Franklin v State of New South Wales (TAFE NSW) (No. 2) [2023] NSWSC 796

Supreme Court New South Wales

Medium Neutral Citation: Franklin v State of New South Wales (TAFE NSW) (No. 2) [2023] NSWSC 796 Hearing dates: 06 July 2023 Date of orders: 06 July 2023 Decision date: 06 July 2023 Jurisdiction: Common Law Before: Lonergan J Decision: The plaintiff is to pay the defendant's costs of and associated with her notice of motion filed on 9 March 2022. Catchwords: CIVIL PROCEDURE – costs – defendant's opposition to plaintiff's application to proceed out of time reasonable – Court assisted by defendant's counsel's submissions – plaintiff to pay defendant's costs Cases Cited: Franklin v State of New South Wales (TAFE NSW) [2023] NSWSC 293 Holt v Wynter [2000] NSWCA 143 Category: Procedural rulings Parties: Alicia Franklin (Plaintiff) State of New South Wales (TAFE NSW) (Defendant) Representation: Counsel: B McManamey (Plaintiff) D Baran (Defendant)

Solicitors: Slater and Gordon Lawyers (Plaintiff) Meridian Lawyers (Defendant) File Number(s): 2021/00307765 Publication restriction: Nil

REVISED EX-TEMPORE JUDGMENT 1. On 27 March 2023 I heard and determined an application by the plaintiff for leave to commence proceedings against the State of New South Wales, (TAFE NSW), out of time. The extension application I heard on 27 March 2023 was supported by extensive affidavit material sworn by the plaintiff herself, outlining her personal and medical history, her bullying claim against TAFE NSW, and her extensive psychiatric and psychological sequelae. She was treated by certain medication which she alleges caused other medical complications of a very serious nature. 2. In support of that application also read was an affidavit of the plaintiff's then solicitor, Ms Mackovic. She was the solicitor with conduct of the proceedings against TAFE. Ms Mackovic's affidavit was somewhat elliptical in respect of certain decision-making and there was a need to cross-examine her. As I observed in my judgment (Franklin v State of New South Wales (TAFE NSW) [2023] NSWSC 293), the cross-examination by Mr Baran was firm but fair. It revealed that Ms Mackovic made a number of erroneous assumptions about the operation of the law in respect of the applicable limitation periods. 3. Without wishing to be critical, it was in a sense her fault that the proceedings were not filed in time. The defendant, very properly, put on extensive affidavit material via its solicitor, Michael Lamproglou, which was necessary to explain the full parameters of the case, its history and explaining the potential prejudice suffered by the defendant if leave was granted to the plaintiff to proceed out of time. 4. Part of the background was the ongoing failure by the plaintiff's legal representatives to inform the defendant's solicitor that the plaintiff had actually commenced legal proceedings against the doctors and hospital that treated her condition that is said to have arisen from the negligence of TAFE NSW. Those proceedings were commenced in this Court on 2 August 2017. 5. Part of the prejudice outlined by the defendant included the complexities introduced to the situation by it having committed to a pre-filing statement response, and having prepared for the issues presented by the plaintiff's case on a certain understanding that did not include an understanding that the plaintiff had sued the medical practitioners and hospital that treated her. 6. To add insult to injury, when a specific question was directed to Ms Franklin's solicitors about whether there was a consideration that "any third party is or may be responsible for the injury" and requesting details of that third party and their alleged role, the answer given, frankly inaccurately and misleadingly, was "No. However, you should rely upon your own enquiries". 7. The fact that this answer was given by the very same firm that acted for the plaintiff in the medical negligence proceedings, and the answers given by Ms Mackovic in cross-examination indicating she knew that the medical negligence proceedings were being conducted, was surprising and, needless to say, inappropriate. That was but one aspect of the defendant's general picture it presented on the question of prejudice. 8. Counsel appearing for the plaintiff today argued that that aspect of the defendant's argument had no merit and there was no prejudice flowing from the failure to disclose the medical negligence proceedings and that the defendant, when arguing against the 151D application, raised matters that did not amount to prejudice. 9. It was argued that somehow acknowledgments made by counsel for the defendant at the hearing of the notice of motion on 27 March 2023, somehow undercut the defendant's presentation of its evidence and the position it took on the plaintiff's application. 10. I reject those submissions. 11. Counsel is required to assist the Court in answering questions directed to concerns or consideration the Court is entertaining as it heads towards reaching its final decision. It is important that the Court is able to rely on the assistance of counsel in those circumstances. 12. The attitude taken by counsel for the defendant, in openly and honestly responding to questions from the Court during argument, in no way undercuts the appropriateness of the proper preparation and opposition to what was a significant indulgence being sought by the plaintiff. The Court needs the material underpinning any such submission set out in evidence, hence the need for the affidavit material. The Court is assisted by argument outlining potential prejudice so it can evaluate where the line needs to be drawn, and whether the discretion should be exercised under the legislation to, in this case, allow the plaintiff to proceed out of time. 13. It seems to me that the defendant acted entirely appropriately in opposing the motion sought by the plaintiff. At the very least, the Court was greatly assisted by the appropriate cross-examination of the plaintiff's solicitor to identify why it was that the proceedings were brought out of time and that it was not a deliberate decision of a tactical nature taken by plaintiff's legal representatives, but was in fact a mistake. That distinction was not clear in the affidavit material relied upon by the plaintiff. 14. The Court was greatly assisted by the role of counsel for the defendant in zeroing in on the matters relevant to exercise of the Court's discretion. 15. Having considered all of those matters and relying on the approach to the award of costs in matters where a party seeks, and is given, an indulgence, I am of the view that despite the plaintiff being successful in her motion, the plaintiff should pay the defendant's costs of the motion. 16. In that respect I rely on the remarks of Sheller JA in Holt v Wynter [2000] NSWCA 143 at [121] where his Honour observed: "In relation to costs ordinarily any successful applicant who has allowed him or herself to get out of time should pay the costs of the application unless the respondent opposition was wholly unreasonable..." 1. That approach and principle has been followed and applied in a number of decisions of this Court and I apply that approach and that principle here. 2. In my view there was nothing unreasonable in the defendant's conduct in its opposition to the order sought by the plaintiff.