Robinson v Professor Lance; Robinson v Dr Hampshire [2012] NSWSC 88

Supreme Court New South Wales

Medium Neutral Citation: Robinson v Professor Lance; Robinson v Dr Hampshire [2012] NSWSC 88 Hearing dates: 17 February 2012 Decision date: 17 February 2012 Jurisdiction: Common Law Before: Harrison J Decision: 1. Order that the Motor Accidents Authority and GIO General Ltd be joined as the second and third defendants respectively to the Professor Lance proceedings. 2. Make no order as to the costs of today. 3. Stand both of the Professor Lance proceedings and the Dr Hampshire proceedings into the Registrar's list for directions on Friday 30 March 2012 at 9.00am. Catchwords: PROCEDURE - UCPR 6.24 - joinder of proper or necessary party Legislation Cited: Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 Category: Procedural and other rulings Parties: David Robinson (First plaintiff) Sonia El Masri (Second plaintiff) Professor James W Lance (Defendant) Dr Robert Bernard Hampshire (Defendant) Representation: S Ohnesorge (Professor Lance) File Number(s): 2011/27180 and 2011/39668

JUDGMENT 1HIS HONOUR : David Robinson is the first plaintiff in each of these proceedings. Sonia El Masri is his wife and the second plaintiff. In proceedings 2011/27180 the defendant is Professor James W Lance. In proceedings 2011/68198 the defendant is Dr Robert Bernard Hampshire. The plaintiffs are not legally represented. Sonia El Masri appears at the bar table apparently on behalf of herself and her husband in both matters. 2The statements of claim in each matter are imperfect in form. Doing the best I can I perceive that the plaintiffs allege that Professor Lance failed to comply with the principles of what is described as the code of conduct for medical assessors and failed to comply with s 59A(1) [ sic ] of the Motor Accidents Compensation Act 1999 . That allegation itself arises from the following context. The plaintiff attended a medical assessment with Professor Lance at the request of the Motor Accidents Authority on 26 May 2010. On 2 June 2010 Professor Lance issued an MAS certificate to the Motor Accidents Authority making what are alleged to be false and misleading allegations or comments, presumably about the first plaintiff. It is alleged that the first plaintiff thereby suffered some form of unspecified injustice and hardship "by reason of the negligence" of Professor Lance. The statement of claim contains particulars of the negligence alleged. 3The brief procedural background would appear to include the following. The matter first came in for directions on 21 March 2011. Between 21 March and 15 September 2011, several orders were made by Registrar Bradford directing the plaintiffs to file an amended summons naming the Motor Accidents Authority and GIO General Limited, which was the insurer and a party to the certificate below which the plaintiffs seek to impugn. 4The plaintiffs' position is that GIO should not be a party because the plaintiffs' complaint is directed to the conduct of the assessor. GIO does not therefore need to take a position in relation to the claims made in the proceedings because it is not their conduct that the plaintiffs are seeking to challenge. Registrar Bradford has expressed the opinion on a number of occasions that GIO General Limited is in fact the proper contradictor to this matter, presumably having regard to the relationship between the Authority and any medical practitioner to whom any person is referred for assessment under the Motor Accidents Scheme. The assessor in this case apparently wrote to GIO General Limited some months ago and the Authority's position is that while they do not seek to be joined, they obviously recognise that it is a matter for the Court as to whether they are or not. Their position is that they are not going to file a motion seeking to be joined as a proper party. The assessor has since filed a submitting appearance. A proposed amended statement of claim was apparently served at a directions hearing on 15 September 2011. It has not been filed. 5On the last occasion Ms Ohnesorge appeared as a courtesy to the Court to mention the matter on behalf of the Motor Accidents Authority. She informed me that an application had been made or foreshadowed by the plaintiff for leave to file an amended statement of claim naming Professor Lance, the Motor Accidents Authority but not GIO General Limited as defendants. Ms Ohnesorge also indicated that that application for leave has not been heard or determined given that the assessor, who is the only currently named defendant, has filed a submitting appearance. She indicated that the defendant was not opposing the filing of that amended statement of claim and accepted that it was a matter for the Court to determine whether or not an order should be made naming GIO General Limited as a party to these proceedings. I am led to understand that the plaintiff strenuously opposes such an order. 6On the last occasion Ms El Masri put her position in the Professor Lance matter as follows: "EL MASRI: Your Honour, I'm simply seeking a hearing date to have Professor Lance subpoenaed to court, to have him cross examined and make him answerable to what had occurred in that assessment done. There's been too much time wasting. In relation to this it's been dragging on from the beginning of the year. I know that their position is they're trying to shift the liability on to GIO Insurance when in fact the Crown is responsible for the appointment of the MAA assessor. I'm simply bringing the MAA assessor before the court, to have him answerable to what had occurred in that assessment and that's what I'm seeking." 7The proceedings against Dr Hampshire were commenced by statement of claim filed on 25 March 2011. He is the only defendant. It would appear that Dr Hampshire at some time treated the first plaintiff but not within the context of the Motor Accidents Compensation Act or the assessment scheme there under. Ms Ohnesorge does not in those circumstances appear in that matter to assist the Court in the limited fashion in which she indicated she appeared in the Professor Lance matter. 8The statement of claim in this matter is also imperfect. It is sufficiently clear, however, to convey the impression that the plaintiffs are dissatisfied with Dr Hampshire in a number of respects. In particular, the plaintiffs complain that he treated the first plaintiff and produced reports about his psychiatric condition to the conclusions of which the plaintiffs have taken some particular exception. The claim for damages against Dr Hampshire is for professional negligence in the relatively precise sum of $10,560,990.00. Dr Hampshire would appear to have filed neither an appearance nor a defence. 9The statement of claim is arguably amenable to an application to strike it out. No such application has been made. On the contrary, the plaintiffs have filed a motion seeking judgment by default for unliquidated damages. That motion would not appear yet to have been dealt with by the Court. 10The file reveals that Rothman J made an order that the proceedings be referred to the Registrar for referral by him for pro bono assistance pursuant to UCPR 7.36. The file does not suggest that pro bono assistance was forthcoming from any solicitor or barrister who may have been approached in accordance with that order. 11UCPR 6.24 provides as follows: " 6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party. ... 12The plaintiffs' proceedings against Professor Lance and Dr Hampshire are each in need of some direction. There is a considerable doubt that the Professor Lance proceedings are properly constituted, either for want of a proper defendant or for want of the proper defendants. I express no final view about that. However, having regard to the dictates of justice and to the overriding purpose referred to in the Civil Procedure Act 2005 , it seems to me to be necessary for the determination of all matters in dispute, or which I perceive may be in dispute, that the Motor Accidents Authority and GIO General Ltd be joined as the second and third defendants respectively to the Professor Lance proceedings. I note in this context that the expression "all matters in dispute in [the] proceedings" is not limited to matters that arise on the existing pleadings and are apt to encompass a number of matters that will inevitably, or at least probably, emerge in the fullness of time. 13I have given some consideration to an order that the two proceedings be joined or linked in some way so as to travel along a similar procedural path. There is however no obvious or principled basis for such an order to be made and I decline to make it. There does not appear to me to be any basis for the joining of any other party to the Dr Hampshire proceedings.