for the delay. As to prejudice, Mr Hannay, the managing clerk

who has had something to do with the file, gave evidence of

his understanding of the position. It should be borne in mind

that Mr Hannay is only a managing clerk and has firm

instructions that he must get guidance from a solicitor or

consultant solicitor before taking any step in proceedings.

He perused the proposed amended defence but did not send it to

counsel until late yesterday or today. He was unable to

consult his principal because that gentleman is personally

engaged in defending himself in professional integrity

His experience allowed him to say in the witness box that he

considered that further medical reports might be necessary in

regard to the issues raised by paragraphs (c) and (e) of the

proposed amended paragraph 3A. When he gave that evidence,

counsel for the defendant intimated to the Court that those

paragraphs would be withdrawn from the material which it was

sought to insert into the defence by way of amendment.

For the plaintiff, Mr Di Carlo submitted that there was a need

for further consideration of the medical position. That arose

from the fact that he had only received the amended defence

very belatedly and had not obtained proper instructions or

even given the amended defence proper consideration. There is

no explanation of his failure to receive it last week. He

wished, he said, to consider it, give advice to the client and

receive instructions from the client. That is not an

unreasonable position. It seems to me that it does mean that

an adjournment of the trial would be necessary. Without at

this point embarking on any question of costs of an

adjournment, I simply say that an adjournment would be

necessary if the matter were to proceed due to fault on both

sides. I do not propose at this point to try to allocate that

The effect of an adjournment is necessarily to prejudice the

plaintiff. That is particularly galling in a personal

injuries case. There is no other evidence of prejudice apart

from what I have discussed which could not be dealt with by an

order for costs on an indemnity basis, but as I say, that

question would have to be considered in the light of the

relative degrees of fault. It is not possible to allow the

short adjournment which Mr Di Carlo sought due to the Court

arrangements and the matter would have to be restored to the

callover list. That may create a difficulty in that in the

second half of this year it is expected that trial dates will

In summary, the question of prejudice to the plaintiff is

significant but is it is not in my judgment the determining

factor in this application. I turn to the question of the

Counsel submitted that the delay was due to inadvertence (I

infer he meant inadvertence on behalf of the solicitors for

the defendant) and that this inadvertence led to the failure to give notice earlier. It seems to me that to explain the delay which has occurred as inadvertence is really a half-truth. It is true that the practitioner handling the file on behalf of the solicitors for the defendant, Mr Gurry could have reviewed the pleadings before signing the Request for Trial Date. It is not clear on the evidence exactly what would have happened had he done so. More importantly, pleadings are not primarily his responsibility if counsel is to be engaged. Counsel has the ultimate responsibility to ensure that pleadings reflect the case which he is to run. That is a responsibility to the Court, as well as to the client.

In my judgment, the major reason for the delay in this case

was the client's instruction that ordinarily counsel was not

to be briefed before a Request for Trial Date was signed.

Mr Gurry gave evidence that although no specific instruction

had been given to counsel to review the pleadings in this

case, he would expect it to be done as part of an advice on

He said, in cross-examination in answer to Mr Di Carlo:

"Is it not the case that you have dealt with counsel,

perhaps including my learned friend, that when you ask

for an advice on evidence, not only does counsel give you

advice in respect of what doctors may be required, what

further evidence you need, but often it's the case, is it

not, that they visit the format of the pleadings and

advise you of any inadequacies or any amendments that

need to be made? You'd agree with that, wouldn't you?--

Well, I think as a general rule counsel would if they saw

anything in - as a matter of just general policy with

counsel, irrespective of this matter, would normally

identify to their instructing solicitor any issues that

Well, I think you admitted to his Honour that as part of

what your expectations were when you deliver a request

for an advice on evidence, one of the issues and that is

the state of the pleadings?-- That is correct, if -

well, exactly. I think I said to his Honour that we

would generally see that counsel would consider if there

was anything that required attention in relation to a

Including the pleadings?-- Well, that would be included

In this view I think Mr Gurry was quite correct. It is

ordinary practice and quite to be expected that counsel would

review the pleadings in the course of a brief to advise on

In the present case, the position was that the defendant, a

motor accident insurer, instructed its solicitors that counsel

ordinarily was not to be briefed. Mr Gurry gave the following

"Do you have any procedure for getting an advice on

evidence before signing the certificate in any case in

your office?-- It would depend entirely on the client's

Has it given you instructions not to obtain an advice on

And did you understand those instructions to carry over

your Honour, that we will seek the instructions of the

And did they give those instructions in this case?-- They

Mr Gurry went on to say that he did not himself consider

getting counsel's advice in relation to the pleadings before

he signed the Request for Trial Date. His practice, he said,

was to have a conference with the client after the Request

instructions from my client to sign the request for

trial, then my client has a procedure whereby after the

signing of a request for trial but before trial, we

confer and review the file for the purposes of trial. As

a result of that conference, instructions were provided

counsel should give an advice of evidence and quantum for

I am satisfied that it was at that conference that the

The adequacy of pleadings and evidence at trial are matters

which must be the subject of advice from trial counsel. It

must have been obvious to the defendant from the time of the

second mediation that this case had a real prospect of

proceeding to trial. Its normal practice, as I have just

described it, is in my judgment anathema to the spirit and

terms of the Uniform Civil Procedure Rules. Failure to get

advice on evidence before a request for trial date is signed

is asking for trouble. It is likely that pleading and

evidentiary issues will arise when counsel is briefed. This

causes cost and delay as is apparent in the present case. The Rules, and the practice of this Court, proceed on the basis that such issues will ordinarily be resolved before the Request is signed. To obtain a date for trial at a callover while they are still outstanding is unacceptable.

The evidence was that the defendant's practice was adopted to

save money, depending on the amount at stake. The effect of

the practice is potentially to place an undue burden on

plaintiffs where the action proceeds to trial. The burden

consists of delay and if costs are not awarded to the client

on an indemnity basis any costs by which the plaintiff is

The Uniform Civil Procedure Rules are intended to achieve

expedition by requiring early preparation for trial. It

ill-behoves insurers to save money by delaying preparation

until a conference is held some time after a Request for Trial

Date is signed. They do not have a right to disregard the

rules for their own convenience. It is no answer for repeat

litigators like insurers to say that by adopting such

practices they save money in the end because many cases settle

anyway. Plaintiffs have only one case. Insurers should not

put plaintiffs at risk of delay and additional cost by a

practice designed to save themselves money in the bulk of

This case, typical of its kind, has been through the hoops of

the Motor Accident Insurance Act. It has twice been to

mediation. By the time the second mediation was concluded it

should have been assumed that it would not settle and

preparation for trial should have begun accordingly. Had that

occurred the problem in the defence would have become apparent

The Court endeavours to allocate early credible trial dates.

Regular litigants must cooperate by complying with the rules

in spirit and in letter. In deciding to prepare for trial

after the Request was filed and only a week before it was set

down at the callover the defendant was not demonstrating such

compliance. It could have begun steps to prepare for trial in

In my view no satisfactory explanation for the failure to

apply for an amendment at an appropriately early stage has

been advanced. This is not a case of inadvertence but the

result of a procedure deliberately adopted by the defendant.

I am not satisfied by the explanation advanced for the delay.

Two other matters should be mentioned. I have not overlooked

the decision of the High Court in State of Queensland v. J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146. In that case the Judge did accept the explanation for delay. Moreover, the application for amendment was made six months before the trial, not on the day of trial. The position was quite different from the present case.

Second, I draw attention to the position of the solicitor. A

solicitor is in a difficult position if a client gives

instructions which risk non-compliance with the rules. I do

not criticise Mr Gurry. As a witness he had no chance to put

his personal position, and the full position between him and

his client has not been explored. However the case shows the

care which solicitors must exercise in accepting instructions