First Plaintiff v Defendant

1 Kerry Smith and Kevin Abrahams say that they, and their three children, were travelling by vehicle from Hoppers Crossing to a pharmacy at Geelong Hospital when the following events occurred. Their vehicle was struck by another vehicle on Melbourne Road in North Geelong and it tried to force them off the road. They recognised the two occupants of that other vehicle, who they say were brandishing heavy club locks and a knife. While being pursued, Ms Smith rang the 000 emergency facility, and was advised to drive immediately to Geelong Police Station. The pursuit continued around central Geelong and Ms Smith repeatedly drove within the immediate proximity of Geelong Police Station. No assistance was given by any police officer. After failing to attract any assistance from the police, Ms Smith then drove to the area immediately in front of the police station. Mr Abrahams alighted from the car to attract the attention of their pursuers away from Ms Smith and their children. The occupants of the other car then assaulted and slashed Mr Abrahams with a knife in the forecourt area of the police station.

2 Ms Smith and Mr Abrahams bring this proceeding in negligence against the State of Victoria claiming injury, loss and damage. They say that the State is liable for the acts or omissions of Victoria Police and its members. They say that the State was responsible for the provision and conduct of the 000 emergency telephone facility and that it was put in place to provide an emergency response by State agencies, including Victoria Police.

3 The State has provided audio recordings of the relevant 000 telephone calls. The allegations made by Ms Smith and Mr Abrahams are, however, untested. The proceeding has not moved past the filing of their writ and statement of claim, and the State's filing of an appearance.

4 Ms Smith and Mr Abrahams seem to have disappeared. The solicitors who filed the claim on their behalf are no longer acting. The State has made serious attempts to locate them for the purpose of this proceeding, but cannot find them.[1]

5 The State has now made an ex parte application to have the proceeding dismissed for want of prosecution, or for there to be summary judgment in its favour.[2]

(a) Should the proceeding be dismissed for want of prosecution?

(b) Should there be summary judgment in favour of the State on the basis that it is not the proper defendant?

Should the proceeding be dismissed for want of prosecution?

7 The State relies upon the general effluxion of time to submit that the proceeding should be dismissed. The incident is alleged to have occurred almost ten years ago, in August 2007. The writ was issued in July 2010. By letter dated 14 December 2012, the solicitors for Ms Smith and Mr Abrahams indicated that they had received advice from counsel and that it was likely the proceeding would be discontinued against the State (with claims to be made against other entities).[3] However, they needed to obtain instructions first. It appears that those instructions were not obtained and on 16 June 2014 the solicitors filed a notice that they were ceasing to act. The State has not had any contact with Ms Smith or Mr Abrahams or their solicitors since that time.[4]

8 The Court has inherent power to dismiss a proceeding for want of prosecution. There is reference to this power in Rule 24.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules'):

Inherent jurisdiction

Nothing in this Order affects the inherent power of the Court -

(a) to dismiss any proceeding for want of prosecution; or

(b) to order that upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out and that judgment may be entered or that there be judgment accordingly.

9 The Court of Appeal outlined the relevant principles for such dismissal with reference to the Civil Procedure Act 2010 (Vic) ('CPA') in Sullivan v Greyfriars Pty Ltd:[5]

The inherent jurisdiction to dismiss a proceeding (including an appeal or an application for leave to appeal) for want of prosecution is well-established and is recognised in r 24.05 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'). It has been held that the power is to be exercised very sparingly and that it must be shown that there has been inordinate and inexcusable delay in complying with the Rules, and that the defendant or respondent is likely to be seriously prejudiced as a result.

... the Court is now subject, including when exercising its inherent jurisdiction, to the statutory obligation in s 8 of the Civil Procedure Act 2010 to seek to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

Section 8 casts a new light on the inherent jurisdiction. It gives statutory emphasis to the importance of the timely resolution of proceedings, which in turn underscores the importance of compliance with orders of the Court for the management of a proceeding. But it also widens the range of matters to which consideration must be given. Even in cases where inordinate, inexcusable and prejudicial delay are not established, failure to comply with the orders of the Court may therefore none the less warrant summary dismissal. In light of s 8, the merits of the proceeding that is sought to be dismissed may bear on the exercise of the Court's discretion. That is especially so in this case because the Court is dealing with an application for leave to appeal rather than an appeal brought as of right.

In considering the merits of any proceeding sought summarily to be dismissed, it is appropriate to consider the matters which would be relevant in determining whether the proceeding can be said to have no real prospect of success, that being the standard applied in the provisions concerning summary judgment in Pt 4.4 of the Civil Procedure Act 2010 (albeit that these provisions are not invoked in the present case). That test also mirrors the test the applicant would have to meet in order to obtain leave to appeal.

10 The application to dismiss for want of prosecution in this matter cannot succeed. Significantly, the State has not provided any evidence of specific prejudice. It relies on general prejudice due to the effluxion of time. It has not established serious prejudice. The delay is long but not inordinate: it has been approximately four years since the solicitors for Ms Smith and Mr Abrahams said they would endeavour to obtain instructions. It has not been suggested that Ms Smith and Mr Abrahams have breached the Rules, although their conduct does appear to be inconsistent with their obligation to minimise delay under s 25 of the CPA.

Should there be summary judgment in favour of the State on the basis that it is not the proper defendant?

11 The State submits that there should be summary judgment in its favour on the basis that the claim by Ms Smith and Mr Abrahams has no real prospect of success. It says that the claim cannot succeed because the wrong defendant has been named. The Emergency Services Telecommunications Authority ('ESTA'), not the State, operates the 000 facility.

12 The State does not provide any evidence in support of this submission. It relies, rather, upon correspondence exchanged with the solicitors for Ms Smith and Mr Abrahams and with the ESTA's solicitors.[6]

13 This correspondence includes a letter by which the State informed the solicitors for Ms Smith and Mr Abrahams that:[7]

the '000' operators who received [Ms Smith's] call, and dispatched information in relation to her situation to Victoria Police, were employees of the [ESTA], and were not members of Victoria Police.

14 ESTA's solicitors wrote to the solicitors for Ms Smith and Mr Abrahams and stated, amongst other things:[8]

• It [ESTA] was established as a statutory authority on 1 July 2005 under the Emergency Services Telecommunications Authority Act 2004 (Vic) and is vested with the responsibility for the provision of multi-agency emergency services communications for the Victoria Police.
• Its employees are not members or employees of the Victoria Police.
• Whilst ESTA is responsible for call taking and dispatch of Victoria Police events, ESTA is not responsible for making or providing direction in respect of operational decisions to be taken in respect of any Victoria Police event. Operational decisions, including the priority members and police field units assign to their attendance at incidents are made by the Victoria Police.

15 The solicitors for Ms Smith and Mr Abrahams unsuccessfully sought a copy of the audio recording of Ms Smith's 000 call from the ESTA, which referred them back to the State's solicitors. The State's solicitors subsequently provided the solicitors for Ms Smith and Mr Abrahams a compact disc[9] containing recordings of:

• the '000' telephone call made by Ms Smith/ Mr Abraham;

• three related '000' telephone calls made by members of the public (with the callers' names and personal contact details redacted); and

• 25 relevant dispatch radio / telephone calls made to members of Victoria Police.

16 The State's summons was brought pursuant to ss 62 and 63 of the CPA. Section 63 of that Act gives the Court power to give summary judgment in a civil proceeding if it is satisfied that a claim has no real prospect of success. The Court of Appeal outlined the following test for summary judgment in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd ('Lysaght'):[10]

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

(c) It should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) At the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

17 The pleadings do disclose a cause of action. It is alleged that the State owed the plaintiffs a duty of care with regard to the receipt and response of the 000 calls and to act in a manner which would prevent them from suffering reasonably foreseeable injury through actions of the occupants of the other car, who are referred to as the 'assailants'.[11] The particulars of negligence alleged include:[12]

(1) failing to put in place any or adequate measures to apprehend the 'assailants' after having been informed of their threatening conduct;

(2) permitting continued exposure to the danger of injury which could have been avoided with reasonable care;

(3) failing to respond in an appropriate manner to the 000 call;

(4) failure to ensure adequate protection was provided after Mr Abrahams alighted from the vehicle, when it was known (or ought to have been known) that the assailants had threatened him with injury;

(5) failure to heed the threats posed by the assailants brandishing club locks and a knife; and,

(6) failure to ensure that Ms Smith and Mr Abrahams were provided with any or adequate assistance or protection upon arrival at the police station.

18 On their face, however, the pleadings are defective. They are confusing about how the State is said to be liable at all and, if so, whether directly or vicariously. Paragraph 1 pleads that the State is liable for the acts or omissions of Victoria Police pursuant to s 23 of the Crown Proceedings Act 1958 (Vic), which relates to the liability of the Crown in contract for its servants, agents and independent contractors. The statutory Note to that provision states that the police officers do not fall into this category.[13] Accordingly, the reference to that section adds to the confusion. Paragraph 1 alternatively relies upon s 123 of the Police Regulation Act 1958 (Vic). That section provided for the State's liability for acts of police force members done in good faith in the course of the member's duty. It has since been repealed and replaced by Part 4, Division 8 of the Victoria Police Act 2013 (Vic), which provides that the State is liable for 'police torts' (defined in ss 72 and 73).

19 Paragraphs 14 and 15 of the statement of claim allege that the State itself had a duty of care. Paragraph 2 says that the State is responsible for the 000 facility, which was operated by Intergraph on behalf of the State. However, s 7 of the Emergency Services Telecommunications Authority Act 2004 (Vic) stipulates that it is a function of that Authority to provide emergency telecommunications and other communications services, or enable and control others to do so. There is no evidentiary basis to make a finding as to whether or not ESTA has contracted its 000 services to the State.

20 Even if the wrong defendant has been named, however, it cannot necessarily be said that summary dismissal is appropriate. Such an irregularity can be cured by amendment,[14] providing there is a cause of action. Clarification of the pleadings is required before it can be said whether there is any reason to retain the State as a defendant. Summary dismissal under s 63 will therefore not be ordered at this time.

21 For completeness, reference should be made to the State's reliance upon the 14 December 2012 letter from the solicitors for Ms Smith and Mr Abrahams. That letter did not state that the proceedings would be wholly discontinued. Rather, it indicated that instructions were being sought to discontinue proceedings against the State, in the context of discussions about other entities being the proper defendants. This is consistent with an earlier letter from the solicitors for Ms Smith and Mr Abrahams foreshadowing amendment to the pleadings to include allegations against ESTA.[15]

22 Further, the 14 December 2012 letter states that it is sent without obtaining instructions. It cannot be relied upon as a ground for summary judgment or, indeed, to dismiss for want of prosecution.

23 For the reasons above, it is not appropriate to make the orders sought by the State and its summons will be dismissed.

24 The overarching purpose of the CPA and the Rules is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. In considering this overarching purpose, a number of objects must be considered. They include, relevantly, the just determination of the civil proceeding, the efficient conduct of the business of the court, the efficient use of judicial and administrative resources, minimising delay and the timely determination of the proceeding.[16]

25 The affidavit evidence indicates that the State has gone to considerable, although ultimately unsuccessful efforts, to locate Ms Smith and Mr Abraham. Despite that, they remain missing. No step has been taken by them in this proceeding since the writ and statement of claim were filed almost seven years ago. In all the circumstances, the proceeding will be struck out with a right of reinstatement.

[1] Affidavits of Leang Thai affirmed on 14 February 2017 ('the first Thai affidavit') and 25 March 2017 ('the second Thai affidavit').

[2] Application made by summons filed 15 February 2017.

[3] Exhibit 'LT-10' to the first Thai affidavit ('the 14 December 2012 letter').

[5] [2015] VSCA 196, [21]-[24] (emphasis added; citations omitted).

[6] This correspondence is annexed to the first Thai affidavit.

[7] By letter dated 12 May 2011:, which is Exhibit 'LT-3' to the first Thai affidavit.

[8] Exhibit 'LT-4' to the first Thai affidavit.

[9] The compact disc is not in evidence. There is reference to it in the letter from the State's solicitors to the solicitors for Ms Smith and Mr Abrahams dated 10 November 2011, which is Exhibit 'LT-6' to the first Thai affidavit.

[10] [2013] VSCA 158; (2013) 42 VR 27, 40 [35] (Warren CJ and Nettle JA).

[11] Paragraph 14 of the writ and statement of claim filed 19 July 2010.

[12] Particulars (d)-(j) to paragraph 15 of the statement of claim.

[13] Division 8, Part 4, and particularly s 74, of the Victoria Police Act 2013 states when the State may be liable for tortious acts of police officers.

[14] See Djime v Le [2016] VSC 48, [60].

[15] Exhibit 'LT-2' to the first Thai affidavit.