Small v Hattingh[2005] QDC 232

[2005] QDC 232

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD2174 of 2005

BRISBANE

DATE 11/10/2005

ORDER

HIS HONOUR: On or about the 26th of November 1996 in Moreton Bay, about a nautical mile off Scarborough, the plaintiff's prawn trawler, Silver Key, and the second defendant's prawn trawler, Melinda, came into collision. The first defendant was the skipper of the Melinda.

In the collision relevantly the plaintiff's vessel was damaged and he claimed in a Magistrates Court action commenced on the 5th of March 1997, well within the six year limitation period, for repair costs and economic loss, asserting that the collision was the result of the negligence of the first defendant for which the second defendant was vicariously liable.

A joint defence under the old Rules pleaded "not indebted as alleged or at all" and that the collision was caused by the plaintiff's negligence, essentially flinging his own particulars of negligence back at him.

The action proceeded in a very leisurely fashion. By 1999 the first defendant and the solicitors on the defence side of the record parted company in light of a perceived conflict of interest between the defendants. As it happens, in all the time that has passed, no contribution proceedings have been instituted between the defendants.

There is no possibility of any now, given that in about May this year the first defendant, Mr Hattingh, became bankrupt.

A chronology of steps taken in the action, at least as between the plaintiff and the second defendant, is attached to the latter's amended outline of argument in this appeal which replaces the one filed pursuant to the practice direction.

Mr Daubney, senior counsel for the appellant, indicated in general terms that his side did not accept the chronology. There appears to be no real issue taken with the events recorded in it. What is contentious is the assertion that no step in the action occurred after 12th of March, 1999 when the plaintiff provided the copies of documents requested by the second defendant. The only earlier inactivity complained of in the chronology is a period of 10 months following 31st December, 1997 when the plaintiff delivered copies of documents to the first defendant's solicitors.

Following 12th of March, 1999, on 19th of May, 1999 the plaintiff wrote to the second defendant seeking an offer of settlement. Although that is something much encouraged, given modern views of litigation, that may not count as a step for purposes of rule 389 of the UCPR. The next event noted is the giving of notice of intention to pursue by the plaintiff on 25th of May, 2000. No one contended what that amounted to a  step. Authority establishes that it did not.

On the 30th of June, 2000 the plaintiff served a notice to admit under rule 189 to which the second defendant reacted on the 5th of July, 2000 by serving a notice disputing facts which was necessary to protect his position in light of rule 189(2); otherwise he would have been taken to make an admission. The chronology complains in bold type of 12 to 14 months of inactivity leading up to those events in the year 2000 and of a further 10 months of inactivity leading up to 25th of May, 2001 when the plaintiff served "updated further supplementary list of documents".

The assertion of the second defendant, respondent in this appeal, is that the doing of that required the plaintiff to obtain leave of the Court under rule 389(2) as there had been no step taken in the proceeding since 12th of March, 1999. This issue, I think, is very important in the current appeal, even if it is not decisive.

Mr Forde has indicated to the Court that he believes he recently came across authority to the effect that service of a notice to admit did not amount to a step in proceedings.

There may be such authority. If it was decided on the former order 36 rule 2 of the Rules of the Supreme Court, it may no longer be applicable. The consequences of not responding to a notice to admit facts under that rule were the opposite of those now provided in rule 1892; there was no deemed admission.

I would have the greatest difficulty in regarding service of a notice under sub-rule (1) of rule 189 as not a step in the proceeding but propose to decide this appeal on that basis - reserving to Mr Forde the opportunity to locate the authority that he mentioned. Depending on what he unearths, I may repent of the views I am expressing now in time to pronounce different formal orders disposing of this appeal.

The inactivity highlighted in the chronology continues -accepting without going into the minutiae of it that the outline of argument gets things right. There follows 15 months of inactivity leading up to the plaintiff's serving a notice of intention to proceed under rule 389 on the 3rd of September 2002, followed by a rather inexplicable eight months of inactivity before a step is actually taken on the 23rd of May 2003 by way of tendering of a request for trial date.

That step elicited a response alleging deficiencies in disclosure and non-filing of an amended statement of claim whose filing had been foreshadowed on the 29th of May 2001. Some eight months later on the 10th of February 2004 the amended claim and statement of claim was filed.

By this stage, Mr Collins is the solicitor with conduct of the matter for the second defendant and he is assiduous to make observations drawing attention to rule 389. Five months of inactivity follow, following which the plaintiff threatens an application to dispense with the second defendant's signature of the request for trial date under rule 469(4) - Mr Collins responding by reference to rule 389.

Three months later on 8th November 2004 the plaintiff writes to the Magistrates Court seeking a directions hearing. The Court apparently did nothing. Further inactivity followed. On or about the 16th of May 2005 the plaintiff filed the foreshadowed application under rule 469(4), seeking also leave to proceed under rule 389. Although the application does not make it clear that this was seen as "alternative" relief, Mr Fitzgerald's supporting affidavit made that clear and the Magistrate's reasons show that it was understood as alternative relief. Perhaps that an inaccurate expression. It seems to me that it was a precautionary application made against the possibility the Court agreed with Mr Collins' view that the plaintiff ought to obtain leave to proceed under rule 389 as opposed to being in a situation of having to give repeated notices of intention to take a step under that same rule.

The second defendant filed its application seeking the striking out of the claim (which, of course, began as an action started by plaint under the former rules) for want of prosecution on about the 26th of May.

It appears to me that, assessing the chronology in light of my views about rule 189, the plaintiff narrowly avoided getting into a situation where there had been two years' delay necessitating obtaining the leave of the Court - that the closest the plaintiff came to two years' delay was between 25th of May, 2001, when he served the "updated further supplementary list of documents" and 23rd of May, 2003, when he sought the second defendant's signature of a request for trial date.

The Magistrate gave the following short judgment:

"Now, on this matter here, of course, probably just going back to the beginning, I'm looking at the plaint and the summons that was filed in April 1997 before this Court. There was a claim of some $31,644.50 in relation to damages to a - to a fishing vessel by way of - there was a collision between the vessels. That claim was later on amended to $35,509.20.

Appearances and defence, they were filed in June 1997 now, since then over the years probably from 1997 through, there's been a series of correspondence, there's been some disclosure between parties at lengthy, and interrupting intervals over that period of time. Mr Zillman is filing to - an application to have the claim struck out for want of prosecution stating that there's been unfair delays by the plaintiff in pursuing their claim and also that there be prejudice to his client, the second defendant's case should the matter proceed to trial.

For the plaintiff, the plaintiff applying to the Court to dispense with the signature of the first and second defendants pursuant to rule 469 or alternatively application to have leave of the Court to proceed pursuant to rule 389(2) of the Uniform Civil Procedure Rules.

These types - this matter here of course, it's - the delay I do look seriously at the period of time since the incident was - I think it was November '96, was the incident occurred which is probably some - some eight or nine years - nine years - close on nine years have passed since the - since the incident. The second defendant, Mr Zillman for the defendant Dawson is stating that he would be prejudiced due to the fact that it appears that the first defendant, the first defendant was the driver or the skipper of the boat, Mr Hatting; Mr Hatting is not legally represented at these proceedings; Mr Hatting is not at the proceedings and as I stated earlier on, a phone call through the registry, it appears that Mr Hatting is ill and has suffered a heart attack.

The - there have been times since 1997 through to 2005, or probably 2004, 2005 has been pointed out by Mr Zillman looking at the affidavit of Fitzgerald, John Douglas Fitzgerald, his affidavit filed the 17th of May '05 sets out a chronological order of different steps which were taken by the plaintiff to Bennett Carroll and Gibbons, the solicitors for the second defendant, that - and there does seem to be the unnecessary delays on the plaintiff's side there, on various correspondence that's been forwarded and on-forwarded to the parties and as Mr Zillman pointed out, some - there's been delays there sometimes up to six, eight, 10 months between correspondence by the plaintiff's solicitors in the matter.

As I stated, the matter has been drawn out over a period of eight years, it is now the situation where the first defendant who obviously being the skipper of a boat is crucial to the - to the second defendant's defence of the action, the second defendant being the owner of the vessel, it's the first evidence that's crucial to his defence over a period of - by the time it ever went to the trial, if it did, it would be a good nine - at least a nine year period.

That, to me, does indicate that there is - the second defendant would be clearly and severely prejudiced if the case was to proceed now after the length of time and taking into account there have been unnecessary unwarranted delays by the plaintiff's solicitors in some aspects of the case over the years. And that, of course, is unacceptable to the - to the second defendant and to his - to his defence in the case.

There is a substantial risk there that the - it would be fair trial and parties wouldn’t get a fair trial, in particular the second defendant wouldn’t get a fair trial if the matter was to proceed. I'll grant the application of the second defendant, I'll dismiss the application by the plaintiff and - and the claim before the Court, I'll strike that out for want of prosecution."

This appeal is brought by the plaintiff against the striking out of his claim. Some complaint was made by the appellant of the Magistrate's taking notice of a phone call through the Registry or a note of it relating to the first defendant's situation.

I am not in the least critical of the Magistrate for taking that step; it is what I would expect of any Judge or Magistrate concerned to advance the work of the Court in circumstances where a litigant who is expected to be represented, which applied to the first defendant, is not there.

It may well be that if the Court is misinformed through informal contacts of that kind something has to be fixed up. As it happens, an affidavit of Mr Pike, the solicitor for the plaintiff, recalling conversations he had with Mr Hattingh's partner, was to similar effect to information from the Court Registry.

I am sensible that this is an appeal against the exercise of a discretion and indeed that appeals against a primary tribunal's decision on an application for leave to proceed under rule 389 or the commonly twinned application to dismiss the proceeding for want of Prosecution rarely are successful.

Instances of unsuccessful appeals are Cooper v. Hopgood and Ganim [1999] 2 Queensland Reports 113, where an appeal against Fryberg J's striking out of an action for want of prosecution failed, and Tyler v. Custom Credit Corporation Limited [2000] QCA 178, which is useful in listing in paragraph [2] a dozen factors which the Court will take into account in determining whether the interests of justice require a case to be dismissed. Those have been very much under consideration in this appeal.

Mr Daubney has referred the Court to Haddad v. Torbey [2005] QSC 261, and to Dover v. Mercantile Mutual Insurance Australia Pty Ltd [2005] QDC 160, decisions of single Judges in which defendants' applications to have actions dismissed for want of prosecution failed in circumstances which strike me as rather more embarrassing for the plaintiffs than are the present circumstances for Mr Small, although the dimensions of the delay should not be understated.

Those single Judge decisions are interesting, but of no particular importance because the discretion of the Magistrate here was exercised against the plaintiff. This appeal by way of rehearing should succeed only on the basis that applies to an appeal against the exercise of discretion, most famously expounded in House v. R (1936) 35 CLR 499 at 504.

As Mr Forde puts it in his helpful outline:

"In the present case, the Magistrate has considered the evidence as put before him by the appellant. The Magistrate has considered the question of delay and any prejudice that may follow such delay. In the circumstances, the Magistrate has not been shown to have acted on a wrong principle or extraneous or irrelevant matters or to have mistaken the facts. Accordingly, the appeal ought to be dismissed."

I am content to take the principles that apply as stated by Mr Forde.

In my opinion, although it is difficult to get this expressly from the Magistrate's reasons, he took the view that the evidence of Mr Hattingh was "crucial" to the second defendant's defence and that the second defendant would not be able to make use of that evidence. For all that was said about delay and the general understanding (which the Courts share) that people's recollections fail over time, I cannot read the reasons as based on the thought that Mr Hattingh's recollection might have failed.

It is clear from page 11 of the transcript of the hearing before the Magistrate that there was an additional difficulty raised on Mr Dawson's behalf about Mr Hattingh's evidence -which Mr Mellick's submissions on behalf of the plaintiff had suggested could have been made available on subpoena - a proposition that is undoubtedly correct: Cross on Evidence (Australian Edition) 10320.

The second defendant's counsel said to the Magistrate,

"Well, there's a problem with that because you can't subpoena a party. My side can't compel another party to give evidence in their case. You can't do that. So that's a completely erroneous observation to make.

Further, up until today, my side had no idea where the first defendant was and more than pleased that the plaintiff's been able to find him, but we hear - I hear from the bench that he's had a heart attack and is in hospital, and that fills me with absolutely no confidence whatever that he's had a heart attack. We don't know how sick he is. We don't know what his recovery is likely to be and this fellow's the most important witness from my point of view because he's the skipper of our trawler that's involved in this collision."

The Court heard new evidence on the appeal in interesting circumstances. Mr Hattingh attended on a registrar's reference brought about by the non-filing of an outline of argument some time last month.

It may well be that on request a transcript of what happened can be obtained, but according to Mr Pike's affidavit filed on the 3rd of October 2005:

"His Honour, in the course of those exchanges, said that he had not read the material and asked the first respondent whether the claim related to a motor vehicle collision, and the first respondent quickly and clearly responded to his Honour, to the best of my recollection and belief along these lines,

'No, your Honour, I was the skipper of a trawler. The mistake I made when I put on auto-pilot was to forget to tell the deckhand to keep a lookout. I went below and there was a collision. I was fined a thousand dollars.' 

As a result of the first respondent indicating that he had been fined a thousand dollars, I caused searches to be undertaken and have ascertained that the first respondent was, on 27th of August 1997 in the Magistrates Court at Redcliffe on his plea of guilty, convicted and fined $1000 with respect to an offence of causing a ship to operate unsafely. A copy of the Certificate of Conviction is exhibited hereto marked 'A'. The marine incident/collision with another ship referred to in this certificate is the collision referred to in the pleadings herein."

(The particulars set out in Exhibit "A" are:

"PARTICULARS: Gerhard Stephan Hattingh being master of the said ship caused a Marine Incident when the said ship collided with another ship. He failed to keep a proper lookout at all times and failed to take all available precautions in avoiding a collision.")

That development has led Mr Collins to investigate matters further and provide an affidavit of his own sworn today whose use Mr Daubney objected to unsuccessfully. His exhibit is a record of interview between Mr Hattingh and one Peter Marchbank, which was conducted on the 28th of January 1997, with a view to eliciting information from Mr Hattingh about the collision.

He was, after identifying himself as a person not particularly elderly, born on the 17th of November 1950, and being apprised of the matter under investigation, was warned that he need not answer questions, but elected to go ahead.

He said he was skipper of the Melinda at the time, and was asked the following:

3. "18.
   What were you doing at the time leading up to the incident?‑‑ I was stacking product on the back deck.

19. Did you post a lookout and how?  (a)  Was this the deckhand?‑‑ Yes.

1. (b)
   What qualifications does the deckhand hold?‑‑ He has a deckhand's licence.

1. (c)
   In your opinion, was he a qualified watch-keeper?‑‑ Yes, experienced."

And:

3. "21.
   What are your normal instructions to the lookout?‑‑ Keep watch, alter course if required and call me for anything.

1. (a)
   Did you remind him of them that day?‑‑ No.

1. (b)
   How were those orders given and how were they acknowledged?-- [No answer.]

22. These include keeping a radio watch?‑‑ Yes."

Mr Forde sought to gain from the discrepancy between the accounts of Mr Hattingh the assessment that Mr Hattingh's recollections are unreliable, with a view to confirming the Magistrate's views about prejudice. I do not think that is a sound approach at all.

It might be noted that on neither occasion when Mr Hattingh has made a statement was he on oath and obliged to tell the truth, although he told Mr Marchbank that that is what he had done.

Although Mr Forde has suggested that the circumstances of a collision between vessels are closely analogous to those of collisions between motor vehicles and that light, weather conditions and the like will be canvassed, distances of separation and so on. My feeling is that collisions in which professional mariners are involved are, mercifully, relatively  - indeed exceedingly rare and that recollections are likely to be good - a fortiori in a man fined by a court. I see nothing whatever to suggest that Mr Hattingh's recollections or ability to give evidence might in any way be impaired, notwithstanding his heart attack.

It is something of a surprise, from some points of view, to learn of the current existence of the deckhand, Mr Collins' affidavit sworn on the 25th of May, 2005 deposing in support of the application made by his client:

"If this matter is allowed to proceed, by the time it goes to trial the incident giving rise to the claim would have occurred some nine years previously. I note that the solicitors acting for the first defendant have been unable to obtain instructions since 1999, whilst my client, the second defendant, was the owner of the boat in question, at the time of the incident it was being manned solely by the first defendant. There is no evidence as to whether or not the first defendant intends taking any part in the trial and I submit that, in those circumstances the second defendant, my client, would be severely prejudiced. For these reasons I would submit that the claim should be dismissed for want of prosecution."

It may well be that such material led to the Magistrate's apparent approach that the first defendant would not be at the trial. It is also interesting that although Mr Collins came very late on the scene (so should not be personally subject to criticism), the firm had the transcript of the record of interview of 28th of January, 1997 all along and therefore knew of the apparent existence of the deckhand and the desirability of proofing him as the person who might know most or might know more about the incident. It will be recalled that the firm was acting for both defendants at the outset. The deckhand was said to have the Christian name John and to have had a licence. It is not known at the moment whether he can be located.

I was pleased to encounter in the reason in Dover reference to the suggestion that the discretion which courts have to dismiss proceedings for want of prosecution (which is regarded as part of their inherent jurisdiction or their power to control their process rather than discovered in the rules) is suggested to be possibly dependent on circumstances necessitating an application by the other side for leave under rule 389.

That may well be the situation in practice but it is not necessary for me to so decide today. It is not necessary for me to decide that, given that the delays in no single instalment reached the two year benchmark, the Magistrate's discretion miscarried, because the plaintiff did not really apply and did not need to apply under rule 389. Why I believe it miscarried is because I think there was inevitably a misapprehension by the Magistrate of the circumstances in relation to Hattingh.

For all that appears, he will be available to give evidence at a trial as a useful witness and it may well be that the deckhand is located as well. There was no basis in evidence or otherwise for the Magistrate to proceed on the basis that the first defendant would not be available at trial, due to give evidence, or, indeed, to find that the undeniable delay had affected things.

I do not propose to go in detail into the dozen factors listed in Tyler, most of which are relevant. They do not all necessarily point the same way. I will say only something about the prospects of success.

Mr Forde complained that the appellant's case does not reveal sufficient prospects of success. I am not persuaded that that is called for in that at no time has it been suggested against the plaintiff's claim that it lacked reasonable prospects of success. For all I know those may depend essentially on the rules of navigation and follow almost automatically from the courses of the two vessels.

If there had been assertions that the plaintiff's claim lacked merit, the situation may have been very different.

It seems to me the Magistrate has erred in fact and in law. The appeal should be allowed and the Magistrate's order striking the plaintiff's claim out for want of prosecution, in particular, ought to be set aside. The parties are agreed that in that event the right order to make is to remit the matter to the Magistrates Court so that appropriate directions for its future conduct may be obtained there.

I am unhappy about doing that and would very much have liked to resolve the cross-applications the Magistrate entertained here - my own inclination would have been to allow the matter to proceed - but nothing can usefully be done in relation to the request for trial date in circumstances where it seems a search may have to be made for the deckhand, John.

I will refrain from pronouncing final orders for the reason I mentioned at the beginning, Mr Forde; you can get back to me by close of business tomorrow.

...

HIS HONOUR: The appeal will be allowed with costs. The Magistrate's order about costs is set aside, and costs of proceedings in the Magistrates Court will be reserved to that Court.