Supreme Court New South Wales Medium Neutral Citation: Health Administration Corporation v John Holland Pty Ltd; Hicks v Northern NSW Local Health District; Chamberlain v John Holland Pty Ltd; Wisemantel v SKMW Pty Ltd [2022] NSWSC 767 Hearing dates: 10 June 2022 Date of orders: 10 June 2022 Decision date: 10 June 2022 Jurisdiction: Equity - Technology and Construction List Before: Rees J Decision: District Court proceedings transferred under section 140(1), Civil Procedure Act 2005 (NSW), to be heard together with these proceedings and two Common Law Division proceedings as to liability pursuant to UCPR rule 28.5. Catchwords: CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – consolidation of two Common Law Division proceedings and District Court proceedings with Technology and Construction List proceedings – all proceedings involve common facts as to liability – all parties but one consent to transfer and consolidation. SEPARATE QUESTIONS – plaintiff seeks damages determined before liability – plaintiff "will certainly win" – contrary to common sense – unlosable cases are not infrequently lost – waste of time and costs to proceed otherwise. Legislation Cited: Civil Procedure Act 2005 (NSW) s 140(1) Uniform Civil Procedure Rules 2005 (NSW) r 28.5 Cases Cited: Engwirda v Robinson [2021] NSWSC 253 Ghose v CX Reinsurance Company Ltd & Ors [2010] NSWSC 110 Marzol v Joubert [2018] NSWSC 586 Category: Procedural rulings Parties: 2021/337367 Northern New South Wales Local Health District (2nd Plaintiff/Applicant) Health Administration Corporation (1st Plaintiff) John Holland Pty Limited (1st Defendant) SKMW Pty Ltd (2nd Defendant) Building Construction Test Laboratory Pty Ltd (3rd Defendant) Rose Wisemantel (1st Respondent) Leanne Chamberlain (2nd Respondent) Lida Song (3rd Respondent) Katie Helene Hicks (4th Respondent) 2018/359177 Katie Helene Hicks (Plaintiff) Northern New South Wales Local Health District (1st Defendant) John Holland Pty Ltd (2nd Defendant) SKMW Pty Ltd (3rd Defendant) Building Construction Test Laboratory Pty Ltd (4th Defendant) 2018/199548 Rose Wisemantel (Plaintiff) SKMW Pty Ltd (1st Defendant) Lida Song (2nd Defendant) John Holland Pty Ltd (3rd Defendant) 2018/357697 Leanne Chamberlain (Plaintiff) John Holland Pty Ltd (1st Defendant) SKMW Pty Ltd (2nd Defendant) Representation: 2021/337367 Counsel: Mr B Bradley (Plaintiffs/Applicants) Mr D A Lloyd SC (1st Defendant) Mr J Raftery (2nd Defendant) Mr D Parker, Solicitor (3rd Defendant) Ms S De Freitas, Solicitor (1st Respondent) Mr D-L Del Monte (2nd Respondent) Mr D Parker, Solicitor (3rd Respondent) Mr H Marshall SC with Mr G Radburn (4th Respondent) Solicitors: Makinson d'Apice (Plaintiffs/Applicants) Barry.Nilsson (1st Defendant) Kennedys (2nd Defendant) Moray & Agnew (3rd Defendant) Stacks Goudkamp (1st Respondent) Slater & Gordon (2nd Respondent) Moray & Agnew (3rd Respondent) Somerville Laundry Lomax Solicitors (4th Respondent) File Number(s): 2021/337367 2018/359177 2018/199548 2018/357697 EX TEMPORE Judgment (REVISED) 1. HER HONOUR: This is an application by the Northern New South Wales Local Health District for an order under section 140(1) of the Civil Procedure Act 2005 (NSW) to transfer proceedings from the District Court of New South Wales to this Court, together with orders under rule 28.5 of the Uniform Civil Procedure Rules 2005 (NSW) to consolidate these proceedings with the District Court proceedings and two other proceedings already on foot in the Common Law Division of this Court. Facts 1. In November 2015, during a storm in Lismore, scaffolding and building materials were dislodged from a tower block under construction at Lismore Base Hospital. The materials fell onto a temporary maternity unit, allegedly causing damage. Katie Hicks and Rose Wisemantel were patients in the maternity ward at the time, while Leanne Chamberlain was working in the maternity ward as a midwife. Each claim to have suffered personal injuries. 2. In November 2018, Ms Wisemantel commenced proceedings in the Common Law Division of this Court (the Wisemantel proceedings) whilst Ms Hicks commenced proceedings in the District Court at Lismore (the Hicks proceedings). Ms Chamberlain also commenced proceedings in the Common Law Division of this Court at about the same time (the Chamberlain proceedings). The proceedings have progressed at varying speeds. Progress in the Chamberlain proceedings has been affected by the fact that Ms Chamberlain's injuries have only recently stabilised such that the assessment of her impairment can only now be completed. 3. In November 2021, these proceedings were commenced by Health Infrastructure as a division of the Health Administration Corporation and Northern New South Wales Local Health District in respect of the building and construction aspects of the incident (the Technology & Construction List proceedings) against the builder, John Holland Pty Ltd, the scaffolding company, SKMW Pty Ltd, and the certifier, Building Construction Test Laboratory Pty Limited, being broadly the same defendants as in the Hicks, Wisemantel and Chamberlain proceedings. The solicitors for Northern New South Wales Local Health District sought the agreement of the parties in each of the Hicks, Wisemantel and Chamberlain proceedings to consolidate the four proceedings for the purpose of determining liability. A significant degree of consensus was achieved. Indeed, Ms Hicks initially agreed to transfer and consolidation but then decided to pursue her proceedings in the District Court instead. In May 2022, the motion presently before the Court was filed. Consideration 1. The principles in relation to joinder and consolidation are not in dispute and are described in Ghose v CX Reinsurance Company Limited [2010] NSWSC 110 at [26] to [32] per Austin J; Engwirda v Robinson [2021] NSWSC 253 per Ierace J at [18]; Marzol v Joubert [2018] NSWSC 586 at [9] per Harrison J. 2. The parties agree that there is a substantial overlap in the issues to be determined in the four proceedings in respect of liability, and substantial commonality of defendants. The determination of these issues in a consolidated proceeding is considered to be the most just, quick and efficient way to do so and to avoid the potential for inconsistent findings or issue estoppel. Further, as it is likely that the same lay and expert witnesses will give evidence in each proceedings, consolidation may avoid potential issues arising from the implied Harman undertaking. 3. Consolidated proceedings will also avoid the chance of duplicating costs in relation to case management, disclosure and subpoenas than if the four proceedings are determined separately. The applicant's solicitor, Lisa Hulcombe, estimated that each of the proceedings, if heard separately on liability and quantum, would last for between four and six days at a cost of between $150,000 and $200,000 each to her client whilst, if the proceedings were heard together on liability, such a trial would take five to six days. 4. There are two problems. First, Ms Chamberlain's employer is yet to be joined to her proceedings as Ms Chamberlain is yet to satisfy the pre-litigation stages to bring a work injury damages claim. Now that Ms Chamberlain's injuries have stabilised, if her whole person impairment exceeds the appropriate threshold, it is anticipated that the pre-litigation steps can be completed this year. That would mean that the hearing on liability could not take place until the beginning of the Court term in 2023. This may not cause a difficulty where the proposed timetable for the consolidated proceedings, circulated by the applicant, anticipates a hearing in March 2023. 5. The second problem was raised by Ms Hicks, who does not oppose the joinder but who makes her support subject to conditions, in particular, that her damages be determined in the August 2022 sittings of the District Court in Lismore and that these proceedings be expedited. As to the condition of expedition, Ms Hicks' senior counsel accepts that all proceedings in this list are treated as expedited. 6. As to the evidence relied on by Ms Hicks in support of this course, her solicitor deposed, "In my opinion, it is likely that the plaintiff's proceedings will be ready for hearing in the August 2022 sittings of the District Court in Lismore." (The Hicks proceedings are listed for directions on 14 June 2022). There is no evidence, however, as to whether the defendants will be ready to take a hearing date on that occasion. Nor is there any evidence as to the length of the August 2022 sittings in Lismore, nor the estimated length of hearing of Ms Hicks' claim, nor the number of matters already listed in the August 2022 sitting, nor whether any of those matters would have priority, for example, by reason of having been "not reached" in a previous sitting. There is very little evidence which would enable me to form a view that, if I was to permit Ms Hicks' case to proceed in the District Court in Lismore, her claim for liability or damages, or both, would in fact be determined in the August 2022 sittings. 7. Ms Hicks deposed that the prolongation of her proceedings has resulted in an exacerbation of the psychiatric symptoms from which she claims to suffer, including post-traumatic stress disorder said to have been brought about by the events in question. There is, however, no medical evidence to support the contention that Ms Hicks will experience a deterioration or exacerbation in her condition should there be some delay in determining her claim in the manner now proposed. 8. Ms Hicks' solicitor also deposed that Ms Hicks' psychiatrist, Dr Huntsman, intends to retire at the end of 2023 and will be overseas and uncontactable for most of the following two years. It is now June 2022. Whilst it seems unlikely that Ms Hicks' proceedings would not be determined, both as to liability and as to any quantum, by the end of 2023, it is now common for experts to participate in hearings by video link and it seems most unlikely that Dr Huntsman would be unable to do so. 9. It is obviously most unusual to suggest that damages should be determined before liability. None of the learned counsel or solicitors in Court today were able to refer to any occasion on which that has been done, and one might think that is for good reason. It would generally be thought, as a matter of common sense, to be a potential waste of time and money to determine damages before liability due to the risk of the plaintiff failing on liability. 10. Whilst Ms Hicks' senior counsel submitted that "Ms Hicks will certainly win" – and I am in no position to say whether he is right or not as the evidence relied upon by the parties is not before the Court – experience suggests that un-losable cases are not infrequently lost. Presumably for this reason, Courts do not allocate scarce public resources of hearing days to determine issues of damage before liability has been determined in the plaintiff's favour. 11. Further, as the scaffolder submitted, it was difficult to see any benefit to Ms Hicks in having the question of damages determined before liability, where no damages would be available to Ms Hicks until liability was determined in this Court. As applicant's senior counsel also submitted, even if the District Court could assess damages in the absence of a finding of liability – perhaps as a separate question – the chances of the assessment remaining appropriate by the final hearing were questionable; it was unlikely to be in Ms Hicks' interests to assess damages until then. 12. Although the application originally sought that these proceedings be transferred to the Common Law Division, as a result of further discussion between counsel and Ms De Freitas, solicitor for the first respondent, today the parties are amenable to the liability aspect being determined in this List, as it is likely to be determined more quickly than in the Common Law Division. It is then anticipated that the proceedings concerning the individual plaintiffs may then be transferred back to the Common Law Division for separate determination of the issue of damages. 13. For these reasons, I consider that the most efficient course to determining the issues between these parties is that the proceedings be consolidated in this Court and that the issue of liability be determined in this List. I am not, however, minded to make the transfer of Ms Hicks proceedings to this Court subject to the conditions sought. I make the following orders, notations and directions: Transfer and consolidation 1. Pursuant to section 140(1) of the Civil Procedure Act 2005 (NSW), order that proceedings no. 2018/359177 in the District Court of New South Wales, Hicks v Northern NSW Local Health District (the Hicks proceedings), be transferred to the Technology & Construction List of the Equity Division of this Court. 2. Pursuant to rule 28.5 of the Uniform Civil Procedure Rules 2005 (NSW), order that: 1. the Hicks proceedings; 2. proceedings no 2018/199548 in the Common Law Division of this Court, Wisemantel v SKMW Pty Ltd (the Wisemantel proceedings); and 3. proceedings no 2018/357697 in the Common Law Division of this Court, Chamberlain v John Holland Pty Ltd (the Chamberlain proceedings) be administered, heard, and determined together with these proceedings (the Technology & Construction List proceedings) on the issue of liability, with evidence in liability in one proceeding to be evidence in the other proceedings. 1. NOTE that, following the determination of the issue of liability, the parties anticipate that the Hicks, Wisemantel and Chamberlain proceedings may be transferred to the Common Law Division of this Court (or, in the Hicks proceedings, the District Court of New South Wales) for separate resolution of the issue of damages in each proceeding. 2. Costs of the motion filed in the Technology & Construction List proceedings on 3 May 2022 are reserved. Case management directions 1. Defendants to file and serve defences in the Chamberlain proceedings by 8 July 2022. 2. Any cross-claims in the Hicks, Wisemantel or Chamberlain proceedings to be filed and served by 8 July 2022. 3. Responses to the List Statement in the Technology & Construction List proceedings and any cross-summonses to be filed and served by 8 July 2022. 4. Any reply in the Chamberlain Proceedings and in the Technology & Construction List proceedings to be filed and served by 22 July 2022. 5. Each of the plaintiffs in the Hicks, Wisemantel and Chamberlain proceedings and the Technology & Construction List proceedings to file and serve any lay and expert evidence on liability by 2 September 2022. 6. Each of John Holland Pty Ltd, SKMW Pty Ltd and Building and Construction Test Laboratory Pty Ltd to file and serve any lay and expert evidence on liability by 11 November 2022. 7. Each of the plaintiffs in the Hicks, Wisemantel and Chamberlain proceedings and the Technology & Construction List proceedings to file and serve any lay and expert evidence in reply by 23 December 2022. 8. All proceedings be listed for directions before the Technology and Construction List Judge on 9 September 2022 at 11.00 am. 9. NOTE that an additional defendant may need to be joined to the Chamberlain proceedings, being the plaintiff's employer, such that the case management directions may need to be revised. 10. Grant liberty to all parties to apply on two days' notice. ********** Amendments 11 July 2022 - Correction of proceedings number in orders to 2018/359177. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2022