance of the distinction is that it is only in an active case that a plaintiff would have the right to access the resources of the court.
I did not consider that the plaintiff’s failure to either enter the action for trial or inform the court that he had failed to do so could have been constituted as contumelious. There was no reason to consider that his failure to take either step amounted to an abuse of the court’s process.
The other ground canvassed by Diplock LJ related prejudice to a finding of unjustified delay. The defendant brought no evidence upon which any prejudice could have been established. I accepted that in order to assist the defendant I could have inferred that she would have been prejudiced simply because time erodes memory. Against the prospect that it may have been appropriate to either draw or promote such an inference are two significant considerations. The first is that Parliament has determined that an action may be commenced as late as six years after the event. The second is that it is the defendant that carries the onus in the application.
Upon being informed of the claim there was no reason to consider that the defendant had not had the benefit of access to resources including legal advice. In the absence of there being any evidence to the contrary, at the very least it was appropriate to consider that once the writ had been served the defendant and any liability witness would have been interviewed and proofed. There was no reason to consider that the defendant had not availed herself of the opportunity to have the plaintiff medically assessed. There was no reason to consider that the defendant would have had any difficulty in bringing evidence before me to establish a case to the contrary.
I recognised that might be a delicate task for any defendant to found a meaningful case of prejudice but such reflection does not bring with it the result the court should be disposed to draw inferences in favour of an applicant for the particular order sought any more than it would for the benefit of an applicant for any other order. Taking a broader view, as a general proposition, at trial any prejudice generated by the effluxion of time, is likely to be far more keenly felt by a plaintiff than a defendant. I noted that in this case the defendant raises significant allegations of material fact in relation to the issue of liability. Had she not by then undertaken the process of getting up her case for trial she may have been at some greater disadvantage than would have been the case had the exercise been undertaken months previously. There was no basis upon which to consider that any such difficulty would have been attributable to the period of any delay of the plaintiff. In the absence of any suggestion of there having been any real prejudice to the defendant, it was my opinion that to place much emphasis on those prospects would have raised the prospect of there being a miscarriage of justice.
In coming to the conclusion that I would not grant the relief sought by the defendant I considered that to do so would be disproportional to the plaintiff’s default.
On 25 May 2006 the plaintiff brought an application seeking an extension of time to list the action for trial or be excused from doing so and to have the timetable for the conduct of the action revised such that the latest date for the entry for trial would be reset at 31 July 2006. In his affidavit in support of that application, his solicitor related some history associated with parts of the processes undertaken to the ends of providing discovery and getting up the case for trial.
As I recall, on the date that the application was heard, from the plaintiff's perspective, an impediment to the action being entered for trial was that the plaintiff had been awaiting a medical report from his treating specialist Dr Goonatillake. His solicitor's request for that report had then been outstanding for some time. I understood that without the report the plaintiff did not consider that the case was in all respects ready to be entered for trial.
That application too was dismissed. It seemed to me that if taking the step of entering the action for trial depended upon the report sought by the plaintiff becoming available then until he could determine whether its content would satisfy him that the action was in all respects ready to be entered for trial, there was no reason for the court to engage with the action. Simply because the application had been made and I had the power to excuse the plaintiff’s non-compliance with the rules would not justify its exercise. Ultimately there was no basis upon which to conclude that the plaintiff would be ready to take the step of entering the action for trial either by the date he proposed or by any arbitrary date that I could have selected. As to the prospect that the plaintiff’s default be excused, whatever may have been the history associated with the preparation of the plaintiff’s case that had led to the predicament in which he found himself, I knew insufficient of it to justify excusing his default. On reflection it would probably be such an onerous task for any plaintiff to bring sufficient evidence on that point that it is not surprising that the plaintiff had not addressed that part of the application.
It transpires that Dr Goonatillake did not provide his report prior to 31 July 2006 and that on 1 November 2006 the plaintiff's solicitors were informed that he had declined to provide a medical report in the matter. That evidence has emerged on the application that is presently before me by which the defendant seeks to have the action dismissed for want of prosecution.
To the extent that the defendant would rely upon the considerations that I have previously related to the first of the alternatives canvassed by Diplock LJ, I have nothing to add to the reasons that I have given in relation to the defendant’s application under r 45(4).
The evidence relied on in support of the application is provided by the defendant's solicitor by affidavit sworn 26 October 2006 and in his affidavit in response to that filed by the plaintiff's solicitor of 6 November 2006, sworn 16 November 2006.
In his first affidavit, the defendant's solicitor asserts that since 31 January 2006 there has not been any substantive activity undertaken on the part of the plaintiff. Since that time the defendants have sought discovery and detail of efforts made by the plaintiff to obtain outstanding medical and educational information. At par 13 he deposes:
"(xi) By letter dated 26 June 2006 Greenland Brooksby wrote to Illberys Lawyers advising that once Mr Goonatillake's report was received, the Defendant would make every effort to accommodate the Plaintiff's request that the matter be declared active and entered for Trial. Illberys Lawyers replied by letter dated 27 June 2006 advising that they had no indication from Dr Goonatillake as to when the report may be received.
(xii) By letter dated 13 October 2006 Greenland Brooksby wrote to Illberys Lawyers requesting that Dr Goonatillake's report be provided within the course of the next 7 days failing which an application would be made to the Court to have the claim struck out for want of prosecution. Ilberys Lawyers replied by letter dated 17 October 2006 outlining details of two letters written to Mr Goonatillake requesting the report."
He continues at par 14:
"I make this affidavit in support of the Defendant's Chamber Summons for an application that the Plaintiff's claim be struck out for want of prosecution. The Plaintiff's claim has been characterised by a significant delay at every pleading milestone since the filing of the Writ of Summons in October 2005. No correspondence has been initiated by the Plaintiff and all correspondence and documents received had been in reply to repeated requests from the Defendant. Since the chamber summons of 12 July 2006, the plaintiff has written only two letters to Dr Goonatillake requesting the report."
The plaintiff's solicitor deposes as follows:
"4By letter dated 9 January 2006, our office made a request of Sir Charles Gairdner Hospital pursuant to the Freedom of Information Act for provision of our client's clinical records. …
5By letter dated 9 January 2006, and in anticipation of this matter proceeding to a pre‑trial conference in the short‑term future, our office requested a report from our client's treating specialist, Mr Hari Goonatillake. The report was intended for the purpose of detailing the Plaintiff's history of treatment, obtaining updated medical evidence and obtaining a prognosis of the Plaintiff's condition. …
6By letter dated 31 January 2006, our office requested copies of the plaintiff's income tax returns from the Australian Taxation Office. …
7Having made the requests referred to at pars 4‑6 herein, our office wrote to the solicitors for the Defendant on 31 January 2006 advising that we were awaiting further information and that until such time as that material was received we did not believe we were in a position to provide adequate discovery. Under cover of the same letter, the Plaintiff's (sic) served the Defendant with Further and Better Particulars of Statement of Claim. …"
At par 21 he deposes that the plaintiff has continued attempts to progress the matter and obtain a response from Mr Goonatillake. Subsequent to the dismissal of the plaintiff's application on 12 June 2006, the plaintiff's solicitor deposes to efforts made to obtain the report which is detailed at par 26 of his affidavit. It reveals attention to the task on 12 June 2006, 27 June 2006, 8 August 2006, 13 October 2006 and 17 October 2006. I have already referred to the fact that on 1 November 2006 the plaintiff was advised that Mr Goonatillake the specialist would not be providing a report. The plaintiff's solicitor further deposes that an arrangement has been made for the plaintiff to be reviewed by another specialist on 9 February 2007.
Before I turn to the affidavit in reply of the defendant's solicitor, it is worth considering what I would describe as a bureaucratic impediment to the plaintiff obtaining a report from Dr Goonatillake. At par 24 of the plaintiff solicitor's affidavit he states as follows:
"On 28 April 2006, our Ms McGuiness spoke with Kathy at Mr Goonatillake's private rooms. During that conversation, Kathy advised our Ms McGuiness that as the plaintiff has not attended Mr Goonatillake at his private rooms and that (sic) any request for a medical report must be directed to Sir Charles Gairdner Hospital. Kathy stated that if we directed a request to Mr Goonatillake in the manner stated, that Mr Goonatillake would prepare the medical report and not the medico‑legal department at the Hospital."
In his affidavit in response the defendant's solicitor draws from the content of the plaintiff's discovered documents and in particular, the content of reports which the plaintiff characterises as being other than of Dr Goonatillake although having emanated from Sir Charles Gairdner Hospital. He also proposes that the plaintiff has not been reviewed by Dr Goonatillake since 9 June 2003. Whether that is the case, I do not know.
In the statement of claim the plaintiff asserted the defendant’s negligence in a context where as a motorist on a priority road he had claimed right of way. His pleaded injuries included bone fractures; spinal, left-arm, left thigh and patella ‘injuries’ and nervous shock. He also alleged that he had short‑term memory loss. It was my opinion that the issues presented by the plaintiff's case upon the close of pleadings revealed a contest of significant dimensions.
It is for the parties to determine how to get up their respective cases for trial. On at least the question of quantum of the plaintiff's loss, it is not unreasonable for him to seek an opinion from the specialist who provided treatment for his injuries. Prior to the matter being entered for trial it would not be unreasonable for him to seek a recent medical report. In the letter of the plaintiff's solicitors to the defendant's solicitors of 27 October 2006, the following passage appears:
"Given the seriousness and complexity of the injuries that our client received in the motor vehicle accident, it is our view that it is essential to obtain an opinion from Mr Goonatillake. Mr Goonatillake has maintained a central role as our client's treating surgeon, which has included:
(a)Inpatient care at Sir Charles Gairdner Hospital;
(b)Subsequent outpatient review and management;
(c)Performing several surgeries in respect of our client's injuries."
Although that letter was sent on the date that the defendant filed the application, it is indicative of the plaintiff's attitude towards the significance of obtaining a report from Mr Goonatillake. I am in no better position than the plaintiff to judge the need for the report.
On an application of this nature, the court is obliged to take into account all of the evidence before it. It is difficult to discern that there has been any period of delay since January 2006 which is not the subject of explanation by the plaintiff. Having said that, the level of attention given to the issue of communication is one that appears to have been given no real priority by the plaintiff's solicitors. The fact that the defendant was agitating for some progress to be made and that the plaintiff was in default of the District Court Rules 2005, should be taken into account along with what I have described as the bureaucratic difficulty confronting the plaintiff and the interest of the plaintiff in not unnecessarily generating costs. In retrospect the latter considerations may be revealed as having allowed far too much latitude, however in my experience both as a practitioner and having gained some insight into the process of getting up a case for trial as a taxing officer, it is not uncommon to find that delay is as much a feature of medical report generation as it is of any other document of significance in litigation. Before the plaintiff is criticised for extending what may have been considered to be courtesy to Mr Goonatillake, it should be remembered that if the matter comes on for trial then the plaintiff may wish to call him as a witness. It is human nature that one would not wish to vex one's own witness.
If the conditions expressed by Diplock LJ on a justified exercise of the power to dismiss are considered then the defendant would not establish any significant period of unexplained and inexcusable delay and there is no evidence whatsoever that any prejudice has emerged from any such period or periods. The onus of persuasion is on the defendant and there is nothing to suggest that any evidence has been lost to her. The fact that after only a short period of time memory of even a significant event will be eroded must be tempered by the considerations to which I previously referred.

The strength of the defendant's application appeared to draw upon the fact that the plaintiff has not yet entered the action for trial. In entering the action for trial, a plaintiff is required to certify that the matter is in all respects ready for trial. In light of all that I have canvassed, it is evident that the plaintiff does not consider that the action is ready for trial and is presently awaiting the opportunity to obtain a medico‑legal report from Mr Ker subsequent to the plaintiff's review by him on 9 February 2007. In order to reconcile the need for such certification with the obligation of the plaintiff to enter an action for trial in accordance with the Rules, it is appropriate to consider that a plaintiff may withhold commencing an action until he would be reasonably certain that he could comply with the requirement to enter the matter for trial within the time specified in the timetable. In this case the plaintiff did not have the luxury of waiting until such a time as at the date of commencement of the action there was only approximately 21 days remaining within which an action could be commenced within the "limitation period". In light for the need for certification there is no reason to seek to resolve the question of how any prejudice to the plaintiff in entering the action for trial prematurely would be balanced by any prejudice to the defendant by the further effluxion of time.
In relatively recent times there has been a focus in reported decisions on the significance of processes of court management of litigation. The High Court in State of Queensland v JLHoldings Pty Ltd (1997) 189 CLR 146 has cautioned that there is a distinction properly drawn between circumstances to which such processes are a response and the circumstances that combine to generate causes of action. I consider that there is a difference of similar degree between monitoring adherence to an arbitrary timetable and reflection upon the task set for a party by the process of getting up a particular case for trial.
Some recent emphasis has also been put upon the proposition that the court’s resources are scarce and that there may be a connection between the delinquency in the listing of a case and the utilisation of those resources. If such a linkage exists, in my opinion it is not illuminated by this case. In the process of it becoming inactive the only resource expended was the issue of the notice of default. Now that it is inactive it would not attract the provision of the resources that the court chooses to allocate to its monitoring process.
Even if I considered that the only matter now before me was the particular difficulty articulated by the plaintiff and I was not satisfied that it ought to be an impediment to the action being entered for trial, there is no dimension of the case that would justify the result sought by the applicant. In my opinion the application ought to be dismissed.