Michael v State of New South Wales

Judgment 1HIS HONOUR: These proceedings were commenced by statement of claim filed in the District Court on 10 August 2004. Mr Michael claims damages for personal injuries suffered by him as the result of an assault upon him by fellow inmates at Long Bay Gaol in August 2001. Mr Michael was at that time an inmate of the gaol. He alleges that he sustained serious injuries including a fractured skull, acute brain damage, severe facial fractures and other broken bones, a ruptured spleen and other internal injuries. He claims also to continue to suffer from depression and epilepsy caused by the assault. 2The proceedings were removed to this Court in 2009. They have now been allocated a date for hearing commencing on 8 October 2013. 3The proceedings have a somewhat long and involved procedural history. That includes a separate hearing before Fullerton J on questions referred to her Honour by me on 30 November 2010 pursuant to UCPR 28.2: see Michael v State of New South Wales [2011] NSWSC 231. It will be apparent from the fact that the matter has been set down for hearing that, with one exception, all outstanding procedural steps and interlocutory issues have now been either taken or concluded. 4The exception relates to a claim by the State for costs effectively thrown away or occasioned by Mr Michael's alleged failure in a timely way to comply with various interlocutory orders that have been made or to deal with correspondence from the State which has itself been generated by the need to follow up such failures. The application is supported by a not insubstantial affidavit from Alina Fegan, a solicitor employed by the State, affirmed on 30 November 2012 and read without objection. Mr Michael tendered no evidence on the State's application. 5Ms Fegan's affidavit annexed a copy of an affidavit sworn on 22 March 2012 by Evangelos Manollaras. The State relied upon the matters deposed to in that affidavit as if it had been read in the proceedings. There was no objection to that course. Neither deponent was cross-examined. 6Mr Manollaras set out the history of correspondence between the parties from 11 November 2011 to 16 March 2012. Much of that correspondence related to attempts by the Crown Solicitor to arrange a series of medical expert conclaves in anticipation of the production of either a joint report or the indication of areas of disagreement between or among the experts. This process also involved attempts to settle agreed facts. 7The first letter in the sequence was dated 15 November 2011 in which the Crown Solicitor enclosed a series of draft conclave questions for consideration by Mr Michael's solicitors in pharmacological, vocational/rehabilitation and neurological specialties. Further letters were sent to Mr Michael's solicitors before 2 February 2012 when they advised that they were in the process of obtaining available dates for expert witnesses in anticipation of their attending conclaves. 8By letter dated 27 February 2012 the Crown Solicitor suggested that the conclave of pharmacologists scheduled for 29 February 2012 might have to be postponed. That is what occurred. This would appear to have been because there was no agreement between the parties as to the agreed facts. The letter expressed concern that the parties would be in default of orders made by me with an approaching mention of the matter listed for 23 March 2012. Another letter dated 16 March 2012 expressed hope that "with your cooperation, we might, at least move a step closer to setting up the medical conclave by reaching an agreement in relation to the assumed facts and to the questions to be raised with the experts." 9Even after the mention referred to, the agreed facts remained outstanding. By letter dated 3 April 2012 the Crown Solicitor indicated that he was waiting for Mr Michael's agreement as to assumed facts, questions to be put to most of the conclaves and draft questions for the neuropsychological conclave for the Crown Solicitor to consider. In the absence of a reply, a follow up letter was sent on 11 April 2012. That letter included a reference to the fact that the author was looking "forward to receiving the draft questions to be put to the neuropsychologists for approval by the defendant and the plaintiff's agreement to the assumed facts and draft questions in respect of the other three conclaves." In the events that occurred, Mr Michael's solicitors did not provide these matters to the Crown Solicitor until 19 October 2012. 10There was much correspondence dealing with these matters generated in the intervening period. Some of it expresses considerable concern on the Crown Solicitor's part in having to cancel medical appointments with experts and conclaves that could not proceed as arranged because necessary anterior steps had not been taken by Mr Michael's solicitors. 11On 29 October 2012 the Crown Solicitor wrote to Mr Michael's solicitors dealing again with outstanding issues with respect to the proposed conclaves and orders to be sought at a directions hearing scheduled before me on 2 November 2012. That letter concluded with the following paragraph: "Finally, as indicated to you during the conference on 10 September 2012, the defendant proposes to seek an order at the upcoming directions hearing that the plaintiff pay the defendant's costs incurred (cancellations of conclaves, delay in proceedings and other related costs) due to the issues and difficulty surrounding the arrangement of the expert conclaves as a result of the plaintiff's lack of cooperation. I will shortly provide you with a schedule of the costs to be sought by the defendant." 12The letter enclosing that schedule of costs was dated 1 November 2012. 13At the directions hearing on 2 November 2012, counsel for the State made an application for costs. I gave directions at that time for the filing and service of affidavits to be relied upon in that respect. Only the State has chosen to file evidence on the costs application. 14Mr Michael's solicitors wrote to the Crown Solicitor on 21 November 2012. The Crown Solicitor responded to that letter a week later. That letter included the following paragraphs: "It is apparent that the parties will not be able to reach agreement as to the form and substance of the questions with respect to each of the conclaves. In the circumstances, I therefore propose that each party provide their own set of questions to each of the expert conclaves and ask the participants to prepare two reports responding to each set of questions. Should it become necessary, any objection to the questions themselves can be argued before the judge hearing the matter during the substantive hearing of the claim. ... I confirm that I have now recommenced arranging the three remaining conclaves in this matter and I am endeavouring to obtain dates for the experts to meet early next year. I will contact you if I have difficulty in obtaining availability for any of the plaintiff's experts and also advise you of the confirmed conclave date for each of the respective conclaves. If you choose to list the matter for argument, I ask that you do so expeditiously and well prior to the dates of the conclaves so that the various experts are not inconvenienced and to avoid wasting costs."