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Supreme Court of the ACT |
Last Updated: 28 March 2012
BRYAN RUMBLE v GPT RE LIMITED and SSL FACILITIES MANAGEMENT PTY LIMITED
[2012] ACTSC 39 (16 March 2012)
PRACTICE AND PROCEDURE: Court Procedures Rules 2006, rr 75 and 76 – proceeding taken to be dismissed by operation of r 75 – application to reinstate proceeding – claim for damages for personal injury – factors to be taken into account – interests of justice – proceeding reinstated.
Court Procedures Rules 2006, Sch 4, rr 75, 76
Civil Liability Act 2002 (NSW), s 5D
Civil Law (Wrongs) Act 2002, s 45
Equuscorp Pty Ltd v Lah [2009] ACTSC 113
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Tyler v Custom Credit Corp Limited [2000] QCA 178
Jennings v Westfield Shopping Centre Management Co (ACT) Pty Ltd [2010] ACTSC 11
Strong v Woolworths Limited [2012] HCA 5
No. SC 714 of 2007
Judge: Master Harper
Supreme Court of the ACT
Date: 16 March 2012
IN THE SUPREME COURT OF THE )
) No. SC 714 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN BRYAN RUMBLE
Plaintiff
AND GPT RE LIMITED
Defendant
AND SSL FACILITIES MANAGMENT PTY LIMITED
Third party
ORDER
Judge: Master Harper
Date: 16 March 2012
Place: Canberra
THE COURT ORDERS THAT:
1. the proceeding be reinstated.
2. the plaintiff pay the defendant’s costs of the application.
3. recovery of those costs be postponed until final orders are made in the action.
1. This is an application by the plaintiff for an order under r 76 of the Court Procedures Rules 2006 that the action be reinstated. The action is taken to have been dismissed under r 75. The applicable subrules are as follows:
75 When proceeding taken to be dismissed
(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.
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. (4)
There is 1 plaintiff and 1 defendant to a proceeding. The defendant takes a step in the proceeding on 1 July 2006. If the plaintiff fails to take the next step on or before 1 July 2007, the proceeding is taken to be dismissed on 2 July 2007.
Note An example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
76 Reinstating dismissed proceeding
(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.
2. The plaintiff’s claim is for damages for personal injury occasioned by the negligence of the defendant. The proceeding was commenced by originating claim on 10 October 2007.
3. In the statement of claim, the plaintiff asserts that the defendant was the registered proprietor of the Woden Plaza shopping centre. At about 11:15 am on 22 October 2001 the plaintiff was walking in the fresh food market area of the shopping centre past a fruit and vegetable shop when he slipped in a pool of ice cream on the floor and fell, injuring his right ankle.
4. At the time of the accident the plaintiff was self-employed as a real estate agent. It is asserted in the statement of claim that he was aged fifty-three but this is a mistake. He was then sixty-four, and is now seventy-four.
5. The plaintiff reported the injury to the management office at Woden Plaza two days after the incident. A report was completed on that date on a printed internal form by one WG Brewis, an officer of the defendant. The report identified the cleaner on duty at the time of the incident and her supervisor, the time of the incident and the time the spilt ice cream had been cleaned up.
6. The plaintiff consulted solicitors, who wrote to the defendant on 5 August 2002. By October 2002 the solicitors were in communication with the defendant’s insurers. Particulars were requested and furnished. In January 2003 the insurers told the solicitors that they were awaiting a full factual report into the incident.
7. There is no evidence of any progress in the matter thereafter until the commencement of proceedings in October 2007, a matter of days before the expiry of the limitation period. Affidavits in support of the present application have been made by the plaintiff and the solicitor who now has the conduct of the matter, but neither deponent adverts to this period of more than four years of inactivity. It might be argued that no explanation is called for, because the action was commenced in time and the plaintiff was under no obligation to commence proceedings any earlier than he did. Nevertheless, a plaintiff who, without any explanation, leaves it until the end of the limitation period to commence proceedings can expect that future delays in the prosecution of the action may be treated more critically than might otherwise be the case.
8. The solicitor who took instructions in 2002 and had the conduct of the matter for the plaintiff when proceedings commenced has now retired. The solicitor who now has the conduct of the matter took it over in January 2009 on the retirement of his partner. In the absence of any evidence from the retired solicitor I can only speculate as to whether the commencement of proceedings so late in the limitation period was the result of a forensic decision, or whether there was some other reason for it.
9. The history of the matter, so far as the court file is concerned, is that following the commencement of proceedings a defence was filed in December 2007. In July 2008 the defendant joined the third party, the cleaning contractor for the Plaza. The third party filed a defence in October 2008. In November 2008, on application by the plaintiff, the present defendant was substituted for the originally named defendant, there having been some confusion or misunderstanding as to the entity which was the owner or occupier of the shopping centre.
10. After the present solicitor took over the carriage of the matter, a statement of particulars was filed on 9 April 2009, and an amended statement of particulars on 15 June 2009. That was the last document filed by any party to the action prior to its deemed dismissal on 16 June 2010.
11. Both parties seemed to have assumed that the taking of a step in the proceeding for the purposes of r 75 means the same thing as the filing of a document, or at least perhaps the lodgement of a document. Whether “a step in the proceeding” is so limited may arise for determination in the future. On the hearing of the present application counsel for the plaintiff did not suggest that the plaintiff had taken a step in the proceeding after 15 June 2009, until the filing of the application.
12. The solicitors for the parties continued to correspond, initially in relation to the holding of an informal settlement conference. The plaintiff had surgery to his left knee in April 2010. In July 2010, a month after the notional dismissal, the plaintiff’s solicitors arranged a conference with senior counsel. The plaintiff’s solicitors sought discovery from the defendant by correspondence. They pursued this issue until on 7 September 2011 they lodged for filing an application seeking orders for discovery. I am satisfied from the evidence including the correspondence between the solicitors that neither side was aware until then of the deemed dismissal of the proceedings in June 2010. A week after lodgement the application for orders for discovery was returned by the registry to the plaintiff’s solicitors with a note that it had not been filed because the action was taken to have been dismissed.
13. I am satisfied that the plaintiff himself knew nothing of the provisions of r 75, or the fact that his action was at risk of notional dismissal.
14. The present solicitor for the plaintiff does not explain in his affidavit evidence how he permitted the action to be notionally dismissed. He does not say whether or not he was aware of the provisions of r 75, or what if any system the firm had in place to minimise the risk of such a dismissal. I can reasonably infer that whether or not the solicitor knew about r 75, he was completely unaware that the action had been notionally dismissed until the discovery application was rejected by the registry in September 2011.
15. Sub-section 75(3) was added to the rules (as sub-section 75 (2A)) in 2009 and came into operation on 1 January 2010. Its effect was that although the proceeding was taken to be dismissed after 16 June 2010, it would have been automatically reinstated if any party had filed a document before 16 June 2011. That did not happen.
16. However, this was not an action in which it could be said that the solicitors for the plaintiff were doing nothing. Nor could the solicitors for the defendant have been under any illusion that the plaintiff might have decided not to pursue the action. On the contrary, I have no doubt that the solicitors for the defendant assumed that the action was to be pursued, that they were unaware of the notional dismissal, and that they became aware of it only when the solicitors for the plaintiff served the present application for reinstatement. This is not a case where it could be said that the solicitors for the defendant assumed after 16 June 2010 that their client no longer faced the possibility of liability.
17. A solicitor employed by the solicitors for the defendant has put on affidavit evidence aimed at demonstrating prejudice to the defendant if the action is reinstated. She notes that in a letter dated 14 December 2007 furnishing further and better particulars, the plaintiff’s solicitors told the defendant’s solicitors that the plaintiff’s fall had been reported to Mr Scott Brandon of Lend Lease, and subsequently Mr Bill Groose of the security section at Lend Lease had taken an accident report and arranged photographs of the location of the accident. The plaintiff’s solicitors gave telephone contact numbers for both Mr Brandon and Mr Groose. The solicitor said that in November 2011, another solicitor within her firm had telephoned the numbers but had been unable to make contact with Mr Brandon or Mr Groose and indeed that the persons answering the telephone had not heard of either of them.
18. Another solicitor within the same firm deposed that she had revisited the injury notification form completed in October 2001, two days after the plaintiff’s fall. In November 2011 she tried to make contact with Ms Gepherdt, the cleaner identified on the form, without success.
19. Neither of the affidavits is convincing as to prejudice. The defendant has had the report with Ms Gepherdt’s name and contact details since it was completed two days after the incident. Presumably the solicitors were provided with that form when they were instructed after the commencement of proceedings in October 2007. The solicitors have had the contact details for Mr Brandon and Mr Groose since December 2007.
20. In relation to Ms Gepherdt, the solicitor says in her affidavit, on information and belief, that in about July 2003 the insurer made attempts to locate and contact Ms Gepherdt without success. There is no evidence of any subsequent attempt to do so until November 2011. No evidence is put forward at all as to any attempts to locate or contact Mr Brandon or Mr Groose between December 2007 and November 2011. The affidavit material is not capable of persuading me that the defendant is in any worse position now, if the action is reinstated, than it would have been in if the action had not been notionally dismissed in June 2010.
21. The principles to be applied on an application for reinstatement were expounded by Buchanan J in Equuscorp Pty Ltd v Lah [2009] ACTSC 113 commencing at [27]. His Honour saw rule 75 as aimed at encouraging or requiring the timely and efficient management of proceedings. I suspect that the principal motivator for the introduction of the rule was to establish a mechanism for the removal of dormant proceedings from the court’s current files, primarily for statistical purposes. Undoubtedly the rule also has the effect referred to by his Honour. His Honour said that where an action would be liable to be struck out for want of prosecution if it were reinstated, reinstatement would be futile and would not be ordered. The opposite proposition did not follow: there was no presumption that an action should be reinstated simply because it would not be liable to be struck out for want of prosecution.
22. His Honour made it clear that the onus of persuading the court to reinstate was upon the moving party. The defendant in such a case was, at the time of the application, shielded from the risk of further litigation, and in those circumstances the plaintiff carried a heavy onus of explanation for the delay. 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 face 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]).
23. Notwithstanding the difference in onus, most of the factors relevant to be taken into account on an application for dismissal for want of prosecution are equally applicable to a reinstatement application. An extensive list of such factors was set out by Atkinson J in Tyler v Custom Credit Corp Limited [2000] QCA 178, a decision of the Court of Appeal of the Supreme Court of Queensland. Her Honour listed the following:
24. As to the first of these factors, I mentioned previously that proceedings were not instituted until days before the end of the limitation period. A plaintiff who adopts such a course can expect that future delays in the matter will be closely scrutinised.
25. I would not regard the action as one which has been characterised by periods of delay since proceedings were instituted. There is ample evidence that the plaintiff’s medical condition had not stabilised notwithstanding the length of time since the injury. He had surgery to his left knee in April 2010, some ten months after the filing of the amended statement of particulars and less than a month before the notional dismissal. There is no evidence that the defendant’s solicitors were pressing the plaintiff’s solicitors to proceed expeditiously to trial.
26. Most reported decisions as to explanation for delay are cases where either the plaintiff, or the plaintiff’s solicitors, or both, have done nothing for an extended period. This is not a case of that kind. There was considerable activity on the files of the solicitors after the filing of the amended statement of particulars. The plaintiff’s problem has arisen solely because the activity on the part of his solicitors did not include the filing of a court document. They were, I am satisfied, nevertheless engaged in solicitors’ work of a kind recognised by the scale of costs (Sch 4 to the Court Procedures Rules). This is not a case where either the plaintiff or his solicitors can be criticised for general dilatoriness.
27. Counsel for the defendant submits that I should be satisfied on the evidence that the plaintiff has poor prospects of success in the action. Counsel referred to Jennings v Westfield Shopping Centre Management Co (ACT) Pty Ltd [2010] ACTSC 11, in which a plaintiff failed against the occupier of another major shopping mall in Canberra but succeeded against the cleaning contractors for the mall in an action for damages for personal injury suffered in a slip and fall on a wet floor. In that case I was satisfied on the evidence that the mall operator had successfully delegated to the cleaner contractor its duty of care to protect the plaintiff from injury by reason of a wet floor. I found that the cleaning contractor had failed both in its contractual liability to the mall operator, and in its duty of care to the plaintiff.
28. In the present case, although the defendant has joined its cleaning contractor, the plaintiff has at no stage sought to join the contractor as a defendant. The limitation period for the plaintiff to bring a proceeding against the contractor had expired by the time the contractor was joined as a third party. There is thus no issue for determination by the court as to whether the contractor owed a duty of care to the plaintiff or committed a breach of any such duty. Any liability in the cleaning contractor will arise only if the plaintiff succeeds against the defendant. There is documentary evidence of a contract between the defendant and the third party, and of records kept by the duty cleaner, Ms Gepherdt, of the times of her cleaning rounds.
29. The issue between the plaintiff and the defendant will turn on whether the system the defendant had in place to detect and remove spillages was an adequate system. A very recent decision considering the applicable principles where a customer is injured because of an undetected spillage at a shopping mall is Strong v Woolworths Limited [2012] HCA 5. That decision involved the application of a statutory test as to causation in negligence set out in s 5D of the Civil Liability Act 2002 (NSW), the equivalent to s 45 of the Civil Law (Wrongs) Act 2002.
30. Whilst generally the plaintiff in an application of this kind carries the onus, I am not sure that the onus extends to an obligation to satisfy the court that he has good prospects of success. The list of factors compiled by Atkinson J and set out above is a list of factors to be taken into account on a defendant’s application to dismiss a plaintiff’s action for want of prosecution. There is no doubt that on such an application, the defendant carries the onus, which where relevant would include the onus of satisfying the court that the action, if permitted to proceed, would be unlikely to be successful. I am not persuaded that the plaintiff, in an application for reinstatement, carries an onus to satisfy the court that he is likely to succeed if the action is reinstated. To the extent that there may be an onus as to that admittedly relevant factor, it seems to me that the defendant should be seen as bearing the onus of raising that issue for the court and of satisfying the court about it.
31. On the limited material in evidence on the application, I would not see the plaintiff’s case as one with particularly strong prospects of success, but there may be other evidence at trial, and the plaintiff is not obliged on this application to put his entire case on liability before the court. I am not satisfied that the prospects of success are so poor that, other things being equal, the proceedings should not be reinstated on that account.
32. There is no history in this proceeding of disobedience by the plaintiff of court orders or directions.
33. It seems to me to amount to a generally satisfactory explanation for the delay that the plaintiff’s solicitors were continuing to carry out legal work appropriately on the matter, with a view to settlement or if necessary trial, during the period of the delay, and that until they lodged their application about discovery no occasion had arisen for them to file another court document. They could and should have filed a notice of intention to proceed within a year of filing the amended statement of particulars, but their failure to do so does not detract from what is otherwise an acceptable explanation for the delay.
34. Whilst I accept that there may be so far undetected, and perhaps undetectable, prejudice to the defendant by reason of the delay, I am not persuaded that there has been any actual prejudice. The period of delay must be seen in the context of an action which had been commenced in time, a lapse of time between filing court documents of only a little over two years out of the ten years since the accident, and the non-advertence on all sides to the effect of r 75.
35. The fundamental question is whether the delay has resulted in prejudice to the defendant which might mean that the defendant can no longer have a fair trial. The correct comparison is between the position when the action was notionally dismissed (on 16 June 2010) and the position the defendant will find itself in if the action is reinstated. I am satisfied that a fair trial remains possible, and that the detriment to the plaintiff in refusing to reinstate the proceeding would greatly outweigh the detriment to the defendant in ordering reinstatement. The interests of justice favour reinstatement, and I propose to order accordingly.
36. As to costs: the plaintiff is in default and comes to the court seeking an indulgence. His application was reasonably opposed by the defendant. The defendant is entitled to an order for costs against the plaintiff. Having regard to his status as an individual, and the status of the defendant as an insured shopping mall operator, it seems to me reasonable to postpone the recovery of costs until final orders are made in the action.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Master Harper.
Associate:
Date: 16 March 2012
Counsel for the plaintiff: Mr WL Sharwood
Solicitor for the plaintiff: Maurice Blackburn
Counsel for the defendant: Mr RP Clynes
Solicitor for the defendant: McCabe Terrill by their agents Ken Cush & Associates
Date of hearing: 25 November 2011
Date of judgment: 16 March 2012
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