Supreme Court New South Wales Medium Neutral Citation: Hickson v Mid North Coast Local Health District [2018] NSWSC 1826 Hearing dates: 22 November 2018 Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Common Law Before: McCallum J Decision: Orders of the Registrar made on 6 July 2018 set aside and in lieu thereof the defendant's motion filed 11 April 2018 is dismissed; the defendant is to pay the plaintiff's costs of that motion and of the motion determined today Catchwords: CIVIL PROCEDURE – application for review of decision of registrar directing plaintiff to answer interrogatories – claim for damages arising out of bodily injury – consideration of r 22.1(3) of the UCPR – whether there are special reasons to order interrogatories Legislation Cited: Limitation Act 1969 (NSW), ss 18A, 50C Uniform Civil Procedure Rules 2005 (NSW), r 22.1 Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 Horsnell by his tutor Horsnell v Allworth Constructions Pty Ltd [2016] NSWSC 844 Kaiser v George Laurens (NSW) Pty Ltd (1982) 1 NSWLR 294 McCallum v Reynolds [2016] NSWSC 366 Seidler v John Fairfax & Sons (1983) 2 NSWLR 390 State of New South Wales v Gillett [2012] NSWCA 83 Category: Procedural and other rulings Parties: Melissa Jane Hickson (plaintiff) Mid North Coast Local Health District (defendant) Representation: Counsel: M Daley, A Porthouse (solicitor for the plaintiff) S Kettle (defendant) Solicitors: Monaco Solicitors (plaintiff) Makinson d'Apice (defendant) File Number(s): 2016/355914 Publication restriction: None Judgment Ex tempore – revised 1. HER HONOUR: Before the Court is an application by the plaintiff brought by notice of motion filed 2 August 2018 seeking review of orders made by Registrar Riznyczok on 6 July 2018. 2. The Registrar determined that the defendants had established an entitlement to interrogate the plaintiff on certain issues. However, he also considered that those issues could more appropriately be addressed by the provision of witness statements. He directed the parties to bring in short minutes of orders to that effect. 3. The plaintiff relied on to the decision of Button J in Horsnell by his tutor Horsnell v Allworth Constructions Pty Ltd [2016] NSWSC 844 at [44]-[48] where his Honour summarised the principles concerning the nature of an application for review of a decision of the Registrar. There was no dispute between the parties in the present application as to those principles. His Honour summarised the principles as follows: "First, a review is not an appeal in the strict sense of requiring identification of error on the part of the Registrar, or of the reviewing judge being limited to the evidence that was placed before the Registrar some time ago. Secondly, having said that, the process is not entirely de novo. Thirdly, I should have regard to the decision of the Registrar and reflect upon it carefully before disturbing it. Fourthly, I would be slower to intervene where, as here, the decision of the Registrar was interlocutory rather than determinative." 1. The application before the Registrar concerned seven interrogatories. Interrogatories 6 and 7 were rejected and are not now pressed by the defendants. Interrogatories 1 to 5 were directed to the limitation period of the cause of action. In short, the point taken by the plaintiff in the present review is that, as the defendant has not pleaded a limitation defence, that is not an "issue" in the proceedings. 2. Before considering that question, it is appropriate to outline the history of the proceedings. The claim arises out of events on 10 November 2010 when, according to the statement of claim, the plaintiff jumped from a 6 metre balcony with the intention of killing herself. She suffered serious injuries as a result of that event and is now in a wheelchair. She had recently been released from the hospital conducted by the defendant. She alleges, amongst other things, that there was inadequate care attending her release to prevent her from self-harming. 3. The proceedings were not commenced until 28 November 2016, more than six years after that event. In those circumstances, a limitation issue obviously arises. Pursuant to s 18A of the Limitation Act 1969 (NSW), there is a limitation period for personal injury claims of three years running from the date on which the cause of action first accrues. However, regard must also be had to s 50C of the Act, which makes further provision in respect of personal injury actions in the following terms: "50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the "3 year post discoverability limitation period", which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the "12 year long-stop limitation period", which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. 1. The time when the cause of action is discoverable is stated in s 50D, as follows: 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. 1. It follows that the plaintiff's claim is not maintainable if the date on which the cause of action was "discoverable" in accordance with s 50D was earlier than 28 November 2013. 2. The relevant procedural chronology was set out in the affidavit of Caroline Rose Blair, affirmed 24 May 2018. The affidavit establishes that, following the filing of the statement of claim on 28 November 2016, the defendant sent a letter to the plaintiff asking, among other things, why her claim was not statute barred. A response from her solicitor said: "The report of Dr Jonathan Phillips, Consultant Psychiatrist, is dated 10 October 2016. Pursuant to section 50D, the limitation period does not commence to run until the Plaintiff and/or her legal representatives were in possession of that report. Given the specialist nature of this case, the Plaintiff and/or her legal representatives could not have known of all the matters required to commence a cause of action against your client until reception of such report. Further, the Plaintiff's legal representatives could not have commenced action on her behalf unless certifying that there were reasonable prospects of success. This certification could not have proceeded without an expert report." 1. On 8 February 2017, a copy of the report of Dr Phillips referred to in that letter was served on the defendant. 2. The defence filed on 12 May 2017 raising no limitation defence. 3. On 26 June 2017 the defendant wrote to the plaintiff requesting details as to when she first sought legal advice in relation to bringing the proceedings and when she first sought advice from her present solicitors, Monaco Solicitors. A response to that letter was chased up in a further letter dated 4 September 2017. On 3 October 2017 the plaintiff's solicitor wrote advising that the information sought was the subject of legal professional privilege. The letter also noted that the onus of establishing when a cause of action is discoverable lies upon the defendant and reference was made to the decision of the Court of Appeal in State of New South Wales v Gillett [2012] NSWCA 83 per Beazley JA at [26]. The letter concluded: "Until such time as the defendant establishes a prima facie case as to when the defendant alleges the plaintiff's cause of action was discoverable, the plaintiff does not waive legal professional privilege in respect of the information sought." 1. On 11 December 2017 the defendant wrote to the plaintiff enclosing a proposed amended defence and seeking the plaintiff's consent to the filing of that amended defence. It did not include any Limitation Act defence. 2. On 29 January 2018, the defendant's solicitor wrote to the plaintiff's solicitor enclosing medical records, which were the subject of interrogatories 6 and 7 rejected by the Registrar. On 30 January 2018, the solicitor for the defendants again wrote to the solicitor for the plaintiff indicating her view that it would be preferable to deal with "the limitation issue" prior to dealing with the amended defence. The letter proposed directions, including a timetable for interrogatories concerning the limitation point. Those orders were not consented to by the plaintiff. In due course the application determined by the Registrar was made. 3. The defendant submits that, although the Limitation Act is not presently an issue raised on the pleadings, it is "an issue" because the plaintiff commenced the proceeding prima facie out of time, having regard to the provisions of the Limitation Act to which I have referred. I do not think that is strictly correct. When regard is had to the provisions of s 50C, the action is only out of time if it is taken to have been discoverable prior to 28 November 2013. As already noted, the onus of establishing that matter is on the defendant. 4. In his reasons for decision published on 6 July 2018, the Registrar considered that the limitation period was "an issue" in the loose sense. In considering that question, the Registrar noted the decision relied upon by the plaintiff of Seidler v John Fairfax & Sons (1983) 2 NSWLR 390, which the plaintiff had submitted is authority for the proposition that interrogatories must be relevant to an issue in the proceedings and, therefore, are limited to the pleadings as they stand. 5. The Registrar then referred to the more recent decision of Campbell J in McCallum v Reynolds [2016] NSWSC 366, noting that his Honour "did not consider that an outstanding defence was fatal on its own to considering an application." 6. In light of the Registrar's reliance on that decision, it is important to go to it. Justice Campbell said at [14]: "In that regard, Mr Dickson of counsel has argued that in the absence of a defence I cannot be satisfied that there is a real issue about intoxication. With respect, I think that that argument is answered by Mr Purdy's reference to Kaiser." 1. On the present application Mr Daley, who appears for the plaintiff, took me to the decision in Kaiser v George Laurens (NSW) Pty Ltd (1982) 1 NSWLR 294 to which Campbell J referred. Mr Daley submitted that that decision is not authority for the proposition for which it was evidently relied upon by Campbell J in McCallum. Kaiser was a decision of Hunt J in a defamation action. The proposed interrogatories were directed to the issue of the scope of publication. At the outset of the judgment, his Honour was careful to note, with his usual precision, that the plaintiff had not in fact pleaded any allegation of publication to any person beyond three specific occasions of publication by a servant or agent of a finance company. However, as that was in effect a technicality which could easily be overcome by amendment (the matter having been dealt with in an affidavit rather than in the pleadings), his Honour noted that the parties had "very sensibly argued the matter upon the point of substance rather than form." 2. In those circumstances I accept, as submitted by Mr Daley, that Kaiser is not authority for the proposition that the issues in the proceedings, for the purpose of determining whether interrogatories should be allowed, may be determined by reference to what might in the future be pleaded rather than by what has been pleaded. 3. Further, I accept, as submitted by Mr Daley, that in the present case the fact that the Limitation Act defence has not been pleaded is more than a mere technicality. The chronology I have recited makes plain that the defendants have on more than one occasion made inquiries of the plaintiff directed to the limitation issue; had time to reflect upon the responses to those inquiries; and have to date not made the decision to plead the Limitation Act defence. For my part, I would regard the fact that no such defence has been pleaded as a strong factor against allowing interrogatories to be administered, if it is not determinative. 4. As set out in the Registrar's decision, the power to order interrogatories is contained in r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW), which provides: "Interrogatories (1) At any stage of the proceedings, the court may order any party to answer specified interrogatories. (2) An application for such an order must be accompanied by a copy of the proposed interrogatories. (3) In the case of proceedings on: (a) a claim for damages arising out of the death of, or bodily injury to, any person, or (b) a claim for contribution in relation to damages so arising, such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order. (4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made..." 1. The rule poses two hurdles to a party seeking to interrogate in proceedings for damages arising out of death or bodily injury. First, the Court must be satisfied that special reasons exist that justify the making of the order. Separately, and in any case, the Court must be satisfied that the order is necessary at the time it is made. 2. The principal contention on behalf of the defendant as to why there are special reasons in the present case for allowing it to interrogate on the question of the limitation period is that the matters required to be established by it under s 50C to make good a defence are matters exclusively within the knowledge of the plaintiff. 3. It is not clear to me that that is necessarily the case. It certainly may be accepted that the time at which she knew certain matters may be exclusively within her knowledge, but I do not think it follows that the defendant could not have made an assessment as to the appropriateness of pleading a limitation defence based on the information available to it to date. 4. In making that assessment I have regard to the principles stated in the decision of Gillett, to which the plaintiff's solicitors drew attention in the correspondence to which I have referred. That case considered the correctness of an earlier decision of the Court of Appeal in Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35, in particular, the consideration in the judgment of Basten JA as to what it is a person must have knowledge of in order to satisfy the three limbs of s 50D. Basten JA in Baker-Morrison said: "26 These aspects are interrelated, in the sense that if the facts are properly within the understanding and evaluation of a non-professional, the nature of the person's knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise. It is therefore convenient to consider first the content of the prescribed facts. In the present case, no issue arose with respect to par (a). The plaintiff's injury involved a physical wound which was readily apparent to her mother. Although that disposes of par (a) for the purposes of the present case, it should be noted that, in the case of a psychological injury, additional questions will arise. For example, does "injury" refer to compensable injury? If so, must the person have sufficient medical and legal knowledge required to distinguish a "recognised psychiatric illness" from emotional distress as required by the Civil Liability Act, s 33? 27 Some support for a construction which does not import any element of legal knowledge may be found in the repeated use of the word "fact" to describe that which the person knows or ought to know. However, the meaning of that term must be ascertained by reference to the whole of the provision and the possibility that (at least in some circumstances) the relevant fact identified in par (a) (namely, injury or death) is of a different quality to those identified in pars (b) and (c). Furthermore, at least in pars (b) and (c), the singular "fact" is used to describe a composite of inferences or the result of an evaluation. This is a drafting technique which used to be deplored (see Smith v Central Asbestos Co Ltd [1973] AC 518 at 531-532 (Lord Reid)), but now passes with little protest. However, it deprives reliance on use of the word "fact" of much significance in this statutory context." 1. Presumably because the correctness of that decision was challenged in Gillett, the Court sat a bench of five. The Court unanimously endorsed what Basten JA said at [39] in Baker-Morrison that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. An understanding of that conclusion is informed by what his Honour said at [26] and [27] set out above. 2. In a separate judgment, Campbell JA said (at [131]): "For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge whether derived from the plaintiff's own knowledge or friends or acquaintances or from professional advice, that the injury in question is one for which the law would hold the defendant liable in damages and that the damages that could be recovered are large enough to be worth the time and trouble of suing." 1. His Honour concluded, "Thus knowledge of actionability is necessary before s 50D(1)(c) is satisfied." 2. Those statements indicate that the question of discoverability turns on more than just the facts known to the plaintiff and turns rather more importantly on advice available to a plaintiff. 3. As noted by Mr Daley in the present argument, the letter dated 9 January 2017 informed the defendant that it was her contention that she could not have known of all the matters required to commence a cause of action until receipt of the report of Dr Phillips, a consultant psychiatrist. That is unsurprising in circumstances where the incident of the plaintiff's jumping off the balcony is alleged to have occurred following her release from psychiatric treatment at the hospital conducted by the defendant. The defendant did not put Dr Phillips' report before me on the present application and did not make any argument based on the content of that report as it may or may not reveal the discoverability of the cause of action on the part of the plaintiff. 4. I am not persuaded that special reasons are shown for interrogating the plaintiff as to the Limitation Act "issue" at a point in time before that is an issue properly raised on the pleadings. Whilst I accept that aspects of her particular knowledge are not within the defendant's knowledge, the matters I have outlined in my view place the defendant in a position where it has a capacity to make the determination whether or not to plead the defence. I do not think there are special reasons for inverting what would be the usual order of events, namely, that interlocutory processes follow the close of pleadings and are critically informed by the issues raised by the pleadings. 5. For those reasons and with due respect to the carefully reasoned judgment of the Registrar, I have reached the different conclusion that the interrogatories ought to have been rejected. 6. As noted at the outset of this judgment, the order the Registrar made did not, in fact, include an order directing the plaintiff to answer the interrogatories. Instead, the Registrar substituted, effectively of his own motion and certainly in the absence of agreement of the parties, an order contemplating the provision of witness statements directed to the limitations issue. For the reasons stated in this judgment I consider that also puts the limitation issue on the table prematurely in the absence of it being pleaded in any defence. 7. The order I propose, subject to anything the parties may want to say further on the issue of witness statements, is that, in lieu of the orders made by the Registrar, the defendant's notice of motion filed 11 April 2018 be dismissed and that the defendant pay the plaintiff's costs of this application and that application. ********** 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: 04 December 2018