Morris-Harris-Keith v Hughes

[2019] NSWSC 581

Supreme Court

New South Wales

Medium Neutral Citation:	Morris-Harris-Keith v Hughes [2019] NSWSC 581
Hearing dates:	17 May 2019
Date of orders:	21 May 2019
Decision date:	21 May 2019
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Application dismissed
Catchwords:	CIVIL PROCEDURE – where plaintiff claims damages for personal injury – where plaintiff failed to appear – where defendants applied for dismissal of proceedings for want of due despatch – where defendants’ application not supported by notice of motion or affidavit – application dismissed
Legislation Cited:	Uniform Civil Procedure Rules (NSW) 2005, r 12.7
Category:	Procedural and other rulings
Parties:	Troy Morris-Harris-Keith (Plaintiff) Michael Hughes (Defendant)
Representation:	Solicitors: Holman Webb (Defendant)
File Number(s):	2017/161843
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By his amended statement of claim filed on 10 August 2018, the plaintiff claims damages for personal injuries sustained by him when he fell from the roof of premises owned or controlled by the defendants. The proceedings were originally commenced by statement of claim filed on 30 May 2017. The plaintiff alleges that his injuries include fractures of his vertebrae and that he suffers from serious ongoing disabilities. The defendants deny that they are liable to the plaintiff in any way.

2. On 24 September 2018, the proceedings were listed for hearing commencing on 8 April 2019 with an estimate of five days. On 29 March 2019, R A Hulme J vacated that date when it became clear that the plaintiff’s then solicitors had been required to withdraw from the proceedings. The precise reason for that is not apparent. The plaintiff did not appear on that day before his Honour.

3. The matter was referred to me today by the Prothonotary on the defendants’ application to dismiss the proceedings for want of due despatch. There was no appearance for or on behalf of the plaintiff. As far as I am aware, the plaintiff has so far been unable to retain alternative legal representation.

4. By letter dated 29 March 2019, the solicitor for the defendants wrote to the plaintiff. Among other things, that letter advised the plaintiff that the matter would next be listed before the Registrar on 26 April 2019. It also urged the plaintiff to obtain legal advice “as soon as possible”. The letter also contains the following information:

“We again confirm our intention to have the matter struck out with an order for costs made against you in the event that there is no appearance in Court on your behalf (either by yourself or by lawyers) on 26 April 2019 and in the event that you are represented, that sufficient information is not provided to the Court indicating a willingness to continue with the claim and a planned course of conduct. We made this known to you on 15 March 2019.”

5. UCPR 12.7 provides as follows:

“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.”

6. The defendants’ application was not supported by a notice of motion or an affidavit. It was presumably made upon the basis that I should examine the file and form a view about how long the proceedings have been running and what has occurred during that time. I am also presumably asked to deal with the application without any response from the plaintiff to such an affidavit explaining the progress of the matter from his point of view. That does not seem to me to be an appropriate way to deal with the matter.

7. If the defendants wish to have the plaintiff’s claim dismissed, they should do so by motion on notice in what I consider is the usual way. Service of those documents upon the plaintiff will also have to be established. I am not prepared to dispose of the proceedings under this rule without being satisfied that the plaintiff understands that a formal application under it is to be made and he has had an opportunity to respond to it.

8. In the circumstances I will do no more than list the proceedings before the Registrar on a date suitable to the parties. The defendants can thereafter take such steps to dispose of the proceedings as they may be advised.

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