Supreme Court New South Wales Medium Neutral Citation: Wakim v Kolotouros; Wakim v State of New South Wales [2017] NSWSC 697 Hearing dates: 29 May 2017 Date of orders: 29 May 2017 Decision date: 29 May 2017 Jurisdiction: Common Law Before: Fagan J Decision: Application to vacate three week trial refused and judgment entered for the defendants against the plaintiff with costs. Catchwords: PROCEDURE – adjournment application – where plaintiff sought adjournment on medical grounds – applicability of overarching purpose provisions in Civil Procedure Act 2005, ss 56-58 – consideration of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 – insufficient evidence to prove medical justification for adjournment application – substantial delay caused by plaintiff in interlocutory stages of proceedings Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Category: Principal judgment Parties: Elias George Wakim (plaintiff) Theodoros Kolotouros (defendant) State of New South Wales (defendant) Representation: Counsel: Ms Dymphna Hawkins (plaintiff) Mr Paul J Nolan SC (defendant, Kolotouros) Mr Matthew Hutchings/Ms Stephanie Patterson (defendant, State of New South Wales) Solicitors: Mr Rocco Ardino, Margiotta Solicitors and Attorneys (plaintiff) Ms Heidi Hopkins, Curwoods Lawyers (defendant, Kolotouros) Ms Maria Panos, Henry Davis York (defendant, State of New South Wales) File Number(s): 2013/017087; 2013/262708 Publication restriction: Nil Judgment 1. The plaintiff has applied on notice of motion firstly to vacate a three week final hearing which was fixed to commence today and secondly to transfer the proceedings to the District Court. The explanation advanced in support of adjournment of the trial is alleged medical unfitness of the plaintiff to attend and give evidence. The basis of the transfer application is a risk perceived by the plaintiff that he may not recover damages in excess of the threshold for obtaining an order for his costs of the proceedings. 2. The plaintiff claims damages against two defendants for personal injuries allegedly suffered in two separate incidents. He has commenced a separate proceeding against each. In the first proceeding, commenced on 18 January 2013, the plaintiff claims against Mr Kolotouros damages for injuries allegedly sustained when he was attacked by the defendant's dog on 20 January 2010. The second proceeding was commenced on 29 August 2013 against the State of New South Wales for damages for alleged assault and wrongful arrest said to have occurred on 29 August 2010 and for malicious prosecution. 3. The two claims have been dealt with together through interlocutory stages because there are significant issues in each regarding the extent of physical and/or psychiatric damage caused to the plaintiff and because, due to the closeness in time of the alleged incidents, there is an issue as to which of them caused what damage and to what extent and with what contribution from the other incident. For these reasons it has also been ordered that the final hearing of both proceedings be joint. An order has been made that on the joint hearing the evidence in one case be evidence in the other. It is the joint hearing of these actions which is listed to commence today and to continue for three weeks. 4. On 5 April 2017 I refused an application by the defendants that the proceedings against them respectively be dismissed for want of prosecution. Instead, I ordered that the plaintiff's claims be listed for final hearing for three weeks, which was the estimate of all parties, commencing today. I made directions for the completion of all necessary interlocutory processes. These included directions for the parties to arrange conclave meetings of their respective medical expert witnesses in a number of disciplines. 5. At 10:00 am on 29 May 2017 the plaintiff was not personally present in court. His counsel filed in court, by leave, a notice of motion seeking the following relief: 1. The hearing dates commencing 29 May 2017 for three weeks be adjourned to a date to be fixed. 2. The matter be transferred to the District Court of New South Wales pursuant to s 146 of the Civil Procedure Act 2005. 3. That the plaintiff pay the costs of each defendant thrown away by reason of the transfer of the proceedings to the District Court of New South Wales, including the costs of this notice of motion. 1. Counsel who appeared for the plaintiff when the proceedings were called for trial informed the Court that she was briefed only to prosecute the notice of motion. If the relief sought therein should not be granted she would not appear for the plaintiff in the hearing of the substantive actions for damages and would seek to be excused. Principles governing application to vacate hearing 1. On such an application s 58(2)(a) of the Civil Procedure Act 2005 (NSW) requires that the Court must have regard to ss 56 and 57, relevant extracts of which are as follows: 56 Overriding purpose (cf SCR Part 1, rule 3) (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 1. Also, s 58(2)(b) of the Civil Procedure Act provides that in determining such an application the Court may have regard to the following matters, to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. Sub paragraphs (ii), (iv) and (vi) are particularly relevant to the present application. 1. The applicable considerations were expounded in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 ("Aon Risk Services"). In that case, at the commencement of a four week trial, the plaintiff settled with one defendant and then applied for an adjournment of the trial to make substantial amendments to its statement of claim against the other defendant. The adjournment was granted and the application for amendment was heard two weeks later. The following passages from the judgments in the High Court are particularly apposite here: [5] In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to [the remaining defendant] could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to [the plaintiff's] statement of claim should not have been allowed. The discretion of the primary judge miscarried. [Per French CJ]. [24] … The discretion [to allow amendment of pleadings] is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502. [Per French CJ]. [98] Of course, a just resolution of proceedings remains the paramount purpose of r 21 [of the Court Procedures Rules 2006 (ACT), which are to an effect similar to ss 56 and 57 of the Civil Procedure Act]]; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. [Per Gummow, Hayne, Crennan, Kiefel and Bell JJ]. [103] … Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case. [Per Gummow, Hayne, Crennan, Kiefel and Bell JJ]. Plaintiff's evidence of explanation for application to vacate 1. The plaintiff's contention that he is medically unfit to attend court and take part in the trial was advanced on the basis of an affidavit of his solicitor, Mr Rocco Ardino; a medical imaging report of Dr Prasad Kundum dated 18 May 2017 and a medical report of the plaintiff's general practitioner Dr Abdul Sami Qureshi dated 26 May 2017. 2. Mr Ardino has deposed as follows: On the 10 May 2017, I was informed by the plaintiff that he had sustained a further injury to his right knee whilst he was leaving my firm's office that day in Leichhardt. He said that he had hit his right knee very hard against a brick wall of the office whilst attempting to regain his balance. Subsequently, on the 18 May, he informed me that he had developed an infection in his right knee, which had become very swollen and full of pus. The plaintiff complained that he had intensive pain in his right knee and had great difficulty walking. He also informed me that he would be going for an ultrasound that day. 1. The report of Dr Prasad Kundum radiologist of 18 May 2017 contains the following findings relative to an ultrasound examination of the plaintiff's right knee carried out that day: 1. Evidence of subcutaneous oedema with soft tissue thickening in the prepatellar bursa with hyperaemia. The features are in keeping with prepatellar bursitis. 2. There is (sic) some enthesopathic changes seen at the quadriceps tendon. The quadriceps tendon otherwise outline normally (sic). 3. There are some changes seen within the medial meniscus could represent underlying degenerative meniscal pathology. The remainder of the study is within normal limits. 1. This report of itself gives no indication of what if any symptoms the plaintiff would feel as a result of these findings on ultrasound. In broad terms what is described is some bruising to the anterior aspect of the knee joint, with possible inflammation of the prepatellar bursa (being the sac of synovial fluid located over the anterior surface of the patella), some unidentified change to the insertion of the quadriceps tendon and some possible degeneration of the medial meniscus, being one of two articular discs between the lower extremity of the femur and the upper end of the tibia. 2. In particular, it is not apparent from this report what if any degree of pain the patient would feel from the condition of the knee joint thus described. There is no evidence before me as to the length of time, from the date of the radiological report, in which any pain or restriction of movement might resolve, or as to whether pain would be chronic, or how it might be treated and with what side effects. In short, the medical imaging report on its own is entirely uninformative as to the plaintiff's physical capacity to attend court to give evidence and instructions in his own case. 3. Dr Abdul Sami Qureshi's report of 26 May 2017 is in these terms: This is to confirm that MR Wakim has required increased medication for pain and sedation recently, due to an infection occurring in his R knee. In addition, he is suffering a respiratory infection. This downturn in his health and the need for more potent analgesics means that he may experience some drowsiness. I anticipate that he will take a few weeks to recover and ask that he be excused court attendance during this time. 1. Notably this report does not state that the plaintiff is physically unfit to attend court, either because of direct physical symptoms of any pathology of his right knee or of his respiratory system or because of any side effects of medication. There is reference to an infection in his right knee. The medical imaging report does not refer to any evidence of infection but only of bursitis, a form of inflammation of tissue. There is no evidence of any treatment having been administered for infection such as antibiotic medication or draining of fluids from the area. 2. Dr Qureshi's report refers to a respiratory infection. This of course may be anything from a common cold to a severe case of influenza. The doctor's report does not discriminate. It does not state for how long Mr Wakim has suffered this. It does not state in relation either to the knee injury or the respiratory infection when, if at all, Dr Qureshi has seen Mr Wakim. The report of Dr Qureshi gives no prognosis as to the continuation of symptoms, whatever they might be, of either the knee condition or the respiratory infection. The doctor provides no projection of the period for which he may require medication or any other form of treatment for either ailment. 3. The doctor's reference to "more potent analgesics" is obscure. It is not evident whether Dr Qureshi has prescribed any analgesics. If so it is not stated which ones. It is not stated by the doctor what, if any, side effects they might be expected to have, in particular with respect to Mr Wakim's capacity to concentrate, to answer questions or otherwise to take part in the proceedings. It is said that he "may experience some drowsiness". Whether he is in fact currently experiencing drowsiness as a result of either the pathology of his knee or the respiratory infection or as a result of any medication taken is not stated. Drowsiness is identified as no more than a possibility. 4. The report of Dr Qureshi does not state that the plaintiff is disabled from attending court or from answering questions or participating in any way in the proceedings. It simply asks that "he be excused court attendance" for "a few weeks". How many weeks is not made apparent. 5. This report is self-evidently on its face completely unsatisfactory as a basis for me to make any finding that the plaintiff is in any way or to any degree disabled from attending court and participating in the proceedings. 6. Mr Ardino further deposes that on Sunday 28 May 2017 at approximately 8pm he telephoned the plaintiff to ascertain the state of his health and to check with him if he was fit to attend court and give evidence. Mr Ardino has sworn to the following: The plaintiff said to me words to the effect of "I still have intense pain in my right knee from the infection and I am taking a double dose and sometimes more of my usual medication in order to cope with the pain. I am taking six to ten tablets of Panadeine Forte per day instead of only three to six. I take six or seven Valium tablets a day instead of only three. I have applied two morphine patches instead of only one. All of this medication, and in particular the Valium, tends to make me very drowsy and it sedates me. I also have a chest infection for which I am taking Augmentin Forte antibiotics. My flu symptoms make it difficult for me to breath sometimes. I don't think I will be able to give evidence until my knee infection has cleared and I am feeling better". 1. Given the circumstances and nature of the application, I received Mr Ardino's hearsay deposition to the above effect regarding what the plaintiff has told him, subject to an express reservation regarding the weight I could attach to it. 2. I informed the plaintiff's counsel upon receiving both medical reports on the plaintiff's current condition that I would not be able to give Dr Qureshi's report significant weight unless he was available for cross‑examination. I indicated that there were points of clarification and of expansion that I would wish to raise with the doctor and in any event counsel for the State of New South Wales identified a list of topics upon which he would wish to ask questions. 3. In particular, with respect to what the plaintiff has stated to his solicitor, there is no evidence before me of whether his taking of Panadeine Forte is referable to his condition, let alone in the quantity of six to ten tablets per day. Likewise there is no medical evidence to say that the taking of Valium in any dose including six or seven tablets a day is required. The same applies to the two morphine patches being applied. It is not clear on the medical evidence presented to the Court on this notice of motion why he would normally be wearing one morphine patch. 4. There is no medical evidence to describe the likely cognitive, physical or other effects upon the plaintiff of taking the doses that he describes of these various medications. In the absence of evidence as to whether these dosages are indicated by anything that has been objectively found by any medical practitioner, the position is that assuming the plaintiff has accurately informed his solicitor what drugs he is self‑administering, I am left uncertain whether these are necessary or not. I am left uncertain whether he could desist from this medication without compromise to his health for the duration of at least giving his own evidence. Application to adjourn in order to obtain further medical evidence 1. In this unsatisfactory state of evidence on the notice of motion and given its insufficiency to support an application for adjournment of a three week hearing which was fixed seven and a half weeks ago, I granted two short adjournments to enable Mr Ardino to contact Dr Qureshi's surgery to ascertain when he would be able to give oral evidence, either in chief to support further the plaintiff's application or to respond to questions from counsel for the defendants and from the Court if necessary. I was informed at 11.30am today that Dr Qureshi could not be available to give evidence until Thursday 1 June 2017 and then only for half an hour. 2. The Court could not contemplate adjourning the proceedings until that time to enable the plaintiff to call his general practitioner to give evidence of his unfitness, in circumstances where this application has been brought on the basis of medical evidence so patently inadequate for its intended purpose. This is not a case of medical emergency. There has been ample time since the knee injury was allegedly sustained on 10 May within which satisfactory evidence of medical unfitness could have been gathered, if the plaintiff is in fact medically unfit. Consequently, I refused an application by the plaintiff's counsel to adjourn the hearing of the notice of motion until 1 June for the purpose of receiving further evidence from Dr Qureshi. 3. In so doing I took into account the waste of court time which would be involved in keeping the question of adjournment of the trial open and in suspense for three days, the cost which would thereby be inflicted upon the defendants, the consequent erosion of available court time to complete the trial within the allotted three weeks if the adjournment should be refused after having waited until Thursday 1 June 2017 to enable the plaintiff call additional evidence. I also took into account the significant dilatoriness of the plaintiff throughout the interlocutory stages of the proceedings as recounted in the reasons I gave on 5 April 2017, when I determined the defendants' motion to have the claims against them dismissed for want of prosecution. Absence of evidence of solicitor-client communication regarding ill health 1. The time line given in Mr Ardino's affidavit is significant. As mentioned, he has stated that on 10 May 2017 he was informed by the plaintiff that an injury had been sustained to his right knee that day. The next thing mentioned is that he received the report from Dr Prasad Kundum of 18 May 2017 from which I have quoted. Nothing is deposed to by Mr Ardino as to instructions in the interval between 10 and 18 May, as this hearing date rapidly approached, concerning the plaintiff's condition and any medical attention he was receiving and any perceived difficulty with respect to his being fit for the conduct of the case. 2. The next thing that is mentioned by Mr Ardino occurred another eight days later on 26 May 2017 when Mr Ardino spoke by phone to Dr Qureshi and was given information broadly to the effect of the letter subsequently issued by Dr Qureshi that date. In the phone conversation between Mr Ardino and Dr Qureshi the doctor said he would issue the certificate and he did. That was the Friday before the commencement of this hearing. There is no evidence from Mr Ardino to explain what prompted him to contact Dr Qureshi on 26 May. There is no reference in Mr Ardino's affidavit to any conversation between him and the plaintiff on any date between 10 May and the 26th. Yet Mr Ardino deposes that on Sunday 28 May at 8:00 pm in the evening, he telephoned the plaintiff to ascertain the state of his health. 3. The course of events as described by Mr Ardino, if it is complete, indicates a most unusual sequence and one that I regard as not consistent with the existence of a genuine medical difficulty on the plaintiff's part which, in the nearly three weeks from 10 May to 29 May, was progressing towards him being unable to attend and take part in these proceedings. The proceedings have been on foot for four years and were listed for final hearing with seven and a half weeks' notice. Reasons for refusing to vacate the trial 1. In the result the application to vacate the hearing is left unsupported by material which would enable me to find on the balance of probabilities that the plaintiff is medically unfit to attend and give evidence by reason of the knee injury and respiratory infection to which reference has been made. No other explanation has been proffered for why the plaintiff seeks adjournment of the hearing of his claims. Absence of substantial explanation is critical: Aon Risk Services at [103]. 2. The cost to the defendants if this three week hearing should be vacated without final resolution would be enormous. Adjournment without final disposition would extend the already lengthy period in which the defendants have been engaged in these proceedings, with the history of grossly unsatisfactory defaults by the plaintiff as recounted in the Court's reasons of 5 April 2017, earlier referred to. These costs and prolongation consequences would be a significant injustice to the defendant: s 58(2)(b)(vi); Aon Risk Services at [5], [98]. 3. The waste of Court resources which would follow if the hearing should be vacated without final disposition would also be significant. To adjourn a three week case by order made on the first day of the hearing is a significant disruption to the orderly and efficient dispatch of the Court's lists. Vacation of this fixture would mean that the trial could not be relisted for many months. If the long delay which the plaintiff has already caused in the interlocutory stages of these proceedings should be extended yet further in the absence of proven justification, the purposes and objects prescribed in ss 56 and 57 of the Civil Procedure Act would be flouted. The confidence of litigants and the general public in the judicial system would be correspondingly undermined: Aon Risk Services at [5], [24]. Suggestion of mental incapacity of plaintiff 1. After yet a further short adjournment on 29 May 2017, following my indications to the plaintiff's counsel that I did not consider the evidence tendered sufficient to prove a relation for the plaintiffs claimed inability to proceed, the plaintiff's counsel reported to me that she had spoken to the plaintiff and listened on speakerphone whilst her solicitor spoke to him. She said she had found him incoherent. I made it plain that I could not accept as evidence from the bar table her impression of incoherence nor any medical conclusion counsel might proffer about his current psychiatric condition. 2. No application was made to adduce further evidence about his current psychiatric state or to adjourn for the purpose of such evidence being marshalled. However counsel suggested that an alternative medical ground for vacation of the hearing date, on the basis of her conversation with her client, would be his unfitness to participate. This subject had been considered during the hearing of the defendant's notice of motion for the proceedings to be struck out in early April 2017. 3. At page 8 of my reasons for dismissing the defendant's application (given ex tempore on 5 April 2017) I recorded that on 23 June 2016 Mr Ardino swore an affidavit deposing that he had requested a psychiatrist, Dr Cassimatis, to examine the plaintiff as to his legal capacity and to determine whether there was a need for a tutor to conduct the litigation on his behalf. I recorded that Mr Ardino had deposed to the plaintiff's excessive use of prescription medication and his attempted suicide in October 2012. He deposed that a certificate had been issued, apparently by Dr Cassimatis, in late 2012 stating that the plaintiff was at that time unfit to instruct in relation to other litigation, at least for a period of some months in late 2012. 4. I also recorded at page 13 of my reasons of 5 April 2017 that against Dr Cassimatis' opinion, medical opinion evidence served by the defendants was to the effect that the plaintiff was not under any legal incapacity. Medical reports from the defendants, which had been served for the purposes of substantiating their defence of the damages claims, were to the effect that the plaintiff had poor scores on psychoneurological testing but these may have been affected by manipulation and deliberate falsification on his part. 5. I indicated in my decision of 5 April 2017 that this conflict in the evidence (which had been served for the purpose of the substantive proceedings) left the Court unable to decide on its own initiative, upon the hearing of the notice of motion in early April 2017, that there ought to be a tutor appointed. That course is provided for under sub rule (1) of rule 7.18 of the Uniform Civil Procedure Rules 2005 (NSW). There was in early April 2017 no application before the Court by any party for such an appointment and consequently I then stated that the proceedings would contine as constituted, with the plaintiff himself giving instructions to his solicitors and not represented by a tutor. 6. If there had been any perception by Mr Ardino, resulting from contact with Mr Wakim, that indicated his client might not be mentally fit to give instructions and might need the appointment of a tutor, that would have been the subject of an application before now. The matter was considered by Mr Ardino and referred to in his affidavit of June 2016. It was raised by me in early April 2017 and I indicated that if a tutor was required an application would have to be made. I infer that in these circumstances Mr Ardino would have been alert to the mental condition of his client over the past seven and a half weeks. No application has been made for appointment of a tutor. I cannot give any weight to the circumstance that the plaintiff's counsel, engaged solely to prosecute this notice of motion, found him in conversation on the phone on the first morning of the trial to be incoherent and raised the question whether he was fit to give instructions. 7. In this regard I must also take into account the report of a conclave of three experts who have been concerned in assessing the plaintiff from the point of view of cognitive capacity. The conclave was conducted in accordance with the Court's direction, for the purposes of the trial. The conclave report dated 8 May 2017 has been tendered by the defendants on the hearing of this notice of motion. The participants were Dr Greta Goldberg, a clinical and forensic psychologist who has been retained by the plaintiff, Professor Richard Mattick, a consultant clinical psychologist and Associate Professor Lah, a clinical neuropsychologist. The latter two specialists have been engaged by the defendants. 8. In that report Professor Mattick and Associate Professor Lah have expressed the opinion that the plaintiff's cognitive and behavioural deficits reported on clinical interviews and found in scores obtained on standardised instruments used for such assessments were not representative of his psychological and cognitive state. In addition they are of the opinion that his presentation and the results of assessment of him are indicative of exaggeration and deliberate malingering. 9. In the course of their conclave discussion, according to the report, Professor Mattick said that several indicators were suggestive of malingering. He stated: Several symptom validity tests provided the same finding that were suggestive of conscious exaggeration. For example, on two subscales of the Minnesota Multiphasic Personality Inventory, specifically designed to check for symptom validity, Mr Wakim obtained scores that were indicative of overreporting of his psychological and physical symptoms. The gravity and types of symptoms reported by Mr Wakim were strongly suggestive of exaggeration. In addition Mr Wakim's scores on tests specifically designed to evaluate validity of cognitive symptoms, Mr Wakim consistently obtained scores that were below chance. To obtain such a low score a person needed to remember a correct response and deliberately choose an incorrect one. 1. The report contained further specifics from Associate Professor Lah regarding the basis for his view that the plaintiff deliberately underscored in testing. 2. The hearing of this notice of motion is not the occasion to attempt to make any concluded findings on these matters. The purpose of referring to the neuropsychologists' conclave report is simply to identify that there is a substantial issue in the case as to whether the plaintiff has reported to medical professionals his psychiatric and psychoneurological symptoms accurately. That has been an issue, joined through the exchange of expert reports, over some years. The nature of the different views has been brought together in the experts' conclave report to which I have just referred. 3. In light of those issues, if it were to be sought on this notice of motion that the hearing date be vacated on the ground that the plaintiff now exhibits psychiatric symptoms which raise a question about his capacity to instruct, that would have to be supported by something more than an expression of a view from the bar table by the plaintiff's counsel on the basis of listening to one phone conversation between the plaintiff and his solicitor. 4. If there were a case for adjournment of the final hearing on that basis I would expect there to be evidence before the Court of a substantive nature from psychiatric or psychoneurological experts and there would have been significant indicia to Mr Ardino from long before today which would have prompted him to procure and adduce such evidence. In the absence of it, the plaintiff's application to vacate the proceedings on grounds of mental difficulty as opposed to pathology of his knee or respiratory infection must fail. For these reasons I would not vacate the hearing on the putative medical grounds. Reasons for refusing transfer to District Court 1. The application to vacate cannot alternatively be supported on the basis that the proceedings should be transferred to the District Court. The sole ground advanced for this is that the plaintiff's advisors have now formed the view that he may not recover more than $500,000 in damages. That result, it is said, would attract the operation of Part 42 rule 34, which I set out as follows: 42.34 Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court (1) This rule applies if: (a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all three defendants, in an amount of less than $500,000, and (b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants. (2) An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied that: (a) for proceedings that could have been commenced in the District Court – the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted, or (b) for proceedings under Part 2 of Chapter 7 of the Industrial Relations Act 1996 – the commencement and continuation of the proceedings in the Supreme Court, rather than the Local Court, was warranted. 1. On the hearing of this notice of motion the Court cannot make a definitive assessment of the plaintiff's damages, assuming that he establishes liability, against either defendant or against both of them together. I am asked by the plaintiff to approach the transfer application on the assumption that no more than $500,000 will be recovered. If that should be so, whether or not he would be disentitled from recovery of his costs by the operation of Part 42 rule 34 would be a discretionary judgment to be exercised by reference to the circumstances appearing at the point where the claim for damages had been finally determined. The exercise of that discretion adversely to the plaintiff is at present no more than a significant risk for the future. The Court would not be justified in transferring these proceedings to the District Court solely upon that consideration. 2. In view of my finding that vacation of the hearing is not justified on grounds of the plaintiff's health I must take into account that to order transfer to the District Court would force such an adjournment. That is a very weighty consideration against transfer, for reasons that I have already given. Further, the transfer would of itself inflict additional costs on the defendants. Namely, costs of interlocutory appearances and listings in the District Court. It would inflict on the defendants further delay in the District Court's lists. 3. None of these inconveniences and costs to the defendants can be justified on the sole basis advanced by the plaintiff. Namely, that he seeks very belatedly to eliminate a risk with respect to costs, which should have been realised either when the statements of claim were filed or, at latest, much earlier in the four year history of these two cases than today. No case presented by plaintiff at commencement of trial 1. For the above reasons, the plaintiff's notice of motion will be dismissed with costs. 2. Following the making of the order for dismissal of the notice of motion, I called upon the plaintiff's counsel as to what evidence would be adduced in support of the plaintiff's claims in the two cases. Counsel informed the Court she had no instructions to proceed with the hearing or to lead any evidence. Her instructing solicitor Mr Ardino indicated that he likewise has no instructions to proceed to conduct the hearing. Accordingly, no evidence has been tendered to the Court in support of the plaintiff's claims, and both proceedings will be dismissed with costs. Orders 1. The orders of the Court are, in each proceeding: 1. The plaintiff's notice of motion filed on 29 May 2017 is dismissed with costs. 2. Judgment for the defendant against the plaintiff. 3. The plaintiff is to pay the defendant's costs. 1. I make the following further order in the proceedings Wakim v State of New South Wales, number 2013/262708: (4) The defendant's cross‑claim against Mr Kolotouros is dismissed with no order as to costs. 1. I will separately make directions in each proceeding to enable the defendants to apply for any special or additional order regarding costs, which they may see fit to make. These directions are made in each proceeding: 1. The defendant is to file within 7 days any notice of motion by which it seeks any special costs order, including for costs to be assessed other than on the usual party/party basis or an order that costs be payable by a legal practitioner pursuant to section 99 of the Civil Procedure Act 2005 (NSW), together with any supporting affidavit. 2. The notice of motion and affidavit are to be served on the plaintiff's solicitors. 3. Grant liberty to the defendant to apply to Fagan J in chambers for listing of such notice of motion for hearing, and/or any other directions that may be required in respect of it. 4. The plaintiff (and the plaintiff's solicitor, if he is the subject of an application that he pay the costs of proceedings under section 99) must, within 28 days of today's date, file and serve any evidence in response to the defendant's notice of motion and affidavit. 5. Grant liberty to the plaintiff and to Mr Ardino, solicitor, to apply to Fagan J in chambers directly on 48 hours notice for re-listing should the need for further directions arise. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2017