Plaintiff v Defendants

1 The following has been revised minimally following the delivery of oral reasons on 7 August 2025.

2 This matter came on for final directions on Friday, 1 August 2025, in respect of a trial listed to commence on Monday, 11 August 2025, before a judge and jury on an estimate of 10-12 sitting days.

3 Shortly prior to the hearing, the third party's solicitor emailed the Court indicating, in substance, that his client would seek an order that the third-party proceeding be heard separately and after determination of the main proceeding.

4 At final directions, the parties broadly indicated that they either agreed to or did not oppose a separate hearing. That said, counsel for the third defendant submitted that the third-party proceeding should be heard before the main proceeding. That submission was opposed; at least by the third party.

5 At that time, the solicitor for the first and fourth defendants (who then also appeared on behalf of the second defendant) indicated an intention to seek leave to join a further third party to the third-party proceeding, and also raised an issue relevant to the main proceeding; namely, what was described as the plaintiff's refusal to attend a psychiatric examination. At least in respect of the latter point, it was evident that the plaintiff was opposed to the making of any order.

6 It will be evident that, prior to the hearing, no summons or supporting affidavits had been filed in respect of any of the proposed applications.

7 In the circumstances, I left the listed trial date in place and made orders with a view to any applications, on proper material, being returned before me at 9:30am on Thursday, 7 August 2025.

(i) the first and fourth defendants applied by summons seeking that the plaintiff attend a 'medical examination organised by the solicitors for the first and fourth defendants by 8 August 2025' as well as a grant of leave to the first and fourth defendants to 'serve further medical reports prior to or as soon as available during the course of the trial';

(ii) that application was supported by an affidavit sworn by the solicitor for the first and fourth defendants;

(iii) the third party filed a draft summons seeking that the first and fourth defendants' third-party claim against the third party be tried separately from, and subsequent to, the plaintiff's claim against the defendants;

(iv) that application was supported by an affidavit affirmed by the solicitor for the third party;

(b) on Tuesday, 5 August 2025, the solicitor for the plaintiff affirmed an affidavit principally directed to the question of any medical examination;

(c) on Wednesday, 6 August 2025, the solicitor for the third party provided a short outline of submissions together with a relevant Full Court authority;[1]

(d) no other party filed any other affidavits or written material.

9 I have read all of the material and, on 7 August 2025, heard argument.

10 In that regard, I should note that the second defendant appeared in person and remotely and supported the application made by the first and fourth defendants. She submitted that the only psychiatric evidence relied upon by the plaintiff was obtained in about 2022 and is insufficient as well as not accurate. She submitted that it was necessary that the plaintiff now be psychiatrically examined in order that there may be a fair trial.

11 In the circumstances, it is necessary to provide some context.

12 The main proceeding was commenced by writ supported by a general indorsement filed on 24 April 2023.

13 The general indorsement indicates that, broadly speaking, the claim arises from alleged laser treatment undergone by the plaintiff at the clinic of the first defendant on about 25 June 2020.

14 The plaintiff filed her statement of claim on 26 May 2023.

15 Her pleading identified the following particulars of claimed injury -

(a) cicatricial ectropion;

(b) scarring and disfigurement;

(c) psychiatric injury including Post Traumatic Stress Disorder; and

(d) pain, suffering and distress.

16 The first defendant appeared via its then solicitors, Colin Biggers & Paisley, on 8 June 2023.

17 The fourth defendant appeared via solicitors, VMC Legal, on 25 July 2023.

18 On the same day, the solicitor for the plaintiff served VMC Legal with -

(a) reports of Dr Gregory White, psychiatrist, dated 9 May 2022 and 2 February 2023; and

(b) a report of Dr John Crock, plastic surgeon, dated 11 June 2022.

19 For the most part, that material had been assembled in respect of the significant injury requirements of the Wrongs Act 1958 (Vic).

20 Among other things, the material lends support to the plaintiff's claims in respect of scarring, lower lid ectropion and post-traumatic stress disorder precipitated by treatment in 2020.

21 That material had earlier been served on Colin Biggers & Paisley.

22 A timetable of orders was made by Baker JR on 10 November 2023, including an order that the proceeding be listed for trial commencing before judge and jury on 16 September 2024. Other orders were directed to the usual interlocutory steps, including exchange of medical and expert reports in mid-March 2024 and any supplementary reports no later than two months prior to the listed trial date.

23 In March 2024, Colin Biggers & Paisley advised the solicitor for the plaintiff that examinations had been arranged with Dr Diane Neill, psychiatrist, and Dr Thomas Robbins, plastic surgeon. The latter seems to have taken place, and a report of Dr Robbins apparently served, but the appointment with Dr Neill was cancelled by the first defendant's solicitor due to what was described as 'unforeseen circumstances' the day before it was due to take place. No subsequent appointment was ever scheduled.

24 On 24 May 2024, the solicitor for the plaintiff served -

(a) a report of Associate Professor Alan McNab, orbital, eyelid and lacrimal surgeon, dated 1 September 2023; and

(b) the plaintiff's particulars of special damages.

25 The former referred to 'residual ectropion' as well as a prospect that 'over very many years' the plaintiff 'may well develop increasing lower eyelid cicatricial ectropion'.

26 The latter articulated claims for future treatment expenses with reference to the reports of A/Prof McNab and Dr White.

27 Colin Biggers & Paisley ceased to act for the first defendant by notice filed on 2 August 2024.

28 On 8 August 2024, VMC Legal filed an appearance for the first defendant. Since that date - which is almost a year ago to the day - the first and fourth defendants have both been represented by VMC Legal.

29 The trial date listed for 16 September 2024 came to be vacated by orders made by consent by Baker JR on 26 August 2024.

30 Under 'Other Matters', the orders record, relevantly, as follows -

The first and fourth defendant applied on summons filed 7 August 2024 for leave to issue third party notices and to vacate the trial date. The plaintiff and third defendant had signed the consent minute. By email to the Court on 20 August 2024, the second defendant stated that she consented to the orders sought.

The Court relies on the affidavit of Stephen Walters, the solicitor for the first and fourth defendants, sworn 6 August 2024. The Court is informed that, following the former solicitors for the insurer of the first defendant ceasing to act on 2 August 2024, the first and fourth defendants seek to commence a third party claim against the first defendant's insurer. The parties agree that the trial date therefore cannot be maintained.

31 On 30 August 2024, the first and fourth defendants filed the third party claim.

32 On 4 December 2024, a new timetable of orders was made by consent by Baker JR. In particular -

(a) the proceeding was set down for trial to commence on Monday, 11 August 2025 before a judge and jury on an estimate of 10-12 sitting days;

(b) any application to adjourn or vacate the trial date was required to be made as soon as it was known that the trial was not ready to proceed on the date fixed;

(c) the parties were required to exchange any medical or expert reports on or before 28 March 2025 and to exchange any supplementary medical or expert reports no later than two months prior to the trial date;

(d) the parties were to have attended a mediation by 23 May 2025; and

(e) the proceeding was listed for post-mediation directions on 6 June 2025.

33 On 29 April 2025, orders were made by Ierodiaconou AsJ substituting 'Certain Underwriters at Lloyds' subscribing to policy NPP-11629-AH' as the third party and directing that the first and fourth defendants file and serve an amended third party notice. It was also ordered that the parties should exchange reports by 30 May 2025 as well as any supplementary reports no later than two months before the trial date.

34 On 30 May 2025, the plaintiff served updated particulars of special damage; again referring to cicatricial ectropion, psychiatric injury in the nature of PTSD as well as the reports of A/Prof McNab and Dr White.

36 The affidavit of the solicitor for the first and fourth defendants refers to events at the mediation, to which the plaintiff correctly objects. I disregard that paragraph.

37 In any event, more than two weeks after the mediation, on 24 July 2025, the solicitor for the first and fourth defendants emailed the solicitor for the plaintiff purporting to 'require' what was there described as 'a further medical examination' of the plaintiff.

38 Email between the solicitors ensued. Among other things -

(a) the solicitor for the plaintiff noted various features of the history, that the plaintiff was ready to proceed and that the proposed assessment might endanger the trial date;

(b) the solicitor for the first and fourth defendants responded to the effect that '[w]e had regarded this case as one the insurers would attend to' and said that appointments with a psychiatrist had been arranged on an urgent basis so, it was said, 'the hearing date is not disturbed'; and

(c) the solicitor for the plaintiff later stated, in substance, that no proper explanation had been given as to why the assessment had been delayed or was now needed and that her client had work commitments and was unable to attend on the days proposed.

39 The following day, 25 July 2025, the solicitor for the plaintiff wrote by letter to confirm that the plaintiff did not consent to the proposed psychiatric assessment and said that if it were proposed that an application be made to vacate the trial date it should be made as promptly as possible.

40 On 31 July 2025, seemingly following a conference with counsel on 25 July 2025, the solicitor for the plaintiff served certain treating medical records of Dr Howard Webster, plastic surgeon, including a letter dated 1 February 2025. Among other things, the letter refers to '[i]ncipient ectropion' with intervention said to be anticipated in '5-10 years'.

41 In that context, among other things, the solicitor for the first and fourth defendants deposes that -

(a) his instructions have been 'focused on the question of indemnity' relating to the first and fourth defendants, which issue remains in dispute;

(b) as the plaintiff's 'psychiatric wellbeing' had not been investigated by the previous solicitors', namely Colin Biggers & Paisley, '[w]e' (presumably meaning 'he'), had 'assumed' that 'it was not a major part of the case';

(c) after the mediation, he had been instructed to obtain a psychiatric opinion;

(d) the plaintiff had 'consistently refused' to attend a psychiatric examination;

(e) '[w]e' (meaning 'he') had been 'aware' that the plaintiff had seen Dr Webster and had been surprised that no report had been served;

(f) 'Dr Webster's opinion ... directly contradicts the plaintiff's claim';

(g) Mr Robbins had seen the plaintiff for 'the defendant', and the solicitor intends to seek the further opinion of Mr Robbins;

(h) Dr Webster is overseas and not returning to his rooms until 12 August 2025;

(i) the solicitor is unable to advise his clients on either liability or quantum in the absence of further medical information and clarification of the contradictions raised;

(j) the late service of material appears to require the vacation of the hearing date 'if arrangements cannot be made';

(k) the first and fourth defendant consent to the application of the third party;

(l) however, it is said that there would be 'some efficiency and saving' if the third-party proceedings were heard prior to the hearing of the plaintiff's case; and

(m) the first and fourth defendants will seek leave to join a 'further third party' once the third-party proceeding has been 'the subject of orders'.

42 I should note that in argument the solicitor for the first and fourth defendants seemed to indicate that, at least at some point, he had not had access to the file of Colin Biggers & Paisley. That said, there seems to be no question that he knew that there had not been any psychiatric examination of the plaintiff on behalf of the defendants and, I might add, the fact that he had apparently not had access to the file of Colin Biggers & Paisley might be thought to cast significant doubt upon whether the so-called 'assumption' could ever have been thought to be well founded.

(a) with respect, the affidavit of the solicitor for the first and fourth defendants does not articulate a comprehensible basis for the 'assumption' to which it refers;

(b) nor does it identify when and precisely who is said to have made that assumption;

(c) in that general connection, a flat decision at late notice not to proceed at all with a psychiatric examination is usually suggestive of a tactical decision not to seek an opinion that would subsequently need to be served and might at that time, or subsequently, end up presenting as more favourable to the plaintiff's case than that which had already been served;

(d) events referred to in argument might be thought to suggest that such a decision, if made, has subsequently been proved to have been justified;

(e) in any event, the so-called 'assumption', and any tactical decision made of the kind to which I have referred, must have occurred in a setting in which the only psychiatric reports served by the plaintiff were that of Dr White;

(f) in that regard, it was not said that any other psychiatric report had subsequently been served whether before the mediation on 9 July 2025 or since - indeed, in argument, the report of Dr White was essentially described as both old and the only relevant psychiatric evidence;

(g) it follows that the basis for the so-called 'assumption' does not seem to have changed since it was made, at least in regard to the psychiatric expert evidence;

(h) the affidavit does not exhibit the report of Mr Robbins, or state when it was obtained and, in substance, what it says;

(i) no real explanation has been given for the lapse of two weeks after the mediation on 9 July 2025 and the solicitor's first relevant email on 24 July 2025;

(j) although the affidavit suggests that the 'late service of material' appears to require the vacation of the trial date, no such relief is sought in the summons;

(k) no explanation is given concerning the so-called 'efficiency and saving' referred to in the affidavit;

(l) the 'further third party' is not identified; and

(m) no explanation is given for why it is that any application to join another third party cannot have been made now.

44 I should add that after service of the solicitor's affidavit, the solicitor for the plaintiff emailed asking for details of any medical examination that had been arranged, to which the solicitor for the first and fourth defendants responded that no such examination had been arranged but that he would 'try to do so if your client is willing to attend'.

45 In the course of argument, the solicitor for the first and fourth defendants was apologetic and sought to respond to several aspects of the above from the Bar table, as well as address some further and plainly unsatisfactory aspects of the history.

46 I do not regard that as standing to ameliorate the practical reality of the overall position created by the failure of the first and fourth defendants to move significantly earlier and as required by orders of the Court to which they seem to have consented. In my view, as generally indicated in the course of argument, the circumstances pertaining to the application presently made by the first and fourth defendants are so unsatisfactory that it is almost impossible to know where to start.

47 In any event, I should first deal with the application made by the third party in respect of the separate hearing of the third-party proceeding.

48 Among other things, the affidavit of the solicitor for the third party states that -

(a) the third-party proceeding is confined to an insurance dispute;

(b) such a matter is not appropriate for determination by jury;

(c) indeed, it would be prejudicial for the dispute to be placed before a jury;

(d) the third-party proceeding is not ready to proceed owing to outstanding interlocutory steps;

(e) in particular, the first and fourth defendants (who joined the third party), have not relevantly made discovery - albeit that the issue seems to have been raised in correspondence in early July 2025 - and, consequently, the third party has not yet been able to interrogate.

49 As I have noted, the application of the third party is supported by a helpful written outline of submissions as well as a relevant Full Court authority.

50 The solicitor for the first and fourth defendants did not make any explanatory affidavit in response to that of the solicitor for the third party (or, for that matter, in response to the affidavit of the solicitor for the plaintiff).

51 Notwithstanding the above, it remains apparent that the application made by the third party is, at the very least, unopposed.

52 It is also plainly convenient that the third-party proceeding be hived off and heard later as a cause. At the very least, it will be necessary for timetabling orders to be made in order that it might be properly prepared and mediated prior to trial.

53 For those reasons, as much as reasons of plainly applicable authority, it is not convenient for the third-party proceeding to be heard prior to the trial of the plaintiff's proceeding.

54 For completeness, I should say if any application is actually proposed to be made by the first and fourth defendant for leave to join another third party, that application should be made directly and without further delay.

55 Whether or not that application is ever made, the parties in the third-party proceeding should hereafter be preparing appropriately with a view to that matter being determined as a cause listed to commence on Monday, 16 March 2026.

56 I will discuss a timetable of appropriate directions with the relevant legal representatives in order that such a position might be achieved.

57 That brings me back to the application made by the first and fourth defendants for medical examination of the plaintiff and the service of any medical report during the trial.

58 I should pause to note that in recent times the Court has been caused to consider the seriously disruptive and undesirable effects of conduct and inaction such as the present. In that regard, I refer particularly to the decision of Tsalamandris J in Grimmett v Rivdale Pty Ltd (Trading as Angela Sdrinis Legal).[2] Although that decision concerns a late application by consent for adjournment of a trial date, many of the observations made in it are of considerable present relevance.

59 I have earlier referred to what I consider to be the highly unsatisfactory circumstances attending the present application.

60 To those might be added the following further considerations, which are not exhaustive -

(a) the solicitor for the first and fourth defendants has been on notice concerning the plaintiff's claims in respect of cicatricial ectropion and psychiatric injury since at least late July 2023 - which is more than two years ago;

(b) indeed, at that time, he had the reports of Dr White, psychiatrist;

(c) the so-called 'assumption' that the plaintiff's psychiatric claim is 'not a major part of the case' must have been formed with reference to that report and, as I have indicated, may have informed the peremptory cancellation of the appointment with Dr Neill;

(d) no proper foundation has been shown for the solicitor's belated change of view;

(e) in that regard, the solicitor's statement that focus has been on the 'question of indemnity' does not assist;

(f) more broadly, there was a listed trial date in September 2024, but that was vacated in August 2024 at the behest of the same solicitor;

(g) later that year a new timetable of orders was made by consent with a view to the trial commencing on Monday, 11 August 2025;

(h) among other things, that timetable required the service of medical and expert reports by March 2025 and the service of any supplementary reports no later than two months before trial, as well as that any application to adjourn or vacate the trial date be made as soon as it is known that the trial is not ready to proceed;

(i) notwithstanding those orders, the solicitor appears to have since assembled no relevant expert evidence beyond that assembled by his predecessors or, indeed, given much in the way of detailed consideration to whether the determination not to require the plaintiff to attend for psychiatric examination should have been revisited, at least until relatively recently;

(j) the lapse of time generally, and especially before and since the mediation in early July 2025, has not been adequately explained;

(k) the plaintiff seems long to have been prepared for the trial to run commencing on the re-listed date;

(l) the third defendant does not join in the application, does not require any further evidence and does not say that she is not now ready for trial;

(m) I accept that now requiring the plaintiff to attend a psychiatric examination would, in a practical sense, require that the trial date must be vacated;

(n) among other things, I imagine that the plaintiff would, in due course, want to get a responding or supplementary psychiatric opinion of her own;

(o) in circumstances where it is quite conceivable that there was an early tactical decision that I could not say was plainly wrong, and such an obvious tactically informed approach would seem to remain available to the first and fourth defendants at trial without the conduct of a psychiatric examination of the plaintiff, I am not satisfied that allowing that part of the case to be further investigated would ultimately be likely to be shown to have justified its presently costly and disruptive effect;

(p) in that regard, I am of the view that there can be a fair trial of the proceeding on the material evidently available;[3]

(q) as to the material recently served by the plaintiff, it is, if anything, to the benefit of the defendants; and

(r) that being the case, I expect that it can be dealt with practically by, at the very least, obtaining comment from Dr Robbins and serving a note of that opinion - which, of course, is a step often taken in respect of late discovered material and without any need to vacate an imminent and long fixed trial date and, helpfully, counsel for the plaintiff indicated that there would likely be no objection if such a step were promptly to occur.

61 More broadly, I should say that a refusal of the application made belatedly by the first and fourth defendants seems to me to be consistent with the requirements of ss 7, 8 and 9 of the Civil Procedure Act 2010 (Vic). In that regard, it seems to me that allowing the present application would be much more likely to be contrary to the just, efficient, timely and cost-effective resolution of the real issues in dispute than refusing it.

62 For these reasons, the summons of the first and fourth defendants must be dismissed.

63 Notwithstanding the above, I am conscious of the following considerations bearing upon the immediate preparation of the matter for trial -

(a) orders of the usual kind - concerning matters such as witness lists, lists of documents, a Court book and a joint memorandum - have not yet been made, but those steps should be attended to prior to trial and will require some short time;

(b) in that connection, I have had enquiries made and, consistent with the requirements of the business of the Court next week, the commencement date for the trial may be able to be pushed back to Tuesday, 12 August or Wednesday, 13 August 2025; and

(c) I am also informed that there would be availability for a judicial or court-annexed mediation in the main proceeding on Monday, 11 August 2025 at 2:00pm.

64 Within the bounds of those parameters, I will hear the parties concerning the making of appropriate orders, including in respect of costs.

CERTAIN UNDERWRITERS AT LLOYDS' SUBSCRIBING TO POLICY NPP-11629-AH

[1] AMP Fire & General Insurance Co Ltd v Dixon [1982] VicRp 83; [1982] VR 833.

[2] [2025] VSC 122.

[3] Cf Davies v Nilsen [2015] VSC 584, [108].