HIS HONOUR: Before the Court for final hearing today, are the following proceedings: Kalathas v Techtronic Industries Australia Pty Ltd, 2018/110142. Mr McCulloch, of senior counsel, appears for the defendant. The matter was called outside court at both 10.17am and 11.15am and there was no appearance by the plaintiff or on his behalf.
The defendant has applied for an order pursuant to Part 29.7(4) of the Uniform Civil Procedure Rules 2005, to the effect that the proceedings are dismissed.
Part 29.7 of the Uniform Civil Procedure Rules provides as follows:
"29.7 Procedure to be followed if party is absent:
(1) This rule applies when a trial is called on.
(2) If any party is absent, the court:
(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or
(b) may adjourn the trial.
(3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the Court may, without proceeding to trial, give judgment against that defendant on evidence of:
(a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and
(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff's claim or costs.
(4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the Court may dismiss the proceedings.
(5) Subrules (3) and (4) do not limit the court's powers under subr (2)."
It is important to review the background to the proceedings in considering whether the Court should make the orders as sought by the defendant.
The Statement of Claim was filed by the plaintiff in these proceedings on 9 April 2018. In essence, the plaintiff seeks damages for personal injuries received by him on 14 April 2015, when an angle grinder allegedly manufactured by the defendant fell from a bench in the plaintiff's garage/workshop whilst having the power on, but the machine not on, and through hitting the bench became operative and, falling onto his foot, caused injuries.
The claim is brought against the defendant under the Civil Liability Act 2002 (NSW) and under the Australian Consumer Law, as set out as a schedule to the Competition and Consumer Act 2010 (Cth). It is first alleged that the machine was negligently manufactured in that the switch on the machine was defective and permitted the machine, when it fell and after it allegedly hit the bench, to come into an on position.
The alternative cause of action under the Australian Consumer Law alleges that the switch had a safety defect and also breached s 54 of the Australian Consumer Law in that there was a breach of the guarantee that the angle grinder was of acceptable quality. It is pleaded that the grinder was not fit for all purposes for which goods of its kind were commonly applied, was not free from defects and was not safe.
The plaintiff alleges in the Statement of Claim, and in the Statement of Particulars filed on 9 April 2018, that he suffered personal injuries as a result of the breaches alleged against the defendant. These included severe injury to the right foot, including partial amputation of the fourth and fifth toes of the right foot, and depression and anxiety. The Statement of Particulars sets out a number of alleged continuing disabilities arising from the accident. The Statement of Particulars alleges very significant damages suffered by the plaintiff as a result of the breaches alleged.
In a Defence filed 3 September 2018, the defendant does not admit the circumstances of the accident and denies and puts in issue that it has any liability to the plaintiff. In particular, it denies that there was any safety defect as alleged by the plaintiff (paragraph 15) and denies that the injuries alleged by the plaintiff resulted from a safety defect as alleged or at all. Causation is also put in issue (paragraph 21).
The procedural history in the matter is also relevant to the application. This is set out in the affidavits of Michael Dean Jones affirmed 9 April 2019 and Tristan Konstantin Devaris sworn 13 May 2019 which were read on the application. Significant matters appear to be as follows:
1. When the Statement of Claim was filed, the solicitor appearing as the solicitor for the plaintiff was a Mr Michael Dean Jones, of Gorman Jones Lawyers.
2. On 31 January 2019, the Judicial Registrar listed the matter for final hearing commencing today, with an estimated duration of three days. Orders were also made for the service of expert medical and expert liability evidence by the defendant and for the parties to participate in an informal settlement.
3. On 15 March 2019, the parties participated in an informal settlement conference. The matter was not able to be settled.
4. Soon after, advice was given by the solicitors for the plaintiff to him in relation to his prospects.
5. On 20 March 2019, a conference was arranged by the solicitors for the plaintiff with the plaintiff and with senior counsel, appearing for the plaintiff. The plaintiff, despite being reminded numerous times by his solicitors, did not attend that conference.
6. The timing was significant, as attempts were being made to have joint conclaves of medical and liability experts organised.
7. Despite apparent attempts by the plaintiff's solicitors to obtain further instructions for other settlement offers to be put and to advance the proceedings, no further instructions were provided by the plaintiff to his solicitors. On 21 March 2019, a letter was sent to the plaintiff from his solicitors, in essence stating that should they not receive instructions by 22 March 2019, they would proceed to file a Notice of Intention of Ceasing to Act.
8. A Notice of Intention of Ceasing to Act was filed by the solicitors for the plaintiff on 25 March 2019.
9. A copy of that document was sent by letter dated 25 March 2019 to the plaintiff.
10. At about this time, an expert report prepared by an expert briefed on behalf of the defendant, a Dr Robert Casey, was served on the solicitors for the plaintiff. A copy of this report was forwarded by the solicitors for the plaintiff to the plaintiff's liability expert. A copy of the letter from the solicitors for the defendant enclosing the report of Dr Casey was also forwarded on 25 March 2019 to the plaintiff.
11. On 3 April 2019, the solicitors for the defendant sent a letter to the solicitors for the plaintiff in relation to a conclave meeting of the liability experts and referring again to the hearing fixed for 14 May 2019.
12. On 3 April 2019, the solicitors for the plaintiff filed a Notice of Ceasing to Act. However, it appears that they did not comply with the rules as to the time for the filing of such document and a requisition was sent out by the District Court Registry to them on 3 April 2019 saying that the Notice of Ceasing to Act was "voided".
13. On 5 April 2019, a letter was sent by the solicitors for the plaintiff to the plaintiff referring again to the fact that they had not received instructions from the plaintiff and also noting that the matter was listed for hearing on 14 May 2019.
14. An application was made by the defendant before Letherbarrow SC DCJ on 4 April 2019. His Honour listed the matter on that day for directions on 11 April 2019.
15. On 11 April 2019, the matter was before Letherbarrow DCJ and there were appearances for both parties. His Honour declined to grant leave to the plaintiff's solicitors to file a Notice of Ceasing to Act but also noted that the plaintiff's solicitors could file a Notice of Ceasing to Act on 23 April 2019, being 28 days after the filing and service of the Notice of Intention of Ceasing to Act.
16. The solicitors for the defendant continued with their preparation of the case by forwarding various correspondence, including by letter dated 8 April 2019.
17. They also forwarded a letter by registered post to the plaintiff in relation to the directions hearing on 11 April 2019 and requested the plaintiff to inform them of the name of his new legal representative. Regrettably, that letter seems to have arrived at the plaintiff's address after the 11 April 2019 hearing. However, a further letter was forwarded dated 1 May 2019 by the solicitors for the defendant to the plaintiff. That letter emphasised again to the plaintiff that the matter was listed for hearing commencing 14 May 2019, for three days. The letter raised the issue of conclave meetings of medical experts. That letter was sent by registered post.
18. A Notice of Ceasing to Act was filed on 23 April 2019 by the solicitors for the plaintiff.
I should note that following the directions hearing on 4 April 2019, the Court forwarded to the plaintiff a copy of the orders made on 4 April 2019 and informed the plaintiff:
1. That the matter was listed for directions on 11 April 2019; and
2. The matter was listed for hearing for three days commencing 14 May 2019.
Following the matter being called on this morning, I heard various submissions from Mr McCulloch. I then said that I thought that steps should be taken, if possible, to telephone the plaintiff and clarify his position. Following that, Mr McCulloch called Mr Jason Stevens, who is a partner of the defendant's solicitors and is the solicitor on the record for the defendant.
Mr Stevens gave oral evidence that he contacted the plaintiff's former solicitors seeking the telephone number of the plaintiff. Initially, there was some reluctance to give the telephone number. Mr Stevens was told by a partner from the plaintiff's former firm, a Mr John Parker, that he had attempted to telephone the plaintiff but that the plaintiff did not pick up the message from his message bank.
The solicitor, Mr Parker, ultimately gave the telephone number to Mr Stevens, who then made a call. The telephone call was not answered by the plaintiff. Mr Stevens gave evidence that he left a voicemail message, which indicated that an automatic text message would be sent to the plaintiff. Mr Stevens gave evidence that that occurred at 10.57am and that he had not received a call from the plaintiff or a text message in reply. In the light of that evidence, I considered that it was appropriate to determine the application made by the defendant.
I am satisfied:
1. That the plaintiff was aware of the directions hearing on 11 April 2019.
2. That he has been aware for some time that this matter was listed for final hearing commencing today for three days.
The plaintiff has not appeared today. Accordingly, under Part 29.7 of the Uniform Civil Procedure Rules, if any party is absent when a trial is called on, the Court may proceed with the trial generally or so far as concerns any claim for relief in the proceedings or may adjourn the trial. In the case where the defendant appears but not the plaintiff, the Court may dismiss the proceedings.
The issue here is what choice the Court should make in the exercise of its discretion in the light of the evidence which I have referred to above. In my view, the Court should make an order dismissing the proceedings. I come to that view for the following reasons:
1. I am satisfied that the plaintiff was aware that at the informal settlement conference, which I have referred to, the matter was not settled.
2. The plaintiff received correspondence from his solicitors in relation to them requiring instructions and he did not respond to that.
3. The plaintiff did not attend a conference with his senior counsel, which had been arranged and which he indicated that he would attend.
4. The plaintiff received the Notice of Intention of Ceasing to Act filed by his solicitors.
5. Despite that, he continued not to provide them with any instructions.
6. The plaintiff was aware of the directions hearing on 11 April 2019 but did not attend or provide instructions in relation to it.
7. The plaintiff has been, for some time, aware of the trial fixed for final hearing today.
8. The plaintiff has been aware of developments in the case including the service of the report of Dr Casey and of the proposal to have the conclave meetings of both liability and medical expert witnesses.
9. The plaintiff has not appeared today.
10. All reasonable attempts have been made to contact the plaintiff to ascertain his position in relation to the hearing.
Taking all of those matters into account, it appears to me that the plaintiff is aware of the final hearing but has chosen not to attend or instruct other legal representatives to appear on his behalf.
The case is very similar to Van Gorp v Davy [2017] NSWCA 167, which I referred to and followed in Stratton v State of New South Wales [2019] NSWDC 10. The case of Van Gorp is even more similar to the present factual situation than Stratton. In Van Gorp, the plaintiff did not attend the final hearing and did not give any notice to anyone that he was ill.
As McColl JA refers to in paragraph 23, the plaintiff was unable in that case to appear on the morning of the hearing due to illness, but took no opportunity to communicate with the Court on the day of the hearing, nor did he take any opportunity to communicate with the primary judge's chambers to explain the reason he would be unable to appear on the morning of the hearing.
In that case, White JA at [27]‑[29], referred to Part 36.16(2)(b) of the Uniform Civil Procedure Rules as being a relevant factor to take into account. Under that Part, there is a procedure available to a party where an order is made in the party's absence, to seek to have the orders set aside. A party can make that application after the orders are made.
However, as White JA noted, the applicant would not only be expected to adduce evidence as to the reasons for his non‑appearance, he would also be expected to establish that his claim had arguable merit. I note that in paragraph 29, McColl JA agreed with the additional remarks of White JA about Part 36.16(2)(b). In my view, those matters are relevant to the decision which I have formed about dismissing the proceedings. I also take into account ss 56 to 59 of the Civil Procedure Act 2005 (NSW) and the need for matters listed for hearing to be heard unless there are appropriate reasons not to do so.
As the plaintiff has not led any evidence in support of his claims, they cannot succeed.
Accordingly, in my view, a dismissal order is appropriate.
The defendant has made an application for the usual order for costs, relying on Part 42.20 of the Uniform Civil Procedure Rules. I note that Mr McCulloch, of senior counsel, appears without a junior. However, having regard to the nature of the matter and the expert evidence involved, in my view that is a reasonable approach to take in relation to representation for the defendant. There appears to be no reason why the usual order for costs following a dismissal of the proceedings should not be made.
Accordingly, in all the circumstances, I make the following orders:
1. Pursuant to Part 29.7(4) of the Uniform Civil Procedure Rules, the proceedings are dismissed.
2. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed.
3. Leave to the defendant to make an application by way of Notice of Motion with supporting affidavit to vary the order in (2) above. Once filed, a copy should be forwarded to the Associate to Dicker DCJ.
4. Direct the Registrar to forward a copy of today's orders to the plaintiff.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 June 2019
Parties
Applicant/Plaintiff:
Kalthas
Respondent/Defendant:
Techtronic Industries Aust Pty Ltd t/as AEG Power Tools
Legislation Cited (4)
Australian Consumer Law Civil Liability Act 2002(NSW)