Burbery v Glaxo Wellcome Australia Pty Ltd; Murray v Glaxo Wellcome Australia Pty Ltd; Beesley v Glaxo Wellcome Australia Pty Ltd; Barton v Glaxo Wellcome Australia Pty Ltd; Poulton v Glaxo Wellcome Australia Pty Ltd; Johnstone v Glaxo Wellcome Australia Pty Ltd; Davidson v Glaxo Wellcome Australia Pty Ltd; Bradley v Glaxo Wellcome Australia Pty Ltd; Thompson v Glaxo Wellcome Australia Pty Ltd; Boorman v Glaxo Wellcome Australia Pty Ltd; Clarke v Glaxo Wellcome Australia Pty Ltd; Cooper v Glaxo Wellcome Australia Pty Ltd; Wellington v Glaxo Wellcome Australia Pty Ltd; Hardy v Glaxo Wellcome Australia Pty Ltd; Trebilco v Glaxo Wellcome Australia Pty Ltd; Scott v Glaxo Wellcome Australia Pty Ltd; McQuillan v Glaxo Wellcome Australia Pty Ltd; McMahon v Glaxo Wellcome Australia Pty Ltd; Johnston v Glaxo Wellcome Australia Pty Ltd
On 30 April 2014, 19 plaintiffs commenced separate proceedings against Glaxo Wellcome Australia Pty Ltd ("Glaxo"), claiming damages for personal injury arising from the administration to them in the course of a procedure known as a myelogram of an oil-based contrast dye known as Myodil.
The proceedings were not commenced pursuant to Part 10 of the Civil Procedure Act 2005, and so these are not representative proceedings. These are multiple individual claims which have, particularly in relation to liability issues, much in common. The Statement of Claim and Defences are, in substance, identical.
The defendant, Glaxo, an Australian company, distributed and sold Myodil which was manufactured and produced by its UK parent company, Glaxo Laboratories Ltd.
Twelve of the plaintiffs claim that they had undergone a myelogram in New South Wales (NSW), four claim that they had undergone a myelogram in Queensland, two claim that they had undergone a myelogram in Tasmania, and one claims that he had undergone the procedure in Western Australia.
Stephen Smart & Associates acts for each of the plaintiffs, and the defendant is represented, in each case, by the same firm of lawyers, Norton Rose Fulbright.
[3]
Factual Background
It is uncontentious that a myelogram is an imaging procedure carried out by a radiologist which uses a contrast dye to identify, and diagnose, problems in the spinal canal, including the spinal cord, nerve roots and other tissue. It involves the introduction of a spinal needle into the spinal canal, and the injection of contrast material in the space around the spinal cord and nerve roots, known as the sub-arachnoid space. The passage of the contrast material is then imaged in real time by the radiologist.
Each plaintiff claims that as a consequence of Myodil being used as the contrast dye for the purpose of the myelogram to which they had each been subjected (some on more than one occasion), they now suffer from adhesive arachnoiditis.
Speaking generally, adhesive arachnoiditis is a painful condition caused by long term scarring of the arachnoid membrane, which is one of the membranes that surrounds and protects the nerves of the spinal cord. Inflammation can lead to the formation of scar tissue which causes the spinal nerves to adhere to each other, thus being described as adhesive arachnoiditis.
The tethering of the spinal nerves can prevent them moving freely as an individual moves, thereby triggering pain and other symptoms. Adhesive arachnoiditis can produces a range of symptoms including pain, particularly affecting the lower back and legs, leading to decreased mobility and in some very severe cases, paralysis, bladder and bowel dysfunction and impaired sexual function.
Whether, and to what extent, each of the plaintiffs suffers from adhesive arachnoiditis is not the subject of this judgment.
[4]
The Claim of the Plaintiffs
The claim of each plaintiff is pleaded in essentially identical terms. The claim pleads that the risk of Myodil causing adhesive arachnoiditis was known from at least 1956, when an article was published in the reputable British journal, The Lancet. The plaintiffs' claim refers to further journal and other articles, each of which apparently identifies the adverse consequences of the use of Myodil for myelograms. The supply of Myodil by the defendant was discontinued, apparently in 1987.
The plaintiffs plead that Glaxo owed to each plaintiff a duty of care to cease the supply of Myodil at a point prior to 1971, when it became aware, or ought to have become aware, that Myodil caused patients to suffer from adhesive arachnoiditis.
The plaintiffs plead in addition that Glaxo owed a duty of care to provide a product warning to health care professionals so that they might warn patients that the contraction of adhesive arachnoiditis was a known risk of the administration of Myodil.
The plaintiffs plead that Glaxo was in breach of those duties by continuing to supply Myodil and by failing to warn health professionals who might use it.
Those allegations are common to each plaintiff. In addition, each plaintiff then pleads that they had a particular procedure, and each identifies the date and location of the procedure as best as can be done.
Various periods of time have elapsed between the date (or dates) of the myelogram procedures sued upon, and the commencement of these proceedings. The longest period is 43 years, and the shortest period is 30 years. Thus these claims invite attention to the obligations of Glaxo in the period, at least, from 1971 through to 1984.
No pleading specifies the date when it is alleged that each plaintiff contracted adhesive arachnoiditis. In response to requests for particulars as to when that was, the plaintiffs' solicitor, in each case, has responded with an identical formula of words to the following effect:
"Our client asserts that the precise date cannot be put down to a particular day but alleges, based on the type of condition, it was within one to two years following the procedure, but a precise date, namely of contraction as opposed to discovery, cannot be provided."
Particulars were also asked of the date of the diagnosis of adhesive arachnoiditis. The answers to that question vary in each case. In a number of cases, the plaintiff responds by saying that the particulars will be advised. Invariably, the date of diagnosis is referrable to a date of a medical report or opinion. The dates of diagnosis range from 1976 through to 2012.
[5]
Glaxo's Defence
On 19 November 2014, Glaxo filed a Defence in each matter.
The Defence makes admissions about the fact, and the cessation, of supply of Myodil in Australia. It admits that particular warnings were given on product information leaflets, and pleads further warnings were given at different points in time.
Surprisingly, the defence denies that Glaxo owed any duty of care to the plaintiffs, and, unsurprisingly denies that it was in breach of any such duty.
The Defence does not admit that the plaintiffs underwent myelogram procedures and specifically does not admit that Myodil was administered to the plaintiffs. The Defence pleads that another oil-based contrast medium called Pantopaque "… was then available in Australia to be used in the conduct of myelogram procedures". Particulars are given of the importation and sale of Pantopaque. Glaxo does not manufacture Pantopaque. The evidence on the Motion establishes that between 1974 and 1978, 13,500 packages each consisting of 3 doses of 3 ml of Pantopaque had been imported into Australia, and distributed to some large hospitals, and also to a number of radiology practices throughout Australia.
Glaxo does not admit that the plaintiffs have contracted adhesive arachnoiditis, and says that if the plaintiffs have, then it does not admit that the adhesive arachnoiditis resulted from the administration to the plaintiffs of Myodil.
The final paragraph of the Defence in each case is one which in terms pleads that the action is barred by the provisions of the Limitation Act 1969 in the cases of the plaintiffs who underwent the procedure in NSW, and the appropriate limitation legislation for the plaintiffs who underwent the procedure outside NSW.
[6]
Present Notices of Motion
On 10 December 2014, each plaintiff filed a Notice of Motion in their own proceedings in identical terms which were as follows:
"3. An order pursuant to s 62 of the Civil Procedure Act 2005 (NSW) that any argument or application to extend the time for bringing these proceedings pursuant to the Limitation Act 1969 (NSW) or any other interstate statute of limitation, be heard at the final hearing of these proceedings."
On 11 March 2015, Glaxo, in each proceeding, filed a Notice of Motion which sought a series of orders with respect to the summary disposition of the proceedings on the basis that they had been brought out of time and had not been prosecuted with due dispatch. The final alternative relief in each proceeding where the procedure was alleged to have occurred in NSW was in the following form:
"6. In the alternative, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, the defences raised by the defendant under the ss 14(1)(b) and 51(1) of the Limitation Act 1969 be tried and determined separately to an in advance of any trial of the remaining issues in the proceedings."
A similar order was sought with respect to interstate legislation.
As the argument developed, the principal issues which call for determination in the judgment are those which centre upon the timing of the hearing of the limitation issues.
As is apparent from the relief sought in each of these Motions, the parties are at issue as to the appropriate time for the hearing of any application for the extension of the limitation period. In short, the principal issue confronting the Court is whether the issue of a grant of an extension of the limitation period should be heard separately and in advance of the final hearing as Glaxo contends, or whether it should be heard at the same time as, and together with, all evidence being adduced on the final hearing as the plaintiffs contend.
Although Glaxo did not abandon its claim for other relief, it was faintly, if at all, pressed. An adequate basis for the grant of the other relief sought was not established.
[7]
Legislative Structure
Section 56 of the Civil Procedure Act 2005 requires that the Court must seek to give effect to the overriding purpose of the Act and the Uniform Civil Procedure Rules 2005 ("UCPR") when it exercises any power, including the power to order the separate determination of any issue of fact and law in accordance with Part 28 of the UCPR, or alternatively, any direction given for the purpose of case management.
The overriding purpose of the Civil Procedure Act and the UCPR in their application to civil proceedings:
"… is to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
Section 57 of the Civil Procedure Act obliges the Court, when managing any proceedings in the court, to have regard to the following objects:
1. the just determination of the proceedings;
2. the efficient disposal of the business of the court;
3. the efficient use of available judicial and administrative resources;
4. the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
Section 58 obliges the Court, when making an order or direction for the management of proceedings, to act in accordance with the dictates of justice. Relevantly here, the Court may have regard to the degree of difficulty or complexity to which the issues in the proceedings give rise, and the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction which the Court gives. As well, the Court may have regard to such other matters as it thinks relevant in the circumstances of these cases.
The plaintiffs contend that the power which the Court was exercising was that under s 62 of the Civil Procedure Act. Section 62 is concerned with the giving of directions as to the conduct of a hearing. In my view those provisions are not appropriate to the issues raised by the Motions. The determination of the Motions calls up the provisions of Division 1 of Part 6 of the Civil Procedure Act, and the use of management directions and, additionally, the power under Part 28 of the UCPR to order a separate determination of a separate question or questions.
[8]
The Evidence
The evidence established that, of the 19 cases which are on foot, in one case the plaintiff has died; in each of the other 18 cases, the youngest plaintiff is now 57 years of age and the oldest is 86 years of age. The evidence includes statements of each of the plaintiffs which vary in terms of relevant detail.
In their statements, to varying degrees, the plaintiffs describe their symptoms, their ongoing treatment and the extent of their incapacity which they, at least at this stage, attribute to adhesive arachnoiditis. Some plaintiffs are largely confined to their homes, others have difficulty sitting for any length of time, walking for any distance or leaving their homes and support. Generally speaking, each of the plaintiffs will experience considerable difficulty coming to Court and giving evidence.
The plaintiffs generally identify in their statements where the myelogram procedure, or procedures, was, or were, undertaken. Some seem to have been carried out in public and private hospitals, others seem to have been carried out in radiology practices. The precise date is generally not specified although the approximate time is, and often the names of the particular doctors carrying out the procedure are not disclosed.
Many, but not all, of the statements contain some reference to the first occasion when the plaintiff was told that they were suffering from adhesive arachnoiditis, and some reference to when they obtained information about a potential cause of action against Glaxo from the Arachnoiditis Sufferers Association ("the Association"), or else a lawyer, including the firm of Stephen Smith & Associates, their presently retained solicitors.
It is not clear whether there exists for each of the plaintiffs, and if so, to what extent, hospital and medical records recording the undertaking of the myelogram procedure. In answers to a standard request for particulars made by Glaxo seeking the provision of copies of the radiographs taken prior to, during, and immediately after the procedure involving the administration of Myodil, the standard response has been that due to the time which has passed between the procedure and the request for particulars, all clinical and hospital notes have been destroyed.
As well, in the standard request for particulars, Glaxo has sought details of whether the plaintiffs allege that Glaxo supplied Myodil to the hospital or medical practitioner in question and, if so, Glaxo seeks particulars of who received the supply and when the supply is alleged to have been received. Unsurprisingly, the plaintiffs, in a standard answer, protest that whilst the individual plaintiff was administered Myodil as pleaded, that:
"… they cannot possibly answer your request save an except to say that the Myodil was in the possession of the facility that administered it to our client, which was your client's product" (sic)
[9]
Post-Hearing Submissions
After the hearing concluded, apparently with the consent of the solicitor for the plaintiff, the solicitors for Glaxo sent through a letter which contains the following material:
"1. For the purposes only of any separate determination of applications by the plaintiffs (or any of them) for extensions of time under the applicable Limitations Acts which the Court might order, our client will concede that the respective plaintiffs have a prima facie right of action (i.e. that there is evidence establishing such a right) against the defendant.
2. If the Court does order the separate determination of applications to be made by the plaintiffs (or any of them) for extensions of time under the applicable Limitations Acts, and it is necessary in any such application for the plaintiff to give oral evidence but, by reason of their age or disability, it is not reasonably possible for them to travel to Court to do so, the defendant will consent to an order for the taking of that plaintiff's evidence on commission, and will pay the Court's costs (including any additional transcript costs) consequent upon that order."
The concession made in the first paragraph extracted above, seems to arise directly out of an exchange between the Court and counsel for Glaxo. That exchange related to whether the obligation falling upon an applicant for an extension of the limitation period, to satisfy a Court that there is evidence, available to be adduced at a final hearing which, if accepted, would establish the cause of action pleaded: see Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 443; Baker v Australian Asbestos Insulations Pty Ltd [1984] 3 NSWLR 595 at 602-604; Sorrenti v Crown Corning Ltd (1986) 7 NSWLR 77 at 79D-G. As the Court of Appeal said in Yu v Speirs [2001] NSWCA 373, in the context of applications for the extension of limitation periods, the use of the phrase prima facie case means proof at the level described above, which is a far less stringent test than a prima facie case in many other contexts. I would understand the concession in referring to a prima facie case to reflect the meaning which I have described above.
The letter also attached a table containing references to answers to various particulars including particulars given since the hearing with respect to the date of diagnosis of adhesive arachnoiditis. As has earlier been noted, the dates of diagnosis range from 1976 through to 2012.
[10]
Discernment
The plaintiff submits that the overriding purpose of the Civil Procedure Act, namely the just, quick and cheap resolution of the real issues in the proceedings, will best be served by a hearing of all issues, including the limitation extension issues, together.
In particular, the plaintiff submits that it is inconsistent with the provisions of the Civil Procedure Act to, in effect, have two sets of hearings in circumstances where all plaintiffs would have to give evidence on two occasions, be cross-examined on both occasions in circumstances where there are particular reasons which would prejudice the plaintiffs if required to conduct the litigation in that way.
The plaintiffs submit that, having regard to their age, their ill health and impecuniosity, the burden of two hearings would be quite unjust. In particular, the plaintiffs submit that it is probable that the cross-examination of each of the plaintiffs regarding limitation issues will traverse substantially into areas which are likely to be the subject of cross-examination at trial.
Glaxo submits that while, as a general rule, the power to order a separate determination of questions should be approached with caution, it is just and convenient for such an order to be made in these cases. It submits that hearing the limitation questions first would contribute to an overall saving of time and cost by substantially narrowing the issues for trial, or alternatively, in some cases, resolving the proceedings without the need for a full trial.
Glaxo's case is that, having regard to the offers made in the post hearing submissions, there is now little, if any, evidence of any actual prejudice to the plaintiffs from having separate hearings.
With respect to the question of overlapping evidence, Glaxo's case now is that their concession that a prima facie case exists will mean that the only live issues so far as each plaintiff is concerned, for determination at a hearing of limitation questions will be those issues relevant to the facts about when and where the plaintiff's procedure occurred, when the plaintiff contracted and was diagnosed with adhesive arachnoiditis, and when, to put it generally, the plaintiff had the requisite knowledge such that the ought to have commenced their proceedings.
The defendant submits that in the circumstances, there is little practical risk of any real overlap in the evidence which is likely to be advanced in the plaintiff's case at trial.
[11]
Orders
Having regard to the submissions of the defendant which came in after the last hearing, and having regard to the fact that some sensible case management directions ought to be formalised to facilitate the efficient taking of the plaintiff's evidence, and the balance of the evidence in a joint hearing, I propose to simply order that:
1. The parties bring in orders, including such case management orders as are necessary, which will dispose of this motion.
2. Costs of each of the Motions should be costs in the cause.
3. Proceedings adjourned to 9.30am, Friday 10 July 2015 for further directions.
[12]
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: 30 June 2015
The evidence was provided in respect of each plaintiff by an affidavit from their solicitor, Mr Peter Li. Mr Li's affidavit sets out the costs associated with each plaintiff travelling to Sydney to attend Court for the purpose of a hearing of any separate question prior to a trial. There is no reason to think that this evidence would not be directly applicable to the costs of attending for a trial
The evidence of these costs varies from individual to individual, but in many cases is quite significant, sometimes involving interstate travel and sometimes involving travel from regional centres and outer suburbs, to Sydney. Many of the plaintiffs in their statements indicated that they are not persons who are financially comfortably off and, indeed, many of them appear to be in receipt of social security payments of one kind or another.
Mr Li asserts in the affidavit, I assume based upon his instructions, that the taking of evidence will be disrupted by reason of each plaintiff's symptoms of pain associated with adhesive arachnoiditis, and also that they are not in a financial state to bear the cost of attendance for a separate hearing on an extension of the limitation period.
Mr Li gives evidence in a standard paragraph, reproduced in each affidavit, about when each plaintiff knew of the potential dangers associated with the administration of Myodil, and the resultant condition of adhesive arachnoiditis. In each case he says:
"I am instructed by the plaintiff that they were never aware up until receipt of the document that Glaxo Wellcome Pty Ltd knew the potential dangers of Myodil and achesive arachnoiditis. This fact only came to the attention of this firm in the Jarrad case, and thereafter to the clients by leave of court of Jarrad to produce and grant leave. The plaintiff was able to be told of the existence of the document." (sic)
Mr Li does not identify the particular document which has such significance. So far as can be ascertained from the submissions of counsel for the plaintiffs, the document to which Mr Li is referring seems to be a product warning issued in 1971 with respect to the drug, but that is not entirely clear.
Although Mr Li refers to the "Jarrad" proceedings, none of the pleadings in that matter were put before the Court. This Court, in hearing these Motions, has no further detail as to what court those proceedings were conducted in, when those proceedings were commenced, when they were concluded, nor what material became available in the course of those proceedings, either by way of pleadings or evidence.
Mr Li also says in his affidavit that a report of an Inquiry undertaken by the Senate of the Australian Parliament into Myodil and the connection between that product and adhesive arachnoiditis, was published on 11 February 2013. He deposes that the report produced new information on Myodil which was unknown prior to the Inquiry leading to the report which was conducted in September 2012.
The defendant placed evidence before the Court by a number of affidavits of its solicitor, Mr Peter Cash, which identified the issues likely to be ventilated at a trial, and described the likely evidence which would be adduced to deal with those issues.
In part, the description of this likely evidence was based upon evidence which had been led in previous proceedings in this Court, Thomas v Glaxo Australia Ltd & Ors. Those proceedings gave rise to a judgment of Windeyer J, delivered on 1 April 1999, in which his Honour declined to extend the limitation period with respect to the claim against Glaxo, but did so with respect to the claim against the other two defendants who were medical practitioners: see Thomas v Glaxo Australia [1999] NSWSC 282.
Mr Cash's principal affidavit estimated that the trial of each plaintiff's proceeding would take three to four weeks. The unstated basis of that estimate must have been that this Court would not hear any common issue in any matter at the same time. That is not a premise which necessarily reflects the Court's current approach to case management, nor the duties of the parties and their lawyers under the Civil Procedure Act.
Mr Cash deposed to the issues likely to be relevant on the question of whether there were real issues to be debated on a limitation extension application. He identified the following issues:
1. the date of the diagnosis of each plaintiff with adhesive arachnoiditis and/or the other injuries pleaded in each of the Statements of Claim;
2. the knowledge of each plaintiff, namely when they first learned, either by being informed or otherwise, that the adhesive arachnoiditis and consequential injuries were, or may have been, caused by administration of Myodil during a myelogram;
3. the knowledge of each plaintiff as to the relationship between the sale or supply of Myodil in a Australia and the activities of Glaxo;
4. the date upon which each plaintiff retained lawyers in relation to their adhesive arachnoiditis, and the date when each of the plaintiffs received information concerning a connection between their adhesive arachnoiditis and any of the acts or omissions of Glaxo.
Mr Cash pointed out that each of these general topics may need evidence in addition to the statements which have already been supplied, and may also require cross-examination to explore whether, if efforts were made to obtain knowledge and information, those efforts were reasonable in the circumstances.
Mr Cash points out that he anticipates that on any application for an extension of time, the defendant may wish to lead evidence which establishes, as a matter of fact, when knowledge was publicly available of a variety of matters relevant to the supply, sale and use of Myodil for myelogram procedures, and other matters which might, broadly speaking, be relevant to all plaintiffs, in terms of their knowledge, including the publication of the Association.
As well, Mr Cash deposes in separate affidavits, in respect of some plaintiffs, that there will be evidence indicating that the particular plaintiff was in receipt of legal advice well prior to the relevant date for the purpose of the extension application.
Mr Cash notes that the defendant intends to adduce evidence as to the extent of prejudice which it would suffer in defending any of the proceedings, because of the unavailability of hospital or other medical records, the unavailability of evidence from the medical practitioners who referred a plaintiff for myelograms, and who carried out the myelograms, the unavailability of certain features of the myelogram procedure with respect to a plaintiff because of the absence of evidence of the two kinds to which I have just referred, and the inability of the defendant to properly adduce evidence dealing with the plaintiff's claims for injuries.
Finally, Mr Cash points to the fact that Glaxo would lead evidence that it is unable to join or to properly consider joining as cross-defendants, many, if any, of the relevant medical practitioners.
This latest material indicates that, at least with respect to the plaintiffs who received their diagnoses at a time well prior to the commencement of proceedings, there may be significant issues with respect to whether or not the threshold for the extension of the limitation period can be crossed.
The concession made for the purpose only of a separate hearing of extension applications by the defendant Glaxo, with respect to the existence of a prima facie case, and their offer to pay the additional costs occasioned by the taking of evidence on commission, addresses appropriately, although belatedly, issues of significant prejudice pointed to and relied upon by the plaintiffs with respect to the ordering of separate determination of the issues under the various Limitations Acts.
It is open to Glaxo, if so advised, to lead evidence at the separate hearing to contest matters relied upon by a plaintiff, and also to tender evidence which establishes the existence of actual, and not just presumptive prejudice. If such evidence of actual prejudice is to be led, much of it will be common to each of the proceedings. Evidence of prejudice is unlikely to be relevant except to explain the reason for the absence of a witness at a final hearing.
The question posed for decision here, namely, whether a limitation issue, or an extension of the limitation period if necessary, is to be heard separately and in advance of a final hearing, must necessarily depend upon all the facts, matters and circumstances in each individual case having regard to the proper application of the principles of case management, and the statements of principle about the nature of the power being exercised: Wells v Commonwealth of Australia [2014] NSWSC 148 at [63].
Ultimately, the Court must have regard to what the interests of justice in particular cases require. I accept that, having regard to the advanced ages of many of the plaintiffs and the state of their health, it would be preferable if they needed only to give evidence once, and not twice. But this must be balanced against the steps which Glaxo has offered to institute for the purpose of separate determination of the limitation issue, namely, to have their evidence taken on commission either in or close to their homes, in a way which minimises all such inconvenience and difficulty, as is possible.
Whilst I appreciate, and there is evidence to support, the fact that the plaintiffs' disabilities which they claim to be associated with the administration of Myodil may render giving evidence difficult, there is no specific material that points to any ongoing harm, particularly of a psychiatric or psychological kind, which would be caused to the plaintiffs in having their evidence taken on two occasions.
As well, it is necessary to consider, and give weight to, the fact that the opposition to the extension of the limitation periods is not merely formulaic, but on the evidence before me, has some real basis. If that basis is demonstrated, then it may well be that Glaxo is not exposed to full hearings in each of these cases.
These proceedings are 19 separate proceedings. They are not a representative action under Pt 10 of the Civil Procedure Act. In Giles v The Commonwealth of Australia [2014] NSWSC 83, I considered the question of whether a limitation issue should be dealt with prior to the hearing of all other issues. I concluded, in the context of a representative action, that the interests of justice in that matter were served by hearing the limitation issues at the same time as all other issues.
I reached a similar conclusion in Bowden v State of NSW [2014] NSWSC 87. This was a case in which the plaintiff claimed that he suffered significant psychiatric and psychological injury by reason of his treatment, many years before he commenced proceedings, at a childrens home for which the State of NSW was responsible.
The judgments in these cases indicate that ultimately, the order with respect to when particular issues should be heard, and if any issue should be heard separately and in advance of others, is a discretionary matter which is to be exercised judicially but which is not fettered. It is a question of what the interests of justice in each case require. It is a fact-specific exercise.
Each of the submissions by the plaintiffs and the defendants raise matters properly to be considered. None of them are to be disregarded. It is a matter for the Court seeking to do the best it can to weigh the submissions and see if it has been persuaded that the interests of justice favour a separate determination of the limitation issues.
I am satisfied that in this case, the interests of justice do favour such a course. I am satisfied that the overriding purpose of the Civil Procedure Act, in its application in these cases, is best furthered by ordering that the limitation issues be considered separately and in advance of other issues.
The matters which I regard as being of significance to this decision include the following:
1. the evidence can be taken from the plaintiffs on commission, at the expense of Glaxo, and with minimal disruption to the lives of the plaintiffs, and with minimal aggravation of the consequences of the injuries which they attribute to Glaxo;
2. such is the history of past litigation, and the range of dates of both the administration of the myelogram procedures and the diagnoses of adhesive arachnoiditis, that on its face real issues are raised for determination as to whether an extension to the limitation period ought be granted. Particularly is this so in Western Australia, where there is a real issue as to whether there is any power to order an extension of the limitation period;
3. the concession by Glaxo that a "prima facie case" exists, has minimised the prospect of any substantial or significant overlap in the evidence to be adduced at the hearing of a separate limitation issue and a final trial. There remains a risk of overlap in the area of the credibility of an individual plaintiff, but no particular reason to think that this is likely, can be deduced from the evidence or the submissions;
4. the date when the myelogram procedures took place, and the time when adhesive arachnoiditis was contracted, and consequently the plaintiff suffered injury, demonstrates that in each case the tort was complete well before the proceedings were instituted. In other words, unless a plaintiff can persuade the Court to exercise its discretion to extend the limitation period, Glaxo will not face a full hearing of that plaintiff's claim. None of these cases give rise to any arguable factual issues about whether the limitation period has in fact expired: cf Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514; and
5. the well-known dangers and difficulties associated with separate hearings of components of causes of action based upon tort do not exist to the same extent with limitation issues where, as here, the limitation period is accepted to have elapsed: Wells at [8]; and
6. in the particular circumstances of these cases, where the limitation issue is a prominent matter, at the forefront of the defences mounted in the proceedings, an early determination of that issue is more likely to facilitate an informal resolution of the proceedings, including by mediation, than to tell against that.
In addition to the matters in the preceding paragraph, with proper case management directions, particularly with respect to the evidence being relied upon by Glaxo, which is of general application to all cases, a separate hearing of the limitation issues in each case, can nevertheless be managed together with the opportunity for hearing some evidence jointly in all of the cases. This is likely to provide an efficient use of judicial resources, and probably more efficient than leaving the hearing of the limitation issues until final trial.
As well, I am influenced by the fact that such is the length of time since the procedures are said to have taken place, and such is the clarity with which this defendant claims to be able to demonstrate prejudice, that no disadvantage can flow addressing those issues prior to the trial itself, as opposed to waiting until the conclusion of the trial when those matters can be weighed in the balance.
For all of those reasons, it is appropriate to make orders for the separate hearing, in advance, of final hearing of the limitation issue.