Iacovone v Raftos [2016] NSWSC 502

Supreme Court New South Wales

Medium Neutral Citation: Iacovone v Raftos [2016] NSWSC 502 Hearing dates: 19 April 2016 and 22 April 2016 Decision date: 26 April 2016 Jurisdiction: Common Law Before: N Adams J Decision: (1) Dismiss defendant's motion to vacate hearing date of 2 May 2016. (2) Defendant to pay the plaintiff's costs on the motion. Catchwords: PRACTICE AND PROCEDURE – notice of motion - application to vacate trial date – where liability admitted and quantum disputed – where amount of care required by plaintiff in dispute – where factual basis for expert opinion of rehabilitation physician changed – defendant not able to qualify expert to meet changed opinion in time for trial – motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173 Ren v Jiang [2014] NSWCA 1 Category: Procedural and other rulings Parties: Steven Iacovone (Plaintiff) Paul Raftos (Defendant) Representation: Counsel: P Beale with E Chrysostomou (Plaintiff) J Sandford (Defendant)

Solicitors: McGrath, Dicembre & Co (Plaintiff) TressCox Lawyers (Defendant) File Number(s): 2012/00101311 Publication restriction: No

Judgment

Nature of proceedings 1. On 30 March 2012, the plaintiff commenced proceedings against the defendant for medical negligence. The plaintiff's claim is based on the injuries and disabilities he suffered and continues to suffer as a result of the defendant's negligence on 7 June 2010. On that date, the plaintiff attended upon the defendant complaining of chest pains. The defendant had been his general practitioner for some years. The defendant misdiagnosed the plaintiff as having a panic attack and sent him home with a prescription for Xanax. Approximately 2 hours later the plaintiff suffered a very serious myocardial infarction ("MI") resulting in cardiac arrest and hypoxic brain damage. He was asystole for at least eight minutes and remained in an induced coma for approximately 10 days. 2. Liability has been admitted in this matter and a two-week hearing confined to the question of damages is listed to commence on 2 May 2016. That hearing date was fixed on 17 June 2015. 3. On Tuesday 19 April 2016, a notice of motion brought on behalf of the defendant came before me for hearing in my capacity as duty judge. Although the defendant is the applicant on the motion I will refer to him as the defendant throughout and the respondent to the motion will be described as the plaintiff. 4. When the matter first came before me on 19 April 2016, I afforded Mr Beale, counsel appearing on behalf of the plaintiff, the opportunity to obtain instructions and prepare his response to the motion. As Ms Sandford of counsel, who appears on behalf of the defendant, was not available again until Friday the matter was stood over part heard before me to 2 pm on Friday 22 April 2016. 5. In support of the defendant's motion to vacate the hearing date, Ms Sandford outlined that she relied primarily upon the late service of an additional medical report of rehabilitation physician Dr Stephen Buckley. She submitted that this report has significantly changed the case the defendant is required to meet with respect to the amount of care that the plaintiff requires. 6. At the hearing of the motion before me on 22 April 2016, Ms Sandford relied upon three affidavits sworn by her instructing solicitor Donald Allan Ross Munro. The first of these affidavits, sworn 18 April 2016, annexed 145 pages of medical reports and correspondence. At paragraphs 36 and 37 of that affidavit, Mr Munro deposed that he had taken steps to qualify a neurologist to address the reports of Professor Beran. He also deposed that it would not be possible, prior to the hearing in this matter, to qualify and obtain an expert opinion from a rehabilitation physician in order to engage with the opinion contained in Dr Buckley's most recent report. 7. Mr Munro's second affidavit, sworn 22 April 2016, annexed correspondence pertaining to the defendant's objection to the plaintiff's reliance on a further report by the plaintiff's psychiatrist Professor Jonathan Phillips dated 21 April 2016. 8. The third affidavit of Mr Munro, also dated 22 April 2016, outlined the enquiries made with the defendant's engaged expert, occupational physician Dr Virginia Pascall, to the effect that she would be unable to re-examine the plaintiff on any dates before 1 August 2016 and that it would take her four to five weeks to provide any report of such re-examination. 9. The plaintiff sought leave to cross-examine Mr Munro in relation to the third of these affidavits. It was contended that the third affidavit came into existence only in response to the plaintiff's written submissions, which were served on the defendant on 22 April 2016. The plaintiff's submission was effectively that that the defendant did not need an adjournment to obtain the opinion of a rehabilitation physician when they could simply qualify Dr Pascall to give the same evidence. 10. Ms Sandford on behalf of the defendant objected to leave being granted and relied upon what Leeming JA said in Ren v Jiang [2014] NSWCA 1 at [11] in this regard. I declined leave to cross-examine Mr Munro on the basis that it would not assist me with the relevant issues on this interlocutory application. In any event, given the chronology of events apparent from the documentation before me, I am prepared to accept that the timing is as counsel for the plaintiff contends. 11. The defendant also relied upon earlier affidavits filed in the proceedings, being affidavits of David Glamceski sworn 16 February 2016 and 19 February 2016. 12. In support of the plaintiff's position that the trial should proceed on 2 May 2016, the plaintiff read an affidavit of Anthony Dicembre sworn 21 April 2016 and provided a court book comprising medical reports and correspondence. The material provided amounted to 149 pages. 13. Included in the material relied upon by the plaintiff was a report of Professor Jonathan Phillips dated 21 April 2016. This report appears to have been prepared for the purposes of the motion. In it Professor Phillips gives an opinion as to the negative impact that further adjournment of the hearing would have on the plaintiff. The defendant objected to the plaintiff's reliance upon that document for reasons including that Professor Phillips had not recently examined the plaintiff for the purposes of preparing the report. I admitted the report provisionally. 14. Both parties also filed written submissions setting out their respective positions. 15. At the conclusion of the hearing of the motion late on Friday 22 April 2016 I reserved my decision until 10am on 26 April 2016. 16. Before turning to consider the submissions of the respective parties, it is necessary to set out a brief chronology in this matter in order to understand the background of the application made before me.