Cameron v Western Sydney Local Health District [2013] NSWSC 1539

Supreme Court New South Wales

Medium Neutral Citation: Cameron v Western Sydney Local Health District [2013] NSWSC 1539 Hearing dates: 27/09/2013 Decision date: 27 September 2013 Jurisdiction: Common Law Before: Garling J Decision: 1.Order that the Notice of Motion of the defendant filed 6 August 2013 be adjourned part-heard to 9.30am on Tuesday 17 December 2013. 2.Order the plaintiff to file and serve all expert reports on liability and causation upon which he proposes to rely on or before 4pm 29 November 2013. 3.Order the plaintiff to pay the defendant's costs of the Motion, excluding the costs of 12 September 2013 about which an order has already been made. 4.Reserve liberty to apply. Catchwords: PRACTICE AND PROCEDURE - application to summarily dismiss proceedings - plaintiff failure to adhere to orders for service of expert evidence - plaintiff failure to follow Practice Note SC CL 7 - plaintiff failure to acknowledge overriding purpose of the Civil Procedure Act - application stood over in the interests of justice. Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Jack Darren Cameron (P) Western Sydney Local Health District (D) Representation: Counsel: L Whalan (Plaintiff) M Scott (Defendant) Solicitors: Brydens Law Office LP (P) Henry Davis York (D) File Number(s): 2013/71670

ex tempore Judgment 1On 8 March 2013 the plaintiff, by his tutor, commenced proceedings by filing a Statement of Claim in this Court in the Professional Negligence List. The Statement of Claim sought damages for negligence arising out of the birth of the plaintiff on 10 March 2010. In other words, the Statement of Claim was filed a few days prior to the expiration of the limitation period. 2The plaintiff did not comply with the requirements of, Practice Note SC CL 7, the relevant practice note with respect to filing an expert report, which supported the claims of negligence made in the Statement of Claim. In an affidavit sworn and filed on 8 March 2013, Mr Paul Creed, the plaintiff's solicitor, explained that the firm for which he worked, Brydens, had received instructions on 15 March 2012. He deposed to a series of enquiries which had been put into place to obtain an expert report but which had not come to fruition by the time it was necessary to file the statement of claim. He said in his affidavit that it was anticipated that expert reports would be obtained and served within six weeks, that is, by the end of April 2013. 3On 17 June 2013, the solicitor for the plaintiff proposed in a set of Short Minutes of Order that the court should grant leave to the plaintiff to serve expert reports by 13 August 2013. The defendant indicated that it would neither consent to nor oppose such orders. On 18 June 2013, the Registrar made an order that the plaintiff was to serve all expert reports upon which he proposed to rely by 30 July 2013. The plaintiff did not comply with that order. 4On 5 August 2013, the defendant filed a Motion seeking orders, pursuant to various provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 (UCPR), that the proceedings be dismissed. The essential basis for the seeking of those orders was that there had been no compliance with the requirements of the Practice Note or the order made by the court with respect to obtaining a copy of the expert medical report. 5On 12 September 2013, the defendant's Motion came before the court. The plaintiff opposed the orders sought. In the course of submissions it became apparent that the plaintiff's explanation in opposition to the Motion, which consisted of an affidavit of Mr Creed dated 10 September 2013, was woefully inadequate. What that affidavit did show, however, was that there had been no real attempt by the plaintiff's lawyers to comply with their obligations under the Civil Procedure Act. 6The evidence showed that all that had occurred in the twelve months between when the plaintiff's lawyers had been consulted, on the first occasion, and when the Statement of Claim was filed, was that the plaintiff's lawyers had obtained a copy of the relevant hospital and neonatal clinical notes, and sent them, with various letters of instruction, to an expert obstetrician and gynaecologist seeking an opinion. 7A query raised on 3 December 2012, by the expert obstetrician in which he sought to be informed of further facts relating to the injuries which the plaintiff suffered remained unanswered by the time it was necessary to file the statement of claim, which was about three months later. Indeed, it was not answered for another three months after the Statement of Claim was filed and was only answered by the solicitors asking the plaintiff's tutor, his mother, to find the relevant information. That request then took many months to be answered. 8In light of the fact that there was an unanswered request by the expert for additional factual material, at the time Mr Creed swore his affidavit of 8 March 2013, it is difficult to see on what basis he could express any satisfaction that expert reports would be obtained and served within six weeks. Any hope of doing that evaporated because, as the evidence discloses, nothing at all was done in that six week period, and it was not until after the expiry of that six week period that an inquiry was made of the plaintiff's mother with respect to that information. 9From 18 June 2013, when the court made an order requiring the plaintiff to serve reports on 30 July 2013, all that occurred was that a paediatrician who had treated the plaintiff was asked for some reports about that treatment, which he sent. They were received on 22 July 2013. So far as appears from the evidence, although received on that date, those reports were not served within the time fixed by the court's order for service of expert reports and, on the evidence presently available, do not appear to have been served until 17 September 2013. No explanation is advanced for such failure. 10Since the matter was last before the court on 12 September 2013, it does appear from the evidence that, at long last, there has been some rational activity commenced with respect to the proper preparation of this case and the giving of attention to the obligations of the plaintiff and his lawyers as required by the Civil Procedure Act. The overriding purpose of the Civil Procedure Act is to be found in s 56, which records that purpose as the facilitation of the just, quick and cheap resolution of the real issues in the proceedings. 11It is fair to say that the plaintiff through his tutor and his lawyers do not appear to have paid any attention at all to that overriding purpose and have only done something to properly address the timely preparation of this matter in response to the Notice of Motion of the defendant. 12It is entirely unacceptable that parties who wish to conduct litigation in this Court do not address the obligations that are fixed under the Civil Procedure Act. Those obligations are fixed so as to enable the scarce resources which the court has, to be used efficiently, and to ensure that all parties, whether in this piece of litigation or other proceedings, receive a hearing as soon as is reasonably practicable and at a cost which is affordable. 13It is unsurprising that the defendant moved to have the proceedings summarily dismissed. But for the most recent evidence which has been filed in the court indicating that since 12 September 2013 when the Motion commenced to be heard there has been a flurry of activity on the part of the plaintiff, I would have been minded to summarily dismiss the matter because of the failure of the plaintiff and his lawyers to properly address their obligations with respect to the preparation of the matter. 14However, I am satisfied that the interests of justice require me to give the plaintiff a further chance to comply with his obligations. But because there remains a risk that he will not do so, I think the proper course is to stand the Notice of Motion over, part-heard, so that if the plaintiff fails to attend to his obligations, the defendant can move for the relief which it feels it is entitled to. I will give the plaintiff one last opportunity to comply with the UCPR and the practice note, but it needs to be clearly understood that if there is no compliance with the court's orders there is a very real risk that the plaintiff's proceedings will be dismissed. 15I make the following orders: (1)I order that the Notice of Motion of the defendant filed 6 August 2013 be adjourned part-heard to 9.30am on Tuesday 17 December 2013. (2)I order the plaintiff to file and serve all expert reports on liability and causation upon which he proposes to rely on or before 4pm 29 November 2013. (3)I order the plaintiff to pay the defendant's costs of the Motion, excluding the costs of 12 September 2013 about which an order has already been made. (4)I reserve liberty to apply.