Adham v Ashcroft
[2023] ACTSC 277
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Adham v Ashcroft |
Citation: | [2023] ACTSC 277 |
Hearing Date: | 29 September 2023 |
Decision Date: | 29 September 2023 |
Before: | Mossop J |
Decision: | 1. The appeal is dismissed. 2. The costs of the appeal are each party’s costs in the cause. |
Catchwords: | APPEAL – APPEAL FROM REGISTRAR – Decision of Senior Deputy Registrar to list matter for hearing – defendant in these proceedings is also the defendant in other proceedings listed for hearing concurrently – defendant wishes to be present for entirety of both proceedings – plaintiff wishes to have case heard as soon as possible – moving the listing date may result in matter being part heard or significantly delayed – potential for settlement in advance of hearing – current listing appropriately balances interests of plaintiff and defendant – appeal dismissed |
Parties: | Dr Omar Adham (Appellant) Julie Ashcroft (Respondent) |
Representation: | Counsel A Hearne (Appellant) A Jorgensen-Hull (Respondent) |
| Solicitors HWL Ebsworth Lawyers (Appellant) Ken Cush & Associates (Respondent) | |
File Number: | SC 152 of 2022 |
Decision Under Appeal: | Court/Tribunal: Supreme Court of the ACT Before: Senior Deputy Registrar Kennealy Date of Decision: 12 September 2023 Case Title: Ashcroft v Adham Court File Number: SC 152 of 2022 |
MOSSOP J:
Introduction
This matter is an appeal from a decision of the Senior Deputy Registrar to list a medical negligence matter for hearing. An appeal from the Senior Deputy Registrar is a hearing de novo. The Senior Deputy Registrar listed the matter for hearing on 6 May 2024. The parties have served their medical evidence.
The position of the defendant, which is the appellant from the decision of the Senior Deputy Registrar, is that the hearing should not have been listed on the date that it is because in the week prior to the listed date the defendant has another proceeding in which he is the defendant. The other proceedings also involve a medical negligence claim which is estimated to run for seven days.
In those circumstances, notwithstanding that he will be represented by lawyers instructed by his insurer, he submits that the current hearing should not be listed to commence on a day when the other hearing may be continuing because he wishes to be able to instruct in each of the proceedings and be present in each of the proceedings. Both proceedings are scheduled to be the subject of mediations in November of this year.
The position of the plaintiff is that she wishes to maintain her hearing date and she does not wish the hearing to be pushed back to a later date, the earliest possibility for which might be the civil hearing blocks in July 2024, but having regard to the state of the lists, may well be later.
Decision
Had there been the potential for the hearing to continue into the week commencing 13 May 2024, then the issue would have been relatively straightforward. If the first matter involving the defendant continued into the week of 6 May 2024, then it would be possible to have the current matter continue into the week commencing 13 May 2024. However, that is a week during which the Court of Appeal is sitting, and it would not be appropriate to list the matter on the basis that the present hearing could simply continue into the subsequent week.
In the circumstances, the positions taken by both parties have been reasonable. The plaintiff wishes to have her case heard as soon as possible. The defendant wishes to be available and present throughout the whole of both potential cases. The fundamental difficulty is that the court never has sufficient time to accommodate all of the hearings which are listed before it and must make decisions which are inconvenient and expensive to parties, or have the potential to be so if cases in the court's list do not settle at the expected rate.
In the present case, there are a number of ways in which the listing on 6 May 2024 may be appropriate. First, there is a real prospect that the proceedings will settle, in which case, these issues go away.
Second, if there is the potential for there to be some overlap, having regard to the length of the two cases, then it is certainly a possibility that the second matter proceed in circumstances where that would mean, as a practical matter, the defendant would not be able to continue to be present during the first matter. That possibility must be assessed in light of the fact that the defendant is represented by his insurer and that the evidence in the case is likely to be substantially completed in the first week available for that hearing.
The third possibility is that if the decision is made that it is appropriate for the defendant to be present throughout the whole of the initial hearing and that goes for no more than seven days, then his presence at both hearings could be accommodated and the start date for the second hearing put back with the almost inevitable consequence that if the case runs it would be commenced but not completed and hence would have to be adjourned part heard to a subsequent date, which may well increase costs and inconvenience to the parties.
None of these possibilities, except perhaps the settlement of the proceedings, will be entirely satisfactory. In my view, the listing of the matter on 6 May 2024 appropriately balances the interests of the plaintiff in having the matter proceed, the state of the readiness of the parties, the potential for the settlement of the proceedings in advance of that date and the interests of the defendant.
The approach adopted by the Senior Deputy Registrar was to grant liberty to apply so as to address any particular difficulties that would arise from the relationship between the two proceedings and in circumstances where one or both of the matters did not settle. In my view, that course was an appropriate one.
For those reasons, I consider that the matter is appropriately listed on 6 May 2024 with all the potential difficulties that it may encompass, and, as a consequence, that the appeal should be dismissed.
Costs
In relation to costs, the submission made on behalf of the defendant is that the appropriate order is that each party bear its own costs. The submission made on behalf of the plaintiff is that the appropriate order is that costs be costs in the cause. The starting point is that, in the ordinary course, costs would follow the event.
In my view, it is appropriate that costs be costs in the cause. That is a departure from costs following the event and it recognises that on an administrative listing matter where both parties have legitimate concerns, it is perhaps less significant to treat the matter as one where costs should simply follow the event. However, I do consider that costs should ultimately be recoverable and that there is no appropriate reason that the parties should simply be required to bear their own costs. There was no conduct or other reason which would warrant depriving the ultimately successful party of the costs of this appeal as part of the overall costs of the proceedings.
Orders
For those reasons the orders that I make are:
1.The appeal is dismissed.
2.The costs of the appeal are each party’s costs in the cause.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 27 October 2023 |
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