Consideration
14 In light of the history of the way in which the parties have conducted these proceedings, I do not accept that the insured for one minute believed that Dr Hampshire's report would be admitted by consent. Clearly, it was not a business record, having been prepared for proceedings in the Local Court of New South Wales. And, it would not be available to be relied on unless it were used as a proof of evidence. In the ordinary course of litigation, expert medical evidence of this kind would be the subject of a proper report. Then, first of all, the insurer would be permitted to seek to obtain evidence in relation to it and also to seek to have Mrs O'Shannassy medically examined, if it wished, by its own psychiatrist or other medical or psychological qualified professional.
15 The insurer has indicated that it is likely to object to the admissibility of Dr Hampshire's report in any event next week, but has suggested that it may be able to meet the prejudice that has been caused by what, I accept, was the inadvertent lateness of the full report of Dr Hampshire coming to light only last week, by having the insured procure and provide to its solicitors by 5 o'clock tomorrow, all records of all medical treatment received by Mrs O'Shannassy from the date of the accident on 16 January 2008 until today. Depending on how that is answered, the insurer will be able to assess its position and may wish to deal at the trial with whether or not the evidence proposed to be adduced in reply should be admitted, or whether there is prejudice from the failure to adhere to the Court's directions.
16 On 1 January 2010, Pt VB of the Federal Court of Australia Act 1976 (Cth) commenced. In s 37M, the overarching purpose of the civil practice and procedure provisions of the Act are stated to be the just resolution of disputes according to law and as quickly, inexpensively and as efficiently as possible. The Act now codifies the duty, not only of the Court, but of the parties and their lawyers, to cooperate in the achievement of the overarching objective.
17 But it should not be thought that that overarching objective and those ends of justice have not been prominently a part of this Court's practice and procedure for many years. In White v Overland [2001] FCA 1333 [4], Allsop J eloquently demonstrated that this is so. I drew on his remarks and those of others in Intel Corporation v Unwired Group Limited [2008] FCA 1927 [63]-[64], to identify that:
"… the purpose of case management and the docket system adopted by this Court was to enable both the parties and the Court to be informed, from the outset of the case each of the parties intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3]-[4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160]-[162] per Allsop P, with whom Beazley and Campbell JJA agreed."
18 In Maniotis v JH Lever & Co Pty Limited [2006] FCAFC 7 at [72], Finn, Emmett and Bennett JJ said:
"In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4]."
19 These principles apply even in personal injury litigation where, as Heydon JA observed in Nowlan v Marson Transport Pty Limited (2001) 53 NSWLR 116 at [30], the ambush theory of life has been abandoned. In Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (2008) NSWCA 243 [160]-[162], Allsop P, with whom Beazley and Campbell JJA agreed, reiterated his earlier views. He said that the need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives clearly flowed from the statutory duty in New South Wales that is now similar to that in Pt VB of the Federal Court of Australia Act. He traced these to having then developed in Australia and England from at least the early 1990s and in the context of the "cards on the table approach" that had been identified by Ipp J in Boys v Colins (2000) 23 WAR 123.
20 In my opinion, the insured has demonstrably failed to identify properly the important new issue which it now seeks to rely on at the trial commencing next week.
21 In my view, it could not reasonably have been thought, having regard to the degree of contest evident between the parties, that the insurer would simply consent to the admission of Dr Hampshire's report, unheralded and unflagged as it was, even if the full version had been served on 24 December. In Aon Risk Services Australia Limited v The Australian National University (2009) 239 CLR 175 at 211 [92]-[93], Gummow, Hayne, Crennan, Kiefel and Bell JJ observed that the principles of case management are now an accepted aspect of the system of civil justice administer by courts in Australia. They said that it had been recognised some time ago by courts in this country and elsewhere in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. They observed that the achievement of a just, but timely, and cost-effective resolution of dispute has an effect upon the court and upon other litigants.
22 The explanation that there was a psychiatric reason why Mrs O'Shannassy behaved in the way she did that could be possibly inconsistent with the inference which I apprehend the insurer will seek to have drawn, that she was manifesting evidence of intoxication, was clearly a part of the insured's case since, at least, by the time of the directions hearing on 23 October 2009. Because the insured intended to rely on that report then, it should have been made clear that was to happen and proper directions should have been prepared to enable the insurer to have had the opportunity to obtain its own medical evidence to deal with that issue. It is a matter of considerable concern that the Court was not properly informed of this issue being on the table. In my opinion, this was an inappropriate departure from the principles that apply to proper case management and should never have happened. It is a matter that should not be repeated.
23 In the light of what the insurer has put as its preferred course of action, it seems to me that I should make an order in relation to the production of the medical records that it seeks and refuse the adjournment application, leaving it to the trial to determine whether, and to what extent, any evidence of the kind raised by Dr Hampshire's report may be deployed in evidence.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.