Supreme Court Of the Australian Capital Territory; Case Title:; Thomson v Canberra Racing Club Incorporated; Thomson v; Canberra Racing Club Incorporated; Citation:

[2022] ACTSC 115

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Thomson v Canberra Racing Club Incorporated; Thomson v Canberra Racing Club Incorporated

Citation:

[2022] ACTSC 115

Hearing Date:

20 May 2022

DecisionDate:

20 May 2022

Before:

McCallum CJ

Decision:

(1)  Stand the matter over for further directions hearing on 1 August 2022;

(2)  Parties have liberty to apply to relist the proceedings before me on three days’ notice.

Catchwords:

CIVIL LAW –  JURISDICTION, PRACTICE AND PROCEDURE – Delay in filing defences – Where progress of proceedings relies on publication of Coroner’s decision

 Parties:

Ian Thomson (Plaintiff in SC 82 of 2020)

Carolyn Thomson (Plaintiff in SC 83 of 2020)

Canberra Racing Club Incorporated (First Defendant)

Keith Dryden (Second Defendant)

Scott Collings (Third Defendant)

Representation:

Counsel

D Jones (Plaintiffs)

S Sackville (First Defendant)

C Bou-Francis (Second & Third Defendants)

Solicitors

Carroll & O’Dea Lawyers (Plaintiffs)

Wotton & Kearney (First Defendant)

Sparke Helmore (Second & Third Defendants)

File Numbers:

SC 82 of 2020; SC 83 of 2020

McCallum CJ:

1. These are proceedings for damages for injury in the nature of what used to be termed “nervous shock” suffered by the parents of a female jockey who was killed as a result of a fall at Canberra Racetrack.  The fall occurred in 2017.  The proceedings were commenced in 2020.  Nothing has happened in the proceedings since then because the solicitor for the plaintiffs, in the hope of avoiding incurring unnecessary legal costs payable by his clients, and perhaps worse, incurring adverse costs orders against them, has not unreasonably sought to have the progress of the proceedings abide the findings of the Coroner in the coronial inquiry.

1. Owing to the age of the matter, it was included in a call-up old matters convened at my request which was held on 14 April 2022.  On that occasion, I had formed the view that the time had come for the matter to progress.  However, I was informed that the parties had been informed that the Coroner would be handing down his decision within a month.

1. In light of that information, somewhat reluctantly, I stood the matter over again before me today.  The parties have again attended this morning to inform the Court that the Coroner's final findings are not yet available.  Draft findings were published some time last year but a further opportunity was given to the defendants to respond to those findings and the final findings are still not available.

1. I had, again, come to Court this morning with the intention of making directions requiring the matter to proceed in the manner expected by the Court, noting that the defendants have still not even filed a defence to a claim filed on 4 March 2020.  I have, however, been persuaded by the submissions of Mr Jones that it is preferable not to make orders for the progress of the proceedings at this stage.

1. The reason is that the principal issue in the proceedings will be very much informed by the Coroner's findings.  The pleading alleges negligence on the basis that the track had inconsistent firmness and a soft patch beyond the finish post which contributed to the fall.  That is an issue which will turn very much on expert evidence concerning the nature of the surface of the track, which evidently is sourced from an overseas company, and the extent to which local contractors complied with appropriate standards for its installation.

1. In the interests of avoiding further distress to the plaintiffs by exposing them to unnecessary legal costs, I have determined to accede to the application yet again to adjourn the proceedings without ordering the defendants to file their defences and thereafter embarking upon the kind of timetable the Court would ordinarily expect in a claim of this kind.  It will be clear from what I have recorded that it would be desirable for the Coroner's final findings to be available as soon as practicable.

1. For those reasons, I make the following orders:

(1)     Stand the matter over for further directions hearing on 1 August 2022;

(2)     Parties have liberty to apply to relist the proceedings before me on three days’ notice.

1. I note that the parties propose to participate in an informal settlement conference on or before 29 July 2022. I also note that I have invited the solicitor for the plaintiffs to communicate these reasons to the Coroner.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum.

Associate:

Date: 15 July 2022