Carr v O'Donnell Griffin, Carr v Wagga Mini Mix and Pre Cast Concrete Pty Ltd [2013] NSWSC 252

Supreme Court New South Wales

Medium Neutral Citation: Carr v O'Donnell Griffin, Carr v Wagga Mini Mix and Pre Cast Concrete Pty Ltd [2013] NSWSC 252 Hearing dates: 14/03/2013 Decision date: 14 March 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Order that proceedings 2009/339807 and 2011/354221, which are to be heard at the same time, be heard in Sydney. (2) Confirm that the proceedings will commence on 2 April 2013. (3) Grant any of the parties liberty to apply on 24 hours notice or any further directions. (4) Order the plaintiff to pay the defendants' costs of the recent directions hearings. Catchwords: PRACTICE AND PROCEDURE - Failure to comply with case management orders - The appropriate use of expert evidence - A request for the Court to change the location of the conduct of the hearing - Providing equal weight to the objectives of case management and the exceptional circumstances of the case. Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules Category: Procedural and other rulings Parties: Rodney James Carr (P) (both matters) O'Donnell Griffin (D) (2009/339807) Wagga Mini Mix and Pre Cast Concrete Pty Ltd (D) (2011/353221) Representation: Counsel: S Blount (P) (both matters) T A Berberian (D) (09/339807) K Glyde (D) (11/354221) File Number(s): 2009/00339807, 2011/00353221

EX TEMPORE Judgment 1These proceedings are presently listed for a hearing to commence in Wagga Wagga on 2 April 2013. 2There are two sets of proceedings. The first is the proceedings commenced in 2009 to which the parties refer to as the "public liability" proceedings. The second is a set of proceedings commenced in 2011 to which the parties refer to as the "work injury damages" proceedings. It is clear that the proceedings are to be heard together and the evidence in one proceeding will be evidence in the other proceeding. 3On 14 September 2012, a motion, brought by the plaintiff, was referred for hearing to the duty judge. The motion sought that the hearing of the proceedings be expedited and that the hearing of the matter be conducted in Wagga Wagga. McCallum J, who was the duty judge, determined that the hearing of the proceedings should take place in Wagga Wagga. At that time - as her Honour's judgment records - she was confronted with the consent of the defendants to that course and further, with a number of particular features about the plaintiff and his case which amply supported a conclusion that the hearing should take place in Wagga Wagga. 4Of particular importance to her Honour's decision was that at the time of her Honour's judgment, the plaintiff was the sole carer of his teenage daughter who attended school in Wagga Wagga, and that, if the plaintiff was required to travel to Sydney, his daughter would be required to travel with him and she would not be able to attend school. 5As well, her Honour was confronted by evidence which satisfied her that the plaintiff would have difficulty spending an extended time in Sydney because of his medical condition. Finally, her Honour was informed that there would be experts attending from Sydney and Melbourne for whom Wagga Wagga was a convenient mid-point. 6On the basis of those facts and submissions, her Honour ordered that the matter be heard in Wagga Wagga. She also gave a series of directions, principal amongst which were these: (a)Firstly that the plaintiff was to serve witness statements of each witness, including any evidentiary statement of the plaintiff, by 31 October 2012; (b)Secondly, that the defendant would serve witness statements for any witness they intended to call, by 30 November 2012. (c)Thirdly, that there were to be expert conclaves which were to be conducted by 15 February 2013 with joint reports being provided to the Court by 28 February 2013. 7The matter was restored to the list before me in March 2013, at the request of the solicitors for O'Donnell Griffin Pty Ltd, because of a failure by the plaintiff, in particular, to comply with these case management orders. 8It became apparent to me when the matter was restored to the list, that putting it simply, with one exception, there had been no compliance with these case management orders, and as well, notwithstanding earlier contrary orders, the plaintiff had recently served an initial report from a qualified psychiatrist upon which he proposed to rely on at the hearing. 9It seemed at that stage when the matter was first before me, that it was unlikely to be ready for a hearing on 2 April 2013. Proceedings were stood over until today, to determine, with some better information whether that was so. 10I am now informed that on the issue of liability, the evidence called on behalf of the plaintiff will comprise such evidence as he may give, which is set out in a signed evidentiary statement which has now been filed, and as well, evidence contained in an expert report of Dr Dohrmann, an engineering expert who lives and works in Melbourne. The two defendants have informed me that they do not intend to call any evidence on the question of liability, nor have they retained an expert on liability whom they wish to call. However, they wish to cross-examine both the plaintiff and Dr Dohrmann. 11On the issue of damages, it will be necessary for the plaintiff to give evidence as to the consequence of the injury which he says he sustained. As well, it is anticipated that the plaintiff's daughter, Toni - who now lives in Canberra - will give evidence which is to be relied upon. A draft statement of Toni's evidence has been served and it is anticipated that a signed statement will be served in the very near future. There is no other lay evidence on the question of damages to be called by the plaintiff. There is no lay evidence on the question of quantum to be called by either of the defendants. 12The remaining witnesses, all of whom addressed the question of damages, consist of qualified experts in the fields of psychiatry, orthopaedic surgery, occupational therapy and rehabilitation medicine. 13With the exception of the group of treating specialists to whom I will shortly come, all of the qualified experts live and practise in Sydney, with the exception of Dr Geoffrey Miller, who practises in Southport in Queensland. In the event that any of these witnesses are required to give evidence, it is obvious that a trial in Sydney is far less expensive for the parties and far more convenient to the witnesses. 14The exception to this group of qualified experts are five treating specialists. They consist of the plaintiff's general practitioner, Doctor Tran, who has his practice in Tumut; a physiotherapist who, from time to time, has provided treatment to the plaintiff, who also has her practice in Tumut; two orthopaedic surgeons, Doctor Hatfield and Doctor Fielding, who practise in Wagga Wagga; and finally, a work rehabilitation specialist who also practises in Wagga Wagga. 15I am told that this group of treating specialists have, in the course of their provision of treatment to the plaintiff, provided reports or letters which record what they have done, why they have done it, and the basis for their provision of that treatment. 16I am informed by counsel for O'Donnell Griffin that her solicitor, having been served with a bundle of documents sourced from these experts, takes the view, apparently for more abundant caution, that it is appropriate to require the plaintiff to produce these treating specialists for cross-examination. 17I wish to make two comments about that requirement. 18The first comment is that it is not immediately apparent to me what the source of the power is in the defendant to require the plaintiff to produce these experts for cross-examination. As I understand the authorities, a party is entitled to tender as business records, letters, reports or correspondence which have travelled between experts including doctors, and which have been provided to insurance companies. There is no opportunity when such documents are tendered, for an opposing party to require the attendance of the author of those letters. Of course it may be necessary for the party tendering the documents to prove they are, in truth, business records. Usually that does not cause any difficulty. 19The second comment which is a matter upon which I wish to remark, is this: it is the common experience of the Common Law Division that there are very few, if any real issues that arise with respect to the provision of treatment which can be elucidated by cross-examination. 20In the particular circumstances here, it is a complete mystery to me what issue or issues relevant in these proceedings, could possibly be dealt with by the cross-examination of a physiotherapist, and, in circumstances where each party has qualified orthopaedic surgeons or specialist surgeons who have provided comprehensive reports and who will meet together to provide a joint report, what issue will arise which will necessitate cross-examination of the treating orthopaedic surgeons. Quite what questions the defendant's counsel will ask of those doctors, is not obviously apparent. Of course, it is always possible that there may be some issues as to what treatment was in fact carried out, but these can often be attended to without the need to require treating specialists to attend court. 21I note that, in the course of submissions to me, counsel for O'Donnell Griffin, whose solicitor it was who required the treating specialists for cross-examination, has told the Court that it is unlikely that these experts will be required for cross-examination. As well, she has accepted that if any cross-examination is required her client would not oppose an order that such cross-examination be conducted over the telephone. Counsel for O'Donnell Griffin also made it clear that since it was not presently anticipated for the joint conference of orthopaedic surgeons to take place until Thursday 28 March 2013, which is the last business day before the hearing of these proceedings is due to commence, that no final decision about the need for cross-examination could be made prior to 2 April 2013, when the proceedings are scheduled to commence and then, only after the joint reports are made available. 22Two issues arise for consideration: firstly, whether the proceedings should retain their listing to commence on 2 April 2013, having regard to the abject failure of the plaintiff, and then the defendants, to comply with the case management orders of the Court, in particular for the arranging of joint conclaves of experts and the obtaining of joint reports in a timely fashion. 23The second issue is whether the Court should conduct the hearing of this case in Wagga Wagga, and require all of the Sydney, Melbourne and Southport based experts to make their way to Wagga Wagga for the purpose of giving evidence there. The plaintiff submits that the hearing should remain in Wagga Wagga and counsel for O'Donnell Griffin submits that the hearing should take place in Sydney. Counsel for the other defendant, Wagga Mini Mix and Pre Cast Concrete Pty Ltd, neither opposes nor consents to the order and submits that it is a matter for the Court. 24The basis of the plaintiff's submission is that he would be prejudiced unfairly by being required to conduct this litigation in Sydney. It is submitted on his behalf that having regard to his physical injuries, his requirement for medical treatment, his very low level of income and, in particular, his general inadequacy of funds, having regard to his reasonable level of financial expenditure, that it would be unfair and prejudicial to him to require him to conduct this hearing in Sydney. 25To the extent that he relied upon the fact that he was the sole carer for his daughter who was at school in Wagga Wagga at the time. It is now clear that that this position has changed and he no longer has this role, because his daughter now resides with her mother in Canberra. 26Insofar as his physical condition is concerned, the highest which his evidence rises, is that he is of the opinion that he could not stay and be physically cared for in Sydney for an extended period of time and further, that his mobility difficulties and physical incapacity would make it difficult to get around in Sydney. There is no medical evidence tendered which supports that statement or the extent of the plaintiff's present physical incapacity. 27Whilst I accept that he is, to a degree, physically disabled, it is apparent that the plaintiff has been able to attend Sydney in the past for the purposes of undergoing examinations by qualified experts. Whilst he is entitled to be present throughout his case, there is no obligation on him to be present except for such period of time that he is required to give evidence. 28So, on the one hand I am confronted with a case in which, on the probabilities the only witness to give evidence based in Wagga Wagga will be the plaintiff. One other likely witness will be based in Canberra, which seems to me to be as convenient for access to Sydney as it is to Wagga Wagga. 29If the case were to be heard in Wagga Wagga, all of the experts would need to leave their practices in Sydney, Melbourne and Southport and travel there. The costs to the parties of that exercise are very high. The cost to the Court of travelling to Wagga Wagga, including the cost to the lawyers, who are primarily although not entirely based in Sydney, would also be significant. Whilst if I may say, with respect, there was no doubt good reason for McCallum J to make the order that she did when confronted by the evidence before her, there seems to be absolutely no basis now for this hearing to be conduct in Wagga Wagga. 30The plaintiff's physical and medical condition does not preclude him from coming to Sydney for a period sufficient to give his evidence and to stay for as long as he is able. As I have said, it is just as convenient for his daughter to come to Sydney, as it is to go to Wagga Wagga. It is more convenient for all qualified experts to come to Sydney and far less expensive if they do so. 31In the event, which I assess to be unlikely, that any of the treating experts are required to give evidence, then that can be managed by telephone from Sydney. Accordingly, I will in due course make an order that the hearing of this case is to take place in Sydney. 32A further question arises as to whether this case should start on 2 April 2013 at all. A conclave has taken place between the two occupational therapists, although a joint report is not yet available. Although arrangements have not yet been made, the parties anticipate that a conclave between the two psychiatrists may be able to take place in the week commencing 18 March 2013 or else, at the latest, in the week commencing 25 March 2013. The conclave of orthopaedic surgeons is, as I have already mentioned, arranged to take place on Thursday 28 March 2013. 33None of the parties have informed me that arrangements have been made to ensure that the experts taking part in these conclaves are available to give evidence jointly, as required by the Court's practice in the week of 2 April 2013. I can only assume that the parties have made the appropriate arrangements to ensure that their experts are available otherwise neither party would say that this case should proceed. 34Case management orders are made to further the overriding purpose of the Civil Procedure Act 2005 and the UCPR, which is to facilitate the just, quick and cheap resolution of the real issues in the dispute. As well, case management orders are to have regard to the following objectives which are set out in s 57(1) of the Civil Procedure Act namely - the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of resources, and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. 35If I were to vacate the hearing which the lack of preparation by the parties and attention to the Court's orders would suggest ought be done, then that would cause significant prejudice to the plaintiff. One of his cases has already been on foot for almost four years and it should have an early hearing. On the other hand, the plaintiff has not fulfilled the duty placed upon him under this section, to ensure that the case is ready for a hearing. A vacation of the hearing date will itself entail cost and expense to all of the parties. 36I find myself in an unenviable position. The orderly process of the disposal of proceedings in this Court would suggest where parties do not comply with court orders their cases should not be heard, and the natural instinct, when confronted with the lack of compliance which exists in this case, is simply to vacate the hearing and not order a re-listing until such time as the solicitors for each of the parties certify that in their opinion all matters necessary to ensure a hearing have been attended to. Such a direction would achieve some of the objectives of case management. 37However, it would not achieve a speedy hearing because if that were done, then on present estimates, it is likely that the case would not be heard for another five or six months. On the other hand, if I do not vacate the hearing it may be seen to reward poor preparation and non-compliance with the UCPR. 38It is necessary for me to have regard to all of the circumstances and attempt to give a ruling which has regard to the interests of justice and the objectives of case management. 39I have come to the view that this is an exceptional case. Whatever has happened and whatever delays have taken place, if one accepts, as I must, that the evidence set out in the plaintiff's affidavit is accurate, his physical condition is challenging, as is his financial status. He is entitled to know whether that will be addressed by his claim for damages. 40In those circumstances, I think, giving that matter greater weight than other factors to which I have referred, this exceptional case becomes more important. Accordingly, I will not vacate the hearing date of this matter. I will confirm that it will commence on 2 April 2013 and I will expect the parties to ensure that once it commences it runs continuously through until its conclusion. I do not regard the mere fact that joint conclaves of experts have not yet taken place as providing any reason whatsoever for there to be any adjournment of the proceedings halfway through nor provides any basis for the non-availability of experts who are required to attend for giving evidence. 41As I presently see it, the plaintiff's evidence and that of his daughter and the expert on liability is unlikely to occupy a very long time at all. It seems to me that there may well be time on Wednesday 3 April and certainly Thursday 4 April for the joint evidence of experts to take place and the parties should arrange their affairs accordingly. 42I also do not see why there is any reason for this case to take any longer than four days, commencing on 2 April 2013. 43In all of those circumstances I make the following orders: (1)I order that proceedings 2009/339807 and 2011/354221, which are to be heard at the same time, be heard in Sydney. (2)I confirm that the proceedings will commence on 2 April 2013. (3)I grant any of the parties liberty to apply on 24 hours notice or any further directions. (4)I order the plaintiff to pay the defendants' costs of the recent directions hearings.