Mourad v Shackell Transport Pty Limited; Ali v Shackell Transport Pty Limited [2015] NSWSC 266

Supreme Court New South Wales

Medium Neutral Citation: Mourad v Shackell Transport Pty Limited; Ali v Shackell Transport Pty Limited [2015] NSWSC 266 Hearing dates: 6 March 2015 Date of orders: 06 March 2015 Decision date: 06 March 2015 Jurisdiction: Common Law Before: Wilson J Decision: Application to vacate proceedings refused Catchwords: PROCEDURE – civil – application to vacate proceedings – application refused Legislation Cited: Civil Procedure Act Cases Cited: Aon Risk Services v Australian National University [2009] HCA 27; 239 CLR 175 Category: Procedural and other rulings Parties: Rabih Mourad (Plaintiff) Shackell Transport Pty Limited (Defendant)

Abeer Ali (Plaintiff) Shackell Transport Pty Limited (Defendant) Representation: Holt (Plaintiff) Davis (Defendant) File Number(s): 2012/1298572012/403240 Publication restriction: None

EX tempore Judgment 1. Application is made by the plaintiffs in these proceedings to vacate the hearing date of this matter, currently listed for 30 March 2015. The application to vacate is made by a notice of motion upon which the plaintiff moves, and that motion is supported by an affidavit of Peter Glover sworn 26 February 2015. 2. In his affidavit, Mr Glover deposes that the plaintiffs instructed him on 5 January 2015, they having withdrawn instructions from the firm of solicitors who had previously acted for them, and as I understand it, who had been on the record as the plaintiffs' solicitors. 3. There is no evidence before the Court as to why the plaintiffs withdrew instructions to their previous lawyers, especially knowing that a hearing date was looming. I am told by senior counsel from the bar table that it was because the previous solicitors had given fresh advice to the plaintiffs which was dramatically different to advice previously tendered, and being advice that the plaintiffs could not accept. 4. Mr Glover endeavoured to obtain the plaintiffs' file from their former solicitors, but the file has not been forthcoming. It will not be forthcoming, I am told, until some $32,000 in outstanding legal fees are paid by the plaintiffs, a significant sum obviously, and one I am told that the plaintiffs simply cannot pay at the moment. 5. Mr Glover in his affidavit says that, having briefed counsel on 12 February 2015, and at least for the purposes of today having briefed senior counsel on 4 March 2015, Mr Glover concludes that it would be impossible to get the plaintiffs' case ready for trial by 30 March 2015. 6. He considered that further evidence must be obtained to properly advance the plaintiffs' case. In particular, some further neuropsychological evidence is to be sought, since the evidence earlier obtained from Dr Shores was not favourable to Mr Mourad, Dr Shores concluding that he was, to use a summary term, malingering. 7. This opinion accords with the opinion of the neuropsychologist retained by the defendant, Dr Roland. Senior counsel submitted on that point that the plaintiff wishes to retain a further neuropsychologist whose opinion would not concur with that obtained by the defendant. 8. The claim which is to be heard (subject to this decision) on 30 March 2015 arises from an incident in 2010. The plaintiffs, who are a married couple, have a claim which refers to an injury suffered by Mr Rabih Mourad on 20 August 2010 at a warehouse located at Fairfield Road, Padstow. That warehouse is operated by the third defendant. 9. Mr Mourad was struck on the head by a falling object and sustained a fractured skull and other injuries. He asserts negligence against the defendants and claims damages for his injuries. 10. Mr Mourad was speaking on the telephone to his wife at the time the object fell, and his wife, Abeer Ali, also seeks damages arising from that incident. She claims for nervous shock. 11. Proceedings were initiated by the plaintiffs in August 2012, and the plaintiffs' claim is, as I have said, to be heard on 30 March. The matter has a four day estimate, I am told, and four days of court time have been set aside for an expert conclave and hearing. 12. It is submitted for the plaintiffs that, if the adjournment is not granted, there will be no realistic prospect of the plaintiffs being able to properly present their case and they will suffer injustice as a result. 13. It is submitted that it is necessary to prosecute the plaintiffs' claim to obtain, not just further neuropsychological evidence (to which I have already referred), but additional medical evidence and potentially additional evidence relevant to the question of liability. 14. Counsel is not in a position, of course, to advise why such evidence has not been obtained to date, having come into the matter very recently. 15. The defendants oppose the vacation of the trial. The defendant submits that it has prepared the matter for hearing and is ready to proceed. It submits that it would be prejudiced, both by the loss of the substantial costs already expended in preparing the matter for trial, but also more generally by the effluxion of time consequent upon further delay, and the prejudice that naturally flows from that delay. 16. The defendant submits that the plaintiff made a choice to change legal representation and made that choice with clear knowledge of the impending hearing date. The defendant submits that it should not be the defendant who is prejudiced by that choice. 17. Whilst the defendant acknowledges the difficulties the plaintiffs' current lawyers face in such a late retainer, it submits that there are means open to the plaintiffs to make good the absence of the original file. A request could be made to the Law Society to intervene in an endeavour to have past solicitors provide the file; the file could be substantially recreated by material which has been filed and served and is held by both the Court and the defendant and which the defendant can and is willing to provide to the plaintiffs. This would include all medical evidence filed and served by both plaintiffs and defendants to date, as well as evidence relating to liability which was obtained on the plaintiffs' behalf. 18. Supplying the deficiency in that way, it must be recognised, and the defendant concedes this, could not substitute the entirety of the file since the defendants are not privy to information as between solicitor and client which would be subject to privilege. 19. Finally, the defendant submits that it is not appropriate to grant an adjournment so that the plaintiff can endeavour to find a neuropsychologist whose opinion is more acceptable to the plaintiff than that of Dr. Shore. 20. The application to vacate the hearing date needs to be determined by reference to ss 56 through 59 of the Civil Procedure Act of 2005. The Court must, by s 56, have regard to the overriding purpose of the courts, being the just, quick and cheap resolution of the real issues in the proceedings. 21. One of the real issues here is the degree of neuropsychological damage alleged to have been occasioned to Mr Mourad. The plaintiff says that, given that both neuropsychologists retained to date, one for the plaintiff and one for the defendant, agree in their opinions, he would be prejudiced at any conclave and also at any hearing of the proceedings, in the absence of an opinion more favourable to his claim. 22. The plaintiff relies upon a contention as to his difficulties with the English language in seeking to challenge the reliability of the neuropsychological evidence which has been obtained by the parties to date. 23. The difficulty with that submission is that tests administered by neuropsychologists, as I understand them and indeed as it appears from the reports of the two neuropsychologists before the Court, are able to compensate for linguistic difficulties and do so where that is required. In relation to Mr Mourad, although he was unwilling to use the interpreter because of his asserted capability in the English language, he in fact had the benefit of the assistance of an interpreter when undertaking the tests administered by Dr. Shore. 24. Plainly the reliability of the neuropsychological opinion is an issue that I cannot determine relevant to these proceedings, but the evidence does establish that reasonable and appropriate steps were taken by the two neuropsychologists to administer the relevant tests, in circumstances where, prima facie, the results of the tests are reliable. 25. The fact that neither expert has drawn a conclusion which is favourable to the plaintiff does not, in my view, lend any substantial weight to an application for an adjournment so that an additional opinion can be obtained. 26. Experts have an obligation to the Court. Their evidence is supposed to be independent evidence tendered to the Court on the basis of their training and expertise. It is not evidence which is sought to favour one party or another. 27. The fact that the neuropsychological evidence does not favour the plaintiff does not, in my view, support a claim that the plaintiffs are entitled to some further time to seek evidence which they would prefer to that which they have. 28. That is one of the real issues that will have to be determined. And insofar as it is relevant to the application to vacate the trial date, it does not seem to me that it supports the plaintiffs' application. 29. If one is considering what is necessary to facilitate the just, quick and cheap resolution of the real issues in a proceedings, it is not necessarily always straight forward as to how those three outcomes can best be achieved simultaneously. Indeed, in some instances, they may well be seen to pull in opposite directions. 30. The superior courts have in recent times given greater weight to the wider concepts of what is in the interests of justice than simply justice as between the parties. One of the considerations to which the Court must have regard when determining what is appropriate in facilitating the just, quick and cheap resolution of the real issues is not just the interests of the parties, but also the interests of the justice system as a whole. 31. In Aon Risk Services v Australian National University [2009] HCA 27; 239 CLR 175, it was held that the Court must have regard to the consequences of delay to the justice system, in that cases adjourned can have a tendency and often inevitably have a tendency to delay not just the proceedings in issue, but other proceedings which could have utilized the time thrown away by a case which does not come to hearing in the time allowed for by the courts. That is a feature that must be considered when having regard to the overriding purpose of civil proceedings pursuant to s 56. 32. Section 57 of the Civil Procedure Act deals with case management and includes as an object the efficient disposal of the Court's business, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings before the Court at an affordable cost. 33. Whilst there is some overlap between s 57 and s 56, again the provisions emphasise the need for speedy justice, and justice which avoids delay and increased costs wherever that is possible, whilst still maintaining a just disposition of the matter. 34. Section 59 requires the Court to endeavour to eliminate any undue lapse of time between the commencement of the proceedings and the final determination of those proceedings. 35. Here the originating process was filed in August 2012, and the hearing of the matter is fixed for the end of this month, March 2015. The incident the subject of the statement of claim occurred in 2010. 36. Already that chronology alone indicates that these proceedings will not be dealt with at a point in time in close proximity to the incident giving rise to the claim. Necessarily there is delay, there is always delay in bringing legal proceedings investigating a claim, having the matter progressed through the Court, and then obtain a hearing date. But a vacation of the hearing date in March so that these other issues may be explored will simply add to that delay. 37. I have considered all of the matters set out in ss 56 through 59 and considered the competing arguments of the parties. On balance, and having regard to the fact that what is in the interests of justice applies as much to a defendant to proceedings as it does to a plaintiff, it is my view that justice is best served by this matter proceeding as it was intended to do on 30 March 2015. 38. The plaintiffs' new solicitors have now been in the matter since 5 January of 2015. Whilst that period of time between early January and the end of March is not an inordinately lengthy one, it is sufficient, in my view, to ready the case for trial, having regard to the fact that the former solicitors had on the affidavit evidence adduced by the defendant from Mr Angus obtained what appear to be appropriate and necessary medical investigations of the plaintiffs. All of that evidence was served, and it will be a simple matter for the plaintiffs to get access to it. The plaintiffs' asserted need for a further neuropsychological opinion is not persuasive. 39. If this matter were to be adjourned, there would be the loss of a significant amount of court time, an extensive delay between the intended hearing date and the actual disposition of the matter by the Court, and significantly increased costs not just to the defendants but also to the plaintiffs. 40. Considering each of those matters, and balancing the various considerations that the Court must have regard to, the notice of motion seeking an order vacating the hearing date 30 March 2015 is dismissed. 41. ORDERS 1. Motion is dismissed. 2. The application to vacate the hearing date of 30 March is refused. 3. Pursuant to rule 31.24, experts are to meet prior to the hearing date. 4. Pursuant to rule 31.28, experts are to furnish a joint report before the hearing date. 5. Costs are to be determined as part of proceedings. 6. Parties are to file and serve any further submissions and material relating to the power of this court to order the plaintiff's previous solicitors to release the brief. **********