DEAN v PHUNG

CASES CITED : Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR at 530

PARTIES : Todd Owen DEAN v Mark PHUNG

P: D Hooke COUNSEL : D: D Nock SC Advanced Arbour: S CampbellSC/M J Walsh

P: Beilby Poulden Costello SOLICITORS : D: Guild Legal Limited Advanced Arbour: Turks Legal

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: In these proceedings, application has been made on behalf of the plaintiff, Mr Dean, for an order to consolidate the proceedings with proceedings brought by Advanced Arbor Services Pty Limited against Dr Mark Phung they being proceedings No 20006 2008 commenced by Statement of Claim filed 17 January 2008. 2 The original notice of motion, when it was filed on behalf of Mr Dean on 18 February 2009, was supported by the affidavit of his solicitor sworn 18 February 2009. An amended notice of motion was filed on 6 March 2009 supported by Mr Poulden's affidavit sworn 4 March 2009. 3 The present proceedings were only commenced on 18 December 2008, that is some eleven months or so after the proceedings brought by Advanced Arbor Services Pty Limited. The proceedings by Advanced Arbor Services were set down by the Registrar on 29 October 2008 for hearing on 25 March 2009 for three days. Both proceedings arise out of an incident, or accident, said to have occurred involving Mr Dean on 19 December 2001. 4 Advanced Arbor Services in its Statement of Claim says the plaintiff was employed as a trainee aborist/agricultural worker and that, on that occasion, he was hit on his chin by a log causing injuries to his teeth and jaw. On 16 January 1982, according to the Statement of Claim to which I have referred, Mr Dean was referred to Dr Phung by Advanced Arbor Services for medical or other treatment of his injuries. 5 It appears from the material on this application that the dental treatment administered by the defendant, Dr Phung, commenced on 16 January 2002 and continued over several months at least in 2002, at least until October 2002 if not later, and he had some further treatment at some point prior to 19 June 2003 from Dr Phung. 6 Particulars of the Statement of Claim filed on behalf of Mr Dean have been requested by letter and, on 16 February 2009 particulars were furnished to Dr Phung's solicitor. As yet no defence has been filed in the present proceedings No 20571 of 2008, and there has been raised in prospect an intention by Dr Phung to rely upon a limitation issue under the Limitation Act 1969 in respect of treatment given prior to 18 December 2002. 7 It appears from the material on this application that a good deal of the treatment was performed in the period I have earlier referred to between 16 January 2002 and some date in October 2002. In relation to the evidence on the application Mr Poulden in his affidavit sworn 4 March 2009 has referred to the proceedings brought by Advanced Arbor Services for what he terms recovery of benefits paid on behalf of Advanced Arbor Services in accordance with the Workers Compensation Act 1987 and additionally he referred to the fact that Advanced Arbor Services had served medical evidence in support of the allegation of negligence against Dr Phung and that Mr Dean seeks to rely upon those reports in establishing negligence against Dr Phung. 8 It has been said on this application that the issue of negligence, so far as it relates to Mr Dean, is identical to that pursued by Advanced Arbor Services. 9 Mr Dean, in addition to the dental injuries, asserts that he has suffered psychological injury and has had related problems with headaches and in those respects - matters concerning damages - there is a difference in respect of the claim for damages. It is contended it would be unfair to Mr Dean to have to give evidence in two separate proceedings and, accordingly, an order for consolidation is sought. Alternatively, it is said that the consolidation be limited to the issue of breach of care. 10 The defendant, Dr Phung, relies upon the affidavit of Fiona Dransfield sworn 3 March 2009. That affidavit provides some factual material which includes the statement that the last treatment by Dr Phung was 18 July 2003 and contends the majority of the treatment was between 16 January 2002 and 6 February 2003. Ms Dransfield says that the Limitation Act will be relied upon in respect of the treatment prior to 18 December 2002 and refers to the fact the defendant is aware of the plaintiff having sought legal advice from different solicitors to those presently acting for him. Ms Dransfield states she would wish this aspect of the matter to be investigated before a question of liability is decided and observed that the causes of action in the proceedings by Advanced Arbor Services are not limited to negligence and issues raised under the Fair Trading Act 1987 and the Workers Compensation Act. 11 Ms Dransfield significantly says in relation to negligence that the question of duty of care allegedly owed by Dr Phung to Advanced Arbor is "the only issue in respect of negligence between the parties in the Arbor proceedings" (paragraph 10). 12 She observed that the nature of the duty of care is different so far as that alleged duty is owed to Advanced Arbor to that alleged to be due to the plaintiff, Mr Dean. It was also noted that it will not be contested that Dr Phung owed a duty of care to carry out the treatment in a professional manner and thus 'the issues of the two claims in respect of negligence are completely different". 13 Other observations were made on the question of damages, including a claim for recovery under s.15(2) of the Workers Compensation Act by Advanced Arbor. 14 I interpose to say in that respect Mr Campbell SC has appeared on behalf of Advanced Arbor and at the hearing of this application he said the claim for indemnity under s.55 of the Statement of Claim and under s.151Z(2)(d) of the Workers Compensation Act will not be pursued. It has been said the claim against Mr Dean is not ready to proceed. 15 In his submissions Mr Campbell has raised a number of matters. I limit my observations to three points made by him. Firstly, that Advanced Arbor's consent to consolidation was provided the hearing date set for 25 March is not lost. Secondly, that there is essentially only one issue that is common to both proceedings in relation to the negligence ground, and that is what he termed causation, and in that regard he made reference to the decision of the High Court in Mahony v Kruschich (Demolitions) Pty Limited (1985) 156 CLR (p.530 of the joint judgment), that being relevant to the novus actus point. Thirdly, so far as breach of duty is concerned, no evidence has been served in relation to Dr Peppitt's report dated 7 January 2008, which is Exhibit 1 on this application. Another medical report has been served. In those circumstances Mr Campbell has said that the liability issue has been narrowed down. 16 Mr Hooke, of counsel, who appeared on behalf of Mr Dean, raised a number of matters emphasising not only the Mahony (supra) point as an issue arising in both proceedings, but also s.56 of the Civil Procedure Act 2005, and further the risk of inconsistency with two different judges conducting different trials in relation to the two proceedings. Conducted separately, he suggested this was a risk that could affect Dr Phung and that there could be some advantage to him in having the matters consolidated. 17 So far as any limitation issue is concerned, if raised, liability is essentially unanswered on evidentiary material relied upon and served by Advanced Arbor, and that would be a material matter on any application for an extension of time. He contended there would be no prejudice to the defendant. 18 Further, he observed, Mr Dean would have to give evidence in the Advanced Arbor case in any event, and that indicates that it would be appropriate to have the two cases consolidated. 19 Mr Nock for Dr Phung has opposed the application. He emphasised the fact that Mr Dean's case is not ready to proceed whereas Advanced Arbour's case is. There has been no statement of particulars, there has been no medical evidence served, and that means there is no opportunity to invoke prescribed professional negligence procedures, including mediation, and the defendant has no real idea as to the basis of what the claim for damages might be. 20 The application invokes the provisions of the Uniform Civil Procedure Rules, Part 28.5; and under that provision this Court may order proceedings be consolidated or be tried at the same time if it appears:-

(2) That the rights to relief only in respect of or arise from some transaction or series of transactions.

(3) For some other reason it is reasonable to make an order under this Rule. 21 In applying these provisions to the present case I have had regard particularly to the following propositions:-

(1) The exercise of power under that provision is a discretionary power to be properly considered and exercised having regard to accepted principles.

(2) That proceedings may be consolidated despite there being a difference between parties in the multiple proceedings.

(3) That the minimisation of costs and delay is a relevant consideration.

(4) That consolidation, if appropriate, may be made conditional, that is made on terms.

(5) The prejudice by making an order under the provision is a relevant consideration and would be set off against an exercise of the discretion and an exercise in favour of consolidation. 22 Having said that, it is important to examine if there is any contention or likelihood of prejudice, and, if so, what would be the nature of such prejudice and whether or not it could be dealt with adequately by terms or conditions. 23 Mr Nock did emphasise the fact that by reason of these proceedings only recently being commenced the plaintiff is not ready on damages and that affects the defendant because the defendant, accordingly, has no idea as to really what the particulars of the economic loss claim would be. Additionally he referred to the loss of opportunity to invoke the professional negligence proceedings, including mediation and other factors and state that all such matters should be taken into account. 24 I have been concerned, in particular, in this matter both about the matters Mr Nock has raised, and also the fact that there has yet been no application under the Limitation Act. Accordingly, I have no basis to be able to understand what any Limitation Act application would entail and what the evidence on that aspect would be. However, that is a matter that would only go to the exercise of discretion and I must balance the lack of evidence and the lack of preparedness on damages against the other competing considerations. Those competing considerations are, in particular, that the breach of duty/causation arises in Mr Dean's case and is also one central aspect of Advanced Arbor's case. It would require Mr Dean to give evidence on that issue, it would seem; that is to say evidence on the treatment he has received and the circumstances in which he came to receive it and undertook it. 25 It is also relevant to have regard to whether or not there is likely to be a serious contest on issues other than duty of care, namely, a breach of duty, and I have regard to the fact that there has not been any evidence served to date on behalf of Dr Phung and it makes it unlikely, as the matter presently stands, that there is going to be any significant evidentiary dispute about breach or causation although, having said that, I do not wish to pre-empt what may be raised on Dr Phung's behalf, particularly in relation to what I might call the Mahony (supra) or other matters. I am simply limiting my consideration to the evidence that has been served or not served as a relevant consideration. 26 The fact that the case for Mr Dean on damages is not prepared, or cannot be made the subject of either a statement of particulars or supported by evidentiary reports, is a factor but I consider in the circumstances, the liability issue beings specifically identified so far as it affects the two cases, that the interests of justice would be better served by allowing Mr Dean, and for that matter Dr Phung, an opportunity of a separate hearing on damages in the event that the discretion is exercised in favour of consolidation. 27 Bringing those matters into account, in particular the absence of any identified actual or other prejudice directly concerning liability, or the issues to which I have referred, or any disadvantage to Dr Phung that would arise should there be a consolidation, I am of the view I should make an order for consolidation of the two proceedings. 28 That, I acknowledge, has unfortunate consequences for the trial judge hearing both proceedings on liability as he or she will have to at a later stage conduct a separate hearing on damages if Mr Dean is successful in establishing liability against Dr Phung. I have, however, in mind the provisions of section 56 in that it is a practical course, free of any real prejudice, to have the liability issues determined at the same time. 29 In so concluding I have not overlooked the Limitation issue that is said to be in prospect once a defence is filed, if it is filed. It is ordinarily preferable to have a Limitation Act application heard prior to the trial. The reality in the present case, on the basis of what I have been told, is it is simply not possible to have an application supported by the necessary material, including medical material, before 25 March, at least as matters presently stand. That carries with it the conclusion that any limitation issue also will not be able to be heard, it seems, as an issue at the trial, but would have to be dealt with on a subsequent occasion. Notwithstanding that, I still consider the balance in favour of making the order sought. 30 I order that the issue of liability in these proceedings be tried at the same time as in proceedings No 20006 2008 between Advanced Arbor Services Pty Limited as the plaintiff and Dr Mark Phung as defendant. The costs of this application reserved to be determined at a future date by the trial judge. An application for costs is made also on behalf of Advanced Arbor Services Pty Limited and is to be determined in the future by the trial judge. **********

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