Nair-Smith v Perisher Blue Pty Ltd

Judgment 1HER HONOUR : By notice of motion dated 5 November 2010 the defendant seeks various orders in relation to proceedings brought by the plaintiff for personal injury damages. 2The plaintiff commenced the proceedings in the District Court on 18 July 2006 claiming damages for a soft tissue injury to her groin suffered when boarding a chair lift in Perisher Valley ski fields on 17 July 2003. The defendant is the operator of that equipment. The plaintiff alleges that the injury resulted from the defendant's failure to operate the lift with reasonable care and skill or otherwise operated it in an unsafe or improper manner. 3At the time of the injury the plaintiff practiced as a general practitioner from a medical practice in Kirrawee shared with four other general practitioners. The practice was established in 2000 with the plaintiff's mother who is also a medical practitioner. The plaintiff continues to the present time to provide services as a general practitioner from that practice, albeit at a reduced rate she claims to be the result of the injury sustained in July 2003. The number of general practitioners practicing from Kirrawee has doubled since it was established, in particular in 2008. The plaintiff has been at all relevant times employed by a company of which she is the sole shareholder. She receives her business income, as do the other general practitioners, through that company. Their income is derived from the number of patients seen by them on a daily basis. The plaintiff is also part owner of the property from which the practice operates at Kirrawee and receives rental income in that capacity, also through the company. 4Prior to February 2009, when an amended statement of claim was served, the plaintiff's claim for past economic loss was limited to a closed period of weeks following the injury. It was accompanied by an unquantified claim for future economic loss as a result of what was said to be a persisting restriction in her ability to work and to address the potential for a diminishment of her earning capacity in the future. In the amended statement of claim (and an amended statement of particulars which was served at the same time), her damages claim was expanded to exceed $1.5 million, the greater portion of which is said to result from her diminished earning capacity in the future, both as a direct result of the injury and as a result of her inability to expand and promote the Kirrawee practice as a participating doctor and as a principal of the company through which the practice operates. 5Although liability is hotly contested, it is the future economic loss component of the damages claim that is principally responsible for the protracted course of proceedings over the last five years. The defendant maintains that this state of affairs is of the plaintiff's own making and reflective of a contumacious disregard of her obligations as a litigant under the Civil Procedure Act 2005 ("CPA") and the Uniform Civil Procedure Rules 2005 ("UCPR") evidenced by her persistent refusal to particularise her economic loss claim in defiance of successive court orders. This attitude is said to have culminated in her failure to discover documents in July 2010. 6The relief the defendant seeks is directed to protect it against what it claims are the unjust consequences of being forced to trial without the opportunity to test the plaintiff's economic loss claim in advance of trial in accordance with the regime for personal injury litigation expressly provided for by the CPA and under the UCPR. 7The primary relief sought by the motion is an order dismissing the plaintiff's claim for damages for loss of earnings and diminution of her earning capacity or, in the alternative, an order that the proceedings be stayed pending the provision of adequate particulars and full discovery. If the primary relief is refused, orders are sought preventing the plaintiff from supplementing the evidence she has served to date in support of her economic loss claim and preventing her from relying at trial upon the reports of her forensic accountants served as part of that evidence. 8To describe the proceedings in the District Court as having a chequered history is an understatement. It would be more appropriately described as a model of how not to conduct personal injury litigation. I do not propose to set out a detailed chronology of the proceedings in that Court. The chronology tendered by the defendant is not in contest. Suffice to note that the defendant has made application for the proceedings to be dismissed on two occasions as a result of the plaintiff's persistent failure to comply with orders of the Court, in particular what is said to be her persistent failure to comply with her obligations under Part 15 of the UCPR. In addition, on no less than 14 occasions between 2006 and 2009 she has been in breach of orders made in the District Court directed generally to the efficient and cost effective conduct of the litigation and specifically requiring her to comply with her obligations to particularise her case and/or support it with evidence. These orders were made after the plaintiff survived the defendant's applications to strike out the proceedings in October 2007 before Truss DCJ and February 2008 before Walmsley DCJ, and after weathering the harsh criticism of a number of both judges concerning her conduct of the litigation. 9On 16 July 2010 the proceedings were transferred to this Court on the plaintiff's application. The defendant objected to extended jurisdiction in the District Court when the matter was raised in correspondence for the first time in March 2010. I note that on 19 January 2010 the proceedings were listed by Garling DCJ for a seven day hearing commencing on 16 August 2010 without the plaintiff raising the issue of the jurisdictional limit of the District Court. Given the plaintiff's reformulated and greatly expanded claim for damages in February 2009, and irrespective of the fact that the parties were ordered to mediate in the interim, I would have expected his Honour to have been alerted to the issue of jurisdiction before the matter was listed for hearing. The conduct of the parties in this respect is just one example of the scant regard that has been paid to the dictates of the CPA and the UCPR over many years. On any view, the plaintiff is the most egregious offender. 10The conduct of proceedings before me reflected this same attitude. Both parties prepared for tender five lever arch folders of material comprising the entire litigation history to date, inclusive of duplicated copies of the transcript of proceedings at interlocutory steps in the District Court and the contentious and lengthy course of correspondence between the solicitors from as early as July 2006 to the present time. Upon undertaking the task of reading the material in order to appreciate the issues in dispute for the purpose of the motion, by midmorning on the first day of the hearing I came to the preliminary view that much of what was tendered was repetitious and unhelpful. By the commencement of the second day of the hearing that view was a settled one. I made it clear to the parties that I did not intend to revisit the tortured history of the proceedings in any detail otherwise than to note the inescapable conclusion that the parties have progressively approached this litigation from a combative position which has resulted in an entrenchment of their respective positions on all issues. 11The fact that the parties are at loggerheads is not to the point. As Allsop J observed in White v Overland [2001] FCA 1333 at [4] and quoted by Heydon JA in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116 at [28]: ... Litigation is not a game. It is a costly and stressful, though necessary, evil. To paraphrase Roscoe Pound from 'The Causes of Popular Dissatisfaction with the Administration of Justice' (1906) 29 ABA Rep 395, 404-406, the 'sporting theory of justice' and any behavioural manifestation of it should be seen as a survival, or better, a relic, of the days when a lawsuit was a fight between two clans ... 12Heydon J went on to observe that in personal injury litigation what his Honour described as "the ambush theory of life" has been long abandoned. This is in keeping with the spirit and intendment of the CPA and the regime embodied in it and under the UCPR which, in combination, are directed to ensure a reasonably expeditious final hearing where all issues in dispute are identified and poised for resolution. To achieve this objective the pleadings are expected to be adhered to, full particulars of a plaintiff's claim provided and expert evidence served so that all issues in dispute are crystallised well in advance of the hearing. Adherence to this approach to litigation in the pre-trial phase is, in turn, designed to ensure that the presentation of evidence and argument at the final hearing will be focused on the issues in dispute for the economic use of court time and resources. In Hawksebury District Health Service Ltd v Chaker [2010] NSWCA 320 Allsop P observed at [2] that: ...Courts are being more demanding about behaviour from clients and practitioners in order to obtain sufficient co-operation among them to enable the real issues in dispute to be litigated with efficiency and civility and in a cost-effective manner... 13Quite apart from the way the conduct of the substantive litigation to date has failed to achieve anything approaching adherence to the legislative regime under the CPA and UCPR, a rational and non-combative approach to resolving the issues raised by the notice of motion could and should have been adopted. A joint tender bundle of the critical documents (or better still a summary of them) should have been prepared, together with an agreed chronology of the history of the proceedings. Having now read the materials, I have no doubt that such an approach would have enabled the defendant to support its claim for relief on the primary basis that it should not be subject to the risk of "ambush" were the plaintiff to produce additional evidence at the hearing in support of her economic loss claim, and to have enabled the issue of costs, also raised by the notice of motion, to have been expeditiously dealt with. Equally, it would have provided a sufficient evidential basis for the plaintiff to seek to resist the relief sought. 14The conduct of counsel in cross-examination of the defendant's solicitors and the conduct of both counsel in submissions was also marked by a distinct lack of civility and professional comity. At times this descended into cross accusations of misconduct and what I consider to be unsubstantiated assertions by both parties of a deliberate and concerted course of conduct by the other party designed to derail or undermine a just and fair outcome of the litigation. I do not propose to say more about the conduct of the legal representatives, or what is said by each of them in submissions to be the discreditable or even dishonest behaviour of the parties themselves. Since I propose to case manage the matter, the parties are on notice that I will not countenance any repetition of that behaviour or any departure from acceptable professional standards of conduct expected of legal practitioners in this Court. 15On 16 July 2010 Hall J made the order transferring the proceedings to this Court subject to the District Court vacating the August 2010 hearing dates. The defendant did not oppose the transfer apparently accepting that the evidence in the plaintiff's case, if admitted, could support a judgment in excess of the jurisdiction of the District Court as provided for in s 140(3)(b) of the CPA. 16It is the economic loss component of the plaintiff's damages claim which justified the matter being transferred to this Court. The defendant is not to be criticised for failing to raise the issues the subject of the notice of motion with Hall J when the question of transfer was being considered by him. At that time the plaintiff was subject to orders made by Sidis DCJ pursuant to Part 21 r 2 of the UCPR on 13 July 2010 obliging her to give verified discovery of an extensive list of documents relevant to her economic loss claim, and obliging her to make those documents available to the defendant for inspection within a stipulated time frame. 17The District Court's jurisdictional limit aside, were the plaintiff to have complied with that timetable, the defendant submitted it would have been in a position to further investigate the plaintiff's economic loss claim in advance of the August hearing in the District Court. Despite the plaintiff's serial non-compliance with orders for the provision of particulars of her economic loss claim in the past, and delay in complying with orders for the service of the evidence upon which she intends to rely in support of that claim, the defendant submitted that it was entitled to proceed on the assumption that the plaintiff would comply with the orders made by Sidis DCJ on 13 July 2010 such that the proceedings would be in an advanced stage of preparedness to enable the proceedings to be case managed in accordance with orders made by Hall J on 16 July 2010. 18The defendant submitted that it is the plaintiff's failure to comply with orders for discovery that has prompted it to move this Court for the primary relief sought by motion. In this connection the defendant seeks the protection of the Court from what it claims will be litigation by ambush. 19When the matter was before Hall J the defendant made an application for the plaintiff to pay the reserved costs in relation to two occasions in 2009 when the hearing date was either vacated in the District Court on the plaintiff's application or when the matter did not proceed to a hearing on the merits as a result of the plaintiff's conduct. His Honour declined to make that order in circumstances where it would have been necessary for him to be apprised of the extensive litigation history in the District Court and where that evidence was not before him. Counsel for the defendant then indicated that in the event that recovery of reserved costs were sought before the final hearing in this Court a notice of motion would be filed. 20On 21 July 2010 Sidis DCJ vacated the hearing dates in the District Court and ordered the plaintiff to pay the defendant's costs. On that occasion the defendant was also unsuccessful in persuading her Honour that the plaintiff should pay the reserved costs of the proceedings to date. 21One of the orders sought by the notice of motion relates to the issue of reserved costs. The defendant seeks an order that they be paid forthwith together with an order that all other costs orders made in its favour to date also be made payable forthwith. In doing so the defendant seeks to invoke what it describes as the protection of the Court against it being forced to continue to bear the burden of costs resulting from the plaintiff's inexcusable delay and inefficiency in prosecuting her case and because her failure to comply with her obligations in the past have been so unreasonable as to justify the orders sought (see Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1; Bevillesta Pty Ltd v D Tannous No 2 Pty Ltd [2010] NSWCA 277). I will return to consider these authorities later in this judgment. 22The defendant tendered three reports from BRI Ferrier, forensic accountants, variously dated between October 2009 and November 2010. BRI Ferrier were retained to provide a written report addressing the plaintiff's economic loss following service by the plaintiff of a similar number of expert reports from Furzer Crestani, forensic accountants, between March and July 2009. 23In assessing the plaintiff's estimated earnings but for the accident, Furzer Crestani were instructed to assume that she earned an estimated annual gross business income based on two alternate scenarios. The first referable to the loss of two half day working days and the reduced efficiency of the plaintiff's mother who assumed the plaintiff's patient load after the accident, and the second on the assumed basis that the plaintiff's gross business income would have been equivalent to that of a nominated colleague after allowance for his working hours to reduce to a four day working week. In estimating the plaintiff's loss of income further assumptions were made concerning the corporate structure of the practice and the way income was generated and apportioned which I do not need to detail. Suffice to note the author expressly disclaims the accuracy or reliability of the information upon which he was asked to base his calculation and assessment. I also note his comment that the records of consultations undertaken both prior to the accident and from the date of the accident by the plaintiff, the plaintiff's mother and the other doctors operating within the practice, together with details of consultations the plaintiff was unable to perform as a result of her injuries, and finally the annual fee income derived from all doctors in the practice would have been of assistance to him in compiling his report, I assume as a means of verifying or testing the assumptions he was asked to make. With that proviso Furzer Crestani provided a comprehensive report replete with a series of attachments to which the report refers in calculating the plaintiff's economic loss. (I note that updated reports have also been finished upon the provision of additional information each of which carries the same disclaimer.) 24The BRI Ferrier reports are also comprehensive. They are, however, inconclusive as to the extent of the plaintiff's economic loss due to what is said to be insufficient documentation to undertake the loss assessment exercise, or to test the assumptions Furzer Crestani were invited to make for the purposes of their assessment. The most recent report from BRI Ferrier was furnished in November 2010 after provision of some of the additional documents following discovery and, it would seem, after production of documents under subpoena from other doctors in the practice. In that report BRI Ferrier advise that they remain unable to accurately assess the plaintiff's claim by their preferred methodology or to offer any view as to the appropriateness of Furzer Crestani's analysis. Aside from their stated need for information relating to the corporate nature of the practice and how the distribution of earnings/profits amongst the doctors is calculated, it would appear that the critical documents they seek access to are the records of the medical practice, indicating the number of patients seen by each of the practitioners from 2000 to 1 July 2004 and the number of hours worked by each of them both before July 2003 and from July 2003 to 2009. 25Access to this material was pressed by the defendant at the endpoint of correspondence passing between the parties between August 2010 and November 2010 where the question of the adequacy of the plaintiff's compliance with the orders of Sidis DCJ was raised repeatedly with the plaintiff's solicitor and, in the view of the defendant's solicitor, unsatisfactorily answered. 26The operation of r 15 of the UCPR mandates the plaintiff's obligation not only to prove diminished earning capacity, but to do her best to produce evidence which it is within her power to produce and within the power of the defendant to contradict, in order that at trial any diminished earning capacity can be quantified (see Paino v Paino [2008] NSWCA 276). 27The field of inquiry comprehended by the plaintiff's economic loss claim includes all contributions from all sources and flows of the practice since they are benefits derived from her earning capacity including those external to her diminished energies to perform patient consultations (see Fkiaras v Fkiaras [2010] NSWCA 116). 28The defendant submitted that although the plaintiff has discovered monthly summaries of the earnings of each of the general practitioners employed by the practice over the relevant period from 1 July 2004 in the verified list of documents ultimately produced in October 2010 (well outside the timetable fixed by her Honour), she has failed to discover the source materials from which those summaries were prepared, and has failed altogether to provide other records of the practice recording the number of patients seen by each of the general practitioners (including the plaintiff) from 2000 to 1 July 2004 such as would enable it to complete the forensic investigation of her claim for diminished earning capacity in preparation for the hearing. The fact that the source materials were thought by the defendant's solicitor to exist because patient summaries had been produced on subpoena and because he believed that the daily diaries of doctors working within the practice were also available and not produced, was the subject of submissions before Sidis DCJ. Her Honour was persuaded that these source documents must be in the plaintiff's possession and control given her position as the guiding mind of the corporate vehicle through which the medical practice conducts its business and because a small number of daily patient lists had been produced by her in the past, albeit only for a period of weeks in October 2008 at a time when her economic loss claim was limited to damages for an exacerbation of injuries diminishing her capacity to work. It would appear that it was for a combination of these reasons that her Honour ordered the plaintiff to give verified discovery. 29Counsel for the defendant submitted that the plaintiff's persistent refusal to discover this material is the reason that no steps have been taken in this Court since the proceedings were transferred in July 2010. He submitted that if either of the alternate bases for the primary relief sought by the notice of motion are granted, the plaintiff's damages claim will be significantly cauterised and case management of the proceedings will need to account for that fact. 30The question starkly presented by the notice of motion (although the defendant submitted not the sole basis for seeking relief) is whether I am satisfied that the plaintiff has persistently and deliberately failed to produce the practice documents that the defendant submits must be in her possession or control (or to which she has access) consistent with the findings of Sidis DCJ. 31Through her counsel the plaintiff claims that she has fully complied with the order for discovery, inclusive of verified discovery of all documents in her possession or control and discovery of the software program enabling the electronic version of those documents to be accessed for the period after July 2004. She also claims that she has now fully particularised the basis upon which her economic loss claim is to be advanced at trial. Counsel submitted that the verified list of documents is extensive (comprising 189 categories of documents in 9 folios) with nothing either in form or in substance to suggest that it was prepared in some casual way, indifferent to the plaintiff's obligations as a litigant under the UCPR, or her solicitor's professional obligations under the Legal Profession Act 2004. 32In so far as the source documents of the practice prior to 1 July 2004 are concerned (and it would seem, in part at least, the number of hours worked by each of the practitioners from 2000 to 2009), the plaintiff relies upon her verifying affidavit of October 2010, and an earlier affidavit the subject of an order by Walmsley DCJ in February 2008, where she deposes to the fact that the practice records created prior to 1 July 2004 and the computer program that created and/or retained them are no longer available due to a change in the electronic administrative practices utilised at that time; that the source documents in paper form cannot now be located and that the remaining documents supporting her economic loss claim are not available to her to produce because she does not have any right to demand access to the working records of the patients serviced by other practitioners. In the course of the hearing, her counsel submitted that the available records of her colleagues have now been served by the provision of a CD of records maintained by Medicare in relation to the services provided by other practitioners in the practice. The plaintiff arranged for this material to be made available after obtaining the consent of those practitioners as required by Medicare under the governing legislation. 33There is a settled approach in the authorities to resolving the question of sufficiency of discovery. The affidavit verifying discovery is conclusive, with leave to cross-examine upon it granted only if it can be shown either by recourse to the documents discovered, the content of the affidavit verifying discovery, the pleadings themselves or from any other source constituting an admission of the existence of a discoverable document or documents that there are reasonable grounds for being satisfied "with a degree of certainty" that discovery is insufficient (see Proctor and Gamble v Medical Research [2001] NSWSC 183 per Hunter J at [64] - [66]). 34The gravamen of the defendant's complaint concerning the sufficiency of discovery is that the plaintiff has sworn a false verifying affidavit in October 2010 and a false affidavit in February 2008. Where no application was made before me to cross-examine the plaintiff on either affidavit in circumstances where the defendant must have anticipated the plaintiff would rely upon them, I do not consider that the sufficiency of discovery is a matter that I can or should resolve simply by reference to the belief of the defendant's solicitor (however genuinely he may hold to that belief) that the plaintiff has been untruthful, or by reference to counsel's submissions that there remain unanswered questions as to the sufficiency of discovery because the plaintiff has given no evidence as to why the records Sidis DCJ was satisfied must exist were not discovered. 35These are matters which can be tested under cross-examination at the hearing as the plaintiff seeks to make out a case that she is entitled to significant damages for future economic loss despite the fact that she is not able to produce the primary records to support such a claim. The plaintiff's counsel accepted that if her economic loss claim is unable to be substantiated at trial, either because the source documents are not available or because she fails to prove the assumptions upon which her own experts assessed her economic loss (whether or not accompanied by an adverse credit finding in relation to the issues in contention on the motion or more generally), this will be simply a forensic consequence she will be forced to accept. He submitted however that she ought to be permitted to litigate her claim in accordance with the overriding interests of justice, and the relief the defendant seeks refused for that reason. He also submitted that on close analysis the defendant's claim that it needs protection against the risk of ambush at trial is not a risk at all. Subject to service of an updated expert report to enable the incorporation of the information recently obtained from Medicare (about which I will have something to say in a moment), he urged me to accept that she has served the evidence upon which that claim is to be proved in compliance with court orders that she do so, and has provided verified discovery as she was ordered to do. 36Counsel for the defendant was at pains to emphasise that the focus of his submissions in support of the primary claim for relief was not limited to the documents discovered or questions as to the plaintiff's veracity in swearing the verifying affidavit in purported compliance with the orders of Sidis DCJ. He also relied upon what he described as the want of due dispatch in the plaintiff prosecuting her claim. A delay of over eight years since the date of the accident and five years since the date of filing the statement of claim was said to be so gross and protracted that it justified taking the extreme step, at this stage in the proceedings, of seeking an order the effect of which will deny her the opportunity to litigate the expanded claim for economic loss pleaded in the amended statement of claim filed in February 2009. This was a situation said to be of her own making given that she has been legally represented throughout the course of the litigation both before and after that date. The defendant placed particular reliance upon the approach of the Court of Appeal in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 and more recently Bi v Mourad [2010] NSWCA 17 at [31] per Young JA, [37] per Sackville AJA and [49] per Allsop P in support of this submission. 37It was conceded by the plaintiff's counsel (something that could hardly be denied) that she has been extremely tardy in meeting her obligations as a litigant in the past, and that criticism of her serial non-compliance with orders of various judges of the District Court and the Judicial Registrar of that Court is justified for that reason. He submitted however that her lack of diligence has now been remedied and the proceedings are susceptible to case management in this Court with a view to obtaining an early hearing date. He submitted that to deny her the opportunity to litigate her damages claim is a draconian measure which I would not be persuaded is warranted at this time. 38I accept that the remedy the defendant seeks is a remedy of last resort and that justice has commonly been assumed to dictate that a matter should proceed to be determined on the merits. However, as Young JA observed in Bi v Mourad at [30] and [31]: [30] Although Mr Jackson says that justice must be the core consideration, it must be remembered that although "justice" is a word that is often used in this sort of case, the term "justice" is employed in the sense of justice to both parties. [31] It must also be remembered these days that ss 56-60 of the Civil Procedure Act 2005 set up a regime that requires the courts to turn away reluctant gladiators and to ensure that they either prosecute their claims in due time or get sent away from the court. 39At [47] Allsop P said: Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act. It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice. 40Although counsel did not refer me to s 61(3) of the CPA which concerns the power to dismiss a claim (or in this case a component of a claim under s 61(3)(a)) and which requires the Court to act in accordance with the dictates of justice (with s 58(2) giving content to that concept), I consider that it is appropriate that I take that approach (see Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 referred to by the Court of Appeal in Bi v Mourad ; see also Barescape Pty Ltd (as Trustee for Vs Family Trust) v Bacchus Holdings Pty Ltd [2011] NSWSC 437 at [19]-[21]). 41Section 58(2) of the CPA provides: 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. 42I have already made reference to the objectives of efficiency and affordability given legislative force in s 56 and 57 of the CPA (each of which are required to be taken into account under s 58(2)(a)) and that the litigation has been conducted over a number of years without sufficient regard to those objectives, with the plaintiff being the most egregious offender. 43In so far as the matters set out in s 58(2)(b) are concerned, I am satisfied that the defendant has moved sufficiently expeditiously in meeting its obligations at each interlocutory stage in the proceedings to date, and that it has taken the opportunity to seek directions and orders of a procedural nature at appropriate intervals with a view to requiring the plaintiff to meet her obligations under the UCPR. It has also mounted applications to strike out her claim and has sought additional orders requiring her to serve her evidence on affidavit and provide verified discovery. 44The plaintiff does not submit that any lack of expedition in the past has arisen from circumstances beyond her control as recognized in s 58(2)(c). In fact her counsel made no attempt to offer any explanation for her conduct beyond describing the litigation generally as "litigation gone mad". He submitted this was largely as a result of the overzealous approach to the litigation by the defendant's solicitors and what he described as a war of attrition waged by them highlighting the inequality in the relative position of the plaintiff and her suburban solicitor viz a corporate insurer and their unlimited legal resources. 45Having taken the time to review the correspondence between the parties in the lead up to and following the intervention of the courts at successive interlocutory stages, I am not persuaded that this submission is entitled to any weight. It might have been otherwise were it not for what I have already described as the plaintiff's serial non-compliance with orders made by various judicial officers, sometimes after lengthy argument directed to the relative "rights and wrongs" of the parties before orders were made invariably in the defendant's favour. Orders in October 2009 that the proceedings be case managed by the Judicial Registrar did little to accelerate the readiness of the matter for hearing in the District Court with the proceedings becoming progressively bogged down and ultimately stalled by protracted arguments concerning the plaintiff's obligations to particularise her claim. 46The most that can be said on the plaintiff's behalf is that the very much expanded economic loss claim in the amended statement of claim filed in February 2009 was as a result of senior counsel being briefed just prior to the end of the law term in 2008 and the need to re-plead her clam in light of his advice, and that some degree of complexity was encountered thereafter in supporting that claim as reflected in the approach that Furzer Crestani were compelled to take in the absence of relevant primary records. 47The plaintiff's counsel submitted that the order for case management made by Hall J in July 2010 has been "hijacked" by the filing of the defendant's notice of motion in November 2010. He submitted that it has deflected the plaintiff's solicitors from attending to the further preparation of the case for hearing by necessitating the preparation of evidence over the intervening months to resist the relief sought by motion. The compound effect of this and the filing of the notice of motion after consenting to the proceedings being transferred to this Court, is relied upon by the plaintiff as a further basis upon which to refuse the defendant the relief it seeks. 48While it is doubtless true that considerable time was committed to preparing to meet the defendant's notice of motion, I have expressed criticism of both parties for their approach to the hearing and have already noted the reasons why the relief sought by the plaintiff is sought at this time. Both of these factors diminish the weight of counsel's complaint. However, given that the defendant accepts that the sufficiency of discovery following the orders of Sidis DCJ in July 2010 triggered the filing of the notice of motion, and given my findings in regards to appropriateness of pressing me for a ruling on that issue without requiring the plaintiff for cross-examination, it does not diminish its weight entirely. 49That said, I remain astounded that the CD of data from Medicare, evidence which the plaintiff's counsel would ask me to accept is the critical additional information which should provide a foundation upon which the economic loss claim could be investigated by the defendant's experts, had not been provided to the plaintiff's experts for their consideration before the motion was heard. He could offer me no reason why this was so. I am unable to discern from his position whether he was endeavouring to protect those that instruct him, or whether this is further evidence of what the defendant identifies as the dilatory conduct of the plaintiff which this Court should no longer countenance, or whether it is due to some other forensic motive perceived to be to her advantage. (The defendant's solicitor gave evidence that the CD had not been provided to the defendant's experts because it had not been served. This was disputed. I do not take the time to resolve that dispute. It is but a further example of the claim and counterclaim of failures of one sort or another contended for by the parties.) 50The fact that the plaintiff's experts have not been invited to consider the material on the CD would tend to add weight to the defendant's submission that the information does not fill the gap in the records of the practice about which there has been such protracted argument, and that it is simply a repetition of the summaries of transactions between the individual doctor and Medicare without evidencing the commercial transaction between the practice (or the individual doctors) and the patient, and therefore simply a distraction designed to muddy the waters in the application before me. 51I am not able to resolve that issue on the materials before me. The information on the CD was voluminous and, without the benefit of expert analysis, largely incomprehensible. The defendant's submission that the material is of no utility may be borne out by further analysis by BRI Ferrier. On the other hand Furzer Crestani may consider the information of assistance in supporting either of the alternate scenarios upon which its assessment is based. These are matters that are more appropriately resolved at the final hearing, or addressed in a joint report of the experts in the event that is an approach adopted in the course of case managing the proceedings. 52In the result, and after giving due consideration to the competing arguments of counsel and relevant matters in s 58(2) of the CPA, I am not persuaded that the primary relief the defendant seeks should be ordered. The degree of injustice suffered by the plaintiff were I to dismiss the economic loss component of her claim is substantial and, although the delay in prosecuting her claim is to be deplored, I am told by her counsel that the progress of the matter from now to when the matter is ready to take a hearing date will be swift. The plaintiff should clearly understand that any failure to comply with orders for case management or any further inexcusable delay will inspire the Court to revisit its powers under s 61 of its own motion. I am also satisfied that the prejudice to the defendant by what has occurred to date has been adequately addressed by a succession of costs orders in its favour. There is nothing to suggest it will not recover these costs. 53Further, I am not persuaded that orders ought be made at this time preventing the plaintiff from supplementing the evidence served in support of her economic loss clam (or other components of the claim). The proceedings will be subject to case management where a strict timetable for the service of any outstanding evidence will be imposed. For the same reasons, but more particularly in recognition of the fact that rulings on questions of the admissibility of evidence are discretely questions for the trial judge, I refuse to make any order preventing the plaintiff from relying on the reports of Furzer Crestani served on the defendant to date. 54That leaves the relief sought referable to costs orders made to date. 55So far as I am able to discern, the first order that costs be reserved was made by the Judicial Registrar in March 2008. All costs orders prior to that date were made in the defendant's favour. 56Costs were next reserved when Toner DCJ vacated the hearing date in February 2009. On that occasion his Honour gave detailed directions for the future conduct of the proceedings. He re-listed the matter for hearing on 25 May 2009. At that time it appears that his Honour anticipated that he would preside over the hearing and that the reserved costs could be taken into account by him in the ordinary way once issues of liability and quantum had been resolved. 57The matter was next listed before his Honour in April 2009 for the hearing of a notice of motion filed by the defendant seeking a vacation of the May hearing dates due to the plaintiff's failure to comply, inter alia, with various of his Honour's orders concerning the service of the evidence upon which she proposed to rely at the hearing. On that occasion, the costs associated with the vacation of the February hearing date remained reserved, again, it seems, on the basis that his Honour remained of the view that he would likely be the presiding judge. However, the plaintiff was ordered to pay the defendant's costs of the motion on a two counsel basis as a "deterrent". No application was made at that time that the costs be payable forthwith despite the obvious added deterrent effect of such an order. 58On the next occasion that the matter was listed before his Honour he directed that the proceedings stand over to the Registrar's list as the matter was not ready for hearing. His Honour has had no further involvement with the matter since that date. The costs of the appearance before the Judicial Registrar were also reserved. It would appear that no further costs orders were made in the District Court until the notice of motion was heard and determined by Sidis DCJ in July 2010. 59I have already noted that her Honour refused to order the plaintiff to pay the reserved costs associated with the various appearances before Toner DCJ. She did so expressly on the basis that she felt constrained by what she assumed to be a proper basis for his Honour to reserve costs until the proceedings were heard and determined. She did not regard herself as similarly constrained in respect of the costs associated with vacating the August hearing. She ordered that the plaintiff pay the defendant's costs of vacating that hearing and the costs of the notice of motion concerning the issue of discovery. 60I share her Honour's view in relation to the reserved costs of the various proceedings before Toner DCJ. I do not propose to review that order or the basis for it, or to disturb any other orders the effect of which was to reserve costs when the proceedings were in the District Court. 61That leaves the question whether it is appropriate at this stage in the proceedings that the plaintiff be subject to an order that the costs she has been ordered to pay to date be payable forthwith. 62Rule 42.7 of the UCPR which governs the issue provides that: (1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including: (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings. (2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings. 63The operation of this rule provides that the normal or ordinary rule is that costs are payable at the conclusion of the proceedings, subject to the dictates of justice (or where it appears to the Court that justice otherwise demands it). This is in turn referable to the overriding purpose of the CPA and the UCPR to facilitate the just, quick and cheap resolution of the real issue in civil proceedings (see Bevillesta at [29]-[38]) such as may justify an order that costs be made payable forthwith. 64I have already expressed my criticism of the plaintiff's failure to deal expeditiously with her responsibilities as a litigant and to do so in strict compliance with the orders of the Court. While this would have provided a prima facie basis for costs to be made payable forthwith at the time the costs orders were made (as was the case under review by the Court of Appeal in Bevillesta ) I am also conscious that the ordinary rule of practice is that an application to vary an interlocutory order must be founded on a material change in circumstances since the original application was heard and determined and orders made. In this case that obliges me to consider what is relied upon by the defendant as constituting a material change in circumstances since a succession of costs orders were made in its favour, the earliest being 28 February 2007 and the most recent in 21 July 2010. 65Delay and the plaintiff's recalcitrance has stymied the progress of the proceedings over many years. It has been a recurring theme at a succession of appearances before judicial officers in the District Court. As recently as July 2010 Sidis DCJ expressed her criticism of the plaintiff. The difficulty that the defendant faces in applying for an order that the cost orders her Honour made in its favour should now be payable forthwith, and that of a long line of judicial officers before her, is persuading me that the plaintiff's current conduct is any more egregious than it has been in the past. In circumstances where I have declined to rule on the sufficiency of discovery and where, despite some misgivings, I cannot come to any settled view as to whether she has in the past or is currently positively obstructing the progress of the matter to hearing, I am not satisfied that a proper basis has been made out for me to vary costs orders in the defendant's favour, the collective effect of which is that costs will be paid at the conclusion of the proceedings. Accordingly, I decline to order that the existing costs orders in the defendant's favour should be varied to make them payable forthwith. 66In the result the defendant's notice of motion is dismissed.