Campton v Centennial Newstan Pty Ltd

Supreme Court of NSW|2014-03-07|Before: Garling J

Judgment 1This judgment, which deals with whether the Court ought make an order for costs sought by one party to litigation from another, is a cautionary tale about the necessity for parties to litigation in the Supreme Court, and their lawyers, to pay close attention to the obligations contained in the Civil Procedure Act 2005 (the CP Act), the duties there articulated and case management orders made by the Court. 2As these reasons will show, non-compliance with orders and case management directions which are made can be disruptive of the Court's processes, and more particularly, where that non-compliance is not inadvertent, can be costly to the party who, or which, fails to comply with the orders and directions. 3It will be necessary to set out, in some greater detail than is customary, the factual circumstances which are relevant to these proceedings.

Plaintiff Seeks a Costs Order 4On 24 October 2013, at a directions hearing held in advance of a final hearing estimated to take five days, the Court adjourned the proceedings and vacated the hearing dates which had been filed. It made orders permitting either party to make any application for costs. 5At a hearing before the Court on 29 November 2013, the plaintiff sought an order that the defendant pay his costs thrown away by the vacation of the hearing dates on an indemnity basis. 6The defendant opposed the making of that order, and submitted that the Court ought order that each party pay his, or its own, costs of, occasioned by, the adjournment, including costs thrown away by the vacation of the hearing dates. 7The vacation of the hearing dates meant that in substance and effect, the Court was adjourning the final hearing of the proceedings. It is appropriate to refer to what occurred as an adjournment.

Relevant Legislation 8As these reasons deal with particular provisions of the CP Act, it is as well to set those out provisions at the commencement of the judgment. 9Part 6 of the CP Act deals with case management and interlocutory matters. Division 1 of that Part deals with guiding principles. 10Section 56 is in the following form: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) .... " 11Section 57 of the CP Act, obliges the Court to regulate the practice and procedure of the Court so as to best ensure the attainment of the objects of case management. It is in the following form: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 12In considering whether or not to grant an adjournment, or to give any case management direction, the Court is obliged to follow the dictates of justice. Section 58 of the CP Act makes provision with respect to those dictates of justice. It is in the following form: 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case." 13Section 59 of the CP Act requires the Court to implement its practice and procedure with the object of elimination of delay. 14Section 61, which falls within Division 2 of Part 6 of the CP Act, provides the Court with abundant power to make case management directions and orders. 15The provisions of Part 2 of the Uniform Civil Procedure Rules 2005 also provide an ample power to make appropriate orders.

Decided Cases 16It is appropriate to note at the outset of this judgment, some principles which emerge from decided cases dealing with the appropriate approach to case management, and to the provisions of the CP Act. 17The first is that it is beyond doubt that the Court has a role in providing judicial case management. Two decades ago, and well before the CP Act commenced, Toohey and Gaudron JJ in the High Court of Australia, clearly acknowledged the role of judicial case management when they said in Sali v SPC Ltd (1993) 67 ALJR 841 at 849, that judicial case management reflected: "... the view that the conduct of litigation is not merely a matter for the parties, but is also one for the Court. And the need to avoid disruption in the Court's lists with consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard." 18Secondly, civil litigation is not a game played between two parties who decide to reveal the true issues at a time which they determine according to their own perceived strategic purpose. 19Allsop J (as he then was) had, at a time prior to the commencement of the CP Act, valuably identified and described the proper approach to modern litigation: see White v Overland [2001] FCA 1333. He said at [4]: "Litigation is not a game. It is a costly and stressful though necessary evil." 20It is now well over a decade since the Court of Appeal announced the demise of the "ambush theory of litigation", and said, in strong terms, that the historic and "treasured" right of a litigant to "preserve the opponent's defenceless ignorance" in a game of litigation must cease: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 at [21]-[31] per Heydon JA (Mason P and Young CJ in Eq agreeing). 21Thirdly, the introduction and effect of the CP Act, has meant that courts have an extensive statutory basis for case management, and ample power to require parties to attend to court orders and their obligations. 22As Allsop P said in Hawkesbury District Health Services Ltd v Chaker [2010] NSWSC 320 at [2]: "2 ... Many practitioners, however, still have not grasped the significance of the changes to practice generally in the last 20 years and under the Civil Procedure Act 2005. Courts are being more demanding about behaviour from clients and practitioners in order to obtain sufficient co-operation among them to enable the real issues in dispute to be litigated with efficiency and civility and in a cost-effective manner. Clients and practitioners can expect these demands for good faith and common sense in their conduct of litigation to continue and to be reinforced by orders, including orders for costs." 23Hoeben JA, now the Chief Judge at Common Law, at [170] in his judgment in Chaker (with which Allsop P, and Beazley JA agreed) referred to what Heydon JA said in Nowlan, in particular at [26], when his Honour referred in particular to the expense of courts to the public and said: "Civil litigation is too important an activity to be left solely in the hands of those who conduct it." 24Hoeben JA went on to say in Chaker at [178], this with respect to the CP Act: "178 ... Whatever may have been the common law in respect of matters such as this, the situation dramatically changed with the enactment of the [Civil Procedure Act]. Litigants are now required to conduct litigation so as to facilitate the just, quick and cheap resolution of the real issues in dispute." 25These statements of principle are relevant in the consideration of the issues in this judgment.

The Proceedings 26The plaintiff, Mr Campton, was employed by the defendant, Centennial Newstan Pty Ltd, as a Deputy to work underground at a coal mine. 27According to an accident investigation form prepared by Mr Phillips, the Under Manager of the mine, the plaintiff was injured at 23.30 on 1 July 2010, whilst a passenger in a vehicle described as a "PJB". The accident was reported to Mr Phillips at 23.35, five minutes after it occurred. 28Mr Phillips recorded the following details of the accident: "Mr Campton was a passenger in the rear of a PJB along with B Chapman, C Douglas, D Winbank and R Howell, being driven by D Fletcher (deputy). The PJB had just travelled down the drift and turned into a detour on the travel road when it hit a hole, jarring Mr Campton's back." 29The form records that Mr Phillips, the author, interviewed Mr Campton, interviewed the witnesses, interviewed and cautioned the driver, Mr Fletcher, and inspected the road. 30His report further records: "When Mr Campton reported the incident to me, he also indicated that the PJB was travelling too fast for the conditions, and that Mr Fletcher had been told on two occasions previously to slow down. On interviewing each witness separately, they all gave the same story of events as Mr Campton. The whole shift had 10 minutes previously been told and warned of the detour, and told to drive carefully and safely. Mr Fletcher was warned that his actions were unacceptable, and that any future complaints or incidents involving his driving would lead to the immediate suspension of his PJB/SMV permit, as well as disciplinary action." 31In light of the fact that Mr Campton claims that he suffered serious injuries and ongoing consequent disability after this incident, it is unsurprising that proceedings were brought by a Statement of Claim initially filed on 2 March 2012. 32The present version of the Statement of Claim, the Further Amended Statement of Claim filed on 8 July 2013, pleads the happening of the incident in terms entirely consistent with the account given to Mr Phillips and which he recorded in the accident form. 33The Amended Defence, notwithstanding the content of Mr Phillips' report, the statements which he took from witnesses, and the actions which he took to formally warn an employee of the defendant with respect to his behaviour, responds to Mr Campton's allegation in the following way: "The defendant does not know and cannot admit the circumstances of injury pleaded ... " 34The Amended Defence denies that the injury sustained by Mr Campton was caused by its negligence, or the negligence of its servants or agents. It denies for example, that it was negligent of the driver to fail to slow down when requested to do so. It denies that there was a failure by the driver of the vehicle to heed warnings at the beginning of the shift about the state of the roadway, and that the driver had been told to drive carefully and safely. 35The balance of the defence puts Mr Campton to proof of his claimed injuries, loss and damage. Finally, it goes on to assert that such injuries, loss and damage were occasioned by reason of his own negligence. The particulars of contributory negligence pleaded as recently as 23 July 2013, are somewhat curious. They are in the following form: "9. ... Particulars of contributory negligence The plaintiff: a) Failed to take any proper care in and about the performance of his work; b) Failed to take any steps to avoid the consequence of any act or omission of the defendant relied upon by him; c) Failed to take proper precautions for his own safety in the performance of his work; d) If the plaintiff's work with the defendant could not be safely undertaken (which is denied) the plaintiff elected to do the work which could not be safely undertaken when not required to do so by the defendant; e) If the plaintiff was exposed to dangers in the performance of his work (which is denied) the plaintiff failed to advise the defendant of his exposure to dangers in the performance of his work; f) If the plaintiff was exposed to dangers in the performance of his work (which is denied) the plaintiff failed to remove himself from such dangers; g) If the plaintiff was exposed to dangers in the performance of his work (which is denied) the plaintiff failed to request the defendant to remove any such dangers;" 36As is obvious, these particulars of contributory negligence bear no relationship whatsoever to the particular facts pleaded by the plaintiff, but are rather generic allegations which appear to be derived from a general precedent form, and which have no direct relevance here. As well, particulars (a), (b) and (c) and are not, in truth, particulars of contributory negligence, but rather a re-statement of the allegation of contributory negligence. 37As is also obvious, these particulars do nothing to identify any real issues about what the plaintiff was actually doing whilst a passenger in the PJB, which was transporting him in the mine to his place of work, which could be classed as exposing himself to a risk of injury which might have reasonably been foreseen and avoided: Joslyn v Berryman [2003] HC 34; (2003) 214 CLR 552 at [16] per McHugh J. 38The solicitor on the record for the defendant, Mr J J Webb, has by his partner, Ms Joanne Palamara, certified the Amended Defence in the following way: "I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law, that the defence to the claim for damages in these proceedings has reasonable prospects of success." 39Whether this certification, in the circumstances in which it was made, adequately complies with the obligations of a legal practitioner set out in Division 10 of Part 3.2 of the Legal Profession Act 2004 is not a matter which has been argued in this application and therefore does not fall for determination. However, it is appropriate to note that the giving of such a certificate is not a matter of routine, but is something which requires careful inquiry and thoughtful consideration. 40In the most recent Further Amended Defence, filed 23 July 2013, in addition to putting the plaintiff to proof with respect to his claimed injuries, loss and damage, the defendant pleads that there are other matters relevant to the plaintiff's claim. In summary, they are these: (a)the plaintiff has failed to mitigate his damages by failing to obtain employment at a time when he was fit to work; (b)that particular injuries, sustained prior to the accident in question, to his back, right knee, right ankle and left knee, mean that the plaintiff has a reduced physical capacity for work, unconnected with the accident sued upon, which is "... equal the alleged incapacity caused by the alleged injury and its sequelae"; (c)the plaintiff has a pre-existing degenerative condition of his lumbar spine, and so, would have a limited work capacity, regardless of the injury, in any event, the injuries pleaded would have continued for a limited duration, and thereafter the effects of his degenerative condition would have prevailed, and that his capacity for work would, even if uninjured by the accident in question, have been adversely effected by the pre-existing condition; (d)the defendant seeks to identify monetary benefits which it pleads should be off-set against any award of damages. 41It is convenient, at this stage, to note some matters with respect to the evidence which has, by now, been exchanged between the parties. 42On the issue of liability, the plaintiff has served an Evidentiary Statement which contains a description of his accident. He has served statements from two individuals who were passengers in the PJB at the time of his accident. He has served an expert report on liability. No doubt in addition the plaintiff will tender, as a business record, the report referred to in [28]-[30] above. 43The defendant has served no evidence at all on the question of liability. 44On the materials before me, there does not appear to be any real issue between the parties on any question relating to primary liability. The defendant has not identified one in the course of submissions. 45Some time after 13 December 2012, the solicitors for the defendant served on the solicitors for the plaintiff, an expert report of the late Dr John Grant, an eminent consultant neurosurgeon. The report was dated 3 June 2011, and was addressed to the Case Manager at Coal Mines Insurance Pty Ltd. Coal Mines Insurance Pty Ltd is the insurer of the defendant with respect to the plaintiff's claim. It is an interested party within the meaning of that term in s 56(4) of the CP Act. 46Dr Grant took a history from the plaintiff, and then conducted an examination. He also reviewed various images and scans which had been taken in 2010 and 2011. 47In his report, he said this: "I believe Mr Campton suffered a disc prolapse at the L4/5 level as a result of the episode described in July 2010. I would also suggest that the action resulted in an aggravation of a pre-existing degenerative spondylitic state in the lumbar spine. This lesion at the L4/5 level has resulted in nerve root damage, and he continues to evidence a neuropathic pain which is the result of changes at both the L5 nerve root and now S1 nerve root. This neuropathic state is probably aggravated by his diabetic state." 48Dr Grant expressed the opinion that the plaintiff was not fit for work, was permanently disabled, and would not be able to return to work. He was asked to express an opinion as to the attributability of Mr Campton's injuries and disabilities to the episode of 2 July 2010. He said this: "He was apparently fit and healthy prior to the episode of July 2010, and the onset of the symptoms is consistent with the nature of the injury described." 49In light of the fact, at least according to a letter dated 20 September 2013, from the solicitors for the defendant to the solicitors for the plaintiff, that the defendant was not relying upon any orthopaedic surgical, or neurosurgical opinion relating to the spinal injury, qualified by the solicitors for the defendant, and which, if in existence at the time of its most recent defence in July 2013, had not been served, and has not since been served, the terms of the defence with respect to the cause of the plaintiff's injuries and incapacity are troubling.

Procedural History 50In accordance with the Court's ordinary practice, the matter was the subject of directions from time to time by the Common Law Registrar. 51On 13 December 2012, when the matter was listed before the Common Law Registrar, the parties were legally represented. Counsel attended for the plaintiff and a solicitor attended for the defendant. 52Amongst other things, the parties sought a hearing date from the Court. As is the ordinary practice, to enable a hearing date to be allocated, it is necessary for the Common Law Registrar to have an accurate estimate of the likely length of the proceedings. The Common Law Registrar was provided with an agreed estimate of five days for the hearing of the matter. Accordingly, he fixed the proceedings for hearing on 28 October 2013. He made various orders with respect to the further preparation of the matter. 53The Short Minutes of Order which were agreed between the lawyers for the parties and provided to the Common Law Registrar on that day, indicated that the parties required further time to obtain medical evidence, and they were agreed that the matter should not be set down for hearing any earlier than 1 May 2013. 54The proceedings were stood over by the Common Law Registrar to 10 May 2013 for further directions. 55On that day, lawyers for the parties attended, and informed the Common Law Registrar that the plaintiff had undergone further surgery on 8 April 2013, and that, subject to some further directions with respect to witness statements, the matter should be stood over to 5 July 2013, in order for a motion with respect to the venue of the proceedings to be heard, and in order for the parties to be in a position to deal with obtaining reports about the operative treatment which the plaintiff had undergone. 56On 5 July 2013, the plaintiff's Motion was adjourned to 24 July 2013. No further directions were sought from the Common Law Registrar, or the Duty Judge to whom the matter had been referred. 57On 23 July 2013, as a function of the Court's judicial management processes, the matter came before me as the Common Law List Judge, for directions to ensure that the proceedings were ready for the final hearing. At that time, I was informed that Campbell J was part heard with respect to a question of whether the venue of the trial ought be in Sydney or in Newcastle, or partially in one place and partially in the other. 58As is apparent from the judgment of Campbell J in Campton v Centennial Newstan Pty Ltd [2013] NSWSC 1020, the estimate of five days was regarded in the proceedings before his Honour as being then current and appropriate, and that was the basis upon which his Honour was asked to deal with the Motion. 59When the matter was before me on 23 July 2013, the plaintiff was represented by counsel and the defendant by a solicitor. I was not told that the estimate of five days was either not current or inappropriate. 60At that time the defendant had not filed any defence to the most recent Amended Statement of Claim. Accordingly, I ordered that the defendant was to file and serve its defence to the Amended Statement of Claim by 9 August 2013. 61According to the affidavit of Ms Palamara filed 1 November 2013, the defendant filed and served an Amended Defence later that day, 23 July 2013, and also a Further Amended Defence on 9 August 2013. She says that the Defence filed on 23 July 2013 was filed: "... so that the plaintiff would not be taken by surprise as to the nature and extent of the medical case being advanced by the defendant". It added the significant allegation that the plaintiff was suffering from other injuries and other medical conditions that might impact upon the plaintiff's capacity to perform work and to do domestic tasks in any event (amongst other things). Such a case by its very nature, had the potential to add to the hearing time." 62The contents and significance of this Amended Defence was not drawn to the Court's attention on 23 July 2013. Nothing at all was said about those matters. The fact that the defendant wished to argue matters and raise issues with respect to the plaintiff's medical condition, which had the potential to increase the hearing time, although obviously known to the solicitor for the defendant, and for some time prior to 23 July 2013, because an Amended Defence had been drafted prior to that time, was not made known to the Court. 63On 23 July 2013, the Court made the following orders: "1. I order that the defendant is to serve its defence to the Amended Statement of Claim by 4pm 9/8/13. 2. I order pursuant to Pt 31 r4 of the UCPR, that the plaintiff is to serve all further statements upon which he proposes to rely at the hearing by 4pm 9/8/13. 3. I order pursuant to Pt 31 r 4 of the UCPR, that the defendant is to serve all statements upon the issue of liability whether lay or expert by 4pm 23/8/13. 4. I direct that the evidence of the liability experts take place concurrently. 5. I order the liability experts to meet and prepare a joint report setting out issues agreed and issues disagreed by 13/9/13. 6. I order that the plaintiff is to serve all further expert medical evidence upon which he proposes to rely by 4pm 30/8/13. 7. I order the defendant to serve all expert medical evidence upon which it proposes to rely by 4pm 20/9/13. 8. I direct that the medical experts are to give their evidence concurrently. 9. I direct that the medical experts are to meet in joint conference and prepare a joint report setting out all matters upon which they are agreed and matters upon which they are disagreed, such joint report to be provided to the parties and to the Court by 4pm 11/10/13. 10. I direct that the parties are to either confer informally for the purposes of resolution of the matter, or else to hold a mediation by no later than 4pm 27/9/13. 11. I list the matter for directions before the Registrar at 9am on 30/9/13. 12. Liberty to apply on 72 hours' notice. 13. I note that the question of venue of the matter is to be determined by Campbell J." 64Campbell J decided on 24 July 2013, that the venue of the hearing ought be Newcastle initially, and then Sydney to take the balance of the evidence. His Honour noted that the basis for his decision included that, although the venue would be divided between Sydney and Newcastle, the hearing would take place during the period already allocated, that is, five days. 65Notwithstanding the grant of liberty to the parties to apply on 72 hours' notice, the proceedings were not restored to the list prior to the next occasion which had been fixed by the Court during the judicial case management hearing on 23 July 2013. 66On 30 September 2013, when the matter was before the Common Law Registrar, a lawyer for the defendant appeared, but there was no appearance for the plaintiff. The Registrar was informed that all statements had been served and that it was appropriate for him to confirm the hearing date for 28 October 2013. Such a statement involved a confirmation four weeks before the trial was due to begin, that estimate of a five day hearing period was an accurate one, and that the parties, had either complied with the Court's directions, or else were in a position to do so, and thus, were ready to proceed to a final hearing on 28 October 2013. 67The Registrar was not informed of the following matters which had occurred since the judicial case management hearing on 23 July 2013, and which impacted upon the accuracy of the estimate of the hearing period, and the readiness of the proceedings for trial: (a)that between 16 August 2013 and 18 September 2013, the defendant issued 8 subpoenas for documents from a variety of sources; (b)that between 19 September and before 30 September 2013, the defendant had issued a further significant number of subpoenas with a variety of return dates, seeking further material which, seemingly, "may affect the credibility of the plaintiff"; (c)that in the period between 28 August 2013 and 16 September 2013, the defendant had arranged for the plaintiff to be seen, and examined, by four specialist medical practitioners, three of whom had not seen or examined by the plaintiff before, and only one of whom was conducting an updating examination; (d)that by letters dated 30 August 2013 and 13 September 2013, both of which were sent before service of any medical records or reports, the defendant required "... for cross-examination any expert (medical or otherwise) on whose reports you intend to rely"; (e)that on 4 September 2013, the solicitor for the defendant served two reports from an occupational therapist dated 1 October 2012 and 8 October 2012, which were 60 pages in length; (f)that on 11 September 2013, in addition to reserving its position with respect to a proposed amendment by the plaintiff of its particulars, the solicitors for the defendant had written to the solicitors for the plaintiff this: "We consider this is a case where the doctors should have the evidence of the plaintiff before holding their conclave. Thus the medical evidence should be heard in Sydney after receipt of the transcript. Please obtain instructions in respect to each of the above matters."; (g)that on 20 September 2013, the defendant served a large number of medical reports, reports of x-ray and other images, physiotherapy and pathology reports, ultrasounds, WorkCover medical certificates, and other material which, it appears, consisted of a bundle of 180 pages of reports of the kind generally described; (h)of the belief which the solicitor acting for the defendant, Ms Palamara, had formed that, although the plaintiff had not responded to her letter of 11 September 2013, and, contrary to the orders of the Court, the medical experts for the parties should not meet in joint conclave prior to the commencement of the hearing on 28 October 2013, the solicitors for the plaintiff would consent to that course and that, if such consent was received, she would re-list the matter seeking a variation of the Court's orders. 68Considering that nearly three weeks had passed between when the letter of 11 September 2013 was sent, and the defendant's lawyer confirmed with the Registrar during the directions hearing on 30 September 2013, that the hearing date was appropriate, it is difficult to see that there was any basis for such wishful thinking on the part of the solicitor for the defendant, let alone the assumption underlying that wishful thinking, namely that the Court would simply endorse the parties agreement. 69On 2 October 2013, the solicitors for the plaintiff wrote to the solicitors for the defendant indicating that if the defendant did not wish to comply with the Court's order for the convening of joint conclaves, then it was a matter for it to put the issue before the Court and obtain any variation to the orders made. 70On 9 October 2013, the solicitors for the defendant wrote to the solicitors for the plaintiff a letter which was, to say the least, disingenuous. It referred to the letter which I have just noted, and it referred to the Practice Note of the Court with respect to joint conferences of expert witnesses. In particular, it referred to the obligation on parties to agree on a number of matters including which experts were to attend the conclaves, the questions to be answered by the experts, and the material to be placed before the experts. It went on to say: "As the moving party, we suggest you provide us with the questions to be answered, assumptions and materials to be placed before the experts. Without this material, we do not consider the conclave can be facilitated prior to the hearing if the Court is of the view that the conclaves must occur prior to the plaintiff's evidence." 71Considering that the only real issues in dispute which were likely to engage the experts were those raised by the Further Amended Defence upon which the defendant bore the onus of proof, at least in an evidentiary sense, the suggestion that the plaintiff was the "moving party" was a nonsense. 72According to the affidavit of Ms Palamara, the solicitor for the defendant, sworn 1 November 2013, at a point in time which was well before that letter was written, and around about a month earlier, when she wrote the letter of 11 September 2013, she had formed the view that the appropriate course for the case to follow was that of a procedure known in the Court as a "phased trial". 73That is, a form of case management, which is occasionally engaged in, where the Court is persuaded: (a)that the competing versions of fact upon which the expert medical opinion, or any other expert opinion, is to be based, are in conflict in a way in which it is likely that the task of the experts will be facilitated, if the facts on the relevant issues for the experts are first explored in evidence with both parties leading all such facts, and contradictory facts as may be appropriate, either by tendering evidence in chief or by cross-examination; and (b)where the Court is persuaded that it is likely that such process of eliciting all of the facts and subjecting the witnesses to cross-examination is likely to reduce the factual disputes which have occurred, and enable a simpler set of assumptions of fact which are more likely to reflect a court's findings of fact, to be put to the experts in joint conclave. 74Ms Palamara in her affidavit pointed to the fact that such a phased trial had been undertaken in a different matter, where prior to the giving of directions and the making of any orders with respect to joint conclaves of experts, and in the course of a judicial case management hearing, it became obvious that the particular circumstances of that case, warranted such an approach. No such judicial consideration had been given here. 75Accordingly, it seems clear that for Ms Palamara to have suggested in her letter of 9 October 2013, that the conclaves could not be facilitated prior to the hearing, which was then a little over two weeks away, without the plaintiff first preparing a draft of suggested questions, assumptions and material to be placed before the experts for the agreement of the defendant, was a clear attempt to shift from the defendant to the plaintiff, the responsibility for the non-compliance of the defendant with the Court's order. 76The explanation given by Ms Palamara in her affidavit, suggesting that she assumed that the conclaves would proceed, and that she was entitled to await delivery of documents from the plaintiff's solicitors, is an entirely unacceptable one. It does not accurately reflect her previous conduct, nor what the real issues were in the proceedings, nor the time available before the hearing was due to start. 77In light of the request of the solicitor for the plaintiff, the matter was relisted by the Court on 11 October 2013 before the Common Law Registrar. On that day, Consent Orders were filed in Court signed by counsel for both parties. The Court was not informed, other than by the content of the Consent Orders, that the directions of the Court of 23 July 2013 with respect to the holding of the expert conclaves had not been complied with. The Consent Orders, relevantly, included this: "By consent: .... 2. Further orders in respect of the holding of expert conclaves be stood over for further directions on 28 October 2013." 78Nothing in particular was drawn to the attention of the Common Law Registrar with respect to the non-compliance of the parties with the directions for the holding of conclaves. The Common Law Registrar was entitled to proceed on the basis that all of the Court's Orders had been complied with, but that some further directions may be required.

Readiness for Final Hearing 79The matter was next listed before the Court on 24 October 2013, in advance of the hearing which was due to commence on 28 October 2013. The purpose of that hearing was so that the trial judge, and the Court, could be adequately informed as to the length of time which the hearing in Newcastle would take in the following week, and the day upon which the hearing in Sydney would recommence. This information was obviously necessarily in order to enable the Court to make the appropriate administrative arrangements for the allocation of a courtroom in Newcastle and in Sydney, and for the proper allocation of the Court's resources. 80At that hearing on 24 October 2013, the following matters became apparent to the Court for the first time: (a)that the defendant's senior counsel had indicated that he proposed to cross-examine the plaintiff for a period which he now estimated to be two days. In addition, he had said that he intended to cross-examine the plaintiff's wife for half a day. In combination, this represented 50 per cent of the time allocated for the hearing; (b)that none of the conclaves of experts which the Court had ordered had in fact taken place, and consequently there was no joint report from any of the groups of experts whose opinions were to be considered by the Court; (c)contrary to what had been put to Campbell J, when dealing with the issue of venue, since a number of the experts were geographically located in or near Newcastle, the parties intended that expert evidence be taken in Newcastle and, as well, as in Sydney, whereas before Campbell J the parties had led his Honour to believe that all of the expert evidence was to be taken in Sydney; (d)the defendant had required the plaintiff to call for cross-examination, every expert witness whose reports had been served. This included radiologists, physiotherapists and many other professionals. This requirement, so I was informed by both counsel, was intended to cover experts who had not been specially qualified to give evidence by the plaintiff's solicitors, but rather who had written correspondence either to the plaintiff's treating doctors, or else to Coal Mines Insurance. The Court was told that this would mean the plaintiff would have to call somewhere between 15 and 20 expert witnesses; (e)the estimates of counsel were that the case could not possibly be concluded within five days, and that at least 10 days, if not longer, would be required for a hearing of the matter, although it was thought that 10 days was probably a reasonable estimate. 81In light of those changed circumstances and the significant impact these changes would have on the Court's resources, and primarily because the matter was clearly not ready for a hearing the following week, given that the parties had not complied with the Court's orders, and the form of the hearing proposed by the parties was not an efficient one, the Court adjourned the hearing of the proceedings and vacated the hearing date. 82I directed, in light of the vastly changed estimate and the failure of the parties to comply with the direction for the holding of conclaves of expert witnesses, that: "On or before 1 November 2013, each party is to file an affidavit by the solicitor on the record which sets out all of the facts, matters and circumstances surrounding the failure to comply with the Court's directions with respect to the arranging of joint conferences of experts and making arrangements for concurrent evidence of the experts and also with respect to the matters which were relied upon by each party when advising the Court on 13 December 2012, that a proper estimate for the hearing of the matter was five days; and further, when advising the Court on 30 September 2013, that the proceedings were ready for hearing, and that the hearing date should be confirmed." 83After those affidavits were filed, a hearing took place on whether, in light of what had occurred, and such explanations as were offered in those affidavits, the Court should make the order for costs to which was sought by the plaintiff and to which I have earlier adverted.

Plaintiff's Submissions 84Put in summary form, the plaintiff submits that the cause of the adjournment, and the cause of the costs of being thrown away by reason of the adjournment was: (a)the defendant's unilateral attitude that it would not participate in a conclave until after the plaintiff's evidence had been taken by the Court; (b)that whilst the estimate time necessary for the of hearing had perhaps been reasonable when first given, it could no longer have been reasonable once the defendant's senior counsel intended to cross-examine the plaintiff for two days, and his wife for half a day, thereby occupying 50 per cent of the available hearing time and given that the defendant required the plaintiff to call 15 to 20 expert witnesses; and (c)the estimate could not have been accurate once the defendant had formulated the material upon which it would rely to raise the issues first generally outlined in its Further Amended Defence filed on 9 August 2013. 85The plaintiff submitted that in all of the circumstances, the Court should make an order that the costs thrown away by the adjournment of the proceedings should be paid on an indemnity basis by the defendant. 86The plaintiff accepted that it would have been preferable, on 11 October 2013, when the matter was listed for directions before the Registrar, that counsel did not agree to the order which I have set out above, which had the effect that the issue of the conclaves was stood over to the start of the hearing, but he submitted that nevertheless by that stage the defendant had formed, and expressed the firm view, that conclaves of experts were not to take place until after there had been the proposed extensive cross-examination of the plaintiff and his wife, and in reality there was insufficient time for the conclaves to occur before the start of the final hearing. 87As well, the plaintiff pointed to the fact that at that directions hearing, the defendant was represented by senior counsel who, consistently with the defendant's enunciated position about having conclaves after the plaintiff's evidence, did not inform the Registrar of the significance of the orders which were being made, and did not inform the Court of the impossibility of the case being heard within the estimated time period, or within a reasonable extension of it.

The Defendant's Submissions 88The defendant made extensive submissions both in writing and orally. 89The defendant principally submitted that there was no fault on the part of it with respect to the various causes for the hearing date to be vacated, or if there was fault on its part, there was joint fault with the plaintiff. 90The defendant submitted alternatively that a review of the procedural history and the evidence placed before the Court demonstrated, if there was any fault, it lay essentially in the passive and/or dilatory role of the plaintiff's legal advisers. 91For that reason, the defendant submitted that each party should pay its own costs thrown away by reason of the adjournment, and that the order sought by the plaintiff ought not be made. 92Again, seeking to encapsulate the matter briefly, the defendant submitted that insofar as the estimation of a five day trial was wrong, because the hearing was likely to go for more than five days, such erroneous assessment is not uncommon in matters of the Common Law Division, and that given the Court's practice that cases would continue through to hearing once commenced, an erroneous assessment ought be regarded by the Court as a neutral factor in considering what costs order should be made. 93Insofar as the failure to hold conclaves was concerned, the defendant submitted that both parties were ready to proceed with the matter despite non-compliance with the order concerning the conclave, and that a conclave of the relevant experts could have been held during the hearing time in Newcastle and the failure to organise and hold such conference did not provide any reason for the Court to make an order for costs as sought by the plaintiff. 94Dealing with the question of non-compliance with the Court's order for a joint conclave to take place, the defendant drew attention to the following: (a)that the obligations created by the Civil Procedure Act are to be borne equally by both parties. The defendant submitted that as the case management orders made by the Court were equally binding on both parties, and both parties had the same duty to the Court for compliance with such orders, the order which the plaintiff sought failed to accept such a basic premise; (b)the fact that the plaintiff underwent a further operation in about April 2013, the complex nature of the medical issues and the issue about the capacity of the plaintiff to work, did not emerge until close to the time of trial; (c)the production of subpoenaed documents and medical reports had identified a significant number of "non-tortious" conditions including injuries and disabilities affecting the left knee, the right ankle, the chest, a prolapsed disc in the plaintiff's spine at the L2/3 level and the existence of the plaintiff's diabetic condition, all of which combined with the opinions expressed by the experts on the medical examinations being conducted by the defendant to indicate that the plaintiff's evidence should be taken first and prior to any conclave of experts; (d)the production of subpoenaed documents identifying "numerous credit issues" so far as the plaintiff was concerned also pointed to a similar approach; (e)that it was a reasonable stance for the defendant to take, that conclaves be held after cross-examination of the plaintiff. It was further reasonable for the defendant to approach the plaintiff for instructions to that end because of its experience in another matter which had involved the same lawyers; (f)the delayed response by the plaintiff was the true cause of the practical problems in holding a conclave; (g)the letter of the defendant of 9 October 2013, was an attempt by the defendant to comply with its obligation to arrange for joint conclaves, but the plaintiff's response precluded any progression being made with respect to those conclaves. 95The defendant submits that fundamentally, it was not unreasonable for it to await a response from the plaintiff with respect to its suggestion about the conclaves before seeking a variation of the time at which the conclave would be held, and it was the unexplained delay by the plaintiff of three weeks which compromised the defendants reasonable timetable. 96The defendant submitted that at all stages its solicitor had complied with her duty to the Court.

Discernment 97The matter was adjourned because it was not ready for the final hearing because of the failure to comply with the Court's order about conclaves, which would have enabled concurrent evidence to be given, and because the hearing could not be completed within the time allocated, not by just one or two days, but by a significant period. 98At the time the proceedings were first fixed for hearing, a five day estimate was not an unreasonable one. There was unlikely to be any issue on liability and, having regard to the nature of the plaintiff's injuries, his claim was within reasonable limits. At that time, several medical reports had been served by the defendant. There were reports of Dr Harvey of October 2012, and a vocational assessment report. 99In one of his two reports dated 30 October 2012, Dr Harvey, when dealing with causation, said: "Mr Campton does have degenerative lumbar disc disease. The MRI on 20/7/10 has demonstrated that degenerative changes in the bulging at L4/5 disc. All the changes seen on the MRI are degenerative in nature, and are not the consequence of trauma. However, the trauma could have aggravated this degenerative condition and could have precipitated the onset of symptoms. Subsequently, he has had a discectomy, and I believe that there is undoubtedly some physical basis to his continuing complaint of back pain. Work Capacity I believe it is consistent that Mr Campton would now have difficulty doing heavier work which involved much lifting and bending." 100In considering the prognosis of Mr Campton, Dr. Harvey considered that the pain that Mr Campton was suffering from was likely to persist indefinitely. 101In a shorter report of the same date, Dr Harvey noted that Mr Campton had a 20 per cent impairment of his lower back, which was attributable to his injury on 1 July 2010. He said: "I believe that this injury precipitated the onset of symptoms in his degenerative spine. He has subsequently had surgery and I, therefore, do not consider that the aggravation could be considered temporary." 102The defendant had also served a vocational assessment report from Bass Human Resources. That report concluded with the following: "His working restrictions are able to be accommodated by a number of jobs, however a review of current vacancies in his local area returned only one vacancy for which he would be a suitable applicant. Despite the relatively buoyant job market, Mr Campton will need to employ a range of job-seeking strategies to source and secure appropriate work." 103As has earlier been noted, the report which Coal Mines Insurance had from the late Dr Grant, expressed conclusions which were consistent with these reports. 104Having regard to this material, it was unsurprising that the parties took the view that the matter would finish within five days. 105However, by the time the defendant had properly prepared its case, and the nature of its case had become apparent, the estimate of five days was wholly inadequate. A proper estimate for the case is, so it seems to me on the material before me, at least 10 days. 106The case for the plaintiff, and the nature of the claim which was being made, was largely complete by May 2013. It is true that, by that stage, the plaintiff had recently undergone some further surgery in April 2013, but the Court was informed that it was not anticipated by the parties that that surgery would have a major impact on the plaintiff's ongoing loss and disabilities, and hence on the final hearing. 107By the time the matter came on for directions on 23 July 2013, the plaintiff's further operative treatment had occurred, in circumstances where the nature of the operation was known to Coal Mines Insurance, it had approved payment for the operation as a part of its obligations in accordance with the relevant workers compensation legislation, and it was, I infer, aware of the length of time the plaintiff had been in hospital. 108On 23 July 2013, orders were made that the service of further medical evidence upon which the plaintiff proposed to rely was to be completed by 30 August 2013, and that the defendant's medical evidence was to be served by 20 September 2013. 109At that stage, a significant number of the subpoenas which the defendant intended issuing had not been issued, and no arrangements had in fact been made for further medical examinations. However, the solicitors for the defendant had received instructions to amend the Defence so as to raise the issues set out in paragraphs 13 to 17 of the Amended Defence, namely, a real question as to whether other injuries sustained prior to the accident in question affected in one or other of the ways pleaded, the capacity of the plaintiff to undertake his work. No doubt careful consideration had been given at that time to the issuing of subpoenas. 110As well, although paragraphs 20 and 21 were added to the Defence in the initial days of August 2013, it is beyond question that those issues were known to the defendant by 23 July 2013. In particular, the effect of the plaintiff's diabetes, which was not work related, upon his capacity for work was able to be pleaded, was within the defendant's knowledge, and had been at least since Dr Grant's report of 3 June 2011. 111At that point in time, had the solicitor for the defendant turned her mind to the issues which were raised, and to be raised by the amended Defences, and the evidentiary basis which supported those issues being properly raised, it would have been apparent that the defence of the plaintiff's claim, far from being a relatively simple one as it appeared in December 2012, was in fact far more complex. 112At that point in time, and in the knowledge of future examinations which either had been arranged, or else would be required to be arranged, the solicitor for the defendant must have known, had she turned her mind to it, that the estimate of five days was wholly inadequate. Her affidavit of 1 November 2013, does not suggest that she turned her mind to the reasonableness of the estimate at that time, although the contents of that affidavit do support the conclusion that she knew that the nature of the amendments to the Defence of themselves, and the case thereby described, would have obviously resulted in a significant increase in the hearing time. 113To my mind, the position by 23 July 2013 was obvious. The plaintiff thought that the matter was a relatively straightforward one on the basis of the documents which had by then been served. An Amended Defence was either provided that day or subsequently in the initial days of August, for the first time, indicated that the case was seemingly more complex. But the solicitor for the defendant knew, or else had a reasonable basis for believing that the case was considerably more complex than it appeared to the solicitor for the plaintiff and to the Court. Yet, the solicitor who appeared on 23 July 2013, did not raise with the Court any matter which suggested that the hearing was other than on track, and that it would be completed within a five day estimate. 114The service during August and September 2013 of a large number of subpoenas by the defendant was, I infer, in pursuance of the proper preparation of the defendant's case for hearing. The material produced on subpoena was extensive. Some of that material, but not all of it, formed part of a large bundle of material served by the defendant on the plaintiff on 20 September 2013. 115On 31 August 2013 and 13 September 2013, letters were sent by the solicitor for the defendant to the solicitors for the plaintiff, essentially in identical terms, namely that the defendant required all doctors and experts, and expert witnesses whose statements had been served, for cross-examination. 116This requirement included the plaintiff's expert on liability being made available for cross-examination in circumstances where the defendant had not served any evidence, either lay or expert, on the question of liability, and in circumstances where it had the report of the accident to which I have earlier made reference. 117It must have been apparent at the time those letters were served, to the solicitor for the defendant, that: (a)she had, together with counsel, reviewed the plaintiff's case, and the evidence in support of it, and had determined that it was necessary to cross-examine each and every one of the witnesses; and (b)that given the number of expert reports served at that point in time by the plaintiff, had any assessment been made of the likely length of cross-examination, it must have been apparent that all of the plaintiff's evidence on all issues could not have been completed within five days, let alone allowing time for the defendant to call any witnesses and for counsel to make submissions. 118That position could only have been confirmed, in the mind of the solicitor for the defendant, by 20 September 2013, when she sent a letter enclosing about 180 pages of material from experts and containing expert material to the solicitor for the plaintiff. 119At that point in time, if not much earlier by 23 July 2013, in compliance with the duty falling upon the solicitor for the defendant, the matter ought to have been restored to the list. The Court had granted both parties liberty to restore the matter to the list on 72 hours' notice. No step was taken to restore the matter to the list and to inform the Court of the likely extended length of the final hearing. At that point in time, the solicitor for the defendant had a much greater knowledge base as to the likely length of time the hearing would take. It was not possible for the solicitor for the plaintiff to make any sensible estimate of a change to the hearing time, because he had no real idea how the defendant was going to conduct the case, including cross-examination. 120The next time the matter was before the Court was on 30 September 2013. Although it would have been desirable to have restored the matter to the list before that time, had the solicitor who appeared for the defendant on that day been frank with the Court, and correctly informed the Court of the position with respect to the readiness of the matter for hearing, then notwithstanding the absence of the attendance of a representative for the plaintiff, the Court could at that point have attempted to make arrangements to enable the case to proceed on the date which had been originally fixed for hearing. As well, appropriate directions could have been given to ensure that the parties were ready for the hearing. 121However, in circumstances which are wholly unexplained in the affidavit material before the Court, and I infer, for which there is no adequate explanation which can be given by the solicitor for the defendant, the solicitor who appeared before the Court on 30 September 2013 for the defendant confirmed that the matter was ready to proceed on the date which had previously been fixed for hearing, and by not suggesting otherwise, the previously given estimate of five days remained a reasonable one. This had the result that a wholly inaccurate picture was painted for the Court. 122Thus, the earlier failures to comply with her obligation to the Court to re-list the matter because of a change in the nature of the defendant's case, and the inadequacy of the five day estimate, meant that unless Ms Palamara caused to be disclosed to the Court at that time that: (a)no arrangements for conclaves had been made; and (b)the defendant had formed the view that it was not appropriate that conclaves be held prior to hearing the plaintiff's evidence, there would be a compounding adverse effect on the matter being ready for hearing on 28 October 2013. 123No reason is readily apparent as to why the solicitor for the defendant would not have made known the position about readiness for trial to the Court, and why the defendant would not have asked the Court to appoint a date in the immediate future at which directions could be sought to vary the Court's earlier orders, and to make the necessary arrangements for the proper and expeditious hearing of the matter. 124It is to be recalled that the context which surrounds this failure was that the Court had been asked, and had made arrangements for part of the hearing to take place in Newcastle, with the balance to be heard in Sydney. 125When considering the issue of the holding of joint conclaves of expert witnesses, and the submissions of the defendant with respect to that question, it is necessary to note that conclaves are not an end in themselves, as the defendant's submissions seem to suggest. The purpose of holding a joint conclave, that is, a meeting of experts, is to enable the efficient hearing of their concurrent evidence by the Court. 126Concurrent evidence of the experts was ordered by the Court on 23 July 2013. Experts of similar qualifications and speciality could be expected to give their evidence concurrently. In this case, dealing with the issue of damages, it appears that having regard to the plaintiff's injuries and his treatment, the concurrent evidence was likely to consist of: (a)occupational therapists; (b)orthopaedic surgeons; (c)neurosurgeons as to some issues relating to the spine, perhaps jointly with orthopaedic surgeons, and with respect to other issues such as peripheral neuropathy with perhaps other neurosurgeons or neurologists; and (d)vocational experts dealing with questions of assessment of work capacity and employment. 127The conclaves which the Court ordered to be completed by 11 October 2013, were intended to result in the production of joint reports setting out the matters upon which the experts were agreed and those that they did not agree upon. Such a joint report, which then forms the basis of concurrent evidence, ought to have ensured that only areas of disagreement were explored in evidence, thereby reducing to a minimum the time which the experts were required to spend in Court giving their evidence. 128Given the history of the accident, and the fact that the plaintiff had undergone two subsequent operations on his spine, and that there were extensive reports of those who had treated the plaintiff, there was no basis disclosed in the evidence before me, for any substantial reason to exist which would have prevented the conclaves from taking place prior to the plaintiff giving his evidence. The defendant's submissions, which attacked the credit of the plaintiff as the basis for not holding joint conclaves, have not, on the material before me, been made out. As an example, the defendant submits that the principal report of Dr Coolican, an orthopaedic surgeon, contained the opinion that the plaintiff was feigning. The defendant's submissions said this: "Further, [the plaintiff's solicitor] fails to reveal the obvious credit issues. Thus, for example, Dr Coolican opines ... as to the credit of the plaintiff (feigning) and the future impacts of the ankle and knee injuries on the plaintiff's work and recreational capacity." 129However, a careful reading of the report of Dr Coolican does not support that submission. On the contrary, so far as the plaintiff's left knee, right ankle and right knee were concerned, the doctor came to the conclusion that the disability in these three areas would not, at the time he wrote his report, render Mr Campton unfit for underground mining. No opinion was expressed with respect to those other injuries to suggest that there was any feigning at all. The only reference to feigning occurs in the course of Dr Coolican's noting of physical observations on examination. He said this: "When evaluating power on the L4/L5 and S1 myotomes, there was some cog-wheeling and feigned weakness." 130This was an observation made with respect to the plaintiff's spine, and Dr Coolican was not asked to, nor did he, express any opinion about the plaintiff's spinal injury or any disability associated with that. There is no basis on its face for Dr Coolican's report of 20 September 2013 to support any attack of any substance on the plaintiff's credit. 131As well, the defendant submitted that: "The investigation by the defendant of previous claims, exposed the pre-accident report of Dr Millons identifying both evasiveness of the plaintiff in explaining the history of his back problems and left foot numbness ..." 132The report of Dr Millons does not support that submission. Dr Millons, who examined the plaintiff on 24 May 2007 for Coal Mines Insurance Pty Ltd, with respect to an earlier accident, recorded that: "Mr Campton tends to down play his complaints which makes taking history somewhat difficult. He is keen not to make too much noise of things going on because he is mindful that he is on contract and he needs to keep working." 133Further, Dr Millons recorded at page 3 this: "He knows he should not be working because of ankle problems, but he has to keep his mouth shut to keep going. He works with a good crew who tend to watch out for him." 134When expressing his opinion, Dr Millons said, having identified the incident giving rise to the injury as a fairly frightening one, this: "He has battled on at work because he does not wish to be laid off. One can understand that. He is perhaps in a way his own worst enemy in that regard, because he seems to have missed out on investigations and appropriate treatment. ... Mr Campton is soldiering on at work on his normal duties. His mates are looking after him. He only took two days off work and he is downplaying his complaints so that he can maintain his position at work." 135There is no basis for a submission that the report of Dr Millons identifies any evasiveness on the plaintiff's part to the extent that it may be said that in later examinations conducted on behalf of Coal Mines Insurance, the plaintiff had not revealed the earlier injury. This is particularly so because it is not inconsistent with the fact that the plaintiff would, I infer, have known that Coal Mines Insurance had a complete knowledge of all of his earlier injuries, which were sustained during work incidents in coal mines and might readily have expected Coal Mines Insurance to have properly briefed the doctors whom he was asked to see. 136The defendant also submits that the production of subpoenaed documents has enabled the identification of a series of pre-existing conditions affecting the plaintiff's fitness for work. It seems to be part of the defendant's submissions that knowledge of this first came to light as a consequence of the subpoenaed documents. But this is not so. Insofar as the left knee is concerned, and any injury to it, the plaintiff told Dr Harvey about that in October 2012, which Dr Harvey recorded in his report of that date. But Coal Mines Insurance knew of the injury to the plaintiff's left knee in 2008 when it happened, because it paid for medical expenses pursuant to its obligations under workers compensation legislation, and had copies of reports from Dr Peter Burton, an orthopaedic surgeon, sent to it contemporaneously with the plaintiff's treatment. 137The plaintiff's previous right ankle injury was recorded by Dr Harvey in October 2012. Coal Mines Insurance had a report in July 2008 from Dr Peter Burton which recorded the right ankle problem. The report also noted that the plaintiff was being treated by Dr Jonathon Young for that problem, and that Dr Young was proposing surgery about which the plaintiff remained uncertain. 138Coal Mine Insurance had two reports dated respectively June 2007 and August 2007, from Dr Jonathon Young, an orthopaedic surgeon, with respect to the plaintiff's previous right ankle problem. 139To the extent that the plaintiff had diabetes which pre-existed the accident and injuries forming part of his claim, that fact was known to the solicitor for the defendant when she obtained the report of Dr Harvey in October 2012, if not earlier from the 2011 report of Dr Grant. 140I cannot accept that the knowledge of the matters to which I have just referred was, as is submitted by the defendant, something which came to their knowledge recently, and shortly prior to 30 September 2013 (if not afterwards). These are all matters well known to the solicitor for the defendant, or her insurer client, Coal Mines Insurance, well before the initial estimate of five days for the final hearing was given. 141It may be that the extent and effect of the plaintiff's previous injuries and diabetes had not been explored at that stage by the solicitor for the defendant, however, that was a choice which she made, no doubt upon her client's instructions. 142In those circumstances, I am not able to accept that the defendant came only to the view that five days was an inadequate estimate in the short time prior to the hearing commencing. It may convincingly be said that it either knew or ought to have known that such an estimate was inadequate when the estimate was given in December 2012. However, I do not need to come to that conclusion, because allowing that the defendant did not then realise that the five day estimate was inadequate, I am satisfied that, at least by the time the solicitor for the defendant took instructions to file the amended Defence which clearly had been done prior to 23 July 2013, she knew or else must have known at that point that an estimate of five days was wholly inadequate. That knowledge has only been reinforced by the additional material obtained between then and 30 September 2013. 143Insofar as the defendant submits that it had a reasonable justification to delay the holding of the joint conclaves, I reject that view. 144Firstly, there is nothing in the issues which I have seen which would suggest that the conclaves ought to have been in any way deferred pending the taking of the plaintiff's evidence. Whether the history of the plaintiff was correct or not, was a matter which ought to have been addressed for the joint conclave by setting out a statement of factual assumptions for which the defendant would ultimately contend. 145Secondly, the conduct of the defendant in forming the view it did, and communicating, as it did, that view to the plaintiff on 11 September 2013, followed a course which deliberately ignored the Court's orders, and disregarded the purpose and justification underlying the Court's orders. 146The solicitor for the defendant apparently did not give any consideration to the issue that the joint conclaves were the first step in the process of ensuring concurrent evidence could be efficiently given, but apparently preferred to regard the orders as optional, and that the defendant was at liberty, should it choose, to ignore them. 147It is trite to say that, even if there is consent to vacating court orders, where those orders are procedural and may effect the conduct of the hearing, and in respect of which orders the Court itself is furthering the overriding purpose of the CP Act, it is simply not a matter for the parties to arrogate to themselves, as the solicitor for the defendant did, the right to vacate court orders, upon the assumption that the Court has no independent interest in the efficient hearing of the proceedings, and that the Court will simply "rubber stamp" the parties' wishes. 148Thirdly, the proper course to be followed, as any experienced litigator would know, is, if Court orders are not thought to be appropriate, to restore the matter to the list promptly and move the Court to vary the orders. The solicitor for the defendant did not do so, and did not see the need to do so. 149Fourthly, when the matter was before the Court on 30 September 2013, and assuming that the defendant had formed a view that the orders were inappropriate, then the solicitor for the defendant ought to have, but did not, raise the matter with the Court. If there was any proper justification for failing to comply with the orders, then this directions hearing was the time to raise the matter with the Court. That did not happen. No adequate explanation has been offered for this failure. 150In all of those circumstances, notwithstanding that the plaintiff could have responded sooner to the defendant's letter, and notwithstanding that the plaintiff may have had a suspicion that the case may have gone for longer than five days, I am abundantly satisfied that the cause of the hearing date being vacated were the failures which I have listed above of the solicitor for the defendant to comply with her duty to the Court in accordance with the CP Act, and the failure by the defendant, as a party to the litigation, to do so as well. 151It cannot be overlooked that the party responsible for indemnifying the defendant and thus providing instructions, in a real sense, to the solicitor for the defendant, namely Coal Mines Insurance, is a very experienced party to litigating in the courts of NSW. It also gave instructions to its solicitors to act in a way which was contrary to their obligations.

Appropriate Order 152Because I am satisfied that the failures were those of the solicitor for the defendant, whom I am entitled to assume was acting on the instructions of Coal Mines Insurance and the defendant and I am satisfied that such conduct was the cause of the adjournment and the vacation of the hearing date, and has caused the plaintiff to incur significant wasted costs, an order should be made for the costs thrown away to be paid by the defendant. 153The submissions advanced by counsel for the defendant do not satisfy me that there is any justification for the defendant's conduct, and upon careful examination, the submissions disclose that the defendant's conduct was without any reasonable basis at all. Because this is so, it is appropriate that the costs be ordered to be paid on an indemnity basis. 154As the plaintiff has incurred an obligation to pay the wasted costs, and this costs order is an entirely discrete order in the context of the proceedings, it is in the interests of justice that the costs be payable forthwith. 155As well, since the argument about who should pay the costs was one which directly arose from the defendant's failures to which I have pointed, there is no reason for there to be any different order with respect to the proceedings before me about what order for costs ought to be made.

Orders 156I make the following orders: (1)The defendant pay the plaintiff's costs thrown away by the vacation of the hearing commencing on 28 October 2013 on an indemnity basis. (2)The defendant pay the plaintiff's costs of the affidavit of Mr McDonald of 1 November 2013 and the hearings of 15 November 2013 and 29 November 2013 on an indemnity basis. (3)The costs be payable forthwith.

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: 07 March 2014

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