Miski v Penrith Whitewater Stadium Ltd

The application before the Court

1. The plaintiff by notice of motion filed in court today seeks the following orders: 1. The plaintiff be granted leave to rely on expert report of Associate Professor David Eager dated 9 April 2017. 2. Hearing date commencing on Monday, 5 June 2017 be confirmed. 3. In the alternative to Order 2 above: 1. Hearing date vacated; 2. Defendant to serve expert liability evidence by such date considered suitable by the Court; 3. Plaintiff to serve expert liability evidence in reply by such date considered suitable by the Court; 4. Matter listed for Directions on such date suitable to the Court to allocate a Hearing date; 5. In the alternative to Order 3(d), matter listed for Hearing on such date considered suitable to the Court.
2. The relief sought by the plaintiff is unhelpfully framed, for the following reasons: 1. This is an application for an adjournment, not for leave to rely on a late-served expert report. 2. The date in order 1 of "9 April 2017" is misleading; the expert report may be dated 9 April 2017, but it was not served until 11 May 2017, which is a clear breach of UCPR r 31.28. An order should have been sought in those terms. 3. The orders sought are silent as to costs. Counsel for the defendant submitted that this application would not, in those circumstances, survive even the generous test in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. 4. It is not to the plaintiff's solicitors' credit that the only reason this application came before the court today is because the solicitors for the defendant, upon receipt of the plaintiff's late expert report on 11 May 2017, immediately wrote to the plaintiff's solicitors demanding that the proceedings be urgently relisted and, when they did not do so, wrote to the court relisting the matter to seek appropriate orders.

The procedural history of this claim

1. The plaintiff, by statement of claim filed on 11 November 2014, commenced proceedings for negligence arising out of the circumstances in which she was injured on 11 November 2011 while participating in a group rafting activity called "white water rafting". The plaintiff was thrown out of the raft, suffering injuries of some severity, including a fractured right ankle. The claim is pleaded by relying upon breaches of the Competition and Consumer Act 2010 (Cth) and negligence at common law.
2. Proceedings were commenced on the last day of the limitation period for the negligence claim, and conducted in a somewhat desultory fashion thereafter. There was a show cause application on 2 September 2015. This was followed by an order for the plaintiff to pay the defendant's costs on 14 September 2015, as the plaintiff had failed to attend medical appointments for an orthopaedic and general surgeon.
3. The proceedings were nevertheless listed for hearing on 22 August 2016 and this hearing date confirmed on 21 April 2016. As a result of disputes in which the parties were, I am told, equally to blame, a view of the site of the accident did not take place until April 2016. As a result, the hearing date first allocated to these proceedings of 22 August 2016 was vacated. Sidis ADCJ made the following orders on 10 August 2016: 1. Hearing dates schedule for 22 - 25 August 2016 be vacated. 2. Costs of the Notice of Motion filed on 3 August 2016 and the costs thrown away by reason of Order 1 above, be costs in the cause. 3. Any further Hearing Allocation Fee be waived; and, 4. Any further Order the Court may deem fit to make. 5. Plaintiff's notice of motion filed on 3 August 2016 otherwise be dismissed.
4. Her Honour following further orders on 11 August 2016: 1. Orders in accordance with the short minutes signed and dated 11/8/16 completing paragraph 5; that the matter be listed for directions on 1/12/16 in order to confirm the matter is ready for hearing. 2. Stood over for hearing 21/3/17 (Estimate 4 days). As stated yesterday there will be no further adjournments in this matter except if there are exceptional circumstances. [Emphasis added]
5. The order made by Sidis ADCJ as to no further adjournments of the hearing "except if there are exceptional circumstances" is of particular importance. Her Honour has long been recognised for her skills in personal injury case management, and the "exceptional circumstances" order would not have been made unless warranted by the circumstances of the adjournment. It was a warning to both parties.
6. There was further case management on the next return date of 15 September 2016 as the hearing date of 21 March 2017, by agreement, was put back to 5 June 2017.
7. However, the date of 15 September 2016 was also the final date for the plaintiff to serve the expert evidence upon which she would rely at trial, and the plaintiff's legal representatives should have been aware, on that date, that they were not going to be able to comply with that requirement. Mr Robison explained this delay as being due to late provision of documents by the defendants (in August 2016) in response to a notice to produce. More than 1,500 pages of documents had been produced by the defendant on 2 August 2016, which I accept was late in terms of the order, but there is no dispute that these documents were available from that time onwards. Moreover, when the plaintiff's legal team agreed on 15 September 2016 to vary the 2017 hearing date, they should have been aware that they also needed an extension of time to serve their expert's report. It was open to the plaintiff to advise the court and to seek an extension of time for the service of the expert report, an application almost certain to be granted if the hearing date was being moved back. Not only did the plaintiff's legal team fail to do so, but the plaintiff was not even represented at the directions hearing before Norton SC DCJ, where the matter was mentioned on the plaintiff's behalf by the solicitors for the defendant.
8. The plaintiff had yet another chance to ask for an extension, when the proceedings were brought back for review on 1 December 2016 before the List Judge, Letherbarrow SC DCJ. This would have been an ideal opportunity for the plaintiff to raise the ongoing problems in relation to the preparation of the expert's report. That is the purpose of these reviews Instead, the plaintiff failed even to attend, apparently because the date had not been noted in the diary.
9. Letherbarrow SC DCJ's orders on that day were as follows: 1. Note there is no appearance for the Plaintiffs and the principal of the Plaintiff's firm, when contacted, was unaware as to why except that the matter was not in the firm's diary. 2. Order the Plaintiff to pay the costs of the Defendant of today but the execution of those costs await the determination of proceedings. 3. Confirm the hearing date of 05 June 2017. 4. Direct the Defendant's solicitors notify the Plaintiff's solicitors of these orders by email within 48 hours.
10. The degree of delay in the plaintiff's camp in relation to preparation from the hearing can best be seen by the fact that it was not until 20 January 2017 that the documents produced by the defendant back in August 2016 were scanned for the purpose of sending to the expert.
11. This amount of delay is extraordinary. It was added to by the plaintiff's solicitors' additional eight week delay in not sending those scanned documents to the expert until March 2017.
12. The delay is not due to the expert, Associate Professor Eager, who requested additional documents two weeks later but was able to complete his report by 11 April 2017. However, he requested payment of his tax invoice before forwarding report (affidavit of Ruth Culjak, paragraph 17) and further delay occurred when this was not paid for another month, namely on 8 May 2017.
13. The report was served on the solicitors for the defendant under cover of the following email: "Dear Colleague, RE: SAMAHAR MISKI -V- PENRITH WHITEWATER STADIUM LTD DISTRICT COURT OF NSW PROCEEDINGS 2014/00332159 Ref: JLS:14-160 Your Ref: 29347RO.VM.164 We refer to the above matter and previous correspondence herein. We enclose by way of service report of Associate Professor David Eager dated 9 April 2017. The Plaintiff seeks to rely on paragraphs 4.3 to 4.10 on page 35 as particulars of breach of duty of care by your client. If you should have any questions, please do not hesitate to contact the writer or his colleague, Mrs Ruth Culjak."
14. The solicitors for the defendant replied on 15 May 2017 in stern language, and requesting the plaintiff relist the proceedings for the making of appropriate orders: "Dear Colleague, RE: PENRITH WHITEWATER STADIUM LTD ats SAMAHAR MISKI We refer to your e-mail dated 11 May 2017 enclosing by way of service a report of Associate Professor David Eager dated 9 April 2017. We put the Plaintiff on notice of the Defendant's intention to object to the Plaintiff's reliance on this report at the hearing of this matter commencing 4 June 2017. As you are no doubt aware, when this matter was listed for Pre-Trial Conference on 18 March 2015, Judicial Registrar Howard ordered the Plaintiff to complete service of her quantum and liability evidence by 26 June 2015. After a series of interlocutory mentions, the matter was listed for Case Managed Directions before Judicial Registrar Howard on 24 November 2015. At which time the Judicial Registrar ordered the Plaintiff to complete service of any expert liability evidence by 26 March 2016. The Court further noted that if the Plaintiff did not comply with that order, the Plaintiff would not be permitted to rely on further evidence without leave of the Court. At the Case Managed Directions on 21 April 2016, Judicial Registrar Howard granted leave to the Plaintiff to serve expert liability evidence by 3 June 2016 and listed the matter for Hearing commencing 22 August 2016. On 10 August 2016 the Hearing date was vacated on the Plaintiff's application and the matter listed for Directions on 11 August 2016. The matter was listed on 11 August 2016 before Acting Judge Sidis and Her Honour ordered the Plaintiff to serve any expert evidence by 15 September 2016. On 15 September 2016 Her Honour Judge Norton listed this matter for hearing on 5 June 2017 with an estimate of 4 days. The Plaintiff has repeatedly breached the various Court ordered referred to above with respect to service of any expert liability evidence. As such, the Plaintiff doesn't have leave to rely on this report at the hearing. In the circumstances we invite the Plaintiff to re-list the matter before the District Court List Judge, His Honour Judge Letherbarrow on Friday 19 May 2017. Please confirm by close of business today that you will be re-listing the matter. Should the Plaintiff not attend to this, the Defendant will make such a listing request. We await your early reply."
15. Following the failure of the plaintiff to relist the matter, the solicitors for the defendant arranged for the matter to be listed today before the List Judge, who has referred the application to me for hearing, as I am the trial judge.

The relevant principles

1. Section 56 Civil Procedure Act 2005 (NSW) provides: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person: (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. Note: Examples of persons who may have a relevant interest are insurers and persons who fund litigation."
2. Where there is an application for adjournment of a hearing (which is effectively what the plaintiff is seeking), the relevant provision is s 58, which provides: "58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case."
3. Although the Civil Procedure Act 2005 (NSW) has imposed these overarching objectives since 2005, issues of delay and the vacating of hearing dates have continued to be determined with under the comparatively generous rubric of State of Queensland v JL Holdings Pty Ltd. The culture of adjournments in personal injury continued to flourish as a result. It was not until the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 ("Aon"), a significant departure in that it considered not only the interests of the parties, but also the interests of the justice system as a whole, that the consequences of last-minute amendment and dilatoriness resulted in refusal of the application because of its timing and impact on the court system.
4. The Aon principles are credited with having shifted the emphasis in such applications towards these important case management principles: Tong Hi To v Revro Pty Ltd; Tong Hi To v Gerard Lighting Pty Ltd [2016] NSWSC 467 at [9] per Wilson J. In particular, one of the important additional requirements placed on a party in the situation of the plaintiff is the provision of a full explanation. The High Court stated in Aon at [103]: "[103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case." (Citations omitted)
5. I also note the contents of [111]: "[111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future." (Citations omitted)
6. However, an examination of the approach taken by the court in an application such as the present demonstrates something of a gap between these statements and the practical application of these principles, particularly where the claim is one of personal injury as opposed to commercial claims or defamation actions.
7. Two decisions of the New South Wales Court of Appeal in 2011 demonstrate these differences. The first of these is Lee v Keddie [2011] NSWCA 2, where the plaintiffs sought the second adjournment of a hearing date for a defamation trial. The first hearing date had been adjourned due to a wholly unexpected and last-minute challenge by the defendants to the Senior Counsel retained by the plaintiffs on the basis of having provided advice at an early stage to one of the defendants. A fresh hearing date was allocated, but the Senior Counsel who was then briefed considered the Reply had been inadequately pleaded. A second application for adjournment of the hearing date was made, but refused, and leave to appeal was sought. The Court of Appeal noted the central importance of the proposed amendment, adding (at [13]) that these were "matters of the utmost seriousness for the administration of justice in this State" if they were true, but nevertheless declined to exercise discretion to set aside the first instance judge's refusal of an adjournment of the hearing.
8. By comparison, in Dubois v R & V Bergin Pty Ltd, the Court of Appeal by majority, did set aside the first instance judge's refusal to grant an adjournment. Young JA stated the relevant principles as follows: "[42] As noted in the authorities collected as note s 66.45 in Ritchie's Uniform Civil Procedure NSW, particularly Maxwell v Keun [1928] 1 KB 645 and Bloch v Bloch [1981] HCA 56; 180 CLR 390, 395, whilst it is seldom that an appellate court will feel justified in reviewing a decision to refuse an adjournment, the court has power to review such an order and in certain circumstances it is its duty to do so. It will be its duty to do so if the order made below will defeat the rights of the parties altogether or even where, at least without fault, a vital witness ceases to become available such as happened in Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451 at 461 (Full Federal Court). It is of little value to multiply examples. [43] As the Full Federal Court said in Petrovic at 460, it is not sufficient that the court of Appeal considers that an adjournment should have been granted, the applicant must show that refusal of the adjournment produced, in the circumstances, an injustice. It must be remembered too, that the decision is a discretionary judgment. [44] "Injustice" is a coloured word with pejorative overtones. What is meant is that the refusal of the adjournment must not set up a situation where there is a likelihood that there cannot be a fair trial unless that factor is outweighed by prejudice to the opposing party. [45] In making the balanced judgment required, a judge must also take into account the public interest that the judicial process must be just, cheap and quick. [46] Again this matter must be considered in a balanced way. Mr Romaniuk relied on what the plurality said in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, 214 at [102], that the objectives of the modern court rules do not require that every application for amendment (and by analogy, adjournment) should be refused just because it wastes costs and causes some delay. Whilst these are significant matters, they are not necessarily overriding considerations. I accept that submission."
9. Ultimately, however, the "key issue" (at [48]) was whether there could still be a just, quick and cheap resolution of the dispute with justice to both parties.
10. Young JA gave considerable weight to the experience of the "two competent lawyers" (at [49]) that an adjournment was inevitable: "[49] Although I have considerable sympathy with the course that the primary judge took, it does seem to me, on balance, that the primary judge should have proceeded on the basis that two competent lawyers both assured her that there could not be a satisfactory resolution of the disputes between the parties if the trial proceeded in the next week and that there could be if there was an adjournment. Despite any understandable unhappiness with the frustration of the court's management system and previous delays, in my view, the overriding factor in this case was ensuring there would be a fair trial of the 2004 and, if need be, the 2007 accident (it may be, of course, that the Motor Accident Authority does not give a certificate of exemption in respect of the 2007 accident so it doesn't come to trial but that is so much speculation)."
11. There is something of a non sequitur in the concept of "competent lawyers" recommending an adjournment where the real reason for the adjournment has been previous delays and failure to comply with case management orders by those very practitioners, or those on their team.
12. While the overriding factor is fairness, the court should not overlook issues of fairness to the defendant, particularly in proceedings which have had more than the usual amount of delay. Perhaps the time has come for courts to find a better yardstick for such issues than the views of experienced personal injury practitioners.
13. There has been an unacceptable failure by the plaintiff to comply with the rules in any event. The plaintiff's expert report was served within the 28 day period set out in UCPR r 31.28. In other words, the plaintiff was always going to have to demonstrate exceptional circumstances in order to rely upon this report.
14. There are, however, substantial factors in favour of the plaintiff's application: 1. Proceedings involving sporting activities where claims are brought under the Competition and Consumer Act 2010 (Cth) can be highly complex in terms of the legal issues, and the few cases which have been brought at first instance, had been the subject of appeals (see, for example, Motorcycling Events Group Australia Pty Ltd v Kelly (2012) 303 ALR 583). Additionally, cases involving recreational activities may not be straightforward (see, for example, Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219). The benefit to the court of an expert report on these issues is significant. 2. It is not in dispute that Associate Professor Eager's report is central to the plaintiff's case and the plaintiff will be in real difficulties if the report cannot be relied upon. 3. The plaintiff herself appears to be blameless of any delay and I note in this regard in personal injury proceedings, what is generally referred to as "the sins of the solicitor" (Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 at [85]) are not visited on the plaintiff. This is not the case in other areas of the law: Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175. In my view, this is a significant contributing factor to the high rate of applications for adjournment in personal injury proceedings, a phenomenon not seen in other areas of litigation in this court. 4. Counsel for the defendant has very helpfully indicated a series of provisions upon which his client would be prepared to consent to the adjournment of these proceedings.
15. As to (d), counsel for the plaintiff indicated that he had no instructions in relation to the issue of costs, but submitted that costs orders should not be made payable forthwith by reason of his client's inability to pay any such costs order. He also expressed concern about the foreshadowed application under s 99 Civil Procedure Act 2005 (NSW), which the defendant foreshadowed in order not to fall foul of the 14 day rule referred to in Rodi v Gelonesi [2016] NSWCA 348. For the reasons set out below, I have not acceded to these requests.

Resolution of the application

1. But for the binding authority of the Court of Appeal's decision in Dubois v R & V Bergin Pty Ltd and the of special relevance of expert evidence to cases such as the present, I would not have been prepared to accede to the plaintiff's application to vacate the hearing date. This application does not arise from some unforeseen complication (of the kind which occurred in Lee v Keddie) but from a systemic incompetence which is a feature of too many personal injury actions. While I appreciate that many of these actions are run for the benefit of plaintiffs lacking in the assets to contribute to the expense of the obtaining of expert reports, "no win no fee" does not mean "no preparation".
2. The plaintiff suffered a significant injury in an accident of some legal complexity, in circumstances where I should take into account that the court, as well as the parties, would benefit from considered expert analysis of the circumstances of the accident. This last factor, generously volunteered against interest by counsel by the defendant, is decisive. In those circumstances, the application for adjournment should be allowed, but subject to all of the conditions sought by counsel for the defendant.
3. As to the terms upon which this adjournment should be granted, the multiple delays in the procedural history of this claim and the circumstances in which the defendant, rather than the plaintiff, warrant the making of the orders sought on the defendant's behalf, including a notation as to the possible bringing of an application under s 99 Civil Procedure Act 2005 (NSW).
4. This application came before me relatively late in the day, after I had completed another hearing; this is just one of the many inconveniences caused to the court by this application. It was necessary for me to adjourn overnight to read the file. Accordingly, the parties have agreed that I should provide them with these reasons by email as well as my orders, but with a proviso for liberty to approach the List Judge on a date later this week to take a fresh hearing date.
5. Accordingly, I have listed this matter for Friday 26 May 2017 before the List Judge, but that if this date is not convenient, I have granted liberty to apply and the date may be changed by my associate in chambers.
6. I take this opportunity to thank counsel for the defendant and his instructing solicitor for their assistance and constructive approach to the plaintiff's application, conduct representative of the kind of case management standard in personal injury which is of great assistance to this court.

Orders 1. Plaintiff's notice of motion filed on 22 May 2017 granted, subject to the orders set out below. 2. The plaintiff has leave to rely upon the report of Associate Professor Eager dated 9 April 2017. 3. The Court notes that the plaintiff does not seek leave to amend the pleadings or to serve any further expert or medical evidence. 4. The defendant to serve any expert evidence in reply by 21 July 2017. 5. The trial date of 5 June 2017 is vacated and the proceedings listed for directions before the List Judge on Friday 26 May 2017, with liberty to apply to Gibson DCJ in chambers to change this date if not appropriate. 6. The plaintiff to pay the defendant's costs of and associated with: 1. The relisting of the proceedings; 2. The plaintiff's notice of motion filed in Court today; and 3. Thrown away by the vacation of the trial date, on an indemnity basis; and those costs are all payable forthwith, and to be assessed forthwith if not otherwise agreed to. 1. Liberty to apply on 3 days' notice. 2. The Court reserves for consideration at the conclusion of the proceedings the question of whether the plaintiff's solicitor should indemnify the plaintiff in respect of the costs order in order (6) above.

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: 23 May 2017