Judaline Marion Younes v QIC Ltd trading as Westpoint Blacktown

Judgment INTRODUCTION 1By a statement of claim filed on 4 August 2009 in the District Court of New South Wales, the plaintiff commenced proceedings against the defendant seeking damages in negligence arising out of an incident on 10 June 2006 when the plaintiff allegedly slipped and fell whilst on the defendant's premises. 2As matters presently stand, those proceedings are listed for hearing in the District Court commencing on 5 June 2012 with an estimate of three days. 3By summons filed on 19 April 2012, the plaintiff has sought an order pursuant to s 140(1) of the Civil Procedure Act 2005 that the proceedings be transferred to this Court. 4The summons is supported by two affidavits of Abe Schwartz, the plaintiff's solicitor, affirmed on 17 April 2012 and 3 May 2012 respectively, to which no objection was taken. 5The order sought in the summons is opposed. In support of its position, the defendant filed three affidavits, namely an affidavit of Katherine Anne Ruschen, solicitor, sworn 26 April 2012, along with two affidavits of Natasha Jane Cannon, solicitor, affirmed on 27 April 2012 and 2 May 2012 respectively. There was no objection taken by the plaintiff to the defendant's affidavit material. THE HISTORY OF THE PROCEEDINGS IN THE DISTRICT COURT 6The proceedings in the District Court have a long history, upon which the defendant placed considerable reliance in its opposition to the making of the order sought. It is therefore necessary for me to set out aspects of that history in some detail. 7Following the commencement of the proceedings a pre-trial conference was held in the District Court on 12 August 2009. On that occasion, the plaintiff was ordered to file and serve all expert reports, as to both liability and damages, on or before 19 October 2009. The plaintiff failed to comply with that order. 8The matter was next before the court on 13 January 2010, at which time a further order was made requiring the plaintiff to serve all relevant reports, along with final particulars, on or before 31 March 2010. 9For the second time, the plaintiff failed to comply with the court's order. In a letter of 22 March 2010 the plaintiff's solicitor sought to explain that failure in the following terms: "Please note that Mrs Younes has been referred to a psychologist for 12 sessions of treatment which she started this month. We expect a delay in providing you with final particulars and medical reports and cannot suggest an amended timetable at this stage." 10The plaintiff's solicitor then wrote to the Judicial Registrar of the District Court on 3 June 2010 and advised him as follows: "The plaintiff cannot serve all her expert and medical reports nor final Pt 15 r 12 particulars until later this year. In February last she was referred for the first time since her injury in June 2006 to a psychologist for treatment because she was experiencing difficulty with pain management, daily domestic frustrations and mood swings. A course of 12 sessions were started and she will be reassessed in September 2012. The defendant was advised by letter dated 22 March 2012. In March 2010 the plaintiff, for the first time since her initial injury in 2006, was referred to a plastic surgeon for scar revision. She is presently on a waiting list for that procedure which she expects to have in the next few months. The plaintiff has experienced minor but now significant recurring neurological difficulties from the site of her injuries (to the right wrist) up her arm and will be referred to a consultant neurologist. After completing her psychological, neurological and surgical treatment we can then obtain reports from each specialists, including the necessity for costs for any further treatment, and finalise the Pt 15 particulars." 11The matter came before the Judicial Registrar on 7 June 2010. On that day, an order was made requiring the plaintiff to serve all medical reports, along with final particulars, by 1 October 2010. 12For the third time, the plaintiff failed to comply with the court's order. On 18 November 2010 (almost two months after the date on which evidence was required to be served) the plaintiff's solicitor wrote to the defendant's solicitor and stated (inter alia) as follows: "We...advise that final medical reports will be obtained after Mrs Younes completes the course of session with her treating psychologist. She will undergo cosmetic surgery next week and a medical report will be obtained early in the new year." 13The evidence before me includes a report from the plaintiff's treating psychologist, Ms Erne, dated 21 December 2010. On that occasion Ms Erne reported that although the plaintiff attended her on 7 December 2010 in order to (as Ms Erne put it) "request Court support documentation", the plaintiff's return to normal levels of psychological functioning had resulted in the cessation of psychological treatment on 15 October, 2010. The letter from the plaintiff's solicitor to which I referred in [12] above was written more than one month after that date. To the extent that the letter inferred that the plaintiff's psychological treatment was ongoing, and to the extent that it proffered the fact of such ongoing treatment as an explanation for the inability to serve a final medical report, it does not appear to have represented the correct position. 14On 23 November 2010 the plaintiff's solicitor wrote to the Judicial Registrar of the District Court in the following terms: "The plaintiff will undergo surgery to her right wrist on 16 December 2010 and a (sic) requires several weeks of recovery before a report can be provided. She will also complete her course of treatment with her psychologist before a report can be prepared. Both reports are expected in February or March 2011. The timetable that was ordered on 7 June 2010 could not be complied with as the plaintiff has not completed the various treatments set out in our email 3 June 2010." 15The reference to the fact that the plaintiff "will also complete her course of treatment with her psychologist" was, in light of the evidence before me, not indicative of the correct position. Ms Erne's report unequivocally states that the plaintiff's psychological treatment ceased on 15 October 2010, more than a month before the letter to the Judicial Registrar was written. 16The matter came before the Judicial Registrar for further directions on 20 December 2010. On that occasion an order was made that the plaintiff serve all medical reports, along with final particulars, by 31 March 2011. 17The plaintiff failed to comply with that order. As had been the case on the occasions of her previous failures to comply with orders, the defendant's solicitor, yet again, was forced to write to the plaintiff's solicitor and enquire as to when service of particulars and evidence might be expected. This enquiry brought a response from the plaintiff's solicitor on 5 May 2011 which was partly in the following terms: "We ..... confirm we will provide further particulars and reports in addition to those already served and produced in answer to the defendant's subpoena. Mrs Younes underwent revision of her scaring on 10 March 2011 and may require further surgery. We have not received final reports to serve and will do so at the earliest opportunity." 18The matter then came before the court on 14 June 2011. On that occasion, a further order was made requiring the plaintiff to serve all medical reports upon which she intended to rely along with final particulars by 31 October 2011. 19For the fifth time in succession, the plaintiff failed to comply with the court's order. However, on 25 November 2011 the plaintiff's solicitor wrote to the defendant's solicitor serving two medical reports, namely: 1.a report of Dr Tina Erne, the plaintiff's treating psychologist, dated 21 December 2010 (to which I previously referred); and 2.a report of Dr Clive Sun (who had examined the plaintiff for medico legal purposes on 21 March 2011) dated 31 March 2011. 20Those reports were served under cover of a letter which was partly in the following terms: "We are redrafting the Pt 15 particulars to incorporate the relevant parts of these reports and to update the economic loss particulars and will file and serve them at the earliest opportunity." 21In the context of the submissions made by the defendant about the delay in bringing the present application, the reference in that correspondence to Part 15 particulars being redrafted is significant. At this stage it is sufficient to note that on a fair reading of the correspondence, the plaintiff's solicitor represented that he was in the process of such drafting at that time. 22On 13 December 2011 the plaintiff's solicitor wrote to the defendant's solicitor advising of a proposed application that the matter be placed in what was referred to as the "not ready list". He also wrote to the Judicial Registrar in similar terms. When the matter came before the Judicial Registrar of the District Court on 19 December 2011, such application was formally made but was opposed by the defendant's solicitor. 23The evidence before me includes a transcript of the proceedings before the Judicial Registrar on 19 December 2011. When the Judicial Registrar enquired as to the basis of the application to place the matter in the "not ready list" the plaintiff's solicitor responded in the following terms: "She cannot fully instruct me. I mean, Judicial Registrar you appreciate that a euphemism, she doesn't have the money." 24In light of the submissions made to me on behalf of the plaintiff, to which I will return, it should be noted that the appearance of the plaintiff's solicitor before the Judicial Registrar on 19 December 2011 represented the first occasion on which the plaintiff's impecuniosity was expressly advanced as an explanation for her previous failures to comply with the court's orders. 25The plaintiff's solicitor is then recorded as saying the following: "She can't pay for reports, so even if it goes before a judge the same issues will arise, until she can pay for reports. Doctors and experts these days, they will not give you a report. There is one report for example referred to in the affidavit which is dated 31 March by Dr Sun, the rehabilitation specialist, that's the date of the report. We didn't get it until November because my client couldn't put me in funds, so the delay is there. She too is anxious to dispose of this as she can but if she is not in a position to pay for the reports, we are confronted with a dilemma that confronts many plaintiffs" (emphasis added). 26When the judicial registrar enquired as to the circumstances in which the report of Ms Erne was obtained, the plaintiff's solicitor responded: "She was the treating psychologist, her report was also provided at the same time but it was dated I think November or December or last year...and it was obtained some time, I'm not sure exactly when, but in turn you have got to pay for reports before you can get them and that includes all experts, including treating doctors' reports. They won't just give you reports like in the old days" (emphasis added). 27Paragraph 4 of the affidavit of Ms Cannon of 27 April 2012 deposes to a conversation she had with Ms Erne on that day, at which time she enquired as to when Ms Erne provided her report to the plaintiff's solicitor. Although she could not find any documentary record in this regard, Ms Erne stated (by reference to other information available to her) that her report was provided no later than 7 January 2011. This is consistent with the fact that the report is dated 21 December 2010. It is not consistent with what the Judicial Registrar was told by the Plaintiff's Solicitor. Moreover, Ms Cannon's evidence has not been challenged by the plaintiff's solicitor in the proceedings before me. 28Further, annexed to Ms Cannon's affidavit is a copy of the letter of instruction from the plaintiff's solicitor to Dr Sun confirming the arrangement for medico-legal assessment to take place on 21 March 2011. That document, which was apparently obtained under subpoena, contains the following handwritten notations: "1. 21/3/11 send inv prepayment $1200 + gst" "2. 22/3/11 late cancellation $300 + gst" 29Under those notations appears the following: "Pd 16/4" 30Given paragraph 1 of Dr Sun's report there is no doubt that his examination of the plaintiff was carried out, as arranged, on 21 March 2011. The report itself is dated 31 March 2011. The defendant has submitted that the evidence of the handwritten notation set out in [29] above supports a conclusion that the relevant fee for Dr Sun's report was paid on 16 April 2011, and that the report was forwarded to the plaintiff's solicitors shortly thereafter. Such a conclusion is at odds with the information provided by the plaintiff's solicitor to the Judicial Registrar. Again, the evidence of Ms Cannon has not been challenged by the plaintiff's solicitor. 31The issues surrounding the provision of Dr Sun's report are further complicated by the fact that on 20 September 2011 the plaintiff's solicitor wrote to Dr Sun seeking to arrange a "supplementary appointment for (the Plaintiff) to provide (Dr Sun) with the evidence she will give in court regarding the domestic assistance provided by her family in 2006". That letter arose, in part, from the fact that the plaintiff sustained further injuries in two subsequent incidents, one in 2009 and the other in 2009. In this regard, the letter concluded: "We appreciate that her subsequent injuries have contributed to her need for such (domestic) assistance but we need to separate her (2006) claim from those subsequent injuries. We cannot serve your report until this point has been dealt with." 32The defendant has submitted that the reference to "your report" supports a conclusion that a report of Dr Sun was in the possession of the plaintiff's solicitor at least by September 2011. That conclusion, if drawn, would again be inconsistent with the information provided by the plaintiff's solicitor to the Judicial Registrar on 19 December 2011. 33Further, the affidavit of Ms Cannon of 2 May 2012 deposes to a conversation she had with Dr Sun on 1 May , who told her that he had in fact provided two reports to the plaintiff's solicitor. In particular, Dr Sun told Ms Cannon the following: "Both reports are dated 31 March 2011. After receiving the letter from the plaintiff's solicitors in September 2011 I did not see Mrs Younes again so I just used the same body as my first report and changed the report on page 4 in relation to domestic assistance. I changed the second last paragraph on page 4 of the report to read as follows: Despite the second injury in 2008 Mrs Younes has improved and was able to manage some light domestic chores. Her ongoing needs from 2008 I estimate to be 6 hours of domestic assistance per week." 34The second last paragraph of the report of Dr Sun which was served by the plaintiff, and which is before me, includes a paragraph in the terms outlined by Dr Sun in his conversation with Ms Cannon. Accordingly, it seems clear that this report is the second, or "amended", report prepared by Dr Sun. The precise content of the first report, and particularly that part of it which dealt with the issue of domestic assistance, remains unknown. This aspect of the matter gives rise to a number of further questions. Those questions include the basis upon which Dr Sun expressed his opinion about the level of the plaintiff's need for domestic assistance, in circumstances where he was requested to, but apparently did not, examine her on a second occasion. 35In any event, and unsurprisingly given the history of the matter, the Judicial Registrar was not prepared to accede to the application made on behalf of the plaintiff that the matter be placed in the "not ready" list. He proceeded to list the matter for hearing on 5 June 2012 with an estimate of three (3) days and ordered that: 1.the plaintiff serve any expert architectural or engineering report in relation to liability by 23 March 2012; 2.the defendant serve any report in reply by 4 May 2012; and 3.the plaintiff would not be permitted to rely on expert evidence unless served within the times specified in order 1. 36Upon the making of orders (1) and (2) the defendant's solicitor requested the Judicial Registrar to extend the terms of order (1) so as to include the service of medical evidence. That application resulted in the making of order (3). 37Although an expert report as to liability has recently been served by the plaintiff, the date of 23 March 2012 passed with no further medical evidence being served. However, on 26 March 2012, the plaintiff's solicitor wrote to the defendant's solicitor in the following terms: "We enclose the following: