Pahoff v Canberra Institute of Technology [2010] ACTSC 69 (16 July 2010)

Last Updated: 26 August 2010

TRACEY PAHOFF v CANBERRA INSTITUTE OF TECHNOLOGY

[2010] ACTSC 69 (16 July 2010)

PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT), rr 75 and 76 – application for reinstatement of action taken to have been dismissed – personal injury claim – interests of justice – competing factors – action reinstated

Court Procedures Rules 2006 (ACT)

Supreme Court Rules 1937 (ACT)

Brisbane South Regional Health Authority v Taylor (1996) 186CLR 541

Caruso v Jafer (Supreme Court of Victoria, Mandie J, unreported, 18 June 1998)

Equuscorp Pty Limited v Lah [2009] ACTSC 113

Hay v Belconnen Magpies Sport Club Limited [2010] ACTSC 1

Tenth Vandy Pty Limited v Natwest Markets Australia Pty Limitd (No 2) [2006] VSC 241

Stollznow v Calvert (1980) 2NSWLR 749

ON APPEAL FROM THE REGISTRAR OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SC 41 of 2000

Judge: Master Harper

Supreme Court of the ACT

Date: 16 July 2010

IN THE SUPREME COURT OF THE )

) No. SC 41 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TRACEY PAHOFF

Plaintiff

AND: CANBERRA INSTITUTE OF TECHNOLOGY

Defendant

ORDER

Judge: Master Harper

Date: 16 July 2010

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 appeal from a decision of the Registrar in an action for damages for personal injury.

2. The plaintiff commenced these proceedings on 21 January 2000. Her case is that on 7 February 1994 she broke her right ankle and injured her left ankle when she slipped and fell on a staircase at building D on the defendant’s Reid campus.

3. On 15 February 2000, the defendant, represented by the ACT Government Solicitor, entered an appearance. A defence was filed on 15 March 2002, denying negligence and alleging contributory negligence, essentially in the plaintiff’s failure to look where she was going.

4. So far as the court file is concerned, nothing more happened until May 2009 when the plaintiff’s solicitors lodged a notice of intention to proceed. The registry refused to accept the document for filing, for the reason that the action was taken to have been struck out on 16 March 2003. It is common ground that neither of the parties had been notified of the notional striking out of the action. On 24 August 2009 the plaintiff’s solicitors applied for an order that the action be reinstated. The application was supported by affidavits sworn by the plaintiff and affirmed by her solicitor, Ms McSpedden.

5. In her affidavit, the plaintiff said that she was born in August 1974. On the day of the accident, when she was 19, she was attending the first day of the 1994 year at the Reid campus of the defendant. She went upstairs to collect a timetable but the office was unattended. As she went back down the stairs she lost her footing and fell. She was taken by ambulance to hospital and later on the same day was operated on by an orthopaedic surgeon. Her later treatment included physiotherapy over a period of about nine months. In September 1994 she instructed her solicitors, Jill McSpedden & Associates. Over the next few years she had further surgery. She completed her studies. She had continuing problems with her ankle. During 2003 her injuries began to worsen. She was told by a specialist that she probably needed further surgery. She became pregnant and had a daughter in February 2005. In 2005 she and her partner and daughter moved to the Gold Coast, where her parents were living. She was unable to stay in Canberra without their support. She found work with a firm of solicitors on the Gold Coast, and later a position in administration at a hospital. She said in her affidavit that she had been unable to progress her claim despite her wish to do so due to these various problems, including her continuing disabilities. She now wished to take her action to hearing.

6. Ms McSpedden annexed to her affidavit a medico-legal report by Dr GG Griffith, consultant surgeon, of October 2003, as to the plaintiff’s injuries and disabilities, and a report by Dr Paul Miniter, orthopaedic surgeon, of November 2004. Ms McSpedden says that in July 2006 she was informed that the plaintiff, her husband and daughter and her parents had moved to Queensland. At that stage her prognosis was uncertain and Ms McSpedden was not in a position to take the matter further or to provide particulars of future loss. She had earlier obtained an expert report in relation to liability but the expert had since died and she needed to identify another expert witness. She did so in the latter part of 2007. She became aware in March 2009 that the action had been struck out. She had not heard anything before that to alert her to this state of affairs. Her firm contacted the plaintiff and briefed counsel to advise, leading to the filing of the present application.

7. The application was heard by the Registrar on 24 August 2009. Both parties were represented by counsel. The Registrar dealt with the matter ex tempore and ordered that the action be reinstated. The Registrar ordered that the plaintiff pay the defendant’s costs of the application, those costs not to be recoverable until final orders were made in the action. On 23 October 2009 the defendant’s solicitors filed the present appeal from the orders of the Registrar.

8. I heard the appeal on 11 December 2009. I admitted into evidence an affidavit by Ms Martine Lacourt, a solicitor employed by Ms McSpedden’s firm who by then had the conduct of the matter. She annexed a report by Dr Greg Gillett, orthopaedic surgeon, dated 30 November 2009, and a magnetic resonance imaging report in relation to the plaintiff’s right knee and ankle dated 7 April 2009. Dr Gillett thought that the plaintiff’s right knee symptoms were unrelated to the accident but that she had significant continuing symptoms in the right ankle which might eventually require further surgery.

9. At the conclusion of the hearing on 11 December I reserved my decision.

10. On 26 February 2010 the plaintiff’s solicitors filed an application seeking leave to reopen their case and to tender further evidence. I heard that application on 5 March 2010 and reserved my decision. The evidence in support of the application to reopen, and the evidence sought to be introduced if leave to reopen was granted, was a further affidavit by Ms Lacourt sworn on 1 February 2010. The affidavit annexed a 16-page chronology prepared by Ms Lacourt from the file. The affidavit included evidence that during 2006, Mr Timothy Chadwick, a solicitor with litigation experience who had been employed with Ms McSpedden’s firm, left their employment. Ms McSpedden engaged Mr James Gralton, another solicitor with litigation experience, to take over the file as there was no one else at the firm with the necessary expertise. In January 2008 Mr Gralton left to go to another firm. That firm declined to take the matter over and the file was returned to Ms McSpedden during 2008. From then until early 2009 Ms McSpedden made enquiries of other firms as to whether they would take the matter over but without success.

11. Counsel for both parties handed up a chronology during the hearing before me in December 2009, without objection. The chronology annexed to Ms Lacourt’s most recent affidavit is considerably more detailed.

12. An ACT Government accident report form was completed, I infer by a member of the defendant’s staff, on the day of the accident, identifying the plaintiff and setting out a brief description of the accident. The ACT Government Solicitor wrote to Ms McSpedden’s firm on 14 February 2000 seeking detailed particulars of the plaintiff’s claim, and these were furnished on 7 March 2002, shortly before a defence was filed. The solicitors for the defendant had photographs taken of the staircase during 1994 (I infer after, and because of, notification of the plaintiff’s fall) and again on 21 February 1995 and 18 May 1999. I had the benefit of colour prints of those photographs.

13. The rules which resulted in the proceeding being taken to be struck out, and which give the court the power to reinstate the proceeding, need to be considered in some detail. It is probably unnecessary to revisit the Supreme Court Rules 1937 (ACT) which governed actions of this nature until 1 July 2006. On that date the Court Procedures Rules 2006 (ACT) came into effect. These included rule 75, which was in the following terms:

75 When proceeding struck out

1) A proceeding is take to be struck out in relation to a defendant if –

a) [not applicable to the present circumstances]; or

b) [not applicable to the present circumstances].

2) Also, a proceeding is taken to be struck out in relation to a party if a 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 struck out under sub-rule (1) or (2) on the day after the day the relevant 1-year period mentioned in the subrule ends.

14. On 1 January 2010, rule 75 was amended by substituting the word “dismissed” for the words “struck out.”

15. Rule 76, from the commencement of the new rules on 1 July 2006, provided:

76 Reinstating struck out proceeding

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

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

3) 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 struck out.

16. Rule 76 was also amended with effect from 1 January 2010 with the addition of two subrules:

2A) A proceeding that has been dismissed under r75(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.

2B)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.

17. It is not suggested that the present action would have been notionally struck out or dismissed prior to the operation of the Court Procedures Rules 2006. Buchanan J in Equuscorp Pty Limited v Lah [2009] ACTSC 113, in ordering in September 2009 the reinstatement of an action in which no step had been taken since August 1999, expressed the view that the effect of rule 75 was that the proceeding was to be taken to be struck out on 21 August 2000, that is almost six years before the rules came into effect. That expression of opinion was not necessary for his Honour’s decision, and I have some trouble with it. It seems to me that a legislative amendment such as the replacement of the Supreme Court Rules with the Court Procedures Rules should not be read as having a retrospective effect of that kind in the absence of clear words. Having said that, the difference of opinion between his Honour and myself about this was not material to his Honour’s decision and will not be material to mine on the present application.

18. His Honour set out, commencing at paragraph 27, the principles to be applied on an application for reinstatement. As his Honour said, the rules are aimed at encouraging or requiring the timely and efficient management of proceedings. His Honour referred at paragraph 31 to the futility of reinstating a proceeding which would remain liable, following reinstatement, to be struck out for want of prosecution. The refusal of an application for reinstatement of such a proceeding would, his Honour said, seem inevitable. It did not follow that, unless a proceeding was liable to be struck out for want of prosecution, it should be reinstated.

19. His Honour quoted from the judgment of Mandie J in Caruso v Jafer (Supreme Court of Victoria, unreported, 18 June 1998) where Mandie J said:

It seems to me that it is incumbent upon a plaintiff who seeks to reinstate a proceeding... to satisfy the court that justice requires that the court exercise its discretion to reinstate the proceeding. Clearly if the proceeding is in such a state that had an application been made by a defendant to have it dismissed for want of prosecution that application would have succeeded, then the court would not reinstate the proceeding. . . .

Counsel for the plaintiff submitted that that was the governing consideration, that if a proceeding would be dismissed for want of prosecution, then it could not be reinstated, but if it would not have been dismissed for want of prosecution, then it should be reinstated.

However, in my view, the second part of that proposition does not follow from the first and is not justified upon a proper construction of the rule. The court constituted by a judge is empowered in its discretion to reinstate the proceeding and it does not seem to me to treat the rule with any due regard to conclude that the question of reinstatement stands or falls on the test relating to the principles applied under an application to dismiss a proceeding for want of prosecution

The proceeding has been dismissed and the question is whether the court should exercise its discretion to reinstate. In my opinion, it is a question of what justice requires and all the relevant circumstances ought to be taken into account. No doubt many of the same circumstances as might be considered on an application to dismiss for want of prosecution are relevant, but the plaintiff comes seeking an indulgence and it is for the plaintiff to satisfy the court that the proceedings should be reinstated, and there may be cases which had they not been dismissed under this rule would not have been dismissed for want of prosecution and yet the plaintiff might fail to have them reinstated once they are dismissed under this rule.

20. This statement of principle was adopted by Hargrave J in Tenth Vandy Pty Limited v Natwest Markets Australia Pty Limitd (No 2) [2006] VSC 241, and was regarded as correct by Buchanan J in Equuscorp.

21. On the difference between an application for dismissal for want of prosecution and an application for reinstatement, Buchanan J referred also to the judgment of Moffitt P in Stollznow v Calvert (1980) 2NSWLR 749, a decision of the NSW Court of Appeal, with approval. Buchanan J pointed out that the onus of persuading the court that the discretion should be exercised in his or her favour was upon the moving party, that is to say the applicant for an order striking out for want of prosecution on the one hand, and the applicant for an order for reinstatement on the other. His Honour noted that the defendant in a case like the present one was, at the time of the application, shielded from the risk of further litigation, and that in those circumstances the applicant for relief carried a heavy onus of explanation for the delay. The plaintiff in an application like the present one bore 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) 186CLR 541 per Dawson J at 544) but also any particular prejudice to which an opposing party might draw attention (Brisbane South per Toohey and Gummow JJ at 547).

22. The delay in the present action is on any view of it extraordinarily lengthy. It is more than sixteen years since the cause of action arose. The action was brought in the last three weeks of the limitation period. The last step taken in the proceedings was the filing of a defence more than eight years ago. Whether or not on a proper analysis the action should be taken to have been struck out in March 2003, the fact is that neither the plaintiff nor her solicitors took any steps on the court record, or by way of contact with the defendant’s solicitors, following the making of the Court Procedures Rules with effect from 1 July 2006, for nearly another 3 years.

23. As I explained in Hay v Belconnen Magpies Sport Club Limited [2010] ACTSC 1, the Court Procedures Rules were amended with effect from 1 January 2010 to provide that the filing of a document by any party within a year of the dismissal of a proceeding under rule 75 had the effect of reinstating the proceeding. Frequently that rule will save a plaintiff in an action which has been dormant for a period but it can have no application in the present circumstances. Whether the action should be taken to be struck out in March 2003, or on some later date calculated by reference to the making of the Court Procedures Rules 2006, there can be no suggestion that it had not been long dismissed by the time the present application was filed.

24. It is clear from the authorities that the onus is on the applicant to satisfy the court that reinstatement will cause no actual prejudice to the defendant, and that it is in the interests of justice to reinstate the proceeding notwithstanding any implicit but unidentifiable prejudice arising inevitably from the delay, of the kind described in Brisbane South by Dawson J at 544 and McHugh J at 551.

25. Having stated those principles, it remains for me to weigh up the competing factors. On the one hand the defendant has known about the plaintiff’s fall since the day of the accident. The defendant has been aware of the possibility of a claim for damages and has taken steps to prepare for such a claim. In addition to that, in contradistinction to the facts in Brisbane South, the plaintiff here commenced proceedings within time. It will be recalled that the plaintiff in Brisbane South brought proceedings against a hospital authority some twenty years after the cause of action arose, relying on the acceptance of her version of an unrecorded conversation at that time. The present defendant is at nothing like the disadvantage of the defendant in Brisbane South. As to damages, the defendant has had the benefit of the plaintiff’s statement of claim since 2000 and of her further and better particulars since 2002.

26. The explanation of the plaintiff for her delay in proceeding with this claim is not particularly persuasive, and nor is the explanation of her solicitors for their part in the delay. As against that, this is far from a case where the defendant has lost the opportunity for a fair trial because of the delay. This is very much a question of weighing up the interests of justice, and whether they favour permanently depriving the plaintiff of her entitlement to pursue her cause of action, or depriving the defendant of the benefit of the default dismissal provisions contained in the Court Procedures Rules.

27. Whilst I would not want to give the impression that a delay of such a length would ordinarily be excused by the court, it seems to me that in all of the circumstances of the present application, the interests of justice would be best served by giving the plaintiff an opportunity to proceed with her claim notwithstanding the delay. Accordingly I order that the proceeding be reinstated.

28. The plaintiff, being in default, has come to the court seeking an indulgence. Her application was quite reasonably opposed by the defendant. The plaintiff must pay the costs of the application. Having regard to her status as an individual, and the status of the defendant as a government instrumentality, it seems to me fair to postpone the recovery of costs until final orders are made in the action.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 16 July 2010

Counsel for the plaintiff: Mr I D Bradfield

Solicitors for the plaintiff: McSpedden Harvey

Counsel for the defendant: Mr S H Pilkinton

Solicitors for the defendant: ACT Government Solicitor

Date of hearing: 11 December 2009, 5 March 2010

Date of judgment: 16 July 2010