Fan v South Eastern Sydney and Illawarra Area Health Service

CATCHWORDS : COSTS - where plaintiff successfully defended motion to dismiss professional negligence proceedings pursuant to UCPR 31.36 - defendant's motion premature and inappropriate - defendant to pay plaintiff's costs of the motion PRACTICE AND PROCEDURE - where plaintiff's decision to amend statement of claim connected to information unavailable to plaintiff but in the possession of defendant - costs of amendment be costs in the cause - where plaintiff by his tutor commenced proceedings without a solicitor - leave granted nunc pro tunc pursuant to UCPR 7.14(2)

LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

CASES CITED : Fan v South Eastern Sydney and Illawarra Area Health Service [2010] NSWSC 123 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116

PARTIES : Wei Fan by his tutor Yue Wang (Plaintiff) South Eastern Sydney and Illawarra Area Health Service (Defendant)

COUNSEL : K M Connor SC (Plaintiff) P J Rooney (Defendant)

SOLICITORS : Lamrocks (Plaintiff) General Insurance Law Department (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

2008/289228 Wei Fan by his tutor Yue Wang v South Eastern Sydney and Illawarra Area Health Service

JUDGMENT 1 HIS HONOUR: On 26 February 2010 I dismissed the defendant's motion seeking orders dismissing the plaintiff's claim: see [2010] NSWSC 123. I am now asked to deal with the costs of that motion as well as some related and ancillary matters. Costs of the defendant's motion 2 The plaintiff submits that the usual order should apply. He successfully defended the application to dismiss the proceedings for want of compliance with UCPR 31.36 and argues that costs should follow that event in accordance with UCPR 42.1 which provides as follows: " 42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs . " 3 The defendant submits that I should make an order that the plaintiff pay the costs of the motion in whole or alternatively in part. Costs are at the discretion of the Court: see s 98(1)(a) and (b) of the Civil Procedure Act 2005. The defendant seeks the costs of pursuing its notice of motion up to and including 23 September 2009 when the plaintiff served the reports of Dr Ross C Smith, including his report dated 20 August 2009, in which he expressed the opinion that there had been a breach of duty of care in allowing the plaintiff to lose such a large amount of weight for a condition that was easily treated. Dr Smith's opinion satisfied me that the plaintiff had complied with the relevant rule. 4 It is to be observed that the plaintiff has not at all times been legally represented, does not have English as his first language and is now, and has been for some time since shortly after the events that give rise to these proceedings, a disable person. It is also not in dispute that as a direct consequence of these matters, the proceedings were not commenced in a proper form and that they were not necessarily prosecuted with efficiency at all times. 5 The evidence upon which the plaintiff wishes to rely in seeking costs of the motion on the usual basis includes material that suggests that the defendant has effectively always been in a position of informational superiority over the plaintiff and that the application to require the plaintiff to conform to UCPR 31.36 was arguably inappropriate in the circumstances. For example, the plaintiff has for some time been attempting to obtain access to records held by the defendant that relate to his hospitalisation and operative treatment. On one view these documents reveal or suggest that the decision to postpone the plaintiff's operation was based on other than clinical grounds. In particular there is some evidence to suggest that the plaintiff's ability to pay for the cholecystectomy guided or influenced the decision to postpone it. These documents were important to the formulation of an opinion about whether or not there had been a want of reasonable care by the defendant in the circumstances. 6 The defendant has insisted that these are adversary proceedings and that in the absence of a properly pleaded case, which was the position for a long period, the defendant came under no obligation to provide any information to the plaintiff that was neither asked for specifically nor called up by the allegations in the statement of claim. The plaintiff's response is that if the documents had been made available earlier, a statement of claim in a proper form, and the provision of an expert opinion complying with UCPR 31.36, would each have been easier to produce in a timely way and in accordance with the rules. The dispute is therefore afflicted somewhat by circularity. 7 Lurking unexpressed in all of this is a hint of impropriety to the extent that, according to one view, the defendant sought to take advantage of its superior knowledge of the true facts concerning the plaintiff's treatment, which it refrained from sharing, and which was contained in records and material that it had, which would have assisted the plaintiff to formulate and to support his case without difficulty. I do not presently have a final view about this suggestion, nor do I have sufficient information to form one. It may or may not ultimately be relevant in the final disposition of the principal issues in this case but should not be determined before that occurs. 8 It should be noted, however, that as early as 30 May 2008 the plaintiff had obtained and served a report bearing that date from Dr Stephen Golding in which he complained that several of the important portions of the records relating to the plaintiff's hospitalisation and treatment in February 2007 were missing. Dr Golding said this: "These notes are incomplete, with a number of the pages being out of order and some medical notes appearing unfinished. More importantly, the outpatient notes relating to the period where cholecystectomy was meant to be arranged are absent. As the failure of care appears to have occurred within this setting, these notes are important . . ." 9 Dr Golding also said that the pathology results were incomplete, as were the notes from the plaintiff's first presentation to Sutherland Hospital Emergency Department. Accordingly, by at least mid-2008 the defendant was on notice that it had not provided clinical records that were arguably, if not certainly, important to the plaintiff's experts' consideration of the matter. The plaintiff emphasises that it is significant that the defendant did not seek to remedy that deficiency. 10 Moreover, the plaintiff argued that the defendant's motion was at least premature, and probably also inappropriate, if it was commenced, as the plaintiff says it was commenced, at a time when the defendant must be taken to have known that the plaintiff did not have important notes concerning him that Dr Golding had identified. Despite knowing this, the defendant elected not to remedy the deficiency before moving the Court for orders dismissing the plaintiff's claim. The plaintiff contended that the defendant should first have supplied the missing notes and that any other course was at the very least inconsistent with the overriding purpose. 11 The plaintiff drew by analogy upon the remarks of Heydon JA in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 at [21], [26] - [27] as follows: "[21] The conduct of the application from which this appeal is brought and the conduct of the application from which the appeal heard at the same time, Malone v NSW National Parks & Wildlife Service , together with the conduct of the two appeals themselves, suggest that a particular attitude to this kind of litigation prevails, even in the 21st century, among the profession and perhaps the bench. The attitude in question reflects the forensic system of an earlier age. It was described in Donaldson v Harris (1973) 4 SASR 299 at 302 by Wells J thus:

'… the old common law … was based, with rigorous logic, upon the system of litigation by antagonists. By virtue of the underlying principles of that system, it was the treasured right of each litigant to store up, in secret, as many unpleasant surprises for his opponent as he could muster, and only reveal them at the last minute at the trial (or contest) in the presence of the judicial umpire: nemo tenetur armare adversarium suum contra se (1628) Co. Litt. 36a. As Wigmore has put it (Evidence, 3rd ed. (1940), vol. VI, page 376) the common law regarded "the concealment of one's evidential resources and the preservation of the opponent's defenceless ignorance as a fair and irreproachable accompaniment of the game of litigation". '

[26] Fourthly, the conduct of litigation as if it were a card game in which opponents never see some of each other's cards until the last moment is out of line with modern trends. Those trends were developed because the expense of courts to the public is so great that their use must be made as efficient as is compatible with just conclusions. Civil litigation is too important an activity to be left solely in the hands of those who conduct it.

[27] To begin with, if practitioners in personal injury work are accustomed to maintain poker faces, to keep their guards up at all times, and to let opponents who are proceeding in ignorance continue in that course, they should perhaps, as Sir George Jessel used to say, move over to 'what is known as the other side of Westminster Hall' to observe what procedures prevail there." 12 The plaintiff's current solicitor sought additional notes in August and September 2009. Some were supplied. From these notes it appears that the plaintiff's surgery, scheduled for 26 February 2007, was cancelled for reasons concerning non-payment of an invoice issued to him by the defendant. Important other notes remained outstanding and unsupplied. In November 2009 the plaintiff sought additional notes and information that the defendant declined to provide. The plaintiff's solicitor has written recently asking the defendant to reconsider its position. 13 In my opinion the defendant's motion was both premature and inappropriate in the circumstances. Whether intentionally or inadvertently, the plaintiff was placed in the position of having to comply with the rules of court without the benefit of information that the defendant had and knew of and which clearly informed some important aspects of the case that the plaintiff wished to propound. On one view of the matter the defendant kept these records behind its back when they should have been on the table for all to see. This was particularly so when the plaintiff was unrepresented and apparently floundering and patently in need of guidance and direction in difficult and not uncomplicated litigation. I consider in these circumstances that the defendant should pay the plaintiff's costs of and incidental to the motion. Costs occasioned by amendment to the statement of claim 14 The defendant seeks its costs that have been thrown away or occasioned by the plaintiff's amendment to the statement of claim. The defendant argued that if the pleadings had originally reflected the case that the plaintiff now wishes to agitate, the application to strike it out would not have been necessary. It will be recalled that the defendant's application was that the original statement of claim should be struck out for want of due despatch. I was not satisfied that the plaintiff had failed to prosecute the proceedings with the degree of alacrity that the rule required. However, importantly, the defendant did not seek to challenge the statement of claim in any way associated with its form. 15 There is to my mind considerable tension in the defendant's submission that the plaintiff should be required to pay costs associated with the need, or a decision, to amend his pleadings when arguably the decision or need to amend is connected to information in the possession of the defendant that had not been provided to the plaintiff, or that the plaintiff did not know about. Whilst ordinarily the costs of an amendment would, in the absence of special circumstances, fall at the feet of the party seeking to amend, I consider in this case that the costs of the amendment should instead follow the event in the principal proceedings. Such an order takes into account the balance between the costs that may have been wasted before the statement of claim was amended to reflect the case that the plaintiff now wishes to bring and the efficiencies undoubtedly associated with a document in proper form to which the defendant will now be able with ease to respond.

Access to the defendant's records 16 Despite what may appear to have been the extent of cooperation between the parties to date, there have been genuine efforts to rectify the deficiencies in the plaintiff's access to all documents and other records that he seeks. Putting aside all technical arguments concerning requests for discovery or the provision of particulars or the administration of interrogatories, what the plaintiff wants and needs is the full compliment of hospital and clinical notes and records relating to his admissions and treatments whilst in the defendant's care. The defendant appears to accept that even at this early stage of the proceedings, possibly before the issues have finally crystallised, the material that the plaintiff seeks is, or would become, amenable to production in response to a subpoena or notice to produce. 17 The plaintiff has conveniently restricted his concerns to certain identified or identifiable documents, following an exchange of correspondence between the parties regarding production. In the absence of a fundamental objection to the production of any of these documents I consider that copies of them should be made available to the plaintiff within a reasonable time. Such a course is authorised by s 61(1) of the Civil Procedure Act and is otherwise consistent with the speedy determination of the real issues in dispute between the parties to the proceedings. Leave to carry on proceedings without a solicitor 18 The plaintiff originally commenced these proceedings by his tutor and continued thereafter without a solicitor until his present solicitor filed an appearance on 25 September 2009. That was contrary to the provisions of UCPR 7.14(2). The plaintiff has now sought a formal order to remedy that position, which the defendant does not oppose.

Orders 19 I make the following orders: 1. Order the defendant to pay the plaintiff's costs of the defendant's motion dated 12 December 2008.

Grant leave to the plaintiff to file an amended statement of claim in the form of the document attached to the plaintiff's solicitor's letter to GIO dated 3 November 2009

Order that any costs thrown away or occasioned by the plaintiff's application to amend his statement of claim should be the defendant's costs in the cause.

Direct the defendant to produce to the plaintiff on or before 14 May 2010 copies of the documents described in the following paragraphs of Lamrocks' letter to the GIO dated 24 November 2009 ("Lamrocks' letter"):

· 1(b) and (c) · 2(b), (c) and (d) · 3(a) · 4(a) final sentence, (b) final sentence, (c), (d) and (e) · 5(b) second clause of final sentence · 7(a) second sentence · 8(b), (c) and (d) · 9(d)(iv), (m), and (o) · 10(a) (as amended), (b), (c), (d) and (e) · 12(b) · 13(a) and (b) second sentence · 15(a)

Direct that the defendant provide the plaintiff on or before 14 May 2010 with the further information sought by the plaintiff in the following paragraphs of Lamrocks' letter:

· 1(a) · 2(d) · 4(a) and (c) · 5(a) · 6(a) and (b) · 7(a), (b) and (c) · 8(a), (b), (c) and (d) · 9(d)(i), (ii) and (iii), (h) (k), (l), (m) and (p) · 12(a) · 14(a) · 15(b)

Direct that the defendant indicate to the plaintiff on or before 14 May 2010 whether it concedes the matters referred to in the following paragraphs of Lamrocks' letter:

· 8(b), (c) and (d) · 9(a), (b), (c), (e), (f), (i), (j) and (q)

Grant leave to the plaintiff and his tutor nunc pro tunc from 4 April 2008 to 25 September 2009 to commence and to carry on the proceedings without a solicitor.

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.