The defendants, by notice of motion filed 27 May 2019, seek pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) that these proceedings be dismissed for failure to prosecute them with due dispatch.
[2]
The proceedings
The proceedings were commenced on 30 May 2017. The plaintiff claims damages for personal injuries suffered when he fell from the roof of the defendants' house on 27 February 2016 and suffered injuries. The statement of claim pleads that the plaintiff was carrying out painting work on the roof of the house when he fell. The fall was caused when part of the roof area "gave way/buckled" causing the plaintiff to lose his balance and fall to the ground below. The statement of claim relied on common law breaches of a duty of care.
By an amended statement of claim filed 10 August 2018 the claim was expanded to allege (inter alia) breaches of the Work Health and Safety Act 2011 (NSW) and Regulations, the Residential Tenancies Act 2010 (NSW), various Standards, and the WorkCover NSW OHS Consultation Code of Practice 2001.
The plaintiff disclosed his injuries in his amended statement of particulars as being:
(a) Three-column burst fracture of the L1 vertebrae;
(b) Post traumatic stress disorder and depression;
(c) Injury to the legs;
(d) Secondary constipation; and
(e) Scarring.
His ongoing disabilities can be described as physical limitations because of the injury to his back and a large number of psychological and psychiatric disabilities.
In their defence, the defendants deny any liability to the plaintiff. They deny that he was employed by the defendants, and they say that the Work Health and Safety Act and the Residential Tenancies Act have no application to the circumstances of the alleged accident. There is a dispute as to the circumstances in which the plaintiff came to paint the roof, and there is a dispute as to the circumstances surrounding how the plaintiff came to fall off the roof.
[3]
Procedural history
On 24 September 2018 the matter was listed for directions before the Registrar. By consent of the parties, the matter was set down for hearing with a five day estimate commencing 8 April 2019. Orders were made requiring participation by the parties in an informal settlement conference, and in relation to the completion of a conclave joint report by the liability experts.
At a further directions hearing on 1 February 2019 the parties advised the Registrar that an informal settlement conference had taken place and that the liability experts were due to confer on 12 February 2019 with a view to preparing a joint report. They advised that the matter was otherwise ready to proceed to hearing. The matter was adjourned for further directions to 1 March 2019.
On 28 February 2019 the plaintiff's solicitor, Mr Alex Morrison of Stacks Goudkamp rang to inform the defendants' solicitor, Ms Wendy MacDonnell of Holman Webb Lawyers, that he had been unable to obtain instructions from the plaintiff, and requested that the matter be adjourned on 1 March 2019 for seven days. That was agreed to. Later that day Mr Morrison sent an email to Ms MacDonnell advising that an issue had arisen which precluded Stacks Goudkamp from continuing to represent the plaintiff. The following day Mr Morrison sent a further email which advised that due to the "issue" that had arisen, Mr Kelvin Andrews of counsel was also unable to represent the plaintiff. Ms MacDonnell agreed to an adjournment for seven days. She requested that Stacks Goudkamp release their file without delay to any prospective solicitor so that the matter could proceed to hearing on 8 April 2019.
The directions hearing was adjourned by consent to 8 March 2019. On 7 March 2019, in answer to an email from Ms MacDonnell enquiring as to the plaintiff's intentions, Mr Morrison advised that the plaintiff's telephone number appeared to be disconnected and that he had been unable to contact the plaintiff. Ms MacDonnell advised Mr Morrison that in due course the defendants would seek an order that the proceedings be struck out with an order that the plaintiff pay their costs of the proceedings.
On 8 March 2019 Mr Morrison attended the directions hearing on behalf of both parties, and sought leave to file a Notice of Ceasing to Act. The matter was stood over until 15 March 2019 for the plaintiff or his new solicitors to confirm their readiness for the hearing or to apply for an adjournment.
On 12 March 2019 Mr Morrison forwarded an email to Ms MacDonnell informing her that the plaintiff had been provided with a copy of the Court's orders of 8 March 2019, and that the plaintiff understood that it was the defendants' intention to have the proceedings struck out with costs on 15 March 2019.
The defendants' solicitors had no contact with the plaintiff between 8 and 15 March 2019. On 15 March 2019 at the directions hearing, the plaintiff appeared in person. He advised the Court that he intended to obtain new solicitors and had arranged a conference with a solicitor at Law Partners the following Tuesday or Wednesday. The Registrar adjourned the proceedings to 22 March 2019.
From 15 March to 22 March 2019 the defendants' solicitors received no correspondence from the plaintiff or any new solicitors. At the directions hearing on 22 March the plaintiff did not appear. Shortly prior to the directions hearing he contacted Ms MacDonnell, advising that he had been unwell and had not seen solicitors but that he had another appointment the following Tuesday. In those circumstances, the Registrar stood the matter over for further directions to 29 March 2019 and directed the plaintiff to request that his new solicitors file a Notice of Appearance without delay and to appear on 29 March to advise the Court whether the hearing could proceed. Otherwise the plaintiff was to attend in person. Those directions were conveyed to the plaintiff by the defendants' solicitors.
Between 22 March and 29 March 2019 Ms MacDonnell sent a series of text messages to the plaintiff enquiring as to his intended course of conduct. The text messaging was the only form of communication Ms MacDonnell had with the plaintiff at that time. No response was received from the plaintiff.
At approximately 8:55am on 29 March 2019 Ms MacDonnell received a text message from the plaintiff. He advised that he was too unwell to come to Court but that he had spoken to CMC Lawyers and Law Partners, both of whom had advised him that they could not act on his behalf without his file from Stacks Goudkamp. Ms MacDonnell conveyed that information to Mr Morrison who replied saying that, subject to the usual costs undertaking, the plaintiff's file could be transferred to new solicitors within 24 hours.
Ms MacDonnell made telephone contact with Law Partners who informed her that they had received no contact from the plaintiff. Another solicitor working with Ms MacDonnell telephoned CMC Lawyers who advised that they had no record of speaking to the plaintiff. That information was conveyed to the Registrar who referred the matter to the duty judge, R A Hulme J, on that day.
Having regard to all of the circumstances, R A Hulme J vacated the hearing date of 8 April 2019 and listed the matter for further directions on 26 April 2019. Ms MacDonnell sent a letter to the plaintiff setting out the orders made by the Court, and reiterated that if there was no appearance by him on 26 April 2019 or no indication that he intended to proceed with his claim, the defendants would apply to have the proceedings struck out with an order that the plaintiff pay the defendants' costs of the proceedings.
Between 29 March 2019 and 26 April 2019 the defendants' solicitors did not receive any correspondence from the plaintiff or any new solicitors.
At the directions hearing on 26 April 2019 the plaintiff appeared and informed the Registrar that he had been unwell and that he had not had time to retain new solicitors. The defendants' solicitors informed the Registrar that it was their intention to apply to have the proceedings dismissed with costs pursuant to r 12.7 UCPR. The orders made were that the proceedings be stood over to 17 May 2019 for the Registrar to consider dismissing the statement of claim for failure of the plaintiff to prosecute the matter with due diligence.
Between 26 April 2019 and 17 May 2019 the defendants' solicitors received no correspondence from the plaintiff or from any prospective solicitors.
At about 8:00am on 17 May 2019 Ms MacDonnell received a text from the plaintiff. He said that his grandmother had been found dead in her house and he was not able to attend Court. He asked Ms MacDonnell to pass that information on to the Registrar.
The matter was listed before the Prothonotary on that day. The Prothonotary referred the matter to the duty judge for the purpose of the defendants' application pursuant to r 12.7.
The application was heard by Harrison J. In a judgment delivered on 21 May 2019 his Honour said that he was not prepared to dispose of the proceedings under r 12.7 without being satisfied that the plaintiff understood that a formal application under the rule was made and that he had the opportunity to respond to it: Morris-Harris-Keith v Hughes [2019] NSWSC 581.
It was in those circumstances that the present notice of motion was filed on 27 May 2019 returnable for hearing on 4 June 2019. An affidavit by Wendy Anne MacDonnell of 24 May 2019 set out the procedural history of the matter that I have summarised above. The notice of motion and the affidavit was served on the plaintiff by email on 27 May 2019 and by post on 28 May 2019.
At 6:21pm on Tuesday, 28 May 2019 the plaintiff sent a text message to Ms MacDonnell saying this:
I'm getting some new legal advice off a lady in law. She has given me few numbers and told me I might even be able to take Stacks for professional negligence due to them ceasing to act only 3 weeks out from the original hearing date. I'm on the pH all day Thursday and will have more answers then. I'll let you know. Thanks Wendy.
Ms McDonnell responded immediately with a text that she was happy to talk to any legal advisor he retained to help clarify the issues. She asked him to ensure that he told the new lawyers that the motion was listed for the following week.
The plaintiff immediately responded as follows:
Okay will do. Also if this does get struck out I'll be going ahead with a worker's comp claim, that's on the advice from this lady. I'll txt you Friday n let you know what the plan is. Thanks again for keeping me in the loop Wendy.
Ms MacDonnell swore a further affidavit on 3 June 2019 where screen shots of these texts were annexed. She also affirmed that she had not received any contact from any solicitor on behalf of the plaintiff, nor had the plaintiff contacted her since the final text message on 28 May.
The plaintiff did not appear at the hearing of the motion. Service by both email and post was proved. Mr Turnbull SC of counsel who appeared for the defendants at the hearing of the motion on 4 June informed me that there had been no contact from the plaintiff since the final text message.
[4]
Legal principles
Rule 12.7(1) UCPR provides:
12.7 Dismissal of proceedings etc for want of due despatch
(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.
The principles relevant to the exercise of the discretion for want of prosecution were set out by Simpson J (as her Honour then was) in Raymond Hoser v Christopher Hartcher [1999] NSWSC 527 at [19] as follows:
[19] It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive:
[20] (1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited, unreported, 19 November 1995, per Sperling J;
[21] (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D;
[22] (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J;
[23] (4.) personal blamelessness on the part of a plaintiff(as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73.
[24] (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestley JA;
[25] (6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time;
[26] (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise;
[27] (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay;
[28] (9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC, unreported, 6 November 1998, per Levine J;
[29] (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P;
[30] (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.
Since the time of that judgment the Civil Procedure Act (2005) NSW has come into operation, and the stringency of the principle that a court should be reluctant to exercise the power of summary dismissal without a hearing on the merits has been diminished by reason of ss 56 - 60 of the Civil Procedure Act: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17].
[5]
Determination
In my opinion, the following matters lead to the conclusion that the power contained in r 12.7 should be exercised in the present proceedings.
First, the proceedings were commenced a little over two years ago. They had been fixed for hearing by the Registrar on 24 September 2018 with a hearing to commence on 8 April 2019. They were relatively straightforward proceedings for personal injury, despite the inclusions of breaches of various statutory provisions in the amended statement of claim. In the ordinary course, it would be expected that such proceedings would be finalised within approximately a two year period.
Secondly, the issue that caused the plaintiff's solicitors to cease to act was identified on 1 March 2019, some five weeks before the hearing was due to commence. There was no evidence about what the "issue" was and it is not unreasonable to think that the issue may never have been able to be publicly aired in the course of the proceedings. Nevertheless, it required that the plaintiff move promptly to obtain new representation to conduct the hearing or to provide some proper evidence as to why he was unable to do so and to seek an adjournment. Although R A Hulme J vacated the hearing on 29 March 2019 he did so in the absence of any appearance by or on behalf of the plaintiff and with only the somewhat vague information that was then available to those acting for the defendants which suggested that the plaintiff would not be ready for the hearing of the matter on 8 April 2019.
Thirdly, despite the various notifications to the plaintiff by both his own retiring solicitor and the defendants' solicitors during March 2019, the only contact by the plaintiff was as a result of his appearance at the directions hearing on 15 March, notification before the directions hearing of 22 March that he was too unwell to attend ,and by a text message from the plaintiff on 29 March. On 15 March the plaintiff advised the Court that he had arranged a conference with a solicitor at Law Partners the following week. The text message of 29 March indicated that he had spoken both to Law Partners and CMC Lawyers who advised him that they could not act without his file. The enquiries made by the defendants' solicitors with those firms of lawyers demonstrated that the plaintiff had never consulted them.
Fourthly, despite the plaintiff having been told on or about 12 March 2019 by his own retiring solicitor, and by the defendants' solicitors on 29 March 2019 and again at the directions hearing on 26 April 2019 that the defendants intended to apply to have the proceedings dismissed with costs pursuant to r 12.7, and despite the plaintiff's retiring solicitor having offered to transfer the plaintiff's file within 24 hours of the usual costs undertaking being given on 29 March 2019, there was no contact by or on behalf of the plaintiff from 29 March to 26 April and again after the directions hearing on 26 April to 17 May.
Fifthly, even if it is accepted that the plaintiff was unable to attend Court on 17 May 2019 because of his grandmother's death, he made no further contact with the defendant's solicitors until 28 May where he claimed to have received some legal advice from a new "lady in law". She was not identified. He promised to be in contact on Friday, 31 May but by the time the application came on for hearing before me he had made no further contact with the defendants or the Court.
Section 56(3) of the Civil Procedure Act places an obligation on a party to civil proceedings to assist the Court to further the overriding purpose of the Act, that is, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. That obligation is cast on a party whether or not they are legally represented. There is no proper evidence from the plaintiff to explain the delays between 8 March and 4 June 2019. Those delays constitute a breach of the plaintiff's obligation under s 56(3).
Had the plaintiff moved expeditiously to engage new solicitors, it is reasonable to expect that, even if the matter could not be heard on 8 April, a new hearing date could have been appointed promptly. The evidence tends to suggest that the matter was prepared for a hearing with, perhaps, the only outstanding matters being those usually attended to immediately before a trial. Months have now passed with no progress made. That delay is unfair to the defendants who are entitled to an expeditious resolution of the proceedings.
In my opinion, the plaintiff's delay coupled with his failure to provide evidence explaining that delay, notwithstanding the notifications to him of the intention of the defendants to move under r 12.7, are inexcusable in the circumstances of this case. The plaintiff has not prosecuted his proceedings with due dispatch. His failure to appear at the hearing of the motion is further evidence of that failure. Accordingly, an order should be made under that rule dismissing the proceedings.
Accordingly, I make the following orders:
(1) The proceedings are dismissed pursuant to UCPR r 12.7(1).
(2) The plaintiff is to pay the defendants' costs of the proceedings.
[6]
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: 07 June 2019
Parties
Applicant/Plaintiff:
Morris-Harris-Keith
Respondent/Defendant:
Hughes
Legislation Cited (4)
Regulations, the Residential Tenancies Act 2010(NSW)