Singles v Mander Forklift Pty Ltd

1. On or about 26 July 1997 the appellant, Mr Rodney Francis Singles, suffered injuries to his lower back, left hip and left knee as a result of being thrown from a pallet truck that he was driving in the course of his employment with Australia Post at Canberra Mail Centre in Fyshwick in the ACT, when the pallet truck came to a sudden stop due to a mechanical malfunction of the truck.

2. On 9 August 2000 the appellant's then solicitor filed the appellant's statement of claim in the registry of the Supreme Court against Mander Forklift Pty Limited, claiming damages as compensation for his injuries and consequential disabilities from Mander Forklift, based upon its failure to service the pallet truck properly in accordance with its contract or agreement with Australia Post. The appellant's statement of claim was served on Mander Forklift on 4 September 2000. The statement of claim was filed within time, as the then limitation period was six years from the date on which the cause of action arose.

3. On 5 March 2001 the then Chief Clerk of the court issued a notice, pursuant to Order 2, Rule 28 of the then Supreme Court Rules 1937 (ACT), that the appellant's action would be entered in the inactive cases list one month after 5 March 2001 if a step was not taken in the proceedings.

4. On 26 March 2001 Mander Forklift's then solicitor filed its notice of appearance and its statement of defence in the court's registry. Mander Forklift denied each of the appellant's allegations. As a step had been taken in the proceedings, the appellant's claim was not entered in the inactive cases list.

5. On 11 July 2001 13 July 2001 and 23 May 2002 Mander Forklift's then solicitor filed notices for non-party production, otherwise subpoenas for production, requiring the person to whom or company to which the notice was directed to produce documents in his or its possession for inspection on behalf of Mander Forklift.

6. On 26 September 2003 Mander Forklift's then solicitor, due to the failure of the appellant's then solicitor to return the certificate of readiness sent to him on 14 August 2003, requested the Registrar to fix a time and date for a listing conference. The Registrar fixed 10 am on 9 October 2003 for a listing conference. I assume that, by signing the certificate of readiness, Mander Forklift's then solicitor was certifying that Mander Forklift was ready for the hearing of the appellant's claim.

7. Accordingly, on 9 October 2003 the legal representatives of the appellant and Mander Forklift appeared before the Deputy Registrar, at which time the Deputy Registrar set a timetable for the doing of things in the proceedings and stood over the proceedings to 11 December 2003.

8. On 11 December 2003 the Deputy Registrar ordered, by consent, that the proceedings stand over to 18 December 2003, and then on 18 December 2003 to 12 February 2004, and then on 12 February 2004 to 4 March 2004, and then on 4 March 2004 to 1 April 2004.

9. On 1 April 2004 the Deputy Registrar ordered, by consent, that the proceedings stand over generally, with liberty reserved to each party to restore the proceedings to the active cases list on three days' notice to the other party. I note that neither party took any step to restore the proceedings to the active cases list before 2 July 2007.

10. On 2 July 2007 the appellant's claim was taken to have been dismissed pursuant to Rule 75 of the Court Procedures Rules (2006) ACT. This rule provides that:

(1) A proceeding is taken to be dismissed in relation to a defendant if -

(a) at the end of 1 year after the day the originating process is issued, an affidavit of service of the process on the defendant has not been filed in the court; or

(b) at the end of 1 year after the day the originating process is served on the defendant -

(i) a notice of intention to respond or defence has not been filed in the court by the defendant; and

(ii) judgment has not been entered in relation to the defendant; and

(iii) the proceeding has not otherwise been disposed of in relation to the defendant.

(2) Also, a proceeding is taken to be dismissed in relation to a party if the party does not take a step in the proceeding before the end of 1 year after the day the last step was taken in the proceeding.

(3) For subrule (2), the filing in the court of a notice of intention to proceed in relation to a proceeding is taken to be a step in the proceeding.

(4) A proceeding is taken to be dismissed under subrule (1) or (2) on the day after the day the relevant 1-year period mentioned in the subrule ends.

The proceedings were taken to be dismissed on 2 July 2007 because the rule commenced on 1 July 2006, and, assuming the rule to be prospective and not retrospective, the day after one year after 1 July 2006 was 2 July 2007. I note that the court did not notify either party to the possibility of the proceedings being dismissed pursuant to the rule before the proceedings were dismissed.

11. On a date in December 2010, the date does not appear in the evidence, the appellant's then solicitor became aware that the appellant's claim had been dismissed on 2 July 2007 pursuant to Rule 75 of the Court Procedures Rules. However, the appellant's then solicitor did not do anything between December 2010 and 10 January 2012 to reinstate the appellant's claim.

12. On 20 May 2011 Mander Forklift's then solicitor filed a notice for non-party production, otherwise a subpoena for production, directed to Australia Post to produce such of the documents stated in the schedule to the notice as were in its possession for inspection to, curiously, the appellant's solicitor. I do not know the reason for Mander Forklift's then solicitor filing this notice because the appellant's then solicitor had informed Mander Forklift's then solicitor (see letter dated 10 March 2012) that the proceedings had been dismissed pursuant to a court rule.

13. On 10 January 2012 the appellant's then solicitor filed an application seeking an order that the appellant's claim be reinstated pursuant to Rule 76 of the Court Procedures Rules. This rule provides that:

(1) A person whose proceeding has been dismissed under rule 75 may apply to the court to reinstate the proceeding.

(2) The court may reinstate the proceeding if it is in the interests of justice to reinstate the proceeding.

(3) A proceeding that has been dismissed under rule 75 (2) is reinstated if, before the end of 1 year after the day the proceeding is dismissed, a party to the proceeding files a document in the proceeding.

(4) The party filing the document must serve a copy of the document on each other active party to the proceeding not later than 3 days after the day the document is filed.

(5) For any time limit (including a limitation period), a proceeding that is reinstated is taken to have started on the day the originating process for the proceeding was filed in the court and is taken never to have been dismissed.

This application was supported by two affidavits, one sworn on 20 December 2011 and the other sworn on 19 March 2012 of Mr James Hasson, the appellant's then solicitor.

14. On 2 March 2012 the present solicitors of Mander Forklift filed a notice of change of solicitor.

15. On 23 March 2012 the appellant's applicant for reinstatement of his claim was heard by Master Harper who, on 30 March 2012, dismissed the application.

16. On 22 August 2012 the appellant's present solicitor filed the formal order in relation to Master Harper's dismissal of the appellant's application for reinstatement of his claim.

17. Then, on 15 November 2012 the appellant's solicitor filed an application seeking an order that the appellant have leave to appeal out of time against Master Harper's order dismissing his application for reinstatement of his claim. I do not know the reason for the delay between the filing of the formal order on 22 August 2012 and the filing of the application for leave to appeal on 15 November 2012.

18. On 26 November 2012 the Registrar ordered, by consent, that the appellant have:

"Leave to appeal out of time against the order of Master Harper given on 2 April 2012 [sic]."

19. On 22 January 2013 the appellant's solicitor filed the appellant's notice of appeal against Master Harper's order of 30 March 2012. This notice was supported by the affidavit affirmed 31 October 2012 of the appellant's solicitor's Canberra agent and an affidavit sworn 7 July 2013 of the appellant.

20. On 19 July 2013 the appellant's appeal came on for hearing before me. Mr M Neil, QC, with Mr T Meakes, of counsel, appeared for the appellant and Mr S Pilkington, SC, appeared for Mander Forklift. Mr Neil filed in court an amended notice of appeal. After hearing submissions from counsel, I stood over the proceedings to a date to be fixed for my judgment.

21. From my reading of his judgment, Master Harper was well aware that the basis upon which proceedings taken to have been dismissed pursuant to Rule 75 of the Court Procedures Rules may be reinstated is that, as provided for by Rule 76 of the Court Procedures Rules, it is in the interests of justice that the proceedings be reinstated.

22. Also, from my reading of his judgment, Master Harper was well aware that the onus of showing that it is in the interests of justice to reinstate the proceedings which have been dismissed lies upon the party which applies for the reinstatement of the proceedings. He said this:

"The plaintiff carried the overall onus of showing that the interests of justice favoured reinstatement. This required a satisfactory explanation for the delay and the exclusion, not only of the prima facie presumption of prejudice to a defendant arising from delay (see Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 per Dawson J at 544) but also any particular prejudice to which the defendant could draw attention (Brisbane South per Toohey and Gummow JJ at 547)." (Judgment, paragraph 16).

23. The decision of Master Harper to refuse to reinstate the appellant's claim was an interlocutory decision, and, as such, leave to appeal from that decision is required.

24. The grounds upon which leave to appeal from an interlocutory decision will be granted are well known and not in dispute. In House v the King [1936] HCA 40; (1936) 55 CLR 499 at 504 the court said:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

25. In his judgment, Master Harper listed a number of factors, taken from the judgment of the Queensland Court of Appeal in Tyler v Custom Credit Corporation Limited (2002) QCA 178, per Atkinson J, relevant to the issue of reinstatement of dismissed proceedings (Judgment, paragraph 17) and concluded that:

"The factors which are significant are the length of time since the cause of action arose; the length of time since the litigation was commenced; the fact that the litigation has been characterised by lengthy delay attributable to the plaintiff or his solicitor, the lack of a satisfactory explanation for the delay and the likelihood of prejudice to the defendant." (Judgment, paragraph 24).

The period between the date on which the appellant was injured and the date on which the proceedings were commenced

26. As I have said already, the appellant was injured on about 26 July 1997 and the proceedings were commenced on 9 August 2000. Master Harper noted that an explanation for the delay between the injury and the commencement of the proceedings had not been given, and that Mander Forklift had not made an issue of this fact. I do not see any relevance between the passage of time between the injury and the commencement of the proceedings on the one hand, and the issue of whether it is in the interests of justice to reinstate the proceedings on the other hand, particularly in view of the fact that the limitation period at the time when the appellant was injured was six years.

The period between the commencement of the proceedings and the last step in the proceedings

27. The proceedings were commenced on 9 August 2000 and the last step in the proceedings was taken on 1 April 2004. Although he referred to this period (Judgment, paragraphs 3, 4 and 5), Master Harper did not express any view as to whether the progress of the proceedings was appropriate or inappropriate. Having regard to the chronology, Annexure E to the affidavit of Mr Hasson sworn 20 December 2011, I cannot say that the progress of the proceedings between the appellant's then solicitor and Mander Forklift's then solicitor was inappropriate, although I can say that it was slow.

The period between the last step in the proceedings and the dismissal of the proceedings

28. The last step in the proceedings was taken on 1 April 2004 and the proceedings were taken to be dismissed on 2 July 2007. Master Harper noted that, according to the chronology, the appellant's then solicitor was actively engaged in the preparation of the appellant's claim as to liability (Judgment, paragraph 9), and that, according to his affidavit, the appellant's then solicitor was unaware of the introduction of the Court Procedures Rules 2006 until December 2010 (Judgment, paragraph 12). However, he did not say whether, and, if so, how, the passage of time between the last step in the proceedings and the dismissal of the proceedings affected his decision to refuse to reinstate the proceedings and whether, and, if so, how, the appellant's then solicitor's ignorance of the Court Procedures Rules and his actions in preparing the appellant's claim as to liability affected that decision. I think that, having regard to the chronology, the appellant's then solicitor regarded the appellant's claim as continuing with steps being taken as to both liability and damages and with some, albeit minimal, contact between the appellant's then solicitor and Mander Forklift's then solicitor.

The period between the dismissal of the proceedings and the application for reinstatement of the proceedings

29. The proceedings were dismissed on 2 July 2007 and the application for reinstatement of the proceedings was filed on 10 January 2012. The absence of a step in the proceedings between 2 July 2007 and December 2010 is explained by the appellant's then solicitor's ignorance of the Court Procedures Rules and the fact that the court had not notified the parties to the possibility of the proceedings being dismissed pursuant to the Court Procedures Rules. I accept that the request (letter 10 March 2011, Annexure A to the affidavit of Mr Hasson sworn 19 March 2012) from the appellant's then solicitor to Mander Forklift's then solicitor for consent to reinstatement of the proceedings was appropriate, but I am surprised that the application for reinstatement of the proceedings was not filed immediately after Mander Forklift's then solicitor refused consent.

"Prejudice will be assumed simply from the length of time since the cause of action arose, now almost 15 years ago." (Judgment, paragraph 22),

"After so long a period of time some prejudice is virtually inevitable." (Judgment, paragraph 22),

"It can be assumed that after such a lapse of time the defendant will be at a disadvantage in relation to both liability and quantum." (Judgment, paragraph 23),

and he referred to the decision of the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. However, he did not say whether Mander Forklift had, in fact, suffered any actual prejudice, notwithstanding that Mander Forklift's counsel had submitted that Mander Forklift had suffered actual prejudice. Frankly, I am unable to see that Mander Forklift suffered actual prejudice. The appellant's claim against Mander Forklift is based upon a breach by Mander Forklift of its contract or agreement with Australia Post for the servicing of the pallet truck used by the appellant in the course of his employment with Australia Post. Although Mander Forklift denied, in its statement of defence, the appellant's allegation that it serviced the pallet truck used by Australia Post, I assume that this issue will be proved by the appellant. The appellant claimed worker's compensation from Australia Post and he was paid worker's compensation until sometime during 2001 (Worker's compensation claim number 97/207723, see paragraphs 7 and 8 of the appellant's affidavit sworn 7 July 2013), and I do not doubt that the file related to the appellant's worker's compensation claim is available. Although the actual pallet truck cannot be located, something known by the then solicitors for both the appellant and Mander Forklift for a long time (see the letter 26 November 2003 from Mander Forklift's then solicitor to the appellant's then solicitor, Annexure D to the affidavit of Mr Hasson sworn 20 December 2011), Mander Forklift provided the appellant's former solicitor with details of its servicing of vehicles, including pallet trucks, used by Australia Post (see Annexure C to the affidavit of Mr Hasson sworn 20 December 2011), and these details are available and they have been used by Mr Wiltshire in his investigation of the cause of the malfunction of the pallet truck. The appellant's injuries are known, his expenses are known, and his loss of wages and loss of earning capacity can be calculated. Of course, Mander Forklift may not be able to identify and bring to court the person who last serviced the pallet truck before it malfunctioned on about 26 July 1997, but, as it has its records, which are business records and admissible into evidence, this may not cause any actual prejudice to it.

"In an application to reinstate, often a crucial consideration will be whether a fair trial remains possible. It is not for the defendant to establish that it does not, but rather for the plaintiff to establish that it does. I am not satisfied that, after 15 years, a fair trial remains possible." (Judgment, paragraph 25).

However, he did not say why he considered that a fair trial is not possible. For the reasons to which I have referred in relation the question whether Mander Forklift suffered actual prejudice, I cannot see that a fair trial is not possible, except, as I have said already, for the fact that it may not be able to identify and bring to court the person who last serviced the pallet truck before it malfunctioned on about 26 July 1997. Mander Forklift is today in the same position in which it was on 4 September 2000 when the appellant's statement of claim was served upon it. For Mander Forklift, nothing has changed, as it will be for the appellant to prove on the hearing of his claim that:

(1) As at about 26 July 1997, Australia Post had a contract or agreement with Mander Forklift for the servicing of the vehicles, including the pallet truck, used by it.

(2) Mander Forklift serviced the subject pallet truck on a day sometime before about 26 July 1997.

(3) Mander Forklift breached the contract or agreement with Australia Post related to the servicing of the pallet truck.

(4) The pallet truck malfunctioned due to Mander Forklift's failure to properly service it; and

(5) The malfunction of the pallet truck caused the appellant to be thrown from the truck;

and all that Mander Forklift will need to prove is that its employee properly serviced the pallet truck, or that any malfunction of the pallet truck was not caused by a failure of its employee to properly service it.

32. In the course of giving judgment, Master Harper said that:

"In the absence of any evidence from the plaintiff, I must infer any evidence he might have given would not have assisted his case on the application for reinstatement. I must draw the same inference from the absence of any evidence from any solicitor from the firm acting as Canberra agents for the plaintiff's solicitors." (Judgment, paragraph 14).

I regret to say that I do not agree with Master Harper. I cannot see that the absence of evidence from the appellant himself or his then solicitor's Canberra agent is relevant as any evidence from either or both of them would not have changed what had happened between the appellant's then solicitor and Mander Forklift's then solicitor and between them and the court, and it was upon what had happened between the solicitors and between the solicitors and the court that the application for reinstatement was based and was to be decided.

33. In the result, I am satisfied that Master Harper's exercise of his discretion miscarried. I consider that he did not give enough weight to the fact that the proceedings were stood over generally on 1 April 2004 pursuant to an order of the court. Also, I consider that he gave too much weight to the mere passage of time without considering whether the passage of time prejudiced Mander Forklift. Furthermore, I consider that he gave too much weight to the presumption that Mander Forklift had suffered prejudice without considering whether, in fact, it had suffered prejudice. Moreover, I regret to say that Master Harper appears to have overlooked the fact that on 14 August 2003 the then solicitor for Mander Forklift sent a certificate of readiness to the appellant's then solicitor. I assume, as I have said already, from this that Mander Forklift's then solicitor regarded Mander Forklift as being ready for the hearing of the appellant's claim. There is nothing in the evidence which shows that the position of Mander Forklift has changed since 14 August 2003. Thus, I am satisfied that leave to appeal should be granted to the appellant to appeal against the decision of Master Harper.

34. I am satisfied, having regard to what I have said about the court's order of 1 April 2004, the passage of time, prejudice, a fair trial and the effect of Mander Forklift's then solicitors signing of the certificate of readiness, that it is in the interests of justice that the appellant's claim be reinstated to the court's active cases list.

(3) The decision of Master Harper given on 30 March 2012 is set aside.

(4) The appellant's proceedings are reinstated to the active cases list.

(5) The appellant is to pay Mander Forklift's costs of the application before Master Harper.

(6) Mander Forklift is to pay the appellant's costs of the application for leave to appeal and the appeal.

I certify that the preceding thirty five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Counsel for the applicant: Mr M Neil QC with Mr T Meakes

Solicitor for the applicant: Gathercole & Associates by their agents Ken Cush & Associates