Plaintiff v Defendant

2. On Friday 16 August 2013 I dismissed Mr Grace's application to adjourn the trial of his claim for damages due to be heard on Wednesday 21 August 2013. I gave extempore reasons and promised more detailed written reasons which now follow.**

**3. The relevant considerations in an application such as this involve balancing the fundamental requirement that a trial must be conducted fairly and in accordance with the principles of natural justice and procedural fairness with the necessity for case management in a busy court: See ss 9(1) and (2) of the Civil Procedure Act 2010 (Vic).

4. Rule 49.03 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) gives the Court discretion to 'adjourn a trial on such terms as it thinks fit'.

5. The overarching purpose of the Civil Procedure Act 2010 (Vic) is:**

...to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.[1]

**6. In exercising or interpreting any of its powers, the Court must seek to give effect to the overarching purpose of the Act.[2]

7. Section 9(1) provides that in making any order or giving any direction in a civil proceeding, a court shall further the Act's overarching purpose by having regard to the following objects:**

(a) the just determination of the civil proceeding;

(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for -

(i) the fair and just determination of the real issues in dispute; and

(ii) the preparation of the case for trial;

(f) the timely determination of the civil proceeding; and

(g) dealing with a civil proceeding in a manner proportionate to -

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute.

**8. Section 9(2) of the Act says for the purposes of s 9(1), the Court may have regard to:

(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e) the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(g) the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

9. Vickery J in Hodgson v Amcor Ltd[3] said the obligations in the Act require a 'balance between case management considerations and the dictates of a fair trial'.[4] Dixon J endorsed this proposition in Mercieca & Anor v SPI Electricty Pty Ltd & Ors (No 3).[5]

10. In Aon Risk Services Australia Ltd v Australian National University,[6] the High Court identified the necessity of doing justice between the parties while recognising the importance of active case management. Gleeson CJ noted the:**

changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resource.[7]

11. In their joint judgment, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

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.[8]

**12. Mr Grace's originating motion for a serious injury application under s 93(4)(d) of the Transport Accident Act 1986 (Vic) was issued on 6 June 2003.

13. Leave to issue common law proceedings was granted by the Court of Appeal on 22 May 2009.

14. The writ was issued and filed in this Court on 16 June 2009, in other words, over four years ago.

15. On 27 July 2011 the case was first fixed for trial to commence on 5 March 2012. That trial date was vacated by agreement between the parties.

16. On 29 August 2012 the case was again fixed for trial on 21 August of this year.

17. A final directions hearing on 26 July 2013 was held. I was told by both parties that the case was ready to proceed and provided with lists of potential witnesses.

18. This application to adjourn the trial was made on 9 August 2013. I adjourned the hearing for a further week to enable Mr Grace and Mr El Masri, if they so wished, to put further material before me concerning the application for the adjournment.**

The question of Mr Grace undergoing further back surgery

**19. The material concerning the question of further back surgery to be undergone by Mr Grace is to be found in the medical report of the neurosurgeon, Mr Craig Timms, of 16 April 2012. Back surgery was first mooted in 2009 when Mr Timms wrote to TAC seeking approval for a surgical procedure, being a posterior lumbar instrumented fusion at L4-5 and L5-S1.

20. According to Mr Timms, in September of 2010 he was told by TAC that the request for surgery had been denied and 'a decision was made to place Mr Grace in the public waiting system to undergo major reconstructive surgery of the spine. The documents for the public waiting system were completed in October of 2012'. [9]

Despite analgesics and core muscle strength and flexibility exercises, he is suffering further pain and the imaging to date revealed that he has disc injuries particularly at L4-5 and L5-S1 with a mild slip at L5-S1, which is were [sic] I believe his symptoms are originating from. I have proposed that he undergo major reconstructive spinal surgery, namely a lumbar fusion at L4-5 and L5-S1 and I have placed him on the public waiting system to have this procedure performed whilst his legal process follows it [sic] due course.[10]

22. I should also mention here a report of a psychiatrist, Dr Michael Epstein, which was, in passing, relied upon by counsel for Mr Grace. In his report of 18 March 2013 he opines:**

[Mr Timms] had proposed that [Mr Grace] undergo major reconstructive spinal surgery. If his reconstructive surgery is successful then he may be may need to be reviewed as it is likely that his mental state would improve if he was no longer experiencing such severe pain, but given the fact that he appears to have a chronic pain syndrome surgery may not bring the expected benefit. Hence in my view his prognosis remains poor.[11]

**23. When I adjourned this proceeding last week it was to enable the parties, and particularly Mr Grace, to put before me further information in relation to the prospect and likely timing of any further back surgery.

24. In affidavits filed on 15 and 16 August, Mr Lombard, the solicitor for Mr Grace, acknowledged the difficulty he was having contacting Mr Timms to ascertain the current position of Mr Grace's proposed surgery. Eventually, Mr Lombard received a call from Mr Timms' wife on the morning of the 16 August and I recite his evidence on this issue:**

I received a call from Mrs Timms at 8.05 this morning and she relayed her discussions with her husband to me. She indicated that Mr Timms believed that the plaintiff was put on the waiting list 2 years ago and believed he was allocated to have his operation at the Casey hospital. She said that Mr Timms recalled seeing Jason on the list but he may have dropped off the list.

Mrs Timms further indicated the view of Mr Timms that Jason was a Category 2 patient and, if he had dropped off the list he would be given priority. She indicated that in the current funding climate in the Health system, there were delays in relation to the performance of surgery. She indicated that the delays for a standard category 2 patient could be up to a year.[12]

25. The end result, it appears to me, is that the affidavit material does not disclose:

(b) when, if Mr Grace is on a waiting list, the operation is likely to take place. The second hand hearsay evidence of Mr Timms does not advance this issue very far; and

(c) what time would be required to lapse before the case could proceed if Mr Grace underwent the putative operation.

26. The following matters persuade me that this application should be refused:

(a) First, it is over 16 years since the accident and it is imperative that the case be heard as soon as possible, particularly where there remains live issues in relation to liability and quantum, albeit that these liability issues are confined to the evidence of Mr Grace.

(b) Second, the case has been in this Court for over four years and was first fixed for trial over three years ago.

(c) Third, up until three weeks ago, the Court was told by the solicitors for Mr Grace that the case was ready for trial.

(d) Fourth, Mr El Masri is ready to proceed to trial, has witnesses arranged and opposes any further adjournment of this proceeding. I note however that it is not suggested that there is any specific prejudice. There is, of course, the general prejudice of a further delay; this is particularly relevant where the proposed adjournment is, in effect, for an indefinite period as there is no hard evidence as to when any prospective surgery will take place.

(e) Fifth, the only basis for the application is a prospect of Mr Grace having spinal surgery at some time in the future, I have already mentioned the inadequacies of that material.

**27. I do not accept counsel for Mr Grace's submission that it is, in effect, imperative that Mr Grace have the surgery and that his case not be tried until that surgery is completed. Mr Grace is not shut out from running a case on the basis that he will have surgery in the future. Indeed, the question of prospective surgery is one that juries regularly have to grapple with in determining damages and fixing an appropriate award of damages. No doubt Mr Timms' evidence on the prospect of surgery, the likely consequences of it and the benefits or disadvantages from such surgery will be canvassed before the jury.

28. In an application such as this the applicant carries the onus of persuasion. Given the time that has elapsed since the accident and the fact that this proceeding has now been in this Court for over four years, any application to further delay the trial must have powerful supporting evidence. That, of course, does not mean that Mr Grace on proper grounds cannot advance a case for an adjournment of the trial but the background to the case is highly relevant in determining whether to grant the application.

29. As I said earlier, there is scanty evidence as to when, where or if Mr Grace will undergo surgery (in the sense of being currently on a waiting list) and that any adjournment would be for an indefinite time totally dependent on the timing of the putative surgery (if it ever takes place). I therefore concluded that it was inappropriate that the trial be adjourned.

30. Accordingly I refused the application made by Mr Grace and made the following orders:**

(b) The trial date of 21 August 2013 is confirmed on an estimate of 10-15 days.

(c) Pursuant to s 42E of the Evidence Act 1958, the following individuals give evidence to the Court in this proceeding by audio-visual link:

**(i) Dr A Meyer, General Practitioner, 154 Lime Avenue, Mildura.

(ii) Dr B Murphy, General Practitioner, 255 Deakin Avenue, Mildura.

(iii) Mr Marcus Rawlings, Physiotherapist, 153 Lime Avenue, Mildura.

(iv) Mr Corey Donnellan, Physiotherapist, 153 Lime Avenue, Mildura.**

(d) The Plaintiff pay the Defendant's costs of the application.

[1] Section 7(1) of the Civil Procedure Act 2010 (Vic).

[2] Section 8 of the Civil Procedure Act 2010 (Vic).

[3] Hodgson v Amcor Ltd [2011] VSC 272.

[5] [2012] VSC 6.

[6] [2009] HCA 27; (2009) 239 CLR 175.

[9] Report of Mr Craig Timms dated 16 April 2012, p 2.

[10] Report of Mr Craig Timms dated 16 April 2012, p 3.

[11] Report of Dr Epstein dated 18 March 2013, p 8.

[12] Affidavit of Michael James Lombard dated 16 August 2013 [4]-[5].