Addison v The Owners - Strata Plan No. 32680

(1) Defendant's application for the plaintiff to pay the costs of the defendant's application to vacate the hearing date and the costs thrown away by reason of vacation of the hearing date dismissed. DECISION: (2) Defendant's Notice of Motion of 20 April 2010 otherwise dismissed. (3) Each party pay his or its costs of the Notice of Motion.

CATCHWORDS: COSTS - application for costs of vacated hearing date for personal injury proceedings

CASES CITED: Addison v The Owners - Strata Plan No. 32680 [2010] NSWDC 251

PARTIES: Plaintiff: Dean Andrew Addison Defendant: The Owners - Strata Plan No. 32680

COUNSEL: Plaintiff: Ms M Fraser Defendant: Mr D Kelly

SOLICITORS: Plaintiff: Brydens Law Office Defendant: Curwoods Lawyers

[1] On 6 October 2010 I delivered judgment in these proceedings (Addison v The Owners - Strata Plan No. 32680 [2010] NSWDC 251) and made costs orders consequent upon the award of damages to the plaintiff in the sum of $154,651.

[2] The defendant has now brought an application, in relation to those costs, seeking orders in its favour in the form of the reserved costs arising from a Notice of Motion filed on 16 April 2010. Judge Garling vacated the original hearing date of 22 April 2010, reserving the costs thrown away to the trial judge for determination. I directed, following the entry of judgment, that each party provide an outline and chronology of relevant information giving rise to the application to vacate, and heard the application this morning.

[3] These are my reasons for the orders I made this morning after hearing the parties' submissions.

[4] The defendant relied upon the affidavit in support of the 16 April 2010 Notice of Motion, which was sworn by Ms Sheehan, a solicitor in the employ of the solicitor for the defendant. The plaintiff relied upon an affidavit of 10 November 2010 sworn by Ms Aneta Smith, a solicitor in the employ of the solicitors for the plaintiff. It is not in dispute that the circumstances leading to the vacating of the hearing date (which was vacated following a motion brought by the defendant, and consented to by the plaintiff) related to the failure of the plaintiff to attend two medical appointments and the inability of the parties to agree upon the form of a pre-hearing settlement conference.

The plaintiff's failure to attend medical appointments on 9 and 15 April 2010

[5] The plaintiff had been ordered to serve medical and expert reports by 20 November 2009 and the defendant by 3 February 2010, and the matter was listed for a Status Conference on 10 February 2010, for the purpose of allocating a hearing date. The plaintiff served all its material expeditiously by 20 November 2009 but the defendant did not serve any expert or medical reports by 3 February 2010, nor did it serve its defence by the due date of 6 October 2009. When the matter came before the Judicial Registrar on 10 February 2010 the defendant was clearly in default, and according to paragraph 5 of Ms Sheehan's affidavit, the defendant's legal representative sought a hearing date in late May or June 2010 "to enable the defendant time to fully prepare the matter for hearing".

[6] The Judicial Registrar did not accede to this request and allocated a hearing date of 22 April, with an extension to the defendant to serve all its medical and evidence by 7 April 2010.

[7] The defendant's solicitors arranged a series of appointments for the plaintiff to be examined by a general surgeon and an immunologist. The plaintiff attended these appointments. The defendant also arranged for the plaintiff to see a psychiatrist, Dr Lee, on 6 April 2010. As this was only one day before the cut-off date for medical reports, Dr Lee agreed to prepare his report by 7 April. Most unfortunately, however, Dr Lee's office advised the defendant's solicitors (on 16 March 2010) that Dr Lee was required to give evidence in other proceedings on 6 April, and the plaintiff's appointment with him had to be cancelled.

[8] The defendant's solicitors made determined efforts to find another psychiatrist who could see the plaintiff prior to the cut-off date, but to no avail. The best they could do was to find a psychiatrist who could see the plaintiff on Friday 9 April. However, the plaintiff did not attend this appointment. The solicitors for the parties had a conversation on 14 April in which the plaintiff's solicitors said that the plaintiff was sick, and had been to his doctor to obtain a medical certificate.

[9] A second appointment was made for the plaintiff that same day (14 April), with a psychiatrist who was available to see him on Wednesday 15 April 2010 at 9 a.m, six days after the original appointment. An email to this effect was sent at 3.20 pm on 14 April. The solicitors for the plaintiff were able to contact the plaintiff to tell him about this appointment, but he did not attend, according to Ms Fraser, because he was still sick. The plaintiff had suffered serious internal injuries resulting in a splenectomy from the circumstances of his accident, and the medical evidence noted that, particularly during the first two years after the accident, and generally for the rest of his life, he would be at increased risk of ill-health due to his lower tolerance of infections. No evidence as to whether he was in fact sick on these occasions was raised in cross-examination during the trial, nor were medical certificates tendered during the trial or before me today concerning these illnesses.

[10] The defendant's solicitors considered this evidence as vitally important, and stated at the end of their 19 March 2010 letter: "You should note that the Defendant's readiness to proceed to hearing is dependent upon your client attending the above appointment."

[11] I am prepared to accept that the plaintiff was unwell, but the circumstances in which the plaintiff failed to attend both these medical appointments without prior notification of the defendant was unfortunate, since such a tight timetable was necessary by reason of the Judicial Registrar's refusal of the defendant's request for a later hearing date. In practical terms, even if the plaintiff had attended either of the medical appointments and the doctors had produced their report in circumstances where it could be served on the same day as the appointment, these reports would still have been out of time, in circumstances where an application to vacate the hearing date would have been likely. "Exceptional circumstances" as envisaged by Uniform Civil Procedure Rules 2005 (NSW), r 31.28 might well have included a report prepared outside the timetable, but in circumstances where there was prior failure to comply with an order for serving medical reports, and the hearing date allocated on the basis that this report would be served by the relevant date, such an application might well have been unsuccessful, particularly if there was evidence that the plaintiff was in fact too ill to attend.

[12] While the plaintiff's failure to attend was certainly a factor, the real problem was that despite Dr Lee giving immediate notice of his inability to see the plaintiff, the defendant was not able, in that short time remaining, to arrange for the plaintiff to see another psychiatrist prior to the cut-off date. The reason for this was the defendant's failure to comply with the orders for service of the defence and of the medical evidence and expert reports on the due dates of 6 October and 20 November 2009. There was thus some fault on both sides, although the real cause of the problem was the sudden unavailability of Dr Lee, which the very strict court timetable could not allow for.

[13] The medical report served by the plaintiff concerning his psychiatric problems was extremely weak. Mr Glancey's report described the plaintiff as having "normality returned to his life" and said his mood was "buoyant" and his prognosis "optimistic", as I noted at [78] in my judgment of 6 October 2010; because this report was so weak, I did not need to consider the psychiatric evidence tendered on behalf of the defendant (which I note I permitted to be tendered despite being out of time). The defendant could have considered proceeding to trial without answering Mr Glancey's report. I appreciate, however, that these are forensic decisions for a defendant.

[14] The second basis upon which the application to vacate the hearing date was made was the asserted failure of the plaintiff to comply with an order concerning the settlement hearing.

Failure of the plaintiff to comply with an order concerning the settlement hearing

[15] The Judicial Registrar made an order that there should be a settlement hearing no later than seven days before the hearing date. No orders were made about where or in what circumstances that settlement hearing should be conducted, and the parties had problems in agreeing about these.

[16] The principal problem was that the plaintiff's solicitor, Mr Hagipantellis, was not prepared to attend the offices of the solicitor for the defendant for this purpose, and wanted the settlement conference to take place on neutral ground. Alternatively, he was prepared to conduct the settlement conference by telephone (this was in fact his preference).

[17] According to the affidavit of the solicitor for the defendant, this request was discussed amongst the staff at their office and Ms Sheehan, the deponent of this affidavit, states at paragraph 17: "Given the refusal of Mr Hagipantellis to attend a conference in person I understand an agreement was reached between Mrs Oates [for the defendant] and Ms Zordan [for the plaintiff] to discuss settlement over the telephone."

[18] However, the solicitors for the defendant then changed their minds, and on 14 April 2010 a letter was sent requesting that the settlement conference take place in person, and offering, in those circumstances, for the conference to take place at a neutral venue rather than the office of the defendant's solicitors.

[19] That letter was, however, sent on the last day before the 7-day period for the settlement conference prior to the 22 April hearing date to take place. Once again, the parties had been defeated by the timetable.

[20] When the matter came before Judge Garling, his Honour directed the parties enter into a settlement conference by 2 July, which was to be both face to face and at a neutral venue, effectively solving both the problems that had prevented the conference from taking place.

[21] Mr Kelly for the defendant very properly conceded it would be unlikely that the hearing date would be vacated because of the problems with the settlement conference; the real problem for the defendant was the lack of medical evidence concerning the plaintiff's psychiatric condition.

[22] Each of the parties contributed more or less equally to the cause of delays, although the plaintiff's failure to advise of his ill-health, and Mr Hagipantellis's refusal to attend the settlement conference in person unless there was a neutral venue do tip the scales slightly in favour of the defendant. However, the real problem for the defendant was, as Ms Fraser correctly points out in her submissions, that the defendant was preparing the case very late in terms of the timetables.

[23] Taking all of the above into account, I am of the view that there, while the degree to which the plaintiff contributed to these events is insufficient to warrant a costs order being made against him, the defendant should not be penalised by having to bear a costs order incurred by reason of the plaintiff's non-attendance at medical appointments or Mr Hagipantellis's reluctance to attend their office personally. Accordingly I propose to order that each party pay his or its own costs of the Notice of Motion, as well as the costs thrown away by reason of vacation of the hearing date, and for this application.

[24] It may be of assistance in future for parties taking part in settlement conferences in personal injury matters to hand up in court a list of any prerequisites such as venue (neutral or otherwise), requirement for the parties to attend in person (I note the plaintiff's complaint that a representative of the defendant did not attend the conference when it was in fact held), so that these can be included in the orders.

Orders (1) Defendant's application for the plaintiff to pay the costs of the defendant's application to vacate the hearing date and the costs thrown away by reason of vacation of the hearing date dismissed. (2) Defendant's Notice of Motion of 20 April 2010 otherwise dismissed. (3) Each party pay his or its costs of the Notice of Motion.

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