Central Sydney Area Health Service v Cooper [2001] NSWCA 329

Dyer v Jones, unreported; DCt of WA (Yeats DCJ); Library No 5176; 25 November 1995

Hamersley Iron Pty Ltd v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - WA Branch [2000] WASC 66

Hodge v Shire of Swan [1999] WASCA 94

Krygger v Commonwealth, unreported; FCt SCt of WA; Library No 940070; 1 February 1994

Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96

Rowe v Australian United Steam Navigation Company Ltd [1909] HCA 25; (1909) 9 CLR 1

Tace Pty Ltd v Coles Myer Ltd, unreported; FCt SCt of WA; Library No 8514; 27 September 1990

United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156

1 JUDGMENT OF THE COURT: This is an application for leave to appeal against the refusal, by a Judge of the District Court, of an application for the adjournment of a trial. At the conclusion of argument on the application, which was brought on as a matter of urgency, we granted leave to appeal and allowed the appeal, saying that we would publish our reasons later. These are our reasons for those decisions.

2 The appellant is the plaintiff in an action commenced by him against the first respondent. On the evening of 21 September 1989, the appellant attempted to use what he describes as a "flying fox" in a public park known as "Bardon Park" in Maylands in Western Australia. He lost his grip on the handgrip of the flying fox and fell to the ground. He was seriously injured and is now a quadriplegic. In his action the appellant contends that his injuries were caused by the negligence of the first respondent which was the occupier of, and the authority responsible for, the park. He alleges that it failed to take various steps which should have been taken by it and which, if taken, would have avoided the accident.

3 The first respondent, in its defence, denies that it was negligent in any of the respects alleged by the appellant. It contends that the appellant's injuries were a consequence of his own negligence in six different respects, one of which is that he used the flying fox (described by it as a "track ride") after consuming alcohol. The first respondent has also pleaded that the appellant's injuries were caused by the negligence of the second respondent which, it says, was an independent contractor engaged by it to manufacture, supply, install and maintain the track ride at the park. The first respondent has joined the second respondent in the action as a third party.

4 The appellant commenced the action, by writ, on 18 June 1993. Thereafter, the action drifted on at a leisurely pace for some years. It was eventually entered for trial on 15 July 1998. After that date matters continued to proceed at a relaxed pace. Trial dates were only allocated, more than three years later, at a pre-trial conference held on 22 November 2001. Even then, the appellant was not ready for trial. At the pre-trial conference, his then counsel asked the Principal Registrar, who conducted the conference, to list the matter for trial notwithstanding that it was the appellant's intention to adduce further expert evidence in response to expert reports which had been provided by the first respondent. He said that this further expert evidence encompassed engineering reports and a report from a bio-mechanic. The Principal Registrar acceded to the appellant's request notwithstanding objection by the respondents. He also made provision for the filing of further reports by the respondents. He made, inter alia, the following orders:

"(1) the parties do have leave to adduce non-medical expert evidence at the trial of issues the substance of which or copies whereof be provided in writing by the plaintiff to the defendant and third party within 50 days and by the defendant to the plaintiff and third party within 50 days of service;

(2) the third party do provide to the plaintiff and the defendant in writing the substance of copies of its non-medical expert evidence within 28 days of service of the defendant's substance of non-medical expert evidence."

5 The Principal Registrar then ordered that the action "be provisionally listed for trial" for a period of 10 days commencing on 2 September 2002.

6 On the day before the making of these orders, on 21 November 2001, a report was prepared for the second respondent by Dr Frank Daly, a consultant clinical toxicologist. That report referred to prior correspondence between the solicitors for the second respondent and Dr S D Vasikaran, the head of the Department of Core Clinical Pathology and Biochemisty at Royal Perth Hospital, dealing with the appellant's plasma osmolality at the time of his admission to hospital which, it seems, was higher than the normal range. In a letter to the second respondent's solicitors dated 6 August 2001, Dr Vasikaran had said that, assuming that the appellant's blood glucose was within normal limits, his elevated osmolality could be explained by the presence of an unmeasured substance in his blood. In a later letter dated 3 October 2001, he said that there were various possibilities as to what that substance might have been. Some of the possibilities were ethanol (alcohol), mannitol, methanol, isopropanol, ethylene glycol, propylene glycol, sorbitol and glycine. Dr Vasikaran's letters suggested that, if all possibilities other than alcohol could be excluded (and mannitol, sorbitol and glycine are used in treatment by medical staff), an estimate of the appellant's blood alcohol content could be made and this would amount to approximately 0.2 per cent. That, of course, would indicate that the appellant was highly intoxicated at the time of the accident. Dr Daly, in his report, concluded that it was unlikely that any drugs would have been administered to the appellant containing any of the substances to which Dr Vasikaran had referred or which might have the potential to alter the appellant's serum or plasma osmolality. He discussed the various drugs which might have been administered to the appellant and expressed conclusions as to their likely effect.

7 The existence of that report was not disclosed at the pre-trial conference and nor had there, by that time, been any mention to the appellant's solicitors of the issue of plasma or serum osmolality. The Principal Registrar was not told of the prospect of any report in that respect being relied upon by the respondents.

8 The expert reports which had been foreshadowed by the appellant were required to be provided on or before 2 February 2002, if the orders made on 22 November 2001 were to be complied with. They were not provided by that date. Some 10 days later, an informal conference was held between the solicitors for the parties in an endeavour to agree the quantum of the claim. At that conference the appellant's solicitor was told by the second respondent's solicitor, in the presence of the first respondent's solicitor, that evidence was available to indicate that the appellant was substantially affected by alcohol at the time of the accident, although, it seems, no details were given.

9 During the following month the appellant's solicitor was provided, in different proceedings, with a report from Dr Daly and one from another doctor, Dr David Joyce, which dealt with osmolality readings derived from hospital records in respect of the plaintiff in those other proceedings. The respondents contend that the appellant's solicitor must consequently then have become aware that evidence of that kind would be led in these proceedings. In any event, in the course of subsequent discussions between the solicitors for the parties in these proceedings, the issue of osmolality evidence was mentioned by the solicitors for the first respondent.

10 On 21 March 2002 Dr Vasikaran signed a report, which was presented by him to the second respondent's solicitors, dealing with the issue of plasma osmolality. It touched upon various factors which could have influenced the appellant's osmolality reading, including such matters as the time of his last meal before admission to hospital. He said that, assuming the presence of alcohol in the appellant's blood and a plasma glucose level of 5.0 mmol/L, and assuming also the presence of no unmeasured substance other than ethanol to account for the raised osmolality, the appellant's blood alcohol level would have been approximately 0.2 per cent at the time of his admission to hospital.

11 On 27 March 2002 the second respondent's solicitors provided Dr Vasikaran's report to the first respondent's solicitors "on a confidential and 'without prejudice' basis".

12 By this time, the respondents had made a number of inquiries of the appellant's solicitors as to the whereabouts of their foreshadowed expert reports. However, none had been forthcoming. Then, on 11 April 2002, the first respondent's solicitors informed the appellant's solicitors that the first respondent would not provide further expert evidence in relation to the appellant's blood alcohol reading other than in accordance with the Court's programming.

13 By letter dated 23 May 2002 the first respondent's solicitors wrote to the appellant's solicitors complaining that the expert reports which had been foreshadowed by them had still not been received and informing them that, unless those reports were received by 24 May 2002, the first respondent would apply to have the trial dates vacated. That letter appears to have spurred the appellant's solicitors into action. On 23 May 2002 they provided the respondents with a report from Mr Andrew Van der Meer dated 16 April 2002. Mr Van der Meer is a consulting engineer who had examined the equipment from which the appellant had fallen and its surrounds. That report dealt with the force at which the appellant would have decelerated after hitting the firm sand beneath the flying fox from which he fell compared to the deceleration force which would have been experienced by him had he come to rest in loose sand.

14 Four days later, on 27 May 2002, the parties were able to agree upon the quantum of the appellant's claim. They fixed his entitlement at a figure of $2,800,000, plus special damages, if he should be entirely successful at trial.

15 Then, on 29 May 2002, the solicitors for the appellant informed the solicitors for the respondents that they would not adduce further expert evidence.

16 In the interim, on 29 April 2002, the solicitors for the first respondent had received a report from Dr David Joyce. This report, which ran for some 16 pages, dealt exclusively with the serum osmolality issue. On 25 June 2002 Dr Joyce provided the solicitors for the first respondent with an addendum to his earlier report based upon copies of ambulance records relating to the applicant's transport from the park to the hospital and copies of the hospital case note records.

17 On 29 July 2002, two months after being told that the appellant would not adduce further expert evidence, the first respondent provided the appellant, for the first time, with the reports of Dr Vasikaran and Dr Joyce. The first respondent had been authorised by the second respondent, on that day, to release those reports, Dr Joyce's report having referred to, and to some extent relied up, Dr Vasikaran's report.

18 On 9 August 2002 the appellant lodged a chamber summons for directions, returnable on 19 August 2002, seeking an order precluding the respondents from relying upon the expert evidence of Dr Vasikaran and Dr Joyce upon the ground that that evidence had come too late. The trial Judge dismissed that application and adjourned the summons for directions in order to enable the appellant's solicitors to make further inquiries as to the availability, at short notice, of evidence dealing with the matters raised in these reports.

19 Then, on 16 August 2002, the solicitors for the second respondent served on the appellant's solicitors the report of Dr Frank Daly dated 21 November 2001.

20 The appellant's solicitors formed the opinion that they were in no position to meet the respondents' expert evidence on the osmolality issue in the short time available to them before trial. They consequently filed a chamber summons seeking the vacation of the trial dates. The summons was dated 22 August 2002 and was returnable on the following day. It was supported by affidavits deposing to the difficulties faced by the appellant as a consequence of the late service of the reports provided by the respondents. These difficulties included such problems as an inability, in the available time, to obtain sufficient information about the treatment which had been given to the appellant at hospital, insofar as it might bear upon the osmolality issue, and difficulties in obtaining expert advice with respect to the consequences, for the appellant's plasma osmolality level, of facts so revealed. The affidavit evidence also deposed to difficulty in locating further evidence, the importance of which had now become much greater, touching upon the appellant's intoxication or otherwise at the relevant time.

21 The appellant's solicitors had, by then, spoken to Mr John Ker, an orthopaedic specialist at Royal Perth Rehabilitation Hospital, who treated the plaintiff and who apparently said that there was a significant variance between the appellant's condition as recorded in the hospital notes and as now contended for by the respondents. Attempts had also been made to locate doctors, and others, at the hospital who might have been able to shed light on the appellant's state of intoxication. The appellant's solicitors deposed to the fact that they had experienced difficulty in identifying and retaining suitable experts on the issue of osmolality and in the course of attempting to obtain, for provision to potential expert witnesses, all of the relevant information on the whole range of matters which might affect an osmolality reading. They said that they had approached Mr Richard Langham, a pharmacologist and physiologist employed by an organisation known as Curtin Consultancies, but that he was unavailable over the material period. Mr Langham referred them to a colleague, Mr Max Page, but he was unavailable to "deal with the matter" prior to the end of August 2002. Another pharmacologist, based in New South Wales, was approached. He was able to assist, but could not give evidence on relevant clinical issues which, he said, required the services of several medical specialists. Letters inquiring about the availability of suitable experts were sent, on 16 August 2002, to 12 major public hospitals throughout Australia. The appellant's solicitors have also asked their correspondents in New South Wales to assist them in their search. Those correspondents have identified a potential expert, but he could not be fully briefed before the end of August 2002.

22 The respondents' solicitors lodged affidavits in opposition to the appellant's application. They told of inquiries which they had made of potential expert witnesses on the osmolality issue. They said that the results of these inquiries (which they placed before the Court) demonstrated that the appellant should have no difficulty in obtaining experts of the required calibre at short notice. However, the inquiries which were made (by the solicitors for the first respondent) were expressed in the most general of terms and, in all but one case, said nothing as to the availability of information which might be required by those to whom they were addressed. Moreover, the first respondent's solicitors appear to have assumed that the appellant's solicitors would have no difficulty in identifying what information was needed by the proposed expert, obtaining it and then providing it to that person in the available time. That, on the affidavit evidence of the appellant's solicitors, is plainly not the case.

23 The trial Judge, having considered all of this evidence, refused the appellant's application for vacation of the trial dates. She gave ex tempore reasons for doing so.

24 Her Honour said that, in reaching her decision, she took into account "the position of the court and listings and matters of that nature", although, she said, these were not determinative. She also took into account the fact that, as she put it, "the plaintiff's solicitors were put on notice as early as 1993, perhaps not in precise and very detailed form, that intoxication or alleged levels of intoxication of the plaintiff at the relevant time were going to be a central issue in ... [the] matter". She said that that issue had "never gone away" and had "developed to a degree". She said that it had been made plain, in February 2002, that proof of the issue of intoxication "was going to go well beyond questions and evidence confined to the observations of lay persons". She said also that medical notes had been available "almost from the outset" and that, while in a "perfect world" she could understand the appellant's counsel's "desire to present the best possible case", she was unsure that that was not going to happen in the limited time available. She said, in this last respect, that, as she understood the position, there were experts available who could be contacted and questioned about the issue of osmolality. She said that she took the view that this was not a matter in which justice would be served if the trial dates were to be vacated. Finally, her Honour said that, while there "may be some criticisms levelled" in respect of the provision of the expert reports, the solicitors for the respondents had "done nothing wrong in the sense that they ... [had] not attempted to create a situation of trial by ambush" and had not "acted in a way that is going to result in a grave injustice being worked against the plaintiff ...".

25 The grounds of appeal, insofar as they were pursued on behalf of the appellant, are lengthy and prolix. In essence, they amount to the contention that her Honour's decision worked a substantial injustice to the appellant and that the only proper exercise of discretion was one which should have seen the trial dates vacated.

26 With due respect to the trial Judge, we are unable to agree with her conclusion that the refusal of an adjournment would not result in a grave injustice to the appellant.

27 No doubt it is true that the solicitors for the appellant always knew that the appellant's alcohol consumption was likely to be a matter of considerable significance at the trial. They also knew, by March 2002, that the osmolality issue would be raised. However, they did not know what conclusions had been or would be reached by the respondents' experts in that respect (and therefore how important these conclusions might be at the trial), or upon what reasoning those conclusions had been or would be based, and nor is there anything to suggest that they knew what fact or facts were material to those conclusions. Whatever else may be the position, it is plain, from the affidavits which have been filed and to which we have earlier referred, that the investigation of the factual issues which must be carried out in order to provide a proper basis for any answering reports, and the obtaining of those answering reports (which may prove to be of critical importance), could not adequately be undertaken in the very limited time available between the date of receipt of the respondents' reports and the commencement of the trial.

28 We are also unable to agree with the trial Judge that the respondents' solicitors have done nothing wrong.

29 In our opinion the conduct of the second respondent's solicitors, in particular, was entirely wrong. They knew of Dr Daly's report even prior to the pre-trial conference on 22 November 2001, but said nothing of their intention to lead expert evidence of that kind. They received Dr Vasikaran's report on 21 March 2002. They could have provided both reports to the appellant's solicitors or they could have authorised the first respondent to do so at any time after those reports had been signed. They did not do so. They only authorised the first respondent's solicitors to provide the appellant with the report of Dr Vasikaran on 29 July 2002, a month before trial and four months after Dr Vasikaran's report had been presented to them. We have mentioned that the first respondent's solicitors then provided the appellant's solicitors with a copy, also, of Dr Joyce's report which, as we have said, referred to and relied upon Dr Vasikaran's report. This was three months after that report had been provided to them and one month after Dr Joyce had presented them with an addendum to his report. The second respondent's solicitors provided the appellant's solicitors with a copy of Dr Daly's report on 16 August 2002, just over two weeks prior to the trial, notwithstanding that they had had it for almost nine months.

30 The explanation offered by the solicitors for the second respondent for their conduct is that, pursuant to the orders which were made by the Principal Registrar on 22 November 2001, the first respondent was required to provide its expert reports only within 50 days of service upon it of the appellant's expert report or reports and the second respondent was required to file and serve its reports only within 28 days of service upon it of the first respondent's reports. That explanation is entirely unsatisfactory. In our opinion it does nothing to excuse the conduct of the solicitors for the second respondent. They well knew that the timetable which had been set by the Principal Registrar for the provision of reports by the respondents assumed that the appellant would comply with its obligations. Moreover, it seems to us to be obvious that the Principal Registrar assumed, also, that the reports to be lodged by the respondents would be non-medical reports which answered matters raised by the reports which had been foreshadowed by the appellant's solicitors. If the reports provided by the respondents are properly categorised as "non-medical expert evidence" (which seems to us to be questionable), they plainly do not, and were never going to, answer anything raised by Mr Van der Meer's report or by any other engineering or bio-mechanical report which might have been prepared on behalf of the appellant.

31 It seems to us that the second respondent's solicitors deliberately embarked upon a course of conduct, acquiesced in or, at the very least, not resisted by the solicitors for the first respondent (who, on the present state of the evidence, appear never to have asked the solicitors for the second respondent whether they could provide the appellant's solicitors with the report of Dr Joyce or, for that matter, that of Dr Vasikaran, sooner than they did), which was designed to inflict the maximum possible prejudice upon the appellant if his solicitors did not serve their foreshadowed expert report or reports on time. The fact that the respondents' solicitors knew that the report or reports to be provided on behalf of the appellant were not intended to address the issue of osmolality appears to have made no difference to them.

32 Conduct of that kind should not, in our opinion, be condoned by this, or any, Court. While it is not difficult to understand the frustrations which must be experienced by a defendant which is faced with a dilatory plaintiff, there were other remedies available to the respondents. Either or both of them could have taken out a summons seeking orders requiring the appellant to provide his reports within a specified period of time on pain of not being permitted to do so, at all, thereafter. However, neither took any such action. Instead, they waited until it was far too late for the appellant to provide an adequate and carefully considered response to their reports.

33 Litigation is not a game, played for the amusement of the lawyers engaged to conduct it, in which they are free to take advantage, in any way they like, of errors, incompetence or dilatoriness on the part of their opponents. Rather, it is a process which is ordinarily of vital importance to the parties who have the misfortune to become caught up in it. The purpose of rules requiring disclosure of expert evidence is that of ensuring that no-one is taken by surprise at trial and that each party is to have an adequate opportunity to consider, investigate and, if necessary, answer expert evidence to be led by an opposing party. Conduct of the kind engaged in by the solicitors for the second respondent in this case is antithetical to that purpose. There was no justification for their failure to disclose to the Principal Registrar that they proposed to lead evidence of the kind ultimately put up by them and their explanation for failing to produce their report other than in accordance with the timetable set by the Principal Registrar is, in those circumstances, specious, especially given the fact that the reports withheld by them did not even pretend to answer the report or reports to be provided by the appellant's solicitors.

34 The conduct of the first respondent's solicitors, while better, still fell short of what was required. On the face of it, as we have said, they did nothing to encourage or even request the second respondent's solicitors to agree to the disclosure of the reports (insofar as that might have been necessary) and nor did they bring any application designed to require the appellant to act more promptly. While they did, at least, alert the appellant's solicitors to the issue of osmolality, that, as we have said, was not enough to enable those solicitors to answer reports about which they knew nothing. Moreover, their expert's report was, as we have said, provided to the appellant's solicitors two months after they had been told by the appellant's solicitors that the appellant did not propose to lodge any additional expert reports and three months after that report had been provided to them (although the addendum to that report was, as we have said, provided to them two months later). The fact that the partner who had the supervision of the matter on behalf of the law firm representing the first respondent was absent overseas from 22 June 2002 until 22 July 2002 provides no sufficient excuse for what was done. The firm is a large one and there were others in it who could, and should, have taken on that responsibility.

35 It was urged upon us that to allow an adjournment in a case such as this would result in case management principles being set at nought. That is a contention which does not bear analysis. There is a range of remedies (some of them drastic) available to any party faced with dilatoriness on the part of an opposing party. Good case management ensures that those remedies, including the making of appropriate costs orders, are utilised in order to deal with conduct of that kind. It hardly warrants mentioning that good case management does not countenance tactics of the kind which were used in this case, in which the dilatoriness of the appellant's solicitors was met only by the withholding of vital evidence until it was too late for the appellant adequately to answer it.

36 There is no doubting the proposition that litigation is not merely a matter for the parties and that courts can, and will, take into account the need to avoid disruptions in their lists which inconvenience the courts and prejudice the interests of other litigants (Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 at 849, per Toohey and Gaudron JJ). But that does not mean that principles established in such cases as Cropper v Smith (1884) 26 Ch D 700 (in which Bowen LJ said, at 710, that the object of the courts is to decide the rights of the parties and not to punish them for mistakes made in the conduct of their cases by deciding otherwise than in accordance with rights) can be ignored: see Clough & Rogers v Frog (1974) 48 ALJR 481 and Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, at 154, per Dawson, Gaudron and McHugh JJ.

37 In JL Holdings, at 154, Dawson, Gaudron and McHugh JJ said, of Sali, that:

"... nothing in that case suggests that those principles [of case management] might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim."

"Justice is the paramount consideration in determining an application such as the one in question [there an application for amendment which, though arguable, was likely to result in the vacation of the hearing date which had been fixed for the trial]. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary Judge was, in our view, in error in the exercise of her discretion."

39 Recognising the importance of the discretion attached to the decision of the trial Judge in such matters as an application for an adjournment (as to which see JL Holdings at 164, per Kirby J, and Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246, at 252), it seems to us, with due respect, that her Honour's decision resulted in a serious injustice to the appellant (as to which see Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566 at 569, per Asprey JA) and that her Honour's exercise of discretion was vitiated by her error in substantially underestimating, or undervaluing, the prejudice to the appellant and in failing to appreciate the impropriety of the conduct of the solicitors for the respondents.

40 It was for those reasons that we formed the opinion that the application for leave to appeal should be granted (as to which see Wilson v Metaxas [1989] WAR 285 at 294) and that the appeal should be allowed and the trial dates vacated. The parties have yet to be heard on the issue of costs.