MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / Kylee Carpenter v Australian Capital TerritoryCitation: / [2016] ACTMC 3
Hearing Date(s): / 24 February 2016
Decision Date: / 4 May 2016
Before: / Magistrate Morrison
Decision: / See [27]–[29]; [36]–[37]
Category: / Interlocutory decision
Catchwords: / CIVIL LAW – Reinstatement under Court Procedures Rules 2006 (ACT) – construction of rule 76(3) – whether provision that proceedings reinstated if a party to the proceeding files a document to be read down – whether purposive test to be applied – whether application of purposive test requires reference to filing a document to be read as meaning taking a step in the proceeding.
Legislation Cited: / Court Procedures Rules 2006 (ACT) r 75; 76
Legislation Act 2001 (ACT) s 139
Cases Cited: / Spincer v Watts (1889) 23 QBD 350 at 353
Parties: / Kylee Carpenter (plaintiff)
Australian Capital Territory (defendant)
Representation: / Counsel
Mr D Crowe (plaintiff)
Mr R Clynes (defendant)
Solicitors
Maliganis Edwards Johnson (plaintiff)
ACT Government Solicitor (defendant)
File Number: / CS 14 of 2013
MAGISTRATE MORRISON:
1 The plaintiff’s originating claim is for damages for personal injury alleged to result from the negligent driving of a motor vehicle on 1 February 2010. The vehicle was a public bus driven by an employee of the defendant.
2 The originating claim was filed on 8 January 2013. It is not in dispute that various pre-proceedings communications took place between the solicitors for the plaintiff and the defendant in 2010, 2011 and 2012.
3 The chronology handed up by the plaintiff without objection refers to the solicitors for the plaintiff having filed a notice of intention to proceed on 18 November 2013. The original document on the court file bears a filing stamp dated 19 November 2013 but nothing turns on that for present purposes.
4 By virtue of rule 75(3) of the Court Procedures Rules 2006 (ACT) the filing of that document is taken to be a step in the proceeding for the purposes of the application of rule 75(2). The latter is the rule dealing with deemed dismissal; that being the process which is at the heart of the application before me. The rule reads as follows:
(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 1year after the day the last step was taken in the proceeding.
5 It is common ground that, by virtue of the application of that section, the proceedings were taken to be dismissed at the end of 1 year – that being 18 November 2014, assuming the filing date of the notice of intention to proceed to have been 19 November 2013.
6 Various communications continued to take place between the solicitors for the parties about the plaintiff’s claim.
7 The plaintiff attempted to file another notice of intention to proceed on 22 October 2015. The document was apparently received at the court registry but requisitioned on the basis that the proceedings were taken to have been dismissed. The requisition letter from the Deputy Registrar dated 22 October 2015 and which is Exhibit C proceeds on what is now accepted to be a mistaken basis that no affidavit of service had been filed and so refers to rule 75(1)(a) as the basis for the deemed dismissal.
8 On 30 October 2015, following receipt of that letter, the plaintiff’s solicitors filed an application to reinstate the proceedings. Rule 76 provides for such applications. The application was returnable on 10 November 2015. When the matter came before the Registrar on 10 November 2015 it was adjourned to 17 November and a direction made for the defendant to file any material in response by 13 November 2015.
9 On 13 November 2015 the solicitor for the defendant filed the affidavit of Ms Sherman with a view to resisting the plaintiff’s application.
10 The bench sheet records the following outcome when the application came before the Registrar on 17 November – “Application withdrawn by consent. Plaintiff to pay defendant’s costs of the application.”
11 In subsequent communications between the parties’ solicitors about the proceedings the solicitors for the plaintiff asserted that the proceedings were reinstated by virtue of the application of rule 76(3) because a document had been filed. The rule is in the following terms:
(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.
12 The solicitor for the defendant has subsequently refused to take part in a compulsory conference on the basis that the proceedings had not been reinstated. That has led to the present application by the plaintiff seeking a declaration that the proceedings have been reinstated (by virtue of the application of rule 76(3)) or in the alternative an order that the proceedings be reinstated pursuant to rule 76(2).
13 The application was heard on 24 February 2016 against the background that, at that time, the plaintiff asserted that an affidavit of service had been filed even though it could not be located on the court file. I reserved my decision and made directions for the filing of submissions directed to certain evidentiary questions around proof of records.
14 Subsequently I became aware that the court maintained a computer-based record of the filing of affidavits of service which was capable of being interrogated by the Registrar. I notified the parties and with their consent directed that the Registrar interrogate the record and prepare an affidavit. She did so and it has been filed and is relied upon by the plaintiff.
15 Having regard to the evidence by way of the affidavit of the Registrar of this court sworn 11 March 2016, I am satisfied that an affidavit of service of the originating claim was filed with the Court even though no copy of it is able to be located on the Court file.
16 Following receipt of the Registrar’s affidavit, the solicitor for the defendant says in its written submissions filed 30 March 2015 that it withdraws its opposition to the reinstatement application. The reinstatement of the proceedings is the alternate relief sought by the plaintiff. The primary relief sought is by way of declaration that the proceedings are reinstated by virtue of the application of rule 76(3). The defendant’s submissions are silent as to that primary relief sought by the plaintiff. The nature of the primary relief sought is a declaration the making of which affects the construction to be placed on the rule generally. The application was opposed at the hearing and so I have had the benefit of a contradictor’s arguments put by counsel.
17 Whether the relief granted is by way of a declaration or reinstatement also affects the approach to costs.
18 In the circumstances I feel obliged to determine the question raised in the primary relief sought despite the withdrawal of objection to the alternate relief sought.
19 There is some contest on the facts insofar as they relate to the content of certain exchanges between the solicitors for the parties. Given that these reasons are limited in effect to the proper construction of rule 76(3) there is no requirement for me to make any formal findings in relation to that contest. The only comment I make by way of reminder to the solicitors is that when such a finding is required, the contents of contemporaneous file notes are generally and properly treated as persuasive evidence of the contents of telephone calls.
20 The competing arguments on the construction of rule 76(3) are these:
a. The plaintiff says that the words used in the rule have a plain meaning and that in accordance with that meaning the filing of any document by any party automatically brings about the reinstatement of the proceeding. Correspondence from the solicitors for the plaintiff to those for the defendant asserted that the filing of material by the defendant in reply to the original reinstatement application triggered the reinstatement under rule 76. As I understood Counsel’s submissions before me they went further – submitting that the very act of filing the original reinstatement application would trigger reinstatement. It was referred to in exchanges as a self-fulfilling application.
21
a. The defendant says that the reference in rule 76(3) to a document in the proceeding has to be read down for several reasons. Counsel submitted that a very broad meaning is given to the word “document” so that unless the rule is read down the filing of anything within that very broad description would trigger the rule. He goes on to point to the plaintiff’s assertion that the very act of filing its original reinstatement application triggered the provisions of the rule – both being results which he says are absurd and improperly limit the discretion intended to be given to the court under rule 76(1) and (2). Section 139 of the Legislation Act 2001 (ACT) was said to be triggered. As I understood the submission it was that the application of the purposive test there provided for, along with consideration of the authorities on what constitutes a step in proceedings, pointed to a proper construction which did not permit the mere filing of any document to trigger reinstatement. In the end result the submission, as I understood it, was that s 76(3) was to be read down so that the filing of a document was to be read as meaning what was required, in accordance with the authorities, to constitute a step in the proceeding.
22
23 Part of the defendant’s argument was that the construction pressed for by the plaintiff renders rule 76 otiose, but that is not entirely correct. If rule 76 is given the construction pressed for by the plaintiff rule 76 has a twofold effect. For proceedings which have been dismissed within the preceding one year, reinstatement is effected simply by the filing of a document. It is only if reinstatement is sought of proceedings dismissed more that 1 year beforehand that a formal application is required and the interests of justice test is to be applied.
24 I note that rule 75 itself makes no reference to the filing of a document in the proceeding in those general terms. Rule 75(2) provides that a proceeding is taken to be dismissed if a party does not take a step in the proceeding before the end of 1 year since the last step. Authorities in several jurisdictions have looked at the question of what constitutes a step in the proceeding. It must be some step taken “with a view to continuing the litigation between the parties to it” Spincer v Watts (1889) 23 QBD 350 at 353.
25 Any doubt surrounding whether the mere filing of a notice of intention to proceed would constitute a step in the proceeding is removed by rule 75(3) which expressly provides that it is taken to so be. The rules do not appear to make any other provision for the filing of a notice of intention to proceed such as, for example, restricting the taking of any further step until a certain time period has elapsed after the giving of the notice. There must be some doubt as to whether the mere filing of the notice would otherwise meet the required test to be a step in the proceeding, but as I have said no questions arises in this jurisdiction because of the express provisions of rule 75(3).
26 If the construction pressed for by the plaintiff is accepted, the overall structure of rules 75 and 76 is relevantly as follows for proceedings where an affidavit of service has been filed:
a. A proceeding is taken to be dismissed at the end of 1 year after service if no defence has been filed and the proceedings have not been disposed of by judgment or otherwise;
b. A proceeding is taken to be dismissed if no step in the proceedings is taken within 1 year after the last step was taken; with filing a notice of intention to proceed being taken to be a step for these purposes;
c. If a proceeding has been dismissed because no step has been taken within 1 year then it is by operation of the rules reinstated if any document in the proceeding is filed before the end of 1 year after the deemed dismissal;
d. Otherwise, (i.e. if no document is filed before the end of 1 year after the deemed dismissal) an application to the court is required and the court may reinstate the proceeding if it is in the interests of justice to do so.
27 The requirement for a step in the proceeding to be taken to avoid deemed dismissal under rule 75(2) (with filing of a notice of intention to proceed being deemed to be such a step) sits somewhat incongruously with the lesser requirement for the mere filing of a document in the proceeding within 1 year to procure automatic reinstatement under rule 76(3). What I have described as incongruity does not however rise to the level of an absurd result so as to require the words used in rule 76(3) to be given anything other than their ordinary meaning.
28 Even if a purposive approach to the construction of the rules is adopted, I am not persuaded that the result of the construction of rules 75 and 76 as I have set them out at paragraph 23 of these reasons does not best achieve the relevant purposes.
29 In the end result the words used in rule 76(3) are clear and unambiguous. The filing of the plaintiff’s application to reinstate had the effect, by operation of that rule, of reinstating the proceeding which was the subject of the application. It was, to that extent, truly a self-fulfilling application.