Hannam v State of New South Wales

Supreme Court of NSW|2022-04-26|Before: Adamson J

Solicitors: Ken Cush and Associates (Plaintiff) Wotton + Kearney (Defendant) File Number(s): 2019/51618

Introduction

By notice of motion dated 21 April 2022, the State of New South Wales (the defendant) seeks leave to extend time for the service of a report of Dr Michael Robertson, a toxicologist, dated 24 March 2022 until 25 March 2022. The defendant also seeks leave pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 31.4 to extend the time to serve the witness statement of Senior Technical Officer Christian Halbmeier dated 31 March 2022, to that date. Both applications for leave are resisted by Mr Maconachie QC, who appears with Mr Tierney, on behalf of Andrew Hannam (the plaintiff).

The report of Dr Robertson

Mr Clohesy deposes that he endeavoured to obtain a report from a toxicologist by sending an email on 17 September 2021 to Professor Alison Jones, who responded on 14 October 2021 informing the defendant that she was unable to assist. This led Mr Clohesy to cause one of his staff members to contact Dr Helen Dauncey, another toxicologist, who also was unavailable as she had a few urgent reports to prepare for other matters. Dr Dauncey said that she would probably be able to assist after they were completed. The defendant's solicitor sent a letter of instruction to Dr Dauncey on 17 January 2022. In response, Dr Dauncey contacted the defendant's solicitor on 31 January 2022 and suggested that the level of psychosis exhibited by the plaintiff was a matter for a psychiatrist.
The defendant's solicitor had already instructed Dr Alex Apler, a psychiatrist, on 26 November 2021 with a view to obtaining his opinion on the matters in issue in the proceedings. Ultimately, a report from Dr Apler, psychiatrist, was obtained by the defendant's solicitor on 3 February 2022. In that report, Dr Apler opined that the plaintiff's consumption of both alcohol and potentially illicit drugs is likely to have induced psychosis or delirium. On the basis of Dr Apler's report, Mr Clohesy considered that further expert evidence from a toxicologist might assist the Court. Ultimately, instructions were obtained from the defendant to brief a toxicologist. A letter for instructions was sent to Unisearch to obtain a toxicology report. Dr Robertson was identified by Unisearch as a suitably qualified expert. On 18 February 2022, the defendant instructed Dr Robertson who then provided a report to the defendant on 24 March 2022, which was then served on 25 March 2022.
Mr Maconachie submitted that the appropriate test to be applied by the Court was that in UCPR, r 31.28(4) which provides leave is not to be given under UCPR, r 31.28(3) unless the Court is satisfied that there are, relevantly, exceptional circumstances that warrant the grant of leave. UCPR, r 31.28 deals with disclosure of experts' reports and hospital reports. Subrule (3) provides that except by leave of the Court, an expert report is not admissible unless it has been served in accordance with the rule. Directions were made by this Court and it is common ground that Dr Robertson's report was served outside the time provided by the Court's directions.
Mr Hutchings, who appears on behalf of the defendant, contends that UCPR, r 31.28 does not apply in the present circumstances. He directed my attention to the decision of Cavanagh J in Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433 (Addison) in which Cavanagh J, at [29], said: "… In my view sub-r (4) and the reference to exceptional circumstances applies to an application for leave under sub-r (3), not an application for leave to serve a report contrary to the orders of the Court or an application for an extension of time to serve a report after the Court has so ordered but before any hearing. It may be surprising if a party was required to demonstrate exceptional circumstances to obtain leave to serve an expert's report when the case has not even been listed for hearing. I thus do not consider that the plaintiff was required to demonstrate exceptional circumstances to obtain the leave of the Court for an extension of time to serve the report. It is not necessary for me to further consider whether there were exceptional circumstances."
Mr Hutchings submitted that it was sufficient that the Court is satisfied that it is in the interest of justice that the expert report be served and relied upon, and accordingly that the matters referred to in Pt 6 of the Civil Procedure Act 2005 (NSW) are the appropriate matters for the Court to consider in making that determination. In the circumstances of the present case, it is not necessary for me to consider the parameters of UCPR, r 31.28 or to address the question whether the matters referred to by Cavanagh J in [29] of Addison are apposite in a case which has been listed to commence for hearing within a fortnight. This is because I am not persuaded that it is in the interest of justice to allow the defendant to rely on the report of Dr Robertson, having regard to the matters referred to which I am bound to take into account under Pt 6 of the Civil Procedure Act.
As I mentioned, the case is listed for the final hearing to commence in just under a fortnight. Mr Maconachie has informed me that the plaintiff does not have recourse to a toxicologist who could be consulted with a view to countering the views expressed by Dr Robertson. The significant difficulty which Mr Clohesy encountered when trying to obtain the opinion of a toxicologist on behalf of the defendant can be expected to be at least as great if the plaintiff were to try and obtain such a report. I say, "at least as great" since it can be assumed that the defendant has significantly greater resources than the plaintiff, and furthermore, the defendant would have, one imagines, pre‑existing relationships with expert toxicologists who, although independent from the defendant, could be expected to give some expedition to the defendant's request for expert evidence.
The proceedings concern a claim for damages for injury suffered by the plaintiff when he either fell or was caused to fall from a balcony. His injuries as pleaded in the amended statement of claim are catastrophic. His behaviour before the alleged intervention of the police was aberrant such as to give rise to at least the possibility that the plaintiff was suffering from the effects of either alcohol or illicit drugs.
This is a matter which is referred to in the pleading. In paragraph 61 of the amended defence filed on 22 January 2021, the defendant alleged that the plaintiff was intoxicated within the meaning of s 48 of the Civil Liability Act 2002 (NSW) and that the defendant relied on s 50 of the Civil Liability Act. Section 50 provides: "50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced."
In his reply served on 17 March 2021, the plaintiff alleged that his injuries would have occurred but for his intoxication, that any intoxication did not contribute to his injuries and that if he was intoxicated, it was not self-induced.
It must have been plain to the defendant from the events the subject of the proceedings, and in any event, from the allegations made in the pleadings, that the extent to which, if at all, the plaintiff was intoxicated and the substance by which he was intoxicated and the effects of any such intoxicating substance were germane to the issues between the parties in the proceedings.
Mr Clohesy has, in a diligent and thorough way, recounted and described to the Court the endeavours he made to obtain the opinion of a toxicologist. In that sense there has been some explanation for the delay. However, I do not consider that this is sufficient to overcome the prejudice to the plaintiff in receiving an expert report so close to the hearing before he has any real chance to respond to that report.
The hearing date was set down by Bellew J on 16 December 2020. It is a matter of common knowledge that to obtain a hearing date for a six‑week period (which was the original estimate made by the defendant) is a difficult matter. If this matter were to be adjourned, the Court could not readily accommodate the parties by providing another hearing date shortly. In any event, I note that neither of the parties has sought that the matter be adjourned in order to give the plaintiff time to deal with this report.
For these reasons, I am not satisfied that it is appropriate that leave be granted to the defendant to rely on the report of Dr Robertson.

The statement of Mr Halbmeier

In his statement, Mr Halbmeier deposes as to matters concerning the taser instrument which is alleged was used by the police against the plaintiff at the time the events the subject of the proceedings occurred (the Taser).
The technical specifications of the Taser are exhibited to Mr Halbmeier's statement. He expresses an opinion as to the capacity of the Taser and its functionality. He also describes the operation of the Taser and how each cartridge contains a pair of electrodes and propellant for a single shot which is replaced after each use. He also explains that it is necessary for both probes to make contact with the subject to complete an electrical circuit and successfully deliver a charge to the person of interest.
In his report, Mr Halbmeier not only goes through the technical specification and operation of the Taser, but he also describes the lifecycle of the Taser and the limitations of the Taser which was used by police on the plaintiff on 21 February 2016. For example, in paragraph 47 of his statement, he says that, in his experience, he was aware that the X26E model (the Taser used on that day) has some limitations including a delay in activating the "Tasercam" and a delay of one to five seconds being common in the audio‑visual recording commencing.
Mr Halbmeier also described the lifecycle of the device. He deposed that the device was seized on 21 February 2016 by detectives involved in a critical incident investigation into the matters the subject of the proceedings and what occurred subsequently with the device. He also deposed that the device was subsequently disposed of as part of standard New South Wales Police Force asset management approach to this class of device. I note that this was done notwithstanding that these proceedings were extant, the original statement of claim having been filed by the plaintiff on 15 February 2019.
Mr Hutchings explained that the defendant wanted to rely on the statement of Mr Halbmeier in order to assist the Court with matters to do with the technical operation of the Taser, to explain why the recording obtained from that device was incomplete by a matter of about five seconds or thereabouts, and also to inform the Court that the relevant Taser device had been destroyed and why it had been destroyed (in accordance with the usual practice of the New South Wales Police Force).
Mr Maconachie opposed the grant of leave. He submitted that the material in Mr Halbmeier's statement was of an expert nature and was served far too late for the plaintiff to have any realistic chance of investigating or responding to it. He submitted that the plaintiff would be significantly prejudiced were I to allow Mr Halbmeier's statement into evidence and that, in essence, he would have difficulty countering it and cross‑examining Mr Halbmeier because he would not have access to an expert who could assist him to understand the technical evidence given by Mr Halbmeier.
Mr Maconachie also submitted that it was his intention, as the plaintiff's lead counsel, to make a final submission at the close of the substantive hearing that the Court should draw certain inferences from the fact that the Taser recording was incomplete and that the device and associated accessories had been destroyed. He submitted that such a submission would be open to him even if I were to reject Mr Halbmeier's statement which would, in some senses, provide an explanation of why the Taser could not be adduced in evidence and why the recording was incomplete.
The evidence of Mr Halbmeier is potentially highly germane because of the forensic use which could, in appropriate circumstances, be made of the incompleteness of the footage and the destruction of the device. However, I accept Mr Maconachie's submission that the plaintiff has no real opportunity to respond to such a statement, having regard to the fact that it was served on or shortly after 31 March 2022.
In these circumstances, there would, in my view, be a denial of procedural fairness to the plaintiff to allow the defendant to rely on Mr Halbmeier's statement. I note that this Court has endeavoured in the past, over three years, to case manage this matter with a view for it being ready for hearing.
It is, as I have said, about 18 months since Bellew J set the matter down for hearing. Once again, the defendant, with access to excellent and skilled legal resources from counsel and solicitors, has no real excuse for serving a statement such as Mr Halbmeier's so late.
It should have been apparent to the defendant that there was a potential forensic need for such a statement. I reject Mr Hutchings' submission that it was necessary for the plaintiff to include in his pleading allegations relating to the incompleteness of the recording or the destruction of the device.
In these circumstances, I refuse leave to the defendant to rely on the statement of Mr Halbmeier of 31 March 2022.

Other procedural matters

I otherwise confirm the hearing date, which is listed to commence on 9 May 2022, and I note the revised estimates by the plaintiff of ten days and the defendant of about three weeks.

Costs

The plaintiff seeks an order for costs of the defendant's notice of motion dated 21 April 2022 on an indemnity basis following the refusal of the leave sought on behalf of the defendant.
The plaintiff submitted in writing that the defendant's cavalier attitude and wilful disregard for the orders of the Court and its failure to make a timely application for relief from the requirement of the Court's timetable, as well as its failure to make a full and frank disclosure to the Court has put the plaintiff to the trouble and additional expense of responding to what it described as these "completely unnecessary interlocutory procedures". It was on that basis that the plaintiff seeks that the defendant should be ordered to pay the plaintiff's costs of the motion on an indemnity basis.
Mr Hutchings accepts that the defendant ought pay the plaintiff's costs on the ordinary basis in accordance with the general rule that costs follow the event: UCPR, r 42.1.
I accept that the delay by the defendant could reasonably be described as egregious. However, I do not accept that the defendant's attitude can be described as cavalier or that its disregard for the orders of the Court has been wilful. Rather, it would appear to me that the defendant's legal advisers have appreciated that there may be gaps in the defendant's defence which could be filled by evidence such as the evidence of Dr Robertson or Mr Halbmeier.
The defendant obtained the evidence and served it on the plaintiff with a view, presumably, to obtaining the plaintiff's consent to leave being granted for part, if not all, of that statement and that report. The plaintiff's consent was not forthcoming. It was entirely reasonable that the plaintiff in the circumstances should withhold his consent to leave being granted. However, it would appear to me that the defendant's approach has nonetheless been appropriate, although the time at which the documents were served meant that the prejudice to the plaintiff could not be overcome because there was not enough time between the service of these very significant documents and the hearing.
While I can understand the plaintiff's annoyance at the defendant's late service of these documents, particularly having regard to the recent application for leave by the defendant which was the subject of an extensive hearing before Dhanji J on 1 April 2022, I do not consider the defendant's conduct to be such as to warrant an order for costs on an indemnity basis.
Accordingly, I order that the defendant pay the plaintiff's costs of the notice of motion on the ordinary basis.

Orders

For the reasons given above, I make the following orders: 1. Refuse to extend the time within which the defendant may serve: 1. the report of Dr Michael Robertson dated 24 March 2022; and 2. the statement of Christian Halbmeier dated 31 March 2022. 1. Otherwise dismiss the defendant's notice of motion dated 21 April 2022. 2. Order the defendant to pay the plaintiff's costs of the defendant's notice of motion dated 21 April 2022 on the ordinary basis. 3. Confirm the hearing date of 9 May 2022 and note the estimates of the parties.

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: 27 April 2022

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