This matter comes before me today by way of final status conference. The matter is listed for hearing for seven days, commencing 24 October 2022.
The matter was last before me on 10 December 2021. During oral exchanges on that day, I raised with the solicitor for the first defendant what the basis of the defence might be. I was informed that liability was denied.
The plaintiff alleges that he sustained very severe injuries. In fact, he became a partial paraplegic. The first defendant was the head contractor on a building site and in charge of the building site.
When walking across the building site, the plaintiff fell through a hole which was covered by a tarpaulin but otherwise unmarked.
The plaintiff alleges the first defendant, as the head contractor and party responsible for the safety of the site, was negligent.
When the matter was before me on 10 December 2021, the solicitor for the first defendant was unable to explain the nature of the defence to me in a satisfactory way. I was informed that, despite the first defendant being the head contractor and occupier of the site, the first defendant maintained that it did not owe a duty of care to the plaintiff as a worker working on the site.
I indicated to the solicitor for the first defendant that I found that legal proposition rather surprising.
I ordered that the first defendant review its defence and granted leave to amend the defence and properly plead to the allegations of negligence against it. In the alternative to amendment of the defence (and having regard to the novel proposition advanced), I ordered that the first defendant write to the solicitors for the plaintiff within 14 days informing the plaintiff why it said it owed no duty of care to the plaintiff and why it was not in breach of any duty of care.
The very purpose of those orders was to allow the first defendant to either consider whether it could, in good faith and consistently with s 56 of the Civil Procedure Act 2005 (NSW) (CPA), maintain a position that it owed no duty of care or amend its defence. Alternatively, it could explain the nature of its case, bearing in mind that the plaintiff was entitled to understand the case that he was required to meet.
Owen v Skarps Constructions Pty Ltd [2022] NSWSC 1225 | Case summary | Zoe
Neither party organised to have the matter relisted before me between 10 December 2021 and today, 18 August 2022.
When the matter came on before me today, the parties proposed some consent orders, not all of which had been agreed. The central area of dispute between the parties for the purposes of today's orders was whether the plaintiff's treating rehabilitation specialist should be permitted to attend in the conclave with the expert rehabilitation specialists retained by the first defendant and the plaintiff.
I was informed that the first defendant opposed the treating rehabilitation specialist participating in the conclave with the other two rehabilitation specialists. I asked the solicitor for the first defendant how the first defendant would be dealing with the treating expert - that is, whether she would be required for cross‑examination.
She was not able to inform me at this stage but she assumed so. Bearing in mind they are all of the same discipline and that there is an overlap in the reports of the treating specialist and the rehabilitation experts, I do not understand on what basis it could be suggested that there be one conclave with two of the experts and the other expert would give evidence independently.
In the circumstances, I direct that all three experts participate in the conclave.
On further questioning, I was informed that the first defendant had not complied with either of the orders (2 and 3) that I made on 10 December 2021.
I was informed by the solicitor for the first defendant that her client, an insurer, did not wish to undertake either task.
Presumably, the insurer determined that it was not in its interests that the defence be amended or that it write to the plaintiff explaining its position.
The insurer, having determined that it did not wish to comply with the orders, the solicitors then did not act on the orders. No other explanation has been offered for the failure to comply with the orders, other than that the client did not want to do it.
I raised with the solicitor for the first defendant whether she might have considered her professional obligations and might have in some way consulted someone else in the firm about the appropriateness of simply not complying with Court orders because the client did not want to do so.
I understand that she felt that she was in a difficult position (although her duties to the Court override her duty to her client) but, that does not justify such a deliberate failure to comply with Court orders.
The very purpose of judicial case management prior to the allocation of a hearing date is so that the judge can be satisfied that the parties have made every attempt to narrow the issues, ensure that false issues are not run and ensure that the Court is not allocating extended periods of hearing time based on false or unmeritorious disputes.
This case is listed for hearing for seven days on 24 October 2022, in circumstances in which the first defendant is still maintaining that, as the head contractor on a construction site, it did not owe a duty of care to the plaintiff. There appears to be no dispute as to the facts.
Plainly, the approach of the insurer was to get to a mediation whilst everything was in issue and see what happened thereafter. That must be so because the solicitor for the first defendant informs me today that the defendant will now seek to amend the defence and do the things that I ordered to be done back in December 2021.
I can only emphasise that, if an order is made during a case management directions hearing, it must be complied with. Too often, solicitors for insurers are attending and referring to difficulties getting instructions from their clients.
In my view, it is not the client's function to instruct a solicitor not to comply with orders of the Court. Solicitors are officers of the Court and their obligation is to comply with the orders of the Court.
If their client specifically directs them not to comply (as appears to have occurred in this matter), they must resolve that conflict consistently with their obligations to the Court.
Further, s 56 of the CPA imposes a duty not only on the party but also on the solicitor to assist the Court in achieving the overriding purpose.
I understand that it may be difficult to respond to (presumably London) insurers who do not give proper instructions. However, in circumstances in which the Court makes an order that a defence be amended or, at the very least, that a solicitor write to the other party explaining why a defence is being maintained (when, on the face of it, it probably should not be)the Court expects solicitors as officers of the Court will comply with those orders.
I wish to make it plain that deliberate failure to comply with orders made in furtherance of the overriding purpose of the CPA is unsatisfactory and must have some consequence.
In this case, the plaintiff seeks to have the defence struck out. I indicated to the plaintiff that, if he wishes to make such an application, it will need to be done by way of a motion. I thus grant leave to the plaintiff to file a motion, which will be returnable before me on Tuesday, 13 September 2022 at 9.30am. The plaintiff should obviously serve an affidavit in support.
No doubt the solicitors for the first defendant will also serve an affidavit in response, if they wish to oppose the orders sought in the motion. However, I should indicate that, at least on what I have been told by Mr Mooney, I do not understand the basis of the defence and I will need some explanation from the solicitors for the first defendant as to why the defence has not been properly amended and appropriate concessions have not been made. I will need some explanation from the solicitors for the defendant as to why the defence should not be struck out.
I will also need some explanation as to who should be paying the costs of any motion.
Other than that, I make the following orders:
1. The time for service of refresher evidence by the parties is extended to 20 September 2022.
2. The time for parties to agree on questions to be put to expert witness for expert conclave is extended to 31 August 2022.
3. The time for expert conclaves to be conducted and reports to be finalised is extended to 30 September 2022.
4. Grant leave to the plaintiff to file a Notice of Motion to strike out the defence.
On 13 September 2022, I will further consider whether the hearing date should be maintained and what orders should be made for the future conduct of the matter.
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Decision last updated: 13 September 2022