Hughes v Alcantara [2015] NSWSC 508

Supreme Court New South Wales

Medium Neutral Citation: Hughes v Alcantara [2015] NSWSC 508 Hearing dates: 13 March 2015 Decision date: 06 May 2015 Jurisdiction: Common Law Before: Harrison J Decision: Order the plaintiff to pay the costs of and incidental to appearances on 16 April 2014, 2 May 2014, 4 July 2014 and 28 July 2014. Catchwords: COSTS – economic loss – documentary material to support plaintiff's economic loss claim and provide historic insight into the plaintiff's pre-injury employment as well as expert analysis of the losses allegedly sustained – plaintiff did not comply with orders to file and serve updated statement of particulars in accordance with the Uniform Civil Procedure Rules – significant delay – cost of appearances Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Costs Parties: Jason Hughes (Plaintiff) Armando Alcantara (Defendant) Representation: Solicitors: Brydens Compensation Lawyers (Plaintiff) TressCox Lawyers (Defendant)

Counsel: J Stanton (Plaintiff) File Number(s): 2012/218229 Publication restriction: Nil

Judgment 1. HIS HONOUR: The plaintiff claims damages from his medical practitioner. The plaintiff consulted the defendant, who practised as a family doctor, seeking professional medical help for the treatment of his anxiety and depression, as well as an addiction to nicotine. The plaintiff alleges that he had a long history of mental health problems. He was prescribed Champix. The plaintiff alleges that the drug was contraindicated for patients who had suffered from mental problems and that as a result of taking Champix as prescribed he suffered a mental breakdown and otherwise developed severe problems including bipolar affective disorder, and the manifestation of psychotic symptoms such as hallucinations. 2. The proceedings were commenced in this Court in July 2012. The statement of particulars that was filed at the same time referred to the following matters as particulars of economic loss: "Prior to the injury the plaintiff was running a successful and profitable TAB agency at Dee Why. Following the injury the plaintiff had to abandon the business. The plaintiff will make a claim for the loss of profits from the date of the injury to date." 1. The statement of particulars did not comply with UCPR 15.12(5), (6) or (7). In particular, the plaintiff, who was a self-employed franchise owner immediately before his injury, did not provide an accountant's report or any other documents on which he intended to rely to establish his pre-injury income. UCPR 15.14(1) provides that the statement of particulars and documents required by UCPR 15.12 "must be as final and complete as to the plaintiff's case as they can, with the exercise of reasonable diligence, be made". 2. The defendant seeks costs of two appearances before the Registrar and four appearances before me at which the status of the plaintiff's case concerning proof of economic loss and the significance of expert accounting reports has been an issue. The defendant contends that these appearances have essentially been a waste of both the time and the associated costs because the plaintiff has to some degree been recalcitrant in complying with orders of the Court or in complying with the rules. Those contentions arise in the following context. 3. The defendant submits that it must have been apparent when the proceedings were commenced that the plaintiff's claim for economic loss would have to be investigated and that evidence to support it would be necessary. That would include documentary material giving an historic insight into the plaintiff's pre-injury employment as well as expert analysis of the losses allegedly sustained because of the defendant's breach of duty. The latter would presumably be significantly based upon the former. The defendant submits that these things were either not appreciated by the plaintiff or were not acted upon in a timely way if they were. 4. On 6 November 2013 the plaintiff was ordered to file and serve an updated statement of particulars in accordance with UCPR 15.12. That order was not complied with by the plaintiff. 5. The proceedings were unsuccessfully mediated on 3 December 2013. 6. The following day the plaintiff sought an order, for the first time, for the service of evidence from a forensic accounting expert. That was approximately 17 months after the commencement of the proceedings. Two further appearances, on 16 April 2014 and 2 May 2014, took place before the plaintiff served his forensic accountants report from Fiona Bateman on 15 July 2014. The proceedings were by then over two years old. On 30 September 2014 the defendant served a forensic accounting report from Richard Ivey. On 31 October 2014 the plaintiff served a supplementary report from Ms Bateman. 7. The proceedings were again unsuccessfully mediated on 15 December 2014. 8. The proceedings came before me for directions on 19 December 2014. The plaintiff objected at that time to the forensic accounting experts taking part in an expert conclave. 9. On 10 March 2015 the plaintiff advised the defendant that he no longer sought to rely upon Ms Bateman's forensic accounting reports. 10. The defendant contends in these circumstances that significant delay has been caused by the plaintiff investigating and obtaining evidence from his chosen expert to support his economic loss claim. In circumstances where the plaintiff abandoned any reliance upon Ms Bateman, the matter has effectively been stalled since 16 April 2014 when he filed an amended statement of particulars. 11. The defendant seeks the costs thrown away or occasioned by the appearances on 16 April 2014, 2 May 2014, 4 July 2014, 28 July 2014, 19 December 2014 and 13 March 2015. The plaintiff concedes that he should pay the costs of the first four of these dates but not the last two. 12. I note that when the matter was before me on 6 March 2015 I indicated that I expected the plaintiff to be able to give a definitive indication when the matter returned on 13 March 2015 of when he proposed to file further expert accounting evidence. When the matter returned on that date the plaintiff informed me that he did not propose to rely upon the reports of Ms Bateman and that he had completed service of all expert reports. The long and the short of that indication is that any court time taken to deal with or to consider the plaintiff's intentions with respect to the need for forensic accounting evidence in general or the use of Ms Bateman as the plaintiff's forensic accounting expert in particular had been wasted. 13. The orders that I made on 19 December 2014 were as follows: "1. I direct the parties to prepare a final list of questions for submission to expert psychiatric and forensic accounting conclaves by 2 March 2015. 2. I direct that a conclave of expert psychiatrists take place on issues identified in the questions referred to them by no later than 30 April 2015. 3. I direct the parties to provide me by no later than 4 March 2015 with a list of the proposed questions for referral to the expert forensic accountants together with copies of all expert forensic accounting reports upon which the parties respectively intend to rely. 4. I will list the matter before me for further directions on Friday 6 March 2015 for consideration of whether or not a conclave expert forensic accounting witnesses ought to be ordered. 5. Grant liberty to the parties to apply on 3 days' notice if or when required." 1. It seems clear to me that the appearance before me on 19 December 2014 had some utility beyond a consideration of the forensic accounting issue. 2. The orders that I made on 13 March 2015 were as follows: "1. Delete proposed consent order 4 in consent order dated 12 March 2015. 2. Make orders in accordance with paragraphs 1, 2, 3 and 5 of the consent order. 3. Grant liberty to parties to approach the List Manager with a view to obtaining a hearing date with an estimate of not more than 5 days. 4. List the matter before me for further directions on 19 June 2015. CONSENT ORDER 1. It is noted that the plaintiff does not rely on the expert reports of Fiona Bateman, forensic accountant and has completed service of all expert evidence. 2. It is noted that the defendant has completed service of all expert evidence. 3. The expert psychiatrists to participate in a conclave on or before 30 May 2015 and provide a joint report within seven days of the conclave. The conclave is to be convened without any independent facilitator. 4. Deleted 5. Liberty to apply with 3 days' notice." 1. It seems clear to me that the appearance before me on 13 March 2015 also had some utility beyond a consideration of the forensic accounting issue. 2. I consider that the plaintiff should pay the defendant's costs of the appearances in this Court on 16 April 2014, 2 May 2014, 4 July 2014 and 28 July 2014.