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[2013] NSWSC 336
Supreme Court of NSW
2013-03-22
Garling J
Original judgment source is linked above.
Judgment 1By notice of motion filed on 20 March 2013, the plaintiff seeks the following orders: (a)an order pursuant to section 61(3)(c) of the Civil Procedure Act 2005 striking out the defence of the defendant and; (b)that the Court enter default judgment against the defendant with damages to be assessed, pursuant to Part 16 of the Uniform Civil Procedure Rules 2005. 2When the motion was called on for hearing this morning, the defendant's previous solicitors, Messrs Stacks, appeared to indicate that they no longer acted for the defendant and had complied with the requirements of the rules with respect to ceasing to act. Mr Shkuratov of that firm was excused from further attendance. 3The defendant was called outside the Court and there was no appearance. I am satisfied, from the provisions of exhibit A, that the defendant was adequately notified of the proceedings before the Court. 4In support of the motion, the plaintiff relies on the affidavit of Mr William Madden, sworn 18 March 2013 and has tendered a number of documents which have been marked.
Procedural History 5It is necessary that I give some procedural history. 6These proceedings concern the plaintiff's home birth on 21 October 2006. The defendant was engaged as an independent midwife in attendance at the birth. The plaintiff claims that, as a result of the defendant's negligence, in recommending the home birth in the first place and, subsequently, in the negligent performance of her duties as a midwife, he suffered hypoxia during birth and was left with cerebral palsy. 7Proceedings were commenced by statement of claim on 20 October 2009. A defence was filed by the defendant on 12 April 2010. In addition to that defence, not admitting and denying various allegations, including negligence, the defendant pleaded reliance on s 5O of the Civil Liability Act 2002. 8In accordance with various directions given by the registrar, the plaintiff has served all evidence upon which he intends to rely, both lay and expert. 9Two expert reports have been served by the defendant from midwives, which, in broad terms, support some, but not all, of the actions of the defendant. 10On 23 August 2012, the defendant filed an affidavit which was sworn that day. In part, that affidavit said: "I wish to obtain expert medical evidence in reply on the issue of causation in the case, but have been unable to do so until I had saved sufficient money to enable me to pay the cost of that evidence. I have only now done so and am in a position to engage such an expert. In the circumstances, I am not in a financial position at this time to engage expert assistance in respect of the plaintiff's claim on quantum at the present time. Further, I understand that, if the plaintiff is successful on the issue of liability, it is likely that any reasonable quantification of his loss will significantly exceed my available assets. In such circumstances, I would envisage there would not be likely to be any utility in offering any contest to the plaintiff's claim as to quantum and it is likely that no such contest would be offered." 11Consequent upon the contents of that affidavit, the Registrar of the Common Law Division made orders that any further reports on causation be filed by the defendant on or before 1 November 2012. 12On 4 October 2012, the Court made orders extending that time to 21 December 2012. Further orders were made by consent on 7 February 2013 that the defendant file expert liability reports. 13The defendant has been in default of the Court's orders on each of the nominated occasions. The last of those orders expired on 14 March 2013. 14The matter has been listed for hearing commencing on 19 August 2013 with a three-week estimate. Orders in accordance with the Court's usual practice for the expert witnesses to confer and prepare joint expert reports in their respective fields of expertise, have been made. 15As I earlier noted on 22 February 2013, the defendant's solicitors filed a notice of ceasing to act.
The Defendant's Current Position 16On 14 March 2013, which was the day the defendant's liability evidence was due, my Associate received a letter from the defendant, in which the following was stated: "Please inform Justice Garling that I am withdrawing from these proceedings as I am unable to fund my defence. My previous solicitors have indicated that I was returning to Sydney on March 14th. This is not the case. My present situation is that I have no fixed address and minimal income with little to no prospects in the future, given my age of 68. Please use the above email address for any future contact." 17There has been no other explanation from the defendant as to why she has not served her witness statements or remaining expert reports, nor is there any suggestion by her that she intends to rectify her present default in complying with all of the court directions. 18On the face of the defendant's letter, progress of these proceedings to joint expert reports and to a final hearing commencing on 19 August 2013, or any other date, now seems not just unlikely, but entirely out of the question.
Civil Procedure Act 2005 19The Court has power, under section 61(3) of the Civil Procedure Act 2005 to strike out any defence filed by a party and give judgment on the claim, if the Court is satisfied that a party to whom a direction has been given has failed to comply with the direction: Lake v Crawford [2013] NSWSC 96. 20I entirely agree with what McDougall J said, with respect to section 61(3) of the Civil Procedure Act, in 7Steel Building Solutions Pty Ltd v Wright [2011] NSWSC 779 at [18]: "That is a power that is to be exercised in accordance with the dictates of justice, but informed by the overriding purpose set out in section 56 of the Civil Procedure Act. In making an order as serious as the one sought, the Court is required to consider the possible injustice that would be occasioned to the defendant if his defence was struck out with the injustice that has been caused to the plaintiff by the defendant's non-compliance."
Discernment 21The present case is somewhat unusual, in that the occasion for utilising the Court's power under section 61(3) of the Civil Procedure Act has not come about only because of the repeated default by the defendant in compliance with court directions, but also because of a clear indication by the defendant in her letter to the Court that she does not intend to participate in any future Court process. 22The defendant's letter appears to indicate that such non-participation would include any future attendance in court, service of any additional evidence in support of her defence and compliance with any of the processes of the Court previously ordered, including but not limited, to the conferral of expert witnesses for the purpose of producing joint expert reports. 23In short, I conclude that the defendant has renounced the duties imposed upon her as a litigant under s 56(3) of the Civil Procedure Act. 24Although the defendant has filed a defence and has served some expert evidence, in the absence of her participation in these proceedings, there is no prospect of a substantive hearing of the issues identified in those documents, as constituting a hearing into all matters of real dispute between the parties. 25In the circumstances, it is clear that, for whatever reason, the defendant no longer wishes to pursue her defence to the plaintiff's claim. 26The plaintiff should not be required to expend any additional time or costs in establishing his case on liability and I conclude that the defence should, therefore, be struck out and default judgment entered. 27The plaintiff has served an Amended Statement of Particulars dated 20 December 2012, which contains an updated statement of the damages claimed. 28In addition, the plaintiff has served the following evidence on damages: (1)A report of Dr Jayne Antony, a paediatric neurologist, dated 19 January 2009; (2)A report of Dr Adam Scheinberg, a rehabilitation specialist, dated 16 November 2012; and (3)A bundle of documents relating to the plaintiff's recent medical treatment and progress at school. 29As the plaintiff's claim is for unliquidated damages arising from his personal injury, it will be necessary for the matter to proceed to an assessment of damages pursuant to r 30.1 of the Uniform Civil Procedure Rules.
Orders 30Accordingly, I will make orders to permit that assessment to occur in a speedy and cost effective manner. (1)I order that, pursuant to section 61(3)(c) of the Civil Procedure Act, the defendant's defence of 12 April 2010 be, and hereby is, struck out. (2)I order that there be judgment for the plaintiff with damages to be assessed. (3)I order that the plaintiff file all evidence upon which he relies in support of his assessment of damages, together with a written outline of the claim for damages, including a table of the damages claimed by the plaintiff on or before Friday 26 April 2013. (4)I order that such material be served on the defendant by email to her to the address disclosed in the correspondence to the Court. (5)I list the proceedings for assessment of damages before me at 9.30am on 10 May 2013. (6)I order that the plaintiff's costs of this motion be costs in the cause. (7)I grant the parties liberty to apply on 24 hours' notice.
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: 12 April 2013
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