DEAN v PHUNG [2009] NSWSC 201

New South Wales Supreme Court

CITATION : DEAN v PHUNG [2009] NSWSC 201

HEARING DATE(S) : Wednesday 11 March 2009

JUDGMENT DATE : 11 March 2009

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : I order that the issue of liability in these proceedings be tried at the same time as in proceedings No 20006 2008 between Advanced Arbor Services Pty Limited as the plaintiff and Dr Mark Phung as defendant. The costs of this application reserved to be determined at a future date by the trial judge. An application for costs is made also on behalf of Advanced Arbor Services Pty Limited and is to be determined in the future by the trial judge.

CATCHWORDS : Application to consolidate proceedings

Limitation Act 1969 Workers Compensation Act 1987 LEGISLATION CITED : Fair Trading Act 1987 Civil Procedure Act 2005 Uniform Civil Procedure Rules

CASES CITED : Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR at 530

PARTIES : Todd Owen DEAN v Mark PHUNG

FILE NUMBER(S) : SC No 20571 of 2008

P: D Hooke COUNSEL : D: D Nock SC Advanced Arbour: S CampbellSC/M J Walsh

P: Beilby Poulden Costello SOLICITORS : D: Guild Legal Limited Advanced Arbour: Turks Legal

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HALL J

WEDNESDAY 11 MARCH 2009

No 20571 of 2009

TODD OWEN DEAN v MARK PHUNG

JUDGMENT

1 HIS HONOUR: In these proceedings, application has been made on behalf of the plaintiff, Mr Dean, for an order to consolidate the proceedings with proceedings brought by Advanced Arbor Services Pty Limited against Dr Mark Phung they being proceedings No 20006 2008 commenced by Statement of Claim filed 17 January 2008. 2 The original notice of motion, when it was filed on behalf of Mr Dean on 18 February 2009, was supported by the affidavit of his solicitor sworn 18 February 2009. An amended notice of motion was filed on 6 March 2009 supported by Mr Poulden's affidavit sworn 4 March 2009. 3 The present proceedings were only commenced on 18 December 2008, that is some eleven months or so after the proceedings brought by Advanced Arbor Services Pty Limited. The proceedings by Advanced Arbor Services were set down by the Registrar on 29 October 2008 for hearing on 25 March 2009 for three days. Both proceedings arise out of an incident, or accident, said to have occurred involving Mr Dean on 19 December 2001. 4 Advanced Arbor Services in its Statement of Claim says the plaintiff was employed as a trainee aborist/agricultural worker and that, on that occasion, he was hit on his chin by a log causing injuries to his teeth and jaw. On 16 January 1982, according to the Statement of Claim to which I have referred, Mr Dean was referred to Dr Phung by Advanced Arbor Services for medical or other treatment of his injuries. 5 It appears from the material on this application that the dental treatment administered by the defendant, Dr Phung, commenced on 16 January 2002 and continued over several months at least in 2002, at least until October 2002 if not later, and he had some further treatment at some point prior to 19 June 2003 from Dr Phung. 6 Particulars of the Statement of Claim filed on behalf of Mr Dean have been requested by letter and, on 16 February 2009 particulars were furnished to Dr Phung's solicitor. As yet no defence has been filed in the present proceedings No 20571 of 2008, and there has been raised in prospect an intention by Dr Phung to rely upon a limitation issue under the Limitation Act 1969 in respect of treatment given prior to 18 December 2002. 7 It appears from the material on this application that a good deal of the treatment was performed in the period I have earlier referred to between 16 January 2002 and some date in October 2002. In relation to the evidence on the application Mr Poulden in his affidavit sworn 4 March 2009 has referred to the proceedings brought by Advanced Arbor Services for what he terms recovery of benefits paid on behalf of Advanced Arbor Services in accordance with the Workers Compensation Act 1987 and additionally he referred to the fact that Advanced Arbor Services had served medical evidence in support of the allegation of negligence against Dr Phung and that Mr Dean seeks to rely upon those reports in establishing negligence against Dr Phung. 8 It has been said on this application that the issue of negligence, so far as it relates to Mr Dean, is identical to that pursued by Advanced Arbor Services. 9 Mr Dean, in addition to the dental injuries, asserts that he has suffered psychological injury and has had related problems with headaches and in those respects - matters concerning damages - there is a difference in respect of the claim for damages. It is contended it would be unfair to Mr Dean to have to give evidence in two separate proceedings and, accordingly, an order for consolidation is sought. Alternatively, it is said that the consolidation be limited to the issue of breach of care. 10 The defendant, Dr Phung, relies upon the affidavit of Fiona Dransfield sworn 3 March 2009. That affidavit provides some factual material which includes the statement that the last treatment by Dr Phung was 18 July 2003 and contends the majority of the treatment was between 16 January 2002 and 6 February 2003. Ms Dransfield says that the Limitation Act will be relied upon in respect of the treatment prior to 18 December 2002 and refers to the fact the defendant is aware of the plaintiff having sought legal advice from different solicitors to those presently acting for him. Ms Dransfield states she would wish this aspect of the matter to be investigated before a question of liability is decided and observed that the causes of action in the proceedings by Advanced Arbor Services are not limited to negligence and issues raised under the Fair Trading Act 1987 and the Workers Compensation Act. 11 Ms Dransfield significantly says in relation to negligence that the question of duty of care allegedly owed by Dr Phung to Advanced Arbor is "the only issue in respect of negligence between the parties in the Arbor proceedings" (paragraph 10). 12 She observed that the nature of the duty of care is different so far as that alleged duty is owed to Advanced Arbor to that alleged to be due to the plaintiff, Mr Dean. It was also noted that it will not be contested that Dr Phung owed a duty of care to carry out the treatment in a professional manner and thus 'the issues of the two claims in respect of negligence are completely different". 13 Other observations were made on the question of damages, including a claim for recovery under s.15(2) of the Workers Compensation Act by Advanced Arbor. 14 I interpose to say in that respect Mr Campbell SC has appeared on behalf of Advanced Arbor and at the hearing of this application he said the claim for indemnity under s.55 of the Statement of Claim and under s.151Z(2)(d) of the Workers Compensation Act will not be pursued. It has been said the claim against Mr Dean is not ready to proceed. 15 In his submissions Mr Campbell has raised a number of matters. I limit my observations to three points made by him. Firstly, that Advanced Arbor's consent to consolidation was provided the hearing date set for 25 March is not lost. Secondly, that there is essentially only one issue that is common to both proceedings in relation to the negligence ground, and that is what he termed causation, and in that regard he made reference to the decision of the High Court in Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR (p.530 of the joint judgment), that being relevant to the novus actus point. Thirdly, so far as breach of duty is concerned, no evidence has been served in relation to Dr Peppitt's report dated 7 January 2008, which is Exhibit 1 on this application. Another medical report has been served. In those circumstances Mr Campbell has said that the liability issue has been narrowed down. 16 Mr Hooke, of counsel, who appeared on behalf of Mr Dean, raised a number of matters emphasising not only the Mahony (supra) point as an issue arising in both proceedings, but also s.56 of the Civil Procedure Act 2005, and further the risk of inconsistency with two different judges conducting different trials in relation to the two proceedings. Conducted separately, he suggested this was a risk that could affect Dr Phung and that there could be some advantage to him in having the matters consolidated. 17 So far as any limitation issue is concerned, if raised, liability is essentially unanswered on evidentiary material relied upon and served by Advanced Arbor, and that would be a material matter on any application for an extension of time. He contended there would be no prejudice to the defendant. 18 Further, he observed, Mr Dean would have to give evidence in the Advanced Arbor case in any event, and that indicates that it would be appropriate to have the two cases consolidated. 19 Mr Nock for Dr Phung has opposed the application. He emphasised the fact that Mr Dean's case is not ready to proceed whereas Advanced Arbour's case is. There has been no statement of particulars, there has been no medical evidence served, and that means there is no opportunity to invoke prescribed professional negligence procedures, including mediation, and the defendant has no real idea as to the basis of what the claim for damages might be. 20 The application invokes the provisions of the Uniform Civil Procedure Rules, Part 28.5; and under that provision this Court may order proceedings be consolidated or be tried at the same time if it appears:-