Baffico v YMCA of Great Lakes Inc

Judgment 1WARD JA: I agree with Bergin CJ in Eq. 2BERGIN CJ in Eq: The appellant, Kylie Baffico, seeks leave to appeal from the decision of Judicial Registrar Howard of the District Court of New South Wales on 5 April 2013 dismissing the appellant's proceedings brought against the respondent, YMCA of Great Lakes Inc, in which the appellant sought damages for personal injury. The Registrar dismissed the proceedings pursuant to rule 12.7 (1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (failure to prosecute with due despatch) and s 61 (3) of the Civil Procedure Act 2005 (NSW) (the CPA) (failure to comply with directions). 3The appeal is brought pursuant to s 127 of the District Court Act 1973 (NSW). There was no hearing on the merits and judgment was entered following the appellant's failure to comply with orders made by the Registrar. In those circumstances the parties have proceeded on the basis that the appeal is from an interlocutory judgment and leave is necessary pursuant to s 127(2) of the District Court Act; Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767. 4The application for leave to appeal and the appeal were heard concurrently on 3 March 2014. Mr R Sheldon SC and Ms L Welsh, of counsel, appeared for the appellant. Ms J Lonergan SC and Mr S Flanigan, of counsel, appeared for the respondent. The proceedings 5The appellant commenced the proceedings in the District Court on 7 October 2011 by the filing of a Statement of Claim together with a Statement of Particulars. The proceedings as originally constituted were against the Great Lakes Council t/as The Great Lakes Aquatic & Leisure Centre (the Council), as first defendant, and the respondent, as second defendant. The appellant discontinued the proceedings against the Council and on 23 December 2011 an Amended Statement of Claim was filed pursuant to which the appellant continued the proceedings against only the respondent (AB 29). 6The appellant sued the respondent as occupier of the Great Lakes Aquatic & Leisure Centre in Forster, New South Wales. It was alleged that the respondent had the care, management and control of the Centre. It had installed a large inflatable slide in the indoor pool. It is apparent that the slide was situated at the shallow end of the pool. There was no issue on the pleadings that the respondent had the care, management and control of the Centre and that its servants and agents controlled the entry of patrons onto the slide (AB 30; Red 14-15). There was also no issue on the pleadings that the appellant attended the Centre on 1 January 2009 and after "approximately 2 steps" on the inflatable slide, she slipped and fell into the swimming pool striking her face on the bottom of the pool (AB 30; Red 14-15). The appellant broke her nose and a number of teeth and received ongoing medical and dental care and physiotherapy treatment. 7There was an issue whether the appellant had been instructed orally and/or by written notice at the Centre to crawl, (rather than step) onto the slide. The respondent denied that it owed a duty of care to the appellant or that it was in breach of that duty of care. It claimed that any injuries suffered by the plaintiff were not as a result of its negligence and claimed that the appellant contributed to her injuries by her own negligence (Red 15). The respondent also relied upon ss 5B, 5D, 5F, 5G, 5H and 5I of the Civil Liability Act 2002 (NSW) (Red 16-17). Procedural background 8Between 20 March 2012 and 9 August 2012, orders were made that the appellant file and serve an amended Statement of Particulars. These orders were made after the respondent complained that the appellant's Statement of Particulars of 7 October 2011 did not comply with UCPR 15.12. The orders were made on 20 March 2012 (for filing the Statement by 16 May 2012); 31 May 2012 (for filing the Statement by 5 June 2012); and 9 August 2012 (for filing the Statement by 16 August 2012). The appellant failed to comply with any of these orders. 9The appellant filed the Amended Statement of Particulars on 9 October 2012. There was an apparent oversight in serving the Statement on the respondent. An unsealed copy was provided to the respondent informally on 15 October 2012 and a sealed copy was served on 7 November 2012. After the respondent complained about the appellant's breaches of the orders and contended that the Amended Statement of Particulars was not in accordance with UCPR 15.12, the Registrar listed the matter for hearing on 29 November 2012 for the appellant to show cause why the proceedings should not be dismissed for want of prosecution. At that hearing the appellant produced a draft First Amended Statement of Particulars (which became Exhibit 2 on that application). 10In a judgment delivered on 6 December 2012 the Registrar held that it would be "unjust in the circumstances" to dismiss the proceedings (AB 394). The Registrar made orders for the further management of the proceedings including an order that the appellant file and serve any medical evidence by 20 December 2012 and an order that the appellant file and serve the amended part 15 Statement of Particulars by 20 December 2012. The appellant failed to comply with those orders. The medical report (dated 17 January 2013) and the First Amended Statement of Particulars were filed and served on 25 January 2013. The respondent complained that this Statement was not compliant with UCPR 15.12 and the Registrar listed the matter for hearing on 13 February 2013 for the appellant to show cause why the proceedings should not be dismissed for want of prosecution. 11At the show cause hearing on 13 February 2013, the appellant filed in court a Second Amended Statement of Particulars. The Registrar reserved his judgment and on 5 April 2013 dismissed the proceedings and ordered the appellant to pay the respondent's costs of the proceedings. The Judgment 12After setting out some of the procedural history of the matter, the Registrar addressed the issues under three headings: (1) Adequacy of the Part 15 Particulars; (2) The Plaintiff's Solicitor's Conduct; and (3) Should the Proceedings be Dismissed. 13Adequacy of the Part 15 Particulars: The Registrar said that the question of the adequacy of the Part 15 particulars was "overshadowed by the question of what flows from its constant expansion and amendment without warning". The Registrar said that a review of the Second Amended Statement of Particulars indicated that further particulars and documents were outstanding "being the items to be identified by any up-to-date Medicare Notice of Charge" (Red 25-26). The Registrar said that the "only conclusion" that could be reached about the adequacy of the "Part 15 Particulars, the Statement required and other documents" was that "they remain incomplete, but to what extent it is not known" (Red 26). 14After reference to UCPR 15.14, the Registrar said: The plaintiff has plainly failed in any compliance with Part 15 or the directions and (sic) the Court and in my view, there is no reassurance that the current situation will not continue to be the case due to the lack of explanation provided, despite the assurance on 13 February 2013 that the plaintiff's case is ready and all matters attended to for its preparation. A matter that stands out is the plaintiff's solicitor's deliberate conduct in obtaining further medical reports from the treating doctor knowing it would cause the continued breach of orders. The plaintiff's conduct in this regard falls within the kind of conduct set out in Micallef v ICI Australia Operations Pty Ltd (2001) NSWCA 274 at [84] to [86] and [89]-[91]. I accept the defendant (sic) submissions in this regard, in particular that this is a much clearer case for dismissal than others. 15The Plaintiff's Solicitor's Conduct: The Registrar recorded that, at the conclusion of the hearing on 13 February 2013, he had requested the parties to make further written submissions on the question of how the appellant's solicitor's conduct "alone would have bearing on the circumstances". The Registrar said that he was "particularly concerned" because of the submissions and/or admission that all the delay to date was due to the conduct of the appellant's solicitor and it appeared that "this was an extreme example of this circumstance" (Red 27). The Registrar continued: The question that arose in my mind was despite that no blame could be attributed to the plaintiff personally, was there any principle that indicated a claim should or should not be struck out in these circumstances. If a claim could be struck out, what was the "tipping point" to do so. [20] 16The Registrar referred to Stollznow v Calvert [1980] 2 NSWLR 749 and noted three principles: (1) that personal blamelessness of a plaintiff is a relevant factor to be considered with other relevant facts; (2) default of the plaintiff's solicitor should not as a matter of course be attributed vicariously to the plaintiff; and (3) there are no fixed formulae in exercising the relevant discretion (Red 27). 17The Registrar concluded (Red 28): Therefore, I do not think there is any basis for considering the conduct of the plaintiff's solicitor, though it has many aspects of it that cause extreme concern for other purposes, in a manner different to any show cause hearing. [24] 18Should the Proceedings be Dismissed: The Registrar referred to UCPR 12.7, ss 56, 57, 58(2)(b), 61(3) of the CPA and relevant authorities (Red 28-29). He found that the appellant's explanation for the continued delay was "not credible nor satisfactory". He concluded that the "status" of the Statement of Particulars and the documents "remain a considerable problem for the defendant to meet". He also said that the Second Amended Statement of Particulars remained "incomplete meaning either the plaintiff will suffer as she does not have the evidence to complete her claim or the defendant will have to continue to have to meet a changing claim" (Red 29). The Registrar concluded that the evidence suggested that the plaintiff would continue to fail to meet her obligations under s 56(3) of the CPA (Red 30). Further he concluded that the evidence of the continued breach of the court directions and orders was relevant to the matters to be considered in s 58(2)(b)(ii),(iii),and (iv) of the CPA (Red 30). 19The Registrar referred to the "considerable prejudice" that the appellant would suffer by the dismissal of the proceedings because the claim would be statute barred [33(v)]. The Registrar concluded (Red 30-32): The plaintiff's late compliance was not sufficient to remedy any of the deficiencies in the prior breaches of orders, nor to address any concern that the conduct would not continue to occur. [33 iii] ... The plaintiff's solicitor's conduct cannot in these circumstances be attributed to the plaintiff. The plaintiff herself is blameless in any delay. This however, must be considered in relation to the whole of the circumstances of both the parties and the question of balancing the prejudice between the parties. It remains my view that the plaintiff's solicitor's conduct is the determinative factor as the solicitor's conduct is the sole cause of the current circumstance. [33 vi] Determining the balance of prejudice in this case is not easily done as both parties have, in my view, considerable prejudice to deal with respectively should the claim continue to progress in the manner it has or if it is dismissed. [34] Undoubtedly the plaintiff will have to meet a difficult hurdle in overcoming a limitation period if the claim is dismissed and she does not see her claim go to trial to be determined on the merits. [35] The defendant on the other hand must continue to meet a claim on quantum that is inadequately particularised in some respects but ultimately uncertain as to whether it will actually be finalised. [36] Should the plaintiff be allowed to continue her claim, her prejudice is minimised to what the inadequately particularised claim will permit her to claim should she choose to limit herself to what is proposed, but as I have said before, I do not believe any faith can be put in this position as the plaintiff's solicitors are likely to have no regard for any orders that might be made in order to preserve that position. It would follow that the defendant would not be able to completely prepare its case, make any offers of settlement or negotiate any terms if it cannot be certain if it is having to meet a continually changing case on quantum. For the defendant to wait until trial to make the submissions concerning the status of the particulars is also a risk as views of a trial judge may differ and raising any objection to adequacy of the particulars may be considered too late to do so. [37] It should be noted that the time frame within which these matters has occurred is not necessarily great, the claim being on foot for approximately 1 year and four months, the period in which delays have occurred being approximately 9 months. That said, the period of delay has ceased to become as significant in the amount of time taken by delays compared to what the conduct in not preparing the claim or continually delaying its final preparation is occasioning at this stage of the proceeding, which is to determine if it will be ready for hearing and an appropriate hearing date allocated that should not be disturbed unless unforeseen events overtake the situation. The continued delay is frustrating the progress of the claim at this important stage of the proceedings and is likely to continue to do so. [38] It is difficult to foresee what directions the Court may make to prevent the continued conduct of the plaintiff's solicitor from frustrating the progress of the claim at this stage, in particular where the plaintiff's solicitor has demonstrated a continued pattern of delaying conduct. In my view, in the exercise of balancing of the prejudice between the parties in this circumstance the interest of justice dictate the discretion on whether to dismiss the matter or not must weigh in favour of the defendant. [39] ORDERS 1. Under Part 12 rule 7 of the Uniform Civil Procedure Rules 2005 and section 61 (3) of the Civil Procedure Act the proceedings are dismissed. 2. The plaintiff is to pay the defendant's costs of the proceedings. 20On 19 April 2013 the appellant filed a Notice of Motion in the District Court seeking an order setting aside the order for dismissal made by the Registrar on 5 April 2013. On 7 June 2013 the Registrar dismissed the Notice of Motion (Red 40). Although the appellant had sought leave to appeal from that judgment, such appeal was abandoned at the hearing of this appeal on 3 March 2014. Grounds of Appeal 21The appellant abandoned the application for leave to appeal from the Registrar's judgment of 7 June 2013. After the appellant also abandoned ground 4 (irregularity and inadequate reasons), the only grounds of appeal that remain in the Further Amended Notice of Appeal filed on 22 February 2014 (AB 23) are claims that: the Registrar erred in law in failing to have regard to all relevant evidence (Ground 1); the Registrar's discretion miscarried because he failed to have regard to all relevant evidence or consider alternative orders that could be made (Ground 2); in finding that he could have no confidence that there would be no further breaches of Court timetables the Registrar denied the appellant procedural fairness (Ground 3); and the Registrar erred in the exercise of his discretion in that: (a) he misunderstood the applicable principles in relation to the future conduct of the matter if he declined to dismiss the proceedings; (b) he failed to take into account all of the relevant matters; (c) he took into account irrelevant matters; and (d) the decision is unreasonable and unjust and a substantial wrong has occurred in consequence (Ground 6). Notice of Contention 22The respondent filed a Notice of Contention on 31 July 2013 contending that the Registrar was entitled to dismiss the proceedings pursuant to UCPR 15.16 because the appellant had not complied sufficiently with the requirements of Division 2 of Part 15 of the UCPR. 23The matters for determination on this appeal make it necessary to analyse the content of the various Statements of Particulars. However, before embarking upon that analysis, it is appropriate to say something about particulars generally, the UCPR requirements in respect of the provision of particulars in personal injury cases and the case management practice in personal injury proceedings in the District Court. Particulars generally 24As this Court has said previously the days of trial by ambush are gone. The 'cards on the table' approach in litigation is not only to ensure that the real issues in dispute are litigated but it is also to assist in the just, quick and cheap disposal of the proceedings: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80. Those epithets are of course to be understood in the context of the particular case. It is imperative that the pursuit of timeliness and cost control in the case management process does not compromise what is at the core of the judicial system - the delivery of outcomes that are just. 25Particulars control the generality of the pleadings. Their function is to make the opposing party "fully aware of the precise nature of the allegations made" against it: Philliponi v Leithead (1959) 76 WN (NSW) 150, 152; Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364. As modern case management has developed, timeframes within which particulars are to be delivered have been imposed under rules of court, practice notes and the general exercise of discretion by judges and registrars with managerial responsibility. UCPR requirements in personal injury cases 26Part 15 Division 2 of the UCPR prescribes the particulars that are required in personal injury cases, relevantly rules 15.12 and 15.14. A plaintiff who brings personal injury proceedings is required to serve on the defendant (or its insurer or solicitor) a Statement of Particulars at the same time as, or as soon as practicable after, serving the Statement of Claim commencing the proceedings (15.12(2)). The Statement of Particulars must set out: (a) particulars of injuries received; (b) particulars of continuing disabilities; and (c) particulars of out-of-pocket expenses (15.12(3)). That Statement is to be accompanied by copies of all documents available to the plaintiff in support of a claim for "special damage and economic loss, whether past, present or continuing". The documents are to include hospital, medical and similar accounts, letters from workers compensation insurers and from employers, wage records and income records and group certificates and hospital and medical reports available at the time of serving the statement (15.12(2)). The plaintiff is required to file the Statement of Particulars, without the accompanying documents, at the same time as, or as soon as practicable after, serving it on the defendant (15.12(2A)). 27If the plaintiff makes any claim in respect of loss of income, the Statement of Particulars must set out the name and address of each employer during the 12 months immediately prior to the accident (and since the accident), together with the details of the period of employment, the plaintiff's capacity in which employed and the net earnings during each period of employment. It is also necessary to set out the amount claimed in respect of loss of income and particulars of any alleged loss of earning capacity and future economic loss (15.2(5)). 28If there is a claim for loss of income, the plaintiff is required to serve on the defendant a letter from the employer setting out the dates on which the plaintiff was absent from work due to the accident and the total net remuneration lost. If the plaintiff returned to work for that employer, it is necessary to provide particulars of the plaintiff's classification and duties and any alterations in their remuneration after return to employment. It is also necessary to provide copies of the plaintiff's income tax returns for the two financial years prior to the year in which the accident occurred and any tax returns lodged since the accident. (15.12(6)). 29UCPR 15.14 provides relevantly: (1) The statement and documents required by rule 15.12 ... to be served: (a) must be as final and complete as to the plaintiff's case as they can, with the exercise of reasonable diligence, be made, and (b) must contain such information as the plaintiff can then provide as to any medical examination of the plaintiff to be conducted after the date of service. (2) As soon as practicable after becoming aware that any information contained in a statement or document that has been served as required by rule 15.12 ... is no longer accurate and complete as regards the plaintiff's claim, the plaintiff must give to all active parties such advice as is necessary to make that information accurate and complete. (3) If the plaintiff gives advice as referred to in subrule (2), the court may direct the plaintiff to file an amended statement of particulars. (4) Unless the court orders otherwise, the plaintiff must file a copy of the final statement of particulars at least 42 days prior to the date fixed for hearing or arbitration of the proceedings. (5) Subject to subrules (3) and (4), an amended statement of particulars may not be filed except by leave of the court. 30UCPR 15.16 deals with the court's powers if a party fails to comply with Rule 15.12 as follows: If, after conducting a review or status conference or otherwise, the court is of the opinion that the plaintiff has not sufficiently complied with the requirements of this Division, the court may dismiss the proceedings or make such other order as it thinks fit. Case Management 31Case management in the District Court is conducted pursuant to the CPA and the UCPR. Proceedings are also governed or guided by the court's Practice Notes. However Practice Notes need to be read with the provisions of the CPA and the UCPR: Baulderstone Hornibrook Pty Ltd v HBO + DC Pty Ltd [2001] NSWSC 821 at [14]. 32The practice and procedure of the court is regulated "as best to ensure the attainment of the objects" of case management prescribed in s 57(1) of the CPA being: (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; and (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. 33In deciding whether to make orders or directions in the management of proceedings, the court must seek to act in accordance with the dictates of justice (s 58(1)). For the purpose of determining what the dictates of justice are in a particular case, the court "must" have regard to the provisions of s 56 (overriding purpose) and s 57 (objects of case management) of the CPA. The matters to which the court "may" have regard in identifying the dictates of justice are: the degree of difficulty or complexity of the proceedings; the degree of expedition (or lack thereof) with which the parties have approached the proceedings; the degree to which the parties have fulfilled their duty to assist the court to further the overriding purpose and to participate in the processes of, and comply with directions of, the court; the use a party has made of available processes of the court; the degree of injustice that would be suffered by respective parties as a consequence of any order or direction; and any other matters the court considers relevant in the circumstances of the case (s 58(2)). 34UCPR 2.1 provides the very broad power that the court may "at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings". 35If a party to whom such a direction has been given fails to comply with the direction the Court may, inter alia, dismiss the proceedings: s 61(3)(a) CPA. Similarly if a party fails to prosecute a case with due dispatch, the court may dismiss the proceedings: UCPR 12.7. 36Practice Note DC (Civil) No 1 Case Management in the General List was issued on 28 August 2009. It notes that the court aims to have cases completed within 12 months of commencement and that parties should expect to be allocated a trial date within 12 months of the commencement of proceedings and "plan to meet this time standard" (1.1; 1.2). The Practice Note refers to UCPR 15.12 and the obligation on plaintiffs in personal injury cases to serve particulars and supporting documentation on the defendant with the Statement of Claim or "as soon as practicable after the service" of it (2.3). The Practice Note requires the defendant to start preparing for trial based on the matters alleged in the Statement of Claim and the rule 15.12 particulars (2.4). It also notes the court's expectation that in personal injury cases plaintiffs "will have served complete rule 15.12 or 15.13 particulars and primary medical reports and have qualified the experts who will prepare reports, including any liability or economic loss expert" (3.4). 37The Practice Note records that the court will generally order that final particulars under rule 15.12 be filed and served before the Status Conference (8.8). It also records that cases "in which parties have failed to comply with Court orders will be referred to the Civil List Judge at an early time" (11.2); and that where there has been non-compliance, the court may list the case for, relevantly, the plaintiff to show cause why the case should not be dismissed "for want of prosecution" (11.3). Particulars in the present case 38During the period 7 October 2011 and 13 February 2013 the appellant produced five versions of the Statements of Particulars. The first on 7 October 2011 (Statement of Particulars) (AB 11); the second on 9 October 2012 (Amended Statement of Particulars) (AB 67); the third during the show cause hearing on 29 November 2012 (draft First Amended Statement of Particulars) (not before this Court); the fourth on 25 January 2013 (First Amended Statement of Particulars) (Red 7); and the fifth during the show cause hearing on 13 February 2013 (Second Amended Statement of Particulars) (AB 190). 39It is necessary to analyse the particulars that the appellant supplied both in the Statements of Particulars and documents pursuant to UCPR 15.12 and the inter partes requests for particulars and responses thereto. Statement of Particulars - 7 October 2011 40The Statement of Particulars filed on 7 October 2011 recorded the Particulars of Injuries as: (a) Facial injuries; (b) Broken nose; (c) Dental injuries; (d) Injury to neck; (e) Injury to head; (f) Shock; and (g) Sequelae. It recorded the Particulars of Disabilities as: (a) Loss of enjoyment of holiday; (b) Inability to engage in pre-accident employment for a period following the accident; (c) Need to undergo extensive dental reconstruction treatment (partially completed); (d) Severe migraine headache; and (e) Need for further absences from work to undergo further dental treatment. 41In the section Particulars of Out-of-Pocket Expenses the Statement recorded that by reason of her injuries, the appellant would require the replacement of each of her damaged teeth with implants, crowns or bridge work. These would require replacement "at least twice" over her life. The Statement stated that further particulars would be provided in respect of both out-of-pocket expenses and future out-of-pocket expenses. 42In respect of Particulars of Economic Loss the Statement recorded that at the date of the accident, the appellant was employed by Tyre & Tube Australia Pty Ltd (address supplied) as a bookkeeper in part-time employment with average earnings of approximately $600 net per week. It also recorded that the appellant was wholly unfit for work from 1 January 2009 until 7 January 2009 and thereafter suffered "many days of incapacity" due to the "post traumatic headaches and the need to undergo dental treatment". An estimate was given that the appellant had lost "at least 20 days of employment on account of her injuries and the need for medical and dental treatment". 43In respect of the Particulars of Loss of Future Earnings and Earning Capacity, the Statement recorded that the appellant was suffering from continuing disabilities on account of the subject accident. It recorded that the appellant suffered from migraine headaches "which will cause her to incur further absences from work in addition to the need for further absence from work in association with further dental treatment". The Statement listed medical reports from Dr Madden (8 and 19 November 2010); Dr Iyengar (14 December 2010); and Dr Gopinath (4 November 2010); and medical certificates from Dr Upton (23 March 2009, 30 June 2009 and 9 February 2010). Inter partes particulars - February and April 2012 44On 24 February 2012 the respondent's solicitors wrote to the appellant's solicitors seeking detailed particulars, including in respect of injuries (10 requests); disabilities (6 requests) hospital treatment (8 requests); medical treatment (7 requests); previous claims (11 requests); out-of-pocket expenses (9 requests); economic loss (18 requests); and future economic loss (10 requests) (AB 23). 45On 3 April 2012 the appellant's solicitors responded to the request for particulars (AB 38). No complaint was ever raised about the adequacy of the appellant's response to these detailed requests. 46The respondent asked the appellant to specify "each and every disability" from which she was suffering and whether they related to the injury caused by the subject accident (13.1 and 13.2) (AB 26). The response repeated the disabilities that were listed in the Statement of Particulars filed on 7 October 2011 and included the following: Since the accident, the Plaintiff has experienced and continues to experience problems in eating anything that requires average chewing. Since her dental reconstruction surgery, the Plaintiff no longer can eat an apple or a nectarine and needs to cut them in pieces and chew them at the back of her mouth using the molar teeth. Prior to the subject accident, the Plaintiff was an eager sportsperson who engaged in netball and did so since the age of 8. After the accident, the Plaintiff gradually withdrew from her sporting activities as she could not withstand the fear of being hit in the mouth whilst playing netball or doing boxercise in the park. Since the subject accident, the Plaintiff has experienced and continues to experience heavy fits of migraine which are debilitating and require the Plaintiff to take painkilling medication and rest for as long (sic) it takes for the migraines to fade away. The Plaintiff's migraine fits range between less than an hour to 3 days. Since the subject accident, the Plaintiff has suffered neck pain radiating from the neck towards the back of the head. This has caused for the Plaintiff to rearrange her workstation in the hope to soften the tension on the injured section of the neck and avoid the development of migraines at work. (40-41 AB) 47The appellant provided details of her private health insurance and referred the respondent to the various reports in which her medical treatment, condition, past costs and future expenses were listed (AB 42). These included reports from the appellant's dentist, Dr Madden, dated 8 and 19 November 2010, the latter of which provided an estimate of costs involved for the proposed treatment outlined in the earlier report. These costs were $1,500 for root canal therapy for a particular tooth, $2,500 per tooth for three and possibly four teeth, and approximately $8,000 per tooth for a maximum of four teeth. Dr Madden also provided an alternative to this treatment, replacement of the teeth with an implant-retained bridge, at an approximate maximum cost of $25,000. Thus at that time the respondent was aware that the plaintiff was claiming a maximum of $43,500 (with an approximate 10% per annum increase) for future dental treatment (AB 40-42). 48In respect of the economic loss claim the appellant provided the details as requested, including that she had commenced working for Tyre & Tube in about 2007. She also provided the details of the nature of her duties. It was noted that the appellant had not received workers compensation and that she had used part of her sick leave in respect of the time taken off work. The particulars referred the respondent to the letter from her employer dated 21 September 2010 that was served on the respondent on 24 September 2010 in relation to her periods of absence and the wages lost. That letter set out the amount of sick leave (58 hours) and unpaid leave (17 hours) the appellant had taken as a result of the accident to that date. This was quantified in a letter of 1 December 2010 as $1,695.96 and $494.70 respectively (AB 186-189). 49In respect of the future economic loss claim, the appellant advised that she was currently undergoing a number of medical investigations to ascertain the extent of her injuries and the way that they would impact on her capacity to work as a bookkeeper in the future. The respondent was advised that as soon as those particulars were available they would be provided. The appellant provided a detailed response in respect of a request regarding her claim for diminution in earning capacity on the open labour market (AB 30). After providing her schooling history and the development of her bookkeeping skills, the appellant advised that the migraines and headaches "may cause her to incur absence from work and affect her capacity to perform on the open labour market" (AB 43). Reference was also made to the appellant's capacity to concentrate and the fact that since the accident she could not focus for long periods of time on accounting reports and bookkeeping printouts as she used to do prior to the accident. The particulars included a claim that the appellant was unable to perform that work because when she did spend too much time on those tasks, she developed headaches and migraines and pain in the back of her neck (AB 43). Amended Statement of Particulars - 9 October 2012 50The Amended Statement of Particulars filed on 9 October 2012 contained one addition to the Particulars of Injuries ((h) Injury to jaw) and three additions to the Particulars of Disabilities ((f) Pain, discomfort and restriction of movement of the jaw; (g) Difficulty eating; and (h) facial and jaw pain) (AB 67-68). The other change was a schedule of medical reports attached to that Statement, apparently including the reports that had been obtained since October 2011. 51By this time the appellant had served the report of Dr Howe (as an independent, non treating expert) dated 22 November 2011. Dr Howe reported that the appellant has some degree of temporomandibular joint (TMJ) dysfunction but noted that there had been no assessment at that stage as to whether this was related to the appellant's migraine headaches. Dr Howe recorded costs for future dental treatment as: bleaching $1,400; post crown for one tooth at $2,900; implant in respect of another tooth including surgery at $7,500; TMJ assessment and treatment at $2,500; endodontics and restoration at $1,850; observation for three years at $350 a year; and possible crowns for four teeth at $2,900 per tooth. The maximum on this approach was a claim for $28,800. 52In a report dated 15 October 2012, Dr Madden reported on the appellant's complaints of occasional problems with her right TMJ and noted that there was some crepitus in both TMJs. First Amended Statement of Particulars - 25 January 2013 53The First Amended Statement of Particulars filed on 25 January 2013 added to the Particulars of Injuries item (i) Injury to temporomandibular joint, and to the Particulars of Disabilities items (i) Loss of confidence due to appearance of damaged teeth; and item (j) Neck pain (Red 7-8). 54The Statement included additional Particulars of Past Out-of-pocket Expenses. It recorded that in addition to all benefits afforded by Medicare, the appellant claimed $5,820 and $500 for dental treatment from identified dentists and $120 for physiotherapy. It also included a claim in respect of certain analgesic medication (at $1.99 per week) and other tablets (at $13.88 every six weeks) (Red 8). 55The previous Statement had indicated that details of particulars of future out-of-pocket expenses would be supplied. This Statement recorded those Particulars of Future Out-of-pocket Expenses with specific reference to the dental work necessary and the cost thereof including for crowns, implants endodontic work, splints and minor adjustments (Red 8-9). This was the detail provided in Dr Madden's November 2010 and October 2012 reports, Dr Howe's November 2011 report and Dr Iyengar's reports, which had been served on the respondent. 56The Statement also recorded additional Particulars of Economic Loss including a claim that the appellant had lost at least 20 days of employment at a net weekly wage of $657. The total claim as recorded was $3,285 in lost wages. The Particulars of Loss of Future Earnings and Earning Capacity included the addition of a claim for "diminution in earning capacity on the open labour market" (Red 10). 57It is probable that the draft First Amended Statement of Particulars handed to the Court during the show cause hearing on 29 November 2012 was in a form similar to the First Amended Statement of Particulars without the out-of-pocket expenses. Second Amended Statement of Particulars - 13 February 2013 58The Second Amended Statement of Particulars filed in Court during the show cause hearing on 13 February 2013 made no amendments in respect of the Particulars of Injuries or the Particulars of Disabilities. The only change to the Particulars of Past Out-of-Pocket Expenses was the addition of the words after the reference to benefits afforded by Medicare "on receipt of an up-to-date Medicare Notice of Charge" (AB 191). There was also a change to one of the amounts in respect of dental treatment from $500 to $910. It also included the statement that the appellant continued to be employed by Tyre & Tube Australia. It added reference to tax invoices and receipts in respect of the appellant's dental treatment, physiotherapy and medication that had been served on the respondent's solicitors in early February 2013 (AB 193-194). Consideration 59The grounds of appeal can be conveniently considered in two categories: the first relating to the exercise of the Registrar's discretion (Grounds 1, 2 and 6); and the second relating to the claim of a lack of procedural fairness (Ground 3). 60There was no objection to the Registrar requiring the appellant to show cause why the proceedings should not be dismissed for want of due despatch under UCPR 12.7. Although cases in which parties have failed to comply with Court orders have been held to be wanting in due despatch (Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402), the more appropriate mechanism for consideration of the appellant's conduct in this case would have been under UCPR 15.16 for failure to comply with Division 2 of Part 15 of the UCPR. Notwithstanding this provision, the Practice Note only provides for a show cause process in respect of dismissal for want of prosecution, rather than for failure to comply with Division 2 of Part 15 of the UCPR. That may be the reason why there was no consideration given to requiring the appellant to show cause why dismissal under UCPR 15.16 should not occur. Amendment to the Practice Note in this regard may assist with the case management of such matters in the District Court. In any event the Registrar's orders were made not only under UCPR 12.7 but also pursuant to s 61(3) of the CPA for failure to comply with a direction. Exercise of discretion 61The application of the principles governing the determination of an appeal against an exercise of discretion requires that it must appear that some error has been made in the exercise of discretion, including acting upon a wrong principle, allowing extraneous and irrelevant matters to guide and affect the judgment and/or mistaking the facts. If upon the facts the dismissal of the proceedings was "unreasonable or plainly unjust", an inference may be drawn that there was a failure to properly exercise the discretion: House v R (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 505. 62The appellant submitted that, although the Registrar posed for himself the "key question" as one concerning the "adequacy" of the particulars, the only conclusion that he reached in respect of that question was that it was "overshadowed" by "constant expansion" and amendment, "without warning". It was submitted that these conclusions were expressed without the identification of the primary facts and without a proper consideration of all the relevant evidence. 63The draft First Amended Statement of Particulars that became Exhibit 2 in the show cause hearing on 29 November 2012 is not before this court. However it is probable that it was in the same form as the First Amended Statement of Particulars filed on 25 January 2013, except that it did not contain the additional out-of-pocket expenses that were included in the document in January 2013. The Registrar was satisfied on 6 December 2012 that, having regard to the draft First Amended Statement of Particulars and a letter that the appellant had written to the respondent prior to the commencement of proceedings (Exhibit 3 on that application), there was then a "more or less complete set of Part 15 particulars, subject to the future out-of-pockets" (AB 396). It is clear that at the hearing on 6 December 2012 the Registrar anticipated that the document to be filed pursuant to his orders would be expanded to include those out-of-pocket expenses. 64Even if the draft First Amended Statement of Particulars did not contain the additional particular of injury to the TMJ, it could hardly be said that this was something new to the respondent. The respondent had been made well aware of the position in respect of the TMJ in the reports of Dr Madden and Dr Howe dated 2011 and 2012. However on balance I am satisfied that it is more probable that this was included in the draft First Amended Statement of Particulars, particularly because there was no specific mention of its late inclusion when the Registrar spoke of the "constant expansion" of the particulars. 65The matters added to the Statement of Particulars between 6 December 2012, when the Registrar concluded that it would be "unjust" to dismiss the proceedings and 5 April 2013 when the Registrar dismissed the proceedings, were: the claims of a loss of confidence due to the damaged teeth and neck pain; the addition of the out-of-pocket expenses (that the respondent was aware of in any event from the reports), the inclusion of the reference to an up-to-date Notice of Medicare Charge; and a statement that the appellant had remained in the employment of Tyre & Tube Australia. The respondent had been well aware of the appellant's claim in respect of her neck pain from the detailed particulars delivered on 4 April 2012. The damage to the appellant's teeth had been the subject of the claim from 7 October 2011. The loss of confidence related to the damaged teeth and is appropriately categorised as "sequelae" as contained in the original Statement of Particulars. 66The Registrar did not identify the detail of what he had in mind when he referred to the "constant expansion" of the particulars. The Registrar observed that after a review of the Second Amended Statement of Particulars there were further particulars and documents that were outstanding. He appears to have based that conclusion on the fact that the appellant had amended the document to include the words "on receipt of an up-to-date Medicare Notice of Charge". That reference needs to be read in the context of what was contained in the First Amended Statement of Particulars. It contained the statement that the appellant was claiming various amounts for dental, medical and physiotherapy treatment "in addition to all benefits afforded by Medicare". That entry reasonably conveyed to the respondent that the appellant contended that she should not be liable to repay Medicare any of the benefits that she had received in respect of the treatment as particularised. It was an indication to the respondent that the appellant contended that the respondent would be liable for any repayment to Medicare for benefits received in respect of the treatment as particularised. 67The addition of the words "on receipt of an up-to-date Medicare Notice of Charge" could not reasonably be characterised as an expansion of the particulars or the appellant's claim against the respondent. Rather it was an indication that the appellant was awaiting the receipt of such Notice from Medicare. It was a Notice in respect of the claim that had already been made and not some new or expanded claim. It was the identification of the mechanism (the receipt of the Medicare Notice), pursuant to which the appellant's already notified claim could be calculated at an appropriate time. The respondent knew the amount that the appellant had paid for her treatment. However the Registrar used this entry in the Second Amended Statement of Particulars to reach what he described as the "only conclusion" in respect of the adequacy of the particulars that they remained incomplete to some unknown extent (Red 26 [17]-[18]). 68The appellant submitted that the finding that the extent of any incompleteness was unknown involves speculation and/or is unsupported by adequate reasoning. It was submitted that it was speculative because the Registrar was only able to identify some possibly missing receipts for past out-of-pocket expenses and the need to update the Medicare Notice. It was also submitted that the reasoning is inadequate because the Registrar failed to find what other matters remained to be attended to in order for the Statement of Particulars to comply with the UCPR. 69The appellant also submitted that the deficiencies, as found, were both technical and of dubious moment for a number of reasons. It was submitted that there was no finding, or any evidence available to support a finding, that the lack of provision of any of the documents hampered the respondent in understanding the nature of the case it was required to meet or in preparing its case. It was further submitted that UCPR 15.14(1) was not absolute and required only that the particulars be as complete as they can be made. 70The Registrar did not make a comparison or a proper comparison between the draft First Amended Statement of Particulars at the time that he held that it was unjust to dismiss the proceedings on 6 December 2012 and the Second Amended Statement of Particulars as at 13 February 2013. Had that analysis been properly undertaken, the only conclusion that could have reasonably been reached was that matters that had already been notified were added including the out-of-pocket expenses, as anticipated in the proceedings on 6 December 2012 and that the only new inclusions were the appellant's loss of confidence and the reference to the up-to-date Medicare Notice. 71I am satisfied that the finding made by the Registrar that there had been "constant expansion" at the time of the show cause hearing in February 2013 in all the circumstances of the case was to mistake the facts. 72The Registrar found that the "only conclusion" that could be reached about the adequacy of the particulars was that they were "incomplete" to an unknown extent (Red 26 [18]). Even if the particulars were "incomplete", that does not mean that they were not adequate for the purposes of the UCPR. It is anticipated in this type of litigation that particulars may become inaccurate or incomplete by reason of, for instance, ongoing treatment. If that is the case then it is contemplated that, as soon as practicable after becoming aware of changes, a plaintiff has to give all active parties in the proceedings "such advice as is necessary to make that information accurate and complete" (UCPR 15.14(2)). A plaintiff has an ongoing obligation to notify the other active parties in the litigation of any changes that occur to the matters as particularised. 73It is obvious that where there is ongoing disability, there may be ongoing treatment and thus a need to update the out-of-pocket expenses. Provisions of the UCPR recognise that up to 42 days prior to trial particulars may well be incomplete (15.14(4)). However this does not equate to inadequacy. It will all depend on the circumstances of each case. The fact that the Practice Note contains an indication of what the Court will generally do in respect of requiring the plaintiff in personal injury cases to serve a "final" statement of particulars prior to the status conference, does not remove a litigant's entitlement and indeed obligation to change the particulars should they become inaccurate or incomplete. There may well be cases where the incompleteness of the particulars are such that they are properly characterised as inadequate and non-complaint with the UCPR. This was not such a case. 74I am satisfied that the Registrar fell into error in finding that the "only conclusion" to be reached was that the particulars were incomplete to an unknown extent and equating that characteristic to an inadequacy. 75Some aspects of the Registrar's findings in respect of the appellant's solicitor's conduct are considered under the procedural fairness ground of appeal. It is appropriate in considering this ground of appeal to refer to the other aspects of the Registrar's findings in relation to the appellant's solicitor's conduct. They included that: there was deliberate conduct in obtaining medical reports knowing "it would cause the continued breach of orders" (Red 26 [19]); such conduct fell within the "kind of conduct" in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [84] to [86] and [89]-[91] (Red 26 [19]); there was a continued pattern of delaying conduct (Red 32 [39]); the conduct could not be attributed to the appellant who was "blameless" (Red 30 [33 vi]); the conduct should not be considered "in a manner different to any show cause hearing" (Red 28 [24]); and that the conduct was a "determinative factor" (Red 30-31 [33 vi]). 76The Registrar's finding that the appellant's solicitor deliberately obtained medical reports knowing "it would cause the continued breach of orders" does not include any reference to the evidence upon which it was based. There was no evidence that the appellant's solicitor had requested the updated report from Dr Iyengar after the orders were made on 6 December 2012. At the hearing on 6 December 2012, at which the orders to file the material by 20 December 2012 was made, there was mention of an outstanding report from Dr Churchin, who had not provided any previous report, but there was no mention of an outstanding report from the appellant's GP, Dr Iyengar (AB 396). However the order made by the Registrar was not restricted to a report from Dr Churchin. It was an order to file "any medical evidence". 77There was no evidence before the Registrar on the show cause hearing on 13 February 2013 of any of the conversations or communications between the appellant's solicitor and Dr Iyengar in respect of the report that was delivered to the appellant's solicitor's office on 22 January 2013. There was no basis for concluding that the appellant's solicitor had requested that report "knowing" that it would cause the continued breach of court orders. The appellant's solicitor could have requested the report before the order was made on 6 December 2012. Alternatively the appellant's solicitor could have requested the report after the order was made on 6 December 2012 but honestly believing that it would be received in time, prior to 20 December 2012, to enable the service of it pursuant to the order. 78There was no evidence upon which a finding could be made that the solicitor ordered the report from Dr Iyengar knowing that it would cause the continued breach of the court order. I am satisfied that the Registrar fell into error in making this finding. 79It is not clear what the Registrar intended by the finding that the solicitor's conduct was of the kind referred to in the identified paragraphs of Micallef v ICI Australia Operations Pty Ltd. The paragraphs upon which the Registrar relied in his finding do not refer to conduct of a particular kind. Rather they refer to principles to be applied when considering whether a dismissal of proceedings where the limitation period has expired would be unreasonable or unjust [84]-[86]; and the analysis of whether the necessary ingredient additional to the expiration of the limitation period was satisfied by the absence of a letter threatening a Motion for dismissal or the absence of complaint when the matter was set down for hearing [89]-[90]; and the analysis of the argument at first instance [91]. There was mention in paragraph [91] of the delay, the subject of exchange during the hearing at first instance. It may be that the Registrar was seeking to equate the conduct of the lawyers in that case with the appellant's solicitor's conduct in this case. That would not be a permissible comparison. The facts in that case are extraordinarily different to the facts of this case. The delay in that case had occurred over a decade. The ultimate delay with which the Registrar should have been concerned in the present case was the delay between 20 December 2012 and 25 January 2013 or 13 February 2013. The comparison made with the conduct in Micallef v ICI Australia Operations Pty Ltd is inapt and inappropriate. I am satisfied that the Registrar fell into error in making such a comparison. 80The Registrar's finding that the plaintiff's solicitor's conduct was the "determinative factor" because it was the "sole cause of the current circumstance" was clearly a finding that the solicitor had failed to produce adequate particulars and failed to comply with the timeframe within which to produce such adequate particulars. The solicitor, the subject of the Registrar's findings had come into the matter on 13 October 2012 when the previous solicitor left the employment of the firm. Indeed that solicitor had only been working at the firm since 16 September 2012. Accordingly the only order that had been breached by that particular solicitor was the order of 6 December 2012. Although it was clearly a breach of the orders, the delay in filing and serving the particulars was approximately 5 weeks which, of course, straddled the Christmas and New Year holidays. In any event it should not be thought that this Court condones the breaching of any orders of any court. However there must be a cautious and proportionate response to such breaches, particularly where a litigant is blameless, proceedings will be statute barred if they are dismissed and it is not suggested that there was any actual prejudice caused by the breach, other than that which could be cured by an order for costs. 81It appears that the Registrar took into account the conduct prior to 6 December 2012, notwithstanding the finding at that time that a dismissal would be unjust. The "determinative factor" as identified by the Registrar was the appellant's solicitor's pattern of delaying conduct. 82The appellant had not only provided five different versions of the Statement of Particulars in the space of 14 months, but had also promptly answered a very detailed request for particulars. Although a court order was made that such particulars be answered by 12 April 2012, they were provided on 3 April 2012. There was certainly no lack of promptitude in the provision of these detailed particulars, many of which were the basis of the content of the formal particulars under UCPR 15.12. 83The Registrar said he found it "difficult to foresee what directions the Court may make to prevent the continued conduct of the plaintiff's solicitor from frustrating the progress of the claim" (Red 32[39]). Putting to one side the error into which the Registrar fell in finding that the particulars were inadequate, there is ample power to prevent delaying conduct. It is not clear why the Registrar found it difficult to foresee the use of such directions. One way of managing cases in which the court is concerned that parties may not be focusing appropriately on getting the matter ready, is to set the matter down for hearing. Experience shows that such a step will focus the parties on making sure their cases are ready. This would have been an appropriate step to take in this case. It certainly would have triggered the provisions of UCPR 15.14(4). Although so-called guillotine orders should not be made without good reason, they are part of the court's case management tools. Such an order can be made limiting a party to particular evidence and/or reliance on certain particulars as provided at a particular date. It is imperative that during the management of cases, judicial officers and registrars with managerial responsibility ensure that the real issues are explored and determined. 84In this case the respondent knew by no later than April 2012 the real case it had to meet. It knew that the appellant alleged that her injuries were caused by its negligence in the operation of the slide and its placement at the shallow end of the pool. The respondent took the step of seeking further particulars, even after the Statement of Particulars was served on it with the accompanying documents in October 2011. It waited until after it received the response from the appellant on 3 April 2012 to file its Defence on 25 May 2012. No suggestion was made at any time that it was unable to file its Defence because of a lack of understanding of the case it had to meet. The respondent was clearly in a position to defend itself, not only denying negligence but also relying upon various provisions of the Civil Liability Act, including a claim that it was not liable because of the materialisation of an inherent risk: s 5I. 85I am satisfied that the Registrar failed to give proper consideration to the appropriate alternative orders that would have ensured a just result for both parties. Dismissal of proceedings should be the last resort. I am satisfied that the Registrar's dismissal of the proceedings was unreasonable and plainly unjust, such that this Court should infer that there was a failure to properly exercise his discretion. Procedural fairness (Ground 3) 86The final ground of appeal relates to a claim that the Registrar denied procedural fairness to the appellant's solicitor in circumstances where the appellant's solicitor's conduct was the "determinative factor" in the dismissal of the proceedings. As I understand the appellant's argument, it is contended that this lack of procedural fairness infected the exercise of the Registrar's discretion such that it should be set aside. 87Having regard to the findings above it is not necessary to determine this aspect of the appeal. However it is appropriate in the circumstances to say something about the findings made by the Registrar. 88The Registrar found that the explanation the appellant's solicitor gave in her affidavit in respect of the appellant's non-compliance with the Registrar's order of 6 December 2012 to file the medical reports and the Part 15.12 particulars by 20 December 2012 was "not credible nor satisfactory" (Red 29[33(i)]). It was submitted that this was a serious adverse finding against the solicitor in circumstances where there was no challenge to the content of the affidavit, no cross-examination of the solicitor and no submission by the respondent that the explanation was not credible. 89The explanation was given in an affidavit sworn by the solicitor on 11 February 2013. The explanation was that the appellant was "unable to comply" with the Registrar's order of 6 December 2012 "as the treating doctors (sic) report of Dr Iyengar was outstanding" (AB 315). The appellant's solicitor also explained that the report from Dr Iyengar was received in the appellant's solicitor's office on 22 January 2013 and that as soon as it was available the "Final" particulars were "finalised" filed and served on 25 January 2013. 90It should also be noted that the swearing of this affidavit was in the context of there having been discussions about whether an order should be made under s 99 of the CPA that the appellant's solicitors pay the costs of the show cause hearing on 29 November 2012. Indeed the appellant's solicitor's same affidavit of 11 February 2013 candidly indicated that it was not intended to make any submissions in respect of costs. 91On the appeal, the respondent submitted that it was open to the Registrar to make a finding that the solicitor's explanation was not "credible" in the circumstances of the many breaches of the Court's orders that had occurred to that date. It is one thing to observe that there have been many breaches of previous orders. It is quite another to make a finding that an unchallenged explanation on oath is not credible when such finding has nothing to do with the previous breaches of orders. 92It is true that the appellant's solicitors were in breach of their statutory duty to the Court to comply with the directions and orders of the Court on more than one occasion: s 56(4) CPA. The explanation of the breach of the orders made on 6 December 2012 that was offered in the affidavit sworn on 11 February 2013 was not accompanied by any hint of an apology for the breach (other than perhaps the indication that no submissions would be made in respect of any proposed costs order against the solicitors) (AB 315-316). 93The use of the expression "not credible" was in the circumstances unfortunate because it is an expression that is open to more than one meaning. It may mean that it is not believable or that it is not convincing: The New Oxford Dictionary of English Clarendon Press, Oxford (1998). The former may suggest a lack of honesty in the making of the statement. The latter may accept the statement was made honestly, but that it lacks persuasion about the matter that it addresses. 94There is no basis to find that the deponent of the affidavit was other than totally honest. I apprehend that the Registrar did not intend to convey otherwise. Rather I apprehend the Registrar intended to convey that the explanation honestly given was not a persuasive one in the circumstances that future breaches would not occur. 95The explanation was quite unsatisfactory and the Registrar was entitled to reach that conclusion. Proposed Orders 96The orders that I propose are: