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[2015] ACTSC 282
Supreme Court of the ACT
2015-08-05
Mossop AsJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
PROCEDURE - Application for dismissal of proceeding - non-compliance with directions in relation to service of expert evidence - consideration of nature and consequences of non-compliance including explanation for delay and acquiescence in delay by other party - proceeding not dismissed but orders made to address non-compliance with directions and to limit expert evidence available to defaulting party
Court Procedures Rules 2006 (ACT) rr 21, 1110, 1404
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
1. The plaintiff has failed to comply with a series of directions made by the Court in relation to the service of expert evidence. The defendant has now sought, by application in proceeding filed 19 June 2015, to have the proceedings dismissed under r 1404 of the Court Procedures Rules 2006 (ACT) (Rules) (which relates to failure to comply with directions) or alternatively under r 1110 of the Rules (which deals with dismissal for want of prosecution).
2. The claim brought by the plaintiff is a claim in negligence arising out of some unusual circumstances. Based on the allegations in the statement of claim the facts are as follows. The plaintiff was a prisoner at the Alexander Maconochie Centre, the Territory's jail. He suffered from epilepsy or some other pre-existing medical condition and on 29 August 2011 suffered a seizure. He was attended to by Centre staff. He asked the staff for a drink and a staff member went to the communal refrigerator in the Crisis Support Unit of the prison and took from the refrigerator a pineapple juice container. The plaintiff was offered a cup full of the liquid from the container. He drank that and was given another cupful. However instead of containing pineapple juice the liquid in the container was in fact methadone. It is alleged that the plaintiff then suffered "severe respiratory distress", "multiple cardiac arrests" and "psychiatric injury". The defence that has been filed, while admitting some aspects of the facts, puts both liability and damage in issue.
3. One of the issues that is raised by the statement of claim is whether the defendant maintained safe and adequate systems for the accounting for, and control of, dangerous substances and drugs of dependence such as methadone.
4. This issue appears to arise because one of the means by which the methadone may have come to be located in the pineapple juice container in the communal fridge in the Crisis Support Unit is by its diversion from the authorised methadone dispensing program at the prison. It appears that can occur if prisoners who are given methadone are able to secrete it so as to avoid ingestion at the time it is dispensed or regurgitate it subsequently. Such a process would allow it to be accumulated and stored for later unauthorised use.
5. The proceedings were commenced by originating claim and statement of claim filed on 13 December 2012. The proceedings were only served on the defendant on 21 March 2013. A defence was filed on 27 May 2013. A request for discovery was made on 18 June 2013. Between July 2013 and November 2013 the parties addressed issues relating to particulars and discovery.
6. On 3 March 2014, at a directions hearing, the plaintiff was ordered to file "a list of outstanding steps within 14 days". The list of outstanding steps filed on 18 March 2014 indicated that the plaintiff estimated that he needed eight weeks to file expert evidence relating to both liability and quantum.
7. Consistently with the list of outstanding steps, the deputy registrar made a direction on 24 March 2014 that the plaintiff was to file and serve his liability and quantum evidence within eight weeks. There were also subsequent directions.
8. It was only after the directions had been made that the solicitors for the plaintiff commenced identifying a list of potential expert witnesses and only on 7 May 2014 that any emails were sent to the witnesses identified. Between May and June 2014 the solicitors made enquiries of a number of potential expert witnesses and by 17 June 2014 the plaintiff's solicitors had managed to prepare a letter of instructions to Dr Alex Wodak who identifies himself as "Emeritus Consultant, Alcohol and Drug Service, St Vincent's Hospital" and "President, Australian Drug Law Reform Foundation". Between June 2014 and the date the present application was filed, namely 19 June 2015, the proceedings have been delayed by reason of the failure by the plaintiff to comply with the order of the Court made on 24 March 2014 as well as subsequent orders made on 25 August 2014, 10 November 2014 and 11 May 2015. That non-compliance has been caused in part by the failure of Dr Wodak to produce a report at all and his failure to produce a report which is in a form that the solicitors for the plaintiff consider appropriate to serve.
9. In June 2014 Dr Wodak confirmed that he had received the letter sent by the plaintiff's solicitors. In September 2014 however he said that he did not think he had received the material which was then sent again. In October 2014 the solicitors for the plaintiff requested an update on his progress and were told that he had been in Japan and that he would start working on the report sometime after he returned on 18 October 2014. In December 2014 he advised that "he would look at the documents as soon as possible". In January 2015 he indicated he had read the documents and asked for a teleconference. On 29 January 2015 a conference was held with the plaintiff's solicitors and counsel and it was agreed that an additional letter would be sent setting out the questions the plaintiff wished to have answered.
10. After four further directions hearings before deputy registrars of the Court between March 2014 and April 2015, on 13 April 2015 the plaintiff sought a further adjournment to obtain the report from Dr Wodak. This was the first occasion on which the defendant had objected to any further adjournment sought by the plaintiff.
11. On 23 April 2015 one of the plaintiff's solicitors telephoned Dr Wodak and was advised "he did not realise that we wanted a written report". Dr Wodak advised that he would have the report completed within ten days. That did not happen. On 22 May 2015 Dr Wodak provided a draft report. That report appeared to the solicitors for the plaintiff not to comply with the requirements that would make it admissible as an expert opinion and did not respond to the questions that Dr Wodak had been asked to address.
12. On 1 June 2015 the Court was told that a draft liability report had been received and a further direction was made requiring the plaintiff to serve his expert liability evidence by 15 June 2015. On 9 June 2015 a further draft report was received from Dr Wodak addressing particular questions. A further request was made of Dr Wodak.
13. The defendant's application was filed and served on 19 June 2015.
14. Even after the application was filed, when the proceedings were again before the deputy registrar, a further direction was made by consent that the plaintiff serve any expert report by 8 July 2015. The position adopted by the plaintiff's solicitors in correspondence with the solicitors for the defendant was that the application the defendant had made was "unnecessary and premature". On 8 July 2015 Dr Wodak advised the solicitors for the plaintiff that he could only finalise the report on returning to Australia on 21 July 2015. On that day a letter was sent to the defendant's solicitors enclosing the two draft reports of Dr Wodak. On 13 July 2015 the proceedings were yet again before a deputy registrar and, notwithstanding the plaintiff's contention that a further direction should be made permitting service of expert liability evidence by 31 July 2015, the deputy registrar instead docketed the matter to me. The matter was first before me on 24 July 2015 and listed for hearing yesterday (4 August 2015).
15. I note at this point that on 10 July 2015 the solicitors for the plaintiff served a report of a clinical psychologist, Greg Aldridge, dated 15 May 2014. The service of this report was outside the time permitted by the latest of the directions that addressed the service of expert evidence going to damage. It is, of course, notable that the report must have been in the possession of the plaintiff's solicitors since shortly after 15 May 2014. It appears that a deliberate decision had been made not to serve it in accordance with any of the relevant directions but that that forensic decision changed under the pressure brought about by the defendant's application. Having regard to the contents of the report which were in evidence it is understandable why a forensic decision may have been taken initially not to serve the report.
16. At the hearing of the application the plaintiff read an affidavit of one of the plaintiff's solicitors which disclosed further attempts to extract a report from Dr Wodak. On Monday, 27 July 2015, he said he would have a report to the solicitors "as soon as possible this week". On the Friday, 31 July 2015, at 5.00 pm Dr Wodak advised the solicitor that he would have the report to them on Monday, 3 August 2015. On Monday, 3 August 2015, at 6.00 pm he advised that he was currently working on the report and would have the report to them tomorrow. On Tuesday, 4 August 2015, shortly before the commencement of the hearing before me, Dr Wodak advised the solicitor that the report was "almost done" and he would have the report to them that day. By the time that oral argument on the application was completed the plaintiff's solicitors had not received the report from Dr Wodak.
17. In those circumstances I adjourned the proceedings until 9.15 am this morning so as to permit a further final opportunity for the report of Dr Wodak to be made available to the plaintiff's solicitors. As at this morning the position, which was updated by a further affidavit from the plaintiff's solicitor, was that Dr Wodak advised that he could not get them the report by 9.15 am this morning, that the report was "almost done" and that he would have the report to the plaintiff's solicitors today.
18. In summary, during the period from 24 March 2014 there have been six directions requiring the service of Dr Wodak's report and a total of ten directions hearings before a deputy registrar of this Court.
19. Rules 1404 and 1110 provide powers of the Court that are available to deal with non-compliance with directions. The matters to be taken into account on an application for an order under those rules are not constrained by the terms of those rules other than by r 1404(5) which requires that, in deciding whether to dismiss proceedings, the Court must have regard to the principle that the interests of justice are paramount. A useful discussion of the matters to be considered when deciding whether to exercise the power to strike out for want of prosecution, which includes failure to comply with a direction of the Court, is set out in Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 at [36]- [41]. For present purposes it is sufficient to note that regard needs to be had to the nature and circumstances of the delays in the proceedings, the explanation for those delays and the impact of those delays on the proceedings and the parties. Particular regard needs to be had to the approach to r 21 and case management decisions more generally articulated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 ('Aon') and the more recent decision in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303. The defendant unsurprisingly placed emphasis in particular upon the statements at paragraphs 94 and 95 of the decision in Aon.
20. I have outlined the nature and procedural history of the proceedings above. The explanations for the delay in the conduct of the proceedings and non-compliance with orders of the Court put forward by the plaintiff principally relate to the difficulties in extracting a report in proper form from Dr Wodak. That explanation is, as pointed out by the defendant, unsatisfactory in that it does not properly explain why steps were not taken much earlier to identify and obtain a report from any appropriate expert. That failure reflects a failure to either consider or obtain proper advice in relation to what would be required to be proved in order to establish the plaintiff's claim. In a case where the nature of the claim is out of the ordinary, it is even more important that those acting for a plaintiff at a very early stage give proper consideration and, if necessary, obtain advice from counsel as to what if any expert evidence needs to be obtained. There is no evidence that occurred in the present case. So far as the evidence discloses, the first consideration of the fundamental question of whether or not expert evidence was required to establish the plaintiff's claim in relation to liability was the provision of advice from counsel on 4 March 2014, almost 15 months after the proceedings were commenced. Whilst in some cases it will be appropriate to postpone identification of experts until pleadings and discovery have been completed, in a case like this such a course was plainly not appropriate. The approach taken in this case appears to reflect an approach to the conduct of a negligence claim reflective of the practices of a past era where a plaintiff was at liberty to meander slowly towards a forensically advantageous position at a time convenient to the plaintiff's solicitors.
21. It is important to note, however, that the meandering approach to the preparation of the case was acquiesced in by the defendant up until April 2015 at which point it, quite reasonably, objected to further delays and accommodation of the plaintiff's persistent non-compliance with the orders of the Court. Further, even in the light of the absence of objection from the defendant, the deputy registrars who were faced with the plaintiff's breach of the Court's orders appear to have too readily acquiesced in the making of further orders permitting expert reports to be served. Although the evidence of what occurred before the deputy registrars is not detailed, it does not appear that at any time the plaintiff's solicitors were forced to spell out in an affidavit precisely why the plaintiff failed to comply with the Court's orders or the factual basis upon which they submitted that a further order should be made that had reasonable prospects of being complied with. Had such an approach been required then it is unlikely that the matter would have proceeded in the manner that it did. Finally I note that it does not appear that consideration was given to the early docketing of the matter to a judge in order to ensure that the proceedings were managed in a manner that prevented further breach of the Court's orders by the plaintiff.
22. In my view, it is fundamentally important that case management directions of the Court are recognised as being orders of the Court rather than administrative suggestions that may be disobeyed if inconvenient. The manner in which the solicitors for the plaintiff have addressed the plaintiff's non-compliance with orders of the Court appears to reflect an attitude that non-compliance with the directions made by the Court is an administrative matter from which a party will be excused, that in the event of non-compliance no explanation needs to be given on oath or affirmation of the reasons for the non-compliance and that non-compliance will have few if any consequences for the defaulting party. Acquiescence in such an approach by the Court fundamentally undermines the capacity of the Court to properly manage cases and puts those parties who do comply with the procedural directions of the Court at a disadvantage compared to those who do not. This is inconsistent with the purposes of the Rules set out in r 21.
23. Had the plaintiff and his solicitors been acting in a manner consistent with r 21 then:
(a) The plaintiff and his solicitors would not have consented to orders confining the period in which expert evidence was to be provided without having considered the evidence required and having a reasonable basis for considering that their client was able to obtain the evidence within that period.
(b) If the direction proposed to be made by the Court was inconsistent with what the plaintiff and his solicitors considered to be appropriate then the lawyer should have drawn to the attention of the Court the anticipated difficulties with obtaining expert evidence and the reasons for those difficulties and should have made submissions about the time which should be permitted. If necessary he or she should have sought an adjournment so as to be able to put evidence before the Court to support those submissions.
(c) If the plaintiff reached the stage when he was at risk (for good or bad reasons) of non-compliance with the timetable set by the Court he should have approached the other party, disclosed the circumstances frankly and sought agreement to appropriately adjust the timetable by consent.
(d) If no agreement could be reached then the pending defaulter or defaulter should have applied to the Court for a variation of the order, fully and frankly disclosing the basis for that application in appropriate sworn evidence. Courts will usually be sympathetic to real world problems that arise in conducting litigation so long as the Court can see that the conduct of the party and its solicitors is consistent with the duty under r 21. That is also the reason that in many, if not most, instances some adjustment to the Court's directions can be achieved by consent.
24. It is completely unsatisfactory that a party allows itself to drift casually into non-compliance with the orders of the Court then, after it is in default, to seek to explain away its non-compliance by submissions to the Court unsupported by sworn evidence.
25. The kind of non-compliance demonstrated in this case demonstrates a preparedness to impose upon the defendant the costs and delay associated with a failure to comply with an order of the Court rather than to run the plaintiff's case within the framework set by the orders of the Court if that involves compromising the plaintiff's ideal evidentiary position.
26. The defendant has identified the prejudice arising from the plaintiff's persistent non-compliance with the orders of the Court as arising in two respects. First, there is the delay in the progress of the proceedings leading to the inevitable erosion of memory and recollection relating to the circumstances of the events giving rise to the cause of action. In my view whilst there is some prejudice to be presumed from the delay, in the present case that prejudice is unlikely to be very significant because the factual circumstances surrounding liability are relatively limited and the defendant has been on notice of the claim since at least the giving of the notice of claim in August 2012 or alternatively the service of the originating claim in March 2013 and has hence been in a position to investigate the circumstances of the claim since then.
27. Second, there is the waste of costs associated with dealing with the plaintiff's persistent non-compliance with orders of the Court and the delay in the conduct of the proceedings, which costs are unlikely to be recoverable from the plaintiff unless they are less than and able to be set off against any judgment the plaintiff may ultimately recover because of the plaintiff's demonstrated impecuniosity.
28. In my view it is not appropriate to dismiss the plaintiff's claim under r 1110 or r 1404 although it is appropriate to make orders ensuring that the plaintiff's non-compliance is brought to an end and that the proceedings progress. In summary, the factors that have led me to conclude that it is not appropriate to dismiss the plaintiff's claim are:
(a) the principal cause of the delay since June 2014 appears to be the conduct of the plaintiff's proposed expert Dr Wodak in failing to produce an expert's report in any reasonable timeframe;
(b) while the other delays in the conduct of the proceeding and the failure to consider and identify appropriate experts earlier in the case reflect an approach to a case more appropriate in decades past, it is an approach which was for a period acquiesced in by the defendant and by the Court;
(c) whilst some prejudice is likely to have arisen to the defendant, both in terms of evidence and the incurring of costs, that prejudice is not so great as to weigh heavily in favour of dismissal as the appropriate remedy;
(d) although there appeared, in the light of the evidence put before me on this application, to be significant difficulties with the plaintiff's case, particularly in relation to damage, it is not one where it could be said that the obvious weakness of the case was a factor significantly in favour of the dismissal of the proceedings.
29. It did however appear to me to be a case which, having regard to the evidence that was available, was a matter within the jurisdiction of the Magistrates Court. It was not clear to me on the evidence on this application why the proceedings were commenced in the Supreme Court. Counsel for the plaintiff did not wish to be heard against the making of an order under s 268 of the Magistrates Court Act 1930 (ACT) transferring the proceedings to the Magistrates Court. However the making of such an order will need to await the finalisation of the costs issues, if any, arising out of the orders that I will make.
30. Having regard to the persistent non-compliance by the plaintiff with numerous orders of the Court and the delay that that has caused to the conduct of the proceedings, in my view, it is appropriate to make an order limiting the plaintiff to the experts' reports that have been made available to date. That is, the report of Mr Aldridge and the two reports identified as draft reports of Dr Wodak that have already been served on the defendant. Notwithstanding that there is a temptation to permit further time for a report from Dr Wodak which has for many days, weeks and months been imminent, I am satisfied that it is necessary to draw a line in the sand, the Court having given the plaintiff numerous opportunities to obtain that report. As a consequence, I do not consider it appropriate to permit further time based on the latest expression of hope on the part of Dr Wodak and the plaintiff that a report may be forthcoming shortly.
32. Finally, I will indicate that I will make an order transferring the proceedings to the Magistrates Court but will make such an order after I have dealt with any issue in relation to costs and after making any other directions that the parties submit are appropriate.
I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.
Crawford
Australian Capital Territory [2015] ACTSC 282
(2009) 239 CLR 175
(2013) 250 CLR 303