Moss & Anor v Coghill

Background

1. I will briefly summarise the case and thereafter sketch the procedural history so far as it relates to the present applications.
2. The proceedings were commenced in this Court by statement of claim filed on 4 September 2019.
3. The first plaintiff sues the defendant, her former general practitioner, for medical negligence: the essence of her case is that the defendant negligently failed to diagnose that she had sustained a right labral tear in early March 2016 or, alternatively, prior to March 2018, with the consequence that the failure to diagnose her condition in a timely way caused her to suffer significant ongoing hip and pelvic pain.
4. The second plaintiff is the entity through which the first plaintiff operated her businesses, and it claims damages for loss of services.
5. Based upon the amended statement of particulars filed 10 August 2020 (which deal with the position of the first plaintiff only), a substantial claim for damages is made. It is unclear, in light of that claim, what specific loss is claimed by the second plaintiff. It is possible that the claim is informed by the "cap" on economic loss in s 12 of the Civil Liability Act 2002 (NSW) ('CLA'). It is unnecessary to dwell on this.
6. In addition to the evidentiary statement dated 23 March 2023, the first plaintiff has served evidentiary statements dated 12 August 2020 and 28 October 2021.
7. The proceedings were initially listed for hearing on 18 July 2022.
8. By amended notice of motion filed on 28 April 2022, the defendant sought an order that the hearing of the action be vacated. Ultimately, on 31 May 2022, following the hearing of that motion, orders were made by consent that vacated the hearing of the matter. At that time the matter was fixed for hearing for 6 weeks commencing 15 May 2023, and there were a number of orders made for the timely preparation of the matter during the course of 2022.
9. Relevant, or potentially relevant, to the current issues, is order 5 made on 31 May 2022 - which required the plaintiff to serve "any evidence in reply to the defendant's lay and expert evidence, lay evidence on damages and updated expert evidence on economic loss by Friday, 9 December 2022".
10. The proceedings have involved each side retaining a number of experts to deal with liability, causation and damages.

The 23 March 2023 statement

1. It is clear that the orders of the Court required service of the evidentiary statements from the first plaintiff to have occurred well before 24 March 2023. It is unfortunate that it has only occurred recently.
2. The defendant raises essentially three matters that support refusing the plaintiff leave to rely upon this evidence.
3. First, it is argued that the evidence contained within the statement is not, on any view of it, evidence in reply, but rather it is further evidence in chief - a fact that is demonstrated once it is observed that the overwhelming proportion of the paragraphs in the statement relate to events that occurred before 12 August 2020 (the date of the first plaintiff's first evidentiary statement). I agree. In any event it should be noted that, even if a substantial portion was evidence in reply, it was required to be served by 9 December 2022, not on 24 March 2023.
4. The plaintiffs have argued that, perhaps, the basis for serving the further statement can be sourced to orders made from a range of sources, including the usual order for hearing typically made in professional negligence matters under Practice Note CL 7. I do not accept that submission because: (a) the "usual order" for hearing was not made; and (b) the key orders were those made by Bellew J on 31 May 2022, and those made by the Court before that time.
5. The position, in my view, is simply that there is a late served evidentiary statement and that has changed the forensic landscape somewhat.
6. The defendant next argues that, for the first time, the first plaintiff has deployed selected contemporaneous communications - from electronic messaging and other online platforms operated by the first plaintiff - and it is material that has otherwise not been available to the defendant, nor should it have reasonably been anticipated by those that represent him.
7. I do not consider that the mere fact that this is, as was submitted, the first time that this kind of material was used by the first plaintiff is a basis to, in effect, preclude the plaintiffs from using it. Nor do I see it as necessarily to the point: it is up to each party how they decide to prove their case. I would also add that the defendant has used some of the first plaintiffs "online material" in the preparation of its case, so I do not think it can be reasonably said that the use of the material generates complete surprise, which seem to be implicit in the defendant's submission.
8. The critical issue, as I have said, is the timing of its use by the plaintiff.
9. It is said that the "social media" material creates considerable forensic disadvantage. I remain unconvinced that it is as significant as the defendant has submitted. As to that I would observe the following. First, the confines of the material should be expressly stated: upon my calculation, there are around 80 or so pages of what might be described as "social media" material, and they cover the period 2016-2022. Secondly, some of the material, in my respectful view, appears to be entirely benign: see, for example, exhibit TM-3, tabs 4, 5, 42, 50 - some of which were canvassed during argument. This is just a sample, of course, but sufficiently illustrates, in my view, that not all material could possibly create prejudice. Thirdly, as the plaintiffs have argued, this material (or much of it) would, prima facie, be admissible simply through tendering it at trial as it relates to matters covered by s 66A of the Evidence Act 1995 (NSW). Some of it - I have not reviewed every single page of the exhibit - also impresses as being business records and independently admissible. Again, these matters stand against the overarching submission that all the material creates forensic disadvantage, or that its use does so.
10. The defendant argued that the online material should not reasonably have been anticipated. Given the first plaintiff's profile that is evident from the material that has been adduced on this application, the case that the plaintiffs have always sought to make in connection with economic loss (evident from at least pars 89-133 of the amended statement of particulars filed 10 August 2020), and the fact that the defendant has in fact used "social media posts" published by the first plaintiff in briefing its medico legal experts, the "social media" material could not be thought to be other than relevant. Naturally enough forensic decisions would need to be made as to whether it should be sought by a defendant, or not. But I do not think it is correct to say that this was not a potential area for exploration, and I am unable to accept it should not have been reasonably anticipated.
11. Thus, in those circumstances, I do not consider that the use of this material necessarily gives rise to any unfair prejudice to the defendant.
12. Thirdly, the defendant argued that the lateness of the material - and the size of it - creates real and significant disadvantage with the risk that the defendant will be unable to meet it prior to trial. Putting to one side the inevitable disruption to the defendant's orderly pre-trial preparation, I accept that the lateness, and size of the material, can create the potential of the defendant being disadvantaged.
13. Without wishing to downplay the possible disadvantage caused by the late service of the statement and the disruption to the defendant's trial preparation, it is important to emphasise that what I am dealing with is a risk of the defendant being unable to meet what is raised in the statement, including its annexures.
14. Section 56(1) of the CPA requires, amongst the matters that I have considered on this application, a consideration of the "just … resolution of the real issues in the proceedings". In my view that is the critical consideration in this case, together with the requirement to "act in accordance with the dictates of justice": s 58(1) of the CPA.
15. These considerations, in addition to the other matters that I have addressed in dealing with the respective arguments, favour granting the plaintiff leave to rely upon the statement because the refusal to make that order sought would deprive the plaintiffs of relevant, and potentially significant, evidence.
16. In my view that is the just outcome particularly because: (a) I propose to reserve the defendant's position in relation to this issue; the defendant can renew its objection at a later time if it considers the risk of significant disadvantage has in fact materialised; (b) there are still approximately six weeks before the commencement of the trial, and conventional orders requiring the production of this material, or facilitating access to it, can be made which, in my assessment, will go very much towards ameliorating any disadvantage that the defendant may have; and (c) I retain a considerable degree of flexibility in how the trial is to be conducted - so, to the extent necessary, this can be accommodated during the course of the time allocated for the hearing. Put simply, I consider these last three matters will very much mitigate any disadvantage to the defendant occasioned by the service of the 23 March 2023 statement.

Compulsory disclosure of material

1. The defendant has argued that, in light of the service of the statement, it must be provided with immediate and unfettered access to all "social media" accounts operated, or formerly operated, by the first plaintiff that she reviewed for the purposes of making the further statement. In that respect, the defendant proposes to obtain a digital forensic expert to assist in that task - in effect to recover all that material.
2. Precisely what that involves is set out in an affidavit of the defendant's solicitor sworn 3 April 2023, par 10. In that affidavit it is said that the security expert "will require" information and devices from the first plaintiff that extend to, by way of example, all email addresses and Australian and Canadian telephone numbers used by the first plaintiff; all passwords for all past and present email and online social media accounts - including "all information required for multifactor authentication and/or the [first] plaintiff to make herself available at the relevant time via telephone or AVL to provide any multifactor authentication codes" required - as well as all mobile, tablet and laptop devices owned by the first plaintiff during the relevant period.
3. Although I was not taken to any authorities that dealt with the power to make an order in the broad terms that was sought by the defendant, I do not doubt that, in an appropriate case, and where the interests of justice demonstrated that it was appropriate to do so, an order of that kind could be made.
4. In the present circumstances, where (a) orthodox and conventional methods of securing the documents that the defendant seeks either have not been undertaken, or not completely so; and (b) those methods have been ineffective in securing material that is demonstrated to have sufficient materiality and importance, I am unpersuaded that a case has been shown to make the potentially quite onerous, and undoubtedly invasive, orders that the defendant seeks.
5. Nevertheless, in view of the lateness of the statement and the impending hearing date, I consider that it is appropriate to require the first plaintiff to give "discovery" of the material. The categories should be the subject of discussion and, if possible, agreement. To the extent that the categories remain in issue, I will determine them on a further occasion.

The statement from Lauren Miller dated 31 January 2023

1. Lauren Miller is the chief executive officer of Harry M Miller Group - a talent management agency based in Sydney, NSW.
2. She has prepared a statement dated 31 January 2023. At the risk of slight oversimplification, the statement covers the following: that the first plaintiff hired HMMG as her talent agency, and HMMG thereafter worked with her to develop the brand and profile; the detail of the work that was offered to, and undertaken by, the first plaintiff; the impact of the "injury" upon the first plaintiff's career; the altered trajectory consequent upon the injury related disruption to the work that she was performing up to 2016, and the opportunities that were denied to her in consequence of her injuries and reduced public exposure.
3. The evidence is a mix of observational and factual evidence, interspersed with what, at least instinctively, appears to be some opinion evidence.
4. The defendant raises two objections to the statement. The first is that the statement does not satisfy the criteria for admission as expert evidence. The second is that the plaintiff does not have leave to rely upon this evidence.
5. In relation to the first objection, the defendant may well be correct. But now is not the time to determine whether evidentiary statements - more specifically, whether paragraphs within them - are admissible.
6. The defendant made, during the hearing, an application for an advance ruling under s 192A of the Evidence Act 1995.
7. I am not prepared to entertain such an application. The section specifies only one test for the Court to exercise its power, namely that it "considers it appropriate to do so": Lambert Leasing Inc v QBE Insurance Australia Limited [2012] NSWSC 953 at [12]. I am unpersuaded that it is appropriate to do so. Rather I consider it is more appropriate that an objection of the kind now advanced to be dealt with at trial: Sisson v Baiada Poultry Pty Limited [2015] NSWSC 1106 at [21].
8. The defendant's second objection is potentially more substantive - namely, that the report has been served beyond the time permitted for the service of expert evidence on damages. However, the plaintiffs have made clear that it is not sought to be used as opinion evidence. There being no other basis for objection, I propose to extend the time needed for the plaintiffs to rely upon this statement.

Orders

1. For the above reasons I make the following orders: 1. Grant leave to the plaintiffs to rely upon the evidentiary statement of Tara Moss dated 23 March 2023. 2. Grant leave to the plaintiffs to rely upon the statement from Lauren Miller dated 31 January 2023. 3. Note that the parties are to engage in a mediation on 14 April 2023, with such mediation to be conducted in accordance with Part 4 of the CPA and rr 20.1-20.7 of the Uniform Civil Procedure Rules 2005 (NSW). 4. Order that the costs of today be costs in the cause.

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: 05 April 2023