Smith v Transport for NSW [2022] NSWSC 1803

Supreme Court New South Wales

Medium Neutral Citation: Smith v Transport for NSW [2022] NSWSC 1803 Hearing dates: 4 March 2022 Date of orders: 4 March 2022 Decision date: 04 March 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: I make the orders sought by the parties allowing them to finalise their evidence, organise conclaves and finalise their pleadings in the three months prior to the hearing. Catchwords: CIVIL PROCEDURE — Court administration — Case management – where previous orders made not complied with by the parties – where hearing date three months away – whether further orders should be made with respect to finalisation of evidence – purposes of judicial case management Category: Procedural rulings Parties: Daniel James Smith (Plaintiff) Transport for NSW (Defendant) Representation: Solicitors: Beston McManis Lawyers (Plaintiff) McCabes Lawyers (Defendant) File Number(s): 2019/293029 Publication restriction: None

REVISED EX TEMPORE Judgment 1. This matter comes before me today for the purposes of a further case management hearing. The matter was last before me on 26 August 2021, at which time I made orders confirming earlier orders made by the Registrar on 2 July 2021. I also made orders granting leave to the plaintiff to file and serve an amended statement of claim by 9 September 2021 and granting leave to the defendant to file and serve a new defence by 23 September 2021. 2. I listed the matter for hearing for four days commencing 14 June 2022 and also a further status review on 4 March 2022. Shortly before this status review, I received an affidavit from a solicitor employed by the solicitor for the defendant, Mr Howard, setting out the background to what he suggests in his affidavit was substantial non-compliance with the orders previously made. I note that the orders previously made include the service of expert liability evidence by 9 July 2021; that the parties participate in a mediation; that the plaintiff was to serve evidentiary statements; that the defendant was to serve evidentiary statements by 30 January 2022; and that the parties were to arrange for conclave conferences by 30 March 2022. 3. Whilst some of these orders have been complied with, it is apparent that, by and large, most of them have not been. 4. Each party seeks to blame the other. The defendant says that the plaintiff did not file the further amended statement of claim which I directed be filed by 9 September 2021 and, thus, the defendant has not been in a position to file its own defence or serve evidentiary statements because it needs to understand the case to be met. 5. The plaintiff says that it provided a draft or further amended statement of claim to the defendant back at the time of mediation, which I understand was on 21 September 2021, but there were problems with filing it and, therefore, it did not do so. The plaintiff says that he served a notice to produce in October 2021 but the defendant has been, in some way, resisting the production of documents or arguing about which documents should be produced, which has impacted on the plaintiff's preparation of the case. 6. Mr Howard says in his affidavit that he has been corresponding with the plaintiff about the terms of the notice to produce. It does appear from the correspondence from the solicitors for the defendant that there have been a number of emails about the preparation of this matter which have not been responded to promptly by the plaintiff. 7. The parties seek further orders essentially allowing them to file further pleadings, exchange lay evidence and serve liability evidence over the next three months, right up to the time of the hearing date. By the time that all of the evidence is served, the experts will be meeting in conclave quite close to the time of the hearing. 8. That leaves me with only two alternatives, either: 1. to vacate the hearing date, which neither party is seeking; or 2. to make the orders that the parties seek, essentially allowing the parties to finalise all of their evidence, organise conclaves and finalise their pleadings in the three months before the hearing. 1. This is a matter which is only listed for four days and, at least on my analysis, is not a complex personal injury matter. 2. During this directions hearing, I provided a summary of what has occurred to the parties and neither solicitor disagreed with my assessment that, bearing in mind what has happened and the orders proposed by the parties, the case management over the last year has been a complete waste of time. That is because both the Registrar and I have made orders endeavouring to ensure that all evidence was completed and served by now; that is, three months before the hearing (or at least by 30 March 2022, when the conclave reports would be due). This is an unsatisfactory state of affairs. 3. It must be said that this is not the only matter I have been managing in this list that has come before me this year where there has been significant non-compliance with case management orders. 4. It is important in case management that the Court look forward, not always backwards, in terms of ensuring that a matter is ready for hearing but the orders of the Court are intended to be complied with. Case management, particularly judicial case management, is designed to serve a number of purposes, including: 1. ensuring that only the necessary and required Court time is allocated for a hearing; 2. ensuring that the parties' pleadings properly reflect the case that each party intends to run and do not raise matters that should not be in dispute; 3. ensuring that any late applications to amend pleadings throwing hearing dates in doubt are not made; 4. ensuring that all evidence is served well before any allocated hearing date; that is, generally months, not days or weeks, subject of course to bringing any evidence up to date; 5. ensuring that the parties have given proper consideration to the real issues in dispute and that each party is aware, either through pleadings, particulars or even direct correspondence (such as emails or letters which I may order be sent), is aware of the case that they have to meet; and 6. ensuring that all appropriate steps have been taken or will be taken to attempt resolution of the matter as a whole, or at least with respect to some of the issues. 1. In this matter, the case is essentially being prepared in the three months before the hearing. When I go back through the file, I see that the matter commenced in 2019 and there have been orders made on a number of occasions about service of evidence which could not have been complied with. 2. The plaintiff was ordered to file and serve a further amended statement of claim in September 2021. The plaintiff did not do so. It may be, as Mr Macken says, that the defendant should have been aware of the case that the plaintiff was pursuing because the plaintiff had served a draft form of the amended statement of claim. However, the defendant says it was entitled to ensure that the pleadings were filed and not serve its evidence until the document had been filed. That is so. 3. All matters listed for five days or more are to be judicially case managed from the time that the matter is allocated a hearing date until the hearing date. That system has been in place since 2020. Practitioners should by now be aware that it will no longer be satisfactory for practitioners to attend on these case management directions and not be in a position to identify the real issues or explain why certain issues are being pursued. In personal injuries actions, for example, defendants often deny even the existence of a duty of care and are unable to explain why that is being pursued. 4. In the end, in this matter, I am content to make the further orders sought by the parties which, as I have said, result in substantial preparation taking place right up to the time of the hearing. That, of course, creates a risk that issues might arise when, for example, the experts provide their joint report. That indeed places the hearing date at risk. I do not know at this stage whether it will be at risk, but I do not intend to vacate the hearing date and no one is suggesting as such. 5. The point of this judgment is to specify that the orders made as part of this list, being the Long Matters List in the Common Law Division, need to be complied with and, in particular, the purpose of any orders made is to ensure that all of the matters which need to be attended to will be attended to at least three months prior to the hearing date. This has not occurred in this matter and, in my view, that is an unsatisfactory state of affairs. 6. In any event, I make the orders.