Armstrong v State of New South Wales

[2021] NSWSC 797

Supreme Court

New South Wales

Medium Neutral Citation:

Armstrong v State of New South Wales [2021] NSWSC 797

Hearing dates:

30 June 2021

Date of orders:

30 June 2021

Decision date:

30 June 2021

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court grants the application for expedition.

Catchwords:

CIVIL PROCEEDINGS – personal injury – expedition – hardship – loss of proceedings – orders made

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33

Vaughan v Dawson [2005] NSWSC 33

Category:

Procedural rulings

Parties:

Brett Armstrong (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
E Chrysostomou (Plaintiff)

Solicitors:
Benjamin Leonardo Criminal Defence Lawyers (Plaintiff)
Makinson d'Apice Lawyers (Defendant)

File Number(s):

2019/59287

Judgment

1. HIS HONOUR: The plaintiff, Mr Brett Armstrong, moves on the notice of motion filed 3 June 2021 (“the application”) and reads the affidavit of Pasquale Centraco, sworn 3 June 2021 and the plaintiff, sworn 9 June 2021. The application is for expedition.

2. The application is consented to by the defendant, the State of New South Wales (“the State”), without admission as to the merits of the application. A further reservation was raised, however, by the solicitor for the defendant, Mr N Regener, that expedition should be subject to the availability of counsel (that contention dissipated, to some extent, during the course of the hearing).

Background to the Principle Proceedings

3. By a statement of claim filed on 22 February 2010, proceedings were commenced against the State by the plaintiff (“the proceedings”).

4. The background circumstances relied upon by the plaintiff were as follows:

1. On 16 March 2016, after leaving a veterinary clinic where four puppies were vaccinated, the vehicle in which the plaintiff was a passenger was stopped by police vehicle on Horningsea Park Drive, Horningsea Park. Senior Constables Kanard and Grant (police, unless stated otherwise), were part of a police taskforce known as “Raptor” conducting a police operation in the area.

2. After the driver returned a negative Random Breath Test, the driver and the plaintiff were told by Senior Constable Kanard that they were going to search them and the vehicle, and that they needed to get out. The interaction was recorded by the plaintiff on his iPhone. Senior Constable Kanard told the plaintiff to “put the phone down for me Jimmy …”.

3. The plaintiff got out of the vehicle, still holding and recording on his iPhone, turned around and placed both hands above his head as directed by Senior Constable Kanard.

4. There is no dispute the plaintiff was cooperating with police.

5. Without warning, the plaintiff was thrown to the ground by Senior Constable Kanard hitting the ground heavily near the gutter. The plaintiff’s iPhone was still recording. The police in car video did not capture the actual incident as it was recording but just off screen.

6. Senior Constable Kanard believed the iPhone was an “unidentified object” in the plaintiff’s hand, and according to him, he used a “leg sweep”.

5. In the proceedings, a further amended statement of claim was filed on 7 October 2021. The plaintiff claims damages for personal injury, including aggravated and exemplary damages, as a result of assault and/or battery and/or negligent battery by the State.

6. The State disputes liability. There are also issues as to damages.

Evidentiary Basis for the Application

7. The plaintiff is an Aboriginal man who is unemployed and lives in governmental subsidised housing. The plaintiff alleged, in submissions, that he was homeless. The plaintiff alleged that as a result of the assault and/or negligent battery, that he:

1. sustained:

1. C5-C6 cervical spinal injury and trauma;

2. chest trauma and fractured L 5^th, 6^th, 7^th 8^th and R 8^th, 9th and 10^th rib;

3. bilateral sacroiliac injury;

4. abdominal injury;

5. rectal bleeding;

6. bruises and scratches;

2. has been diagnosed with incomplete quadriplegia, and lower limb spasticity with impaired balance and gait;

3. is in serious pain and is dependent upon narcotic analgesia;

4. is permanently unemployable in the open labour market due to his injuries;

5. is receiving treatment from the public health, and due to his impecunious state, is prevented from specialist private care and treatment on needs basis;

6. has been receiving social care from NEAMI;

7. is solely dependent on government assistance;

8. continues to have complex and extensive needs; and

9. has attempted suicide.

8. In relation to the plaintiff’s continued needs, Dr Buckley, consultant physician in rehabilitation medicine, opined that the plaintiff, in addition to the 12 annual GP consults, will require: to consult a rehabilitation physician twice annually; physiotherapy 12 visits annually; a handyman, housekeeper and gymnasium membership with heated swimming facilities to exercise; and transport assistance.

9. Dr Buckley also opined that the plaintiff requires significant and careful medical supervision for the rest of his life.

10. Dr Champion, consultant rheumatologist, stated that during examination that the plaintiff had been tearful particularly towards the end of the history. He seemed depressed. He opined the plaintiff had evidence of an upper motor neuron lesion characterised by spasticity of gait, increased muscle tone, hyperflexia and abnormal plantar reflex response. He reported that the physical signs are evidently more severe than had been observed and reported pre-operatively by his neurologist and neurosurgeon. There are also indication of chronic pain in the lower limbs.

11. Dr Champion opined that, precipitated by the circumstances of the alleged assault, the plaintiff’s life had “fallen apart”, and he was suffering from chronic neck and back pain, and had high level disability. He opined that the plaintiff will require extensive multidisciplinary management including pain management and rehabilitation. He further opined that the plaintiff would require lifelong close medical surveillance and management at the GP and specialist levels.

12. Dr Allnutt, psychiatrist, opined that the plaintiff manifests chronic post-traumatic stress disorder (“PTSD”) and major depressive disorder. Symptoms include: depressed mood, reduced energy and motivation, anhedonia, poor self-esteem, loss of confidence in decision making and intermittent suicidal ideation, with prior suicide attempts. He opined these symptoms appears have been more significantly present since the index injury resulting in his withdrawal from occupation and social interaction with others.

13. Dr Allnutt further opined there was evidence of pre-existing depressive and anxiety symptoms with panic attacks and multiple pre-injury traumatic events, which events are consistent with criterion A (of PTSD) and in themselves could have triggered a PTSD but there is no evidence of this diagnosis having been made pre-injury.

14. Dr Allnutt stated there has been little progress in his recovery since the index injury and is concerned about an ongoing gradual deterioration in his mental state.

15. Dr Allnut further opined that there was a causal link between the incident and the suicide attempts or suicidal ideation, as revealed in the post incident hospital admissions. Given the significance, he believed there is a link between the accident and the suicide attempts.

16. In terms of the C5/6 signal cord injury, the evidence of the State, being that of rehabilitation physical and emergency doctor, Drs Eikens and Green, respectively, was that the injury is a “natural progression” of the plaintiff’s pre-existing conditions. Alternatively, they point to drug use as a cause. There appeared to be issues as to the extent of the plaintiff’s disablement.

Procedural History of the Proceeding

17. There was a status review before Cavanagh J on 7 May 2021. On that occasion, the matter was set down for a 7-day hearing commencing on 28 March 2021. During the course of a that hearing, the plaintiff identified that an application for expedition may be made. The parties’ evidence in the proceedings is complete and the matter is ready to proceed.

Submissions

18. The plaintiff brought the application, it was submitted, essentially so that he can afford to obtain pay for the significant and multidisciplinary treatment needed as a private patient in the event he is successful in the proceedings.

19. The plaintiff submitted that delay, where the matter is otherwise ready, may jeopardise the plaintiff’s resolve, among other factors, to see the matter through to finality and not “fall between the cracks”. Reliance, in that respect, was placed upon his suicidal ideation.

20. Counsel for the plaintiff also relied upon the plaintiff’s cultural background, and contended that legal processes, including the actions of the police had compounded social and behavioural issues confronting an indigenous person.

21. In support of his application, the plaintiff also advanced the following contentions:

1. If expedition is granted, the plaintiff is prepared to do all in its power to abridge the hearing time by preparing agreed bundles and narrowing the real issues in dispute. If conclaves or concurrent evidence is ordered, do all in its power to arrange the relevant conference before the hearing between the experts, namely:

1. rehabilitation physicians; and

2. psychiatrists.

2. The plaintiff has strong prima facie case, namely, the chances of the plaintiff obtaining what it seeks in the litigation are, it was submitted, “much higher than speculative”.

3. The plaintiff has prosecuted the proceedings expeditiously.

4. There is no delay in bringing the expedition application.

22. Whilst contending that any grant of expedition should be subject to counsel’s availability (and, in fact, counsel for the defendant had changed since the matter was listed as a result of the date fixed), it was accepted that such a limitation would not properly operate in the event expedition was granted, and dates materialised (which were not presently found) in the Court’s list before the presently scheduled hearing.

Principles

23. In Vaughan v Dawson [2005] NSWSC 33, Campbell J referred (at [8]) to the principles on whether the Court should exercise its discretion to expedite the proceedings, referring to what was stated by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 (“Greetings Oxford Koala Hotel”) at 42-43:

24. In Greetings Oxford Koala Hotel, Young J said (at 42-43):

...when considering whether to expedite proceedings in this Division there are at least six factors which are taken into account.

These are:

(1) Is this the appropriate Court for the litigation, in particular:

(a) does the litigation fall into the work normally done by this Court; and

(b) is there a sufficient nexus with New South Wales.

(2) Is there a special factor involved which warrants expedition. Usually these factors will be:

(a) the loss of witnesses if the case is not fixed at an early date;

(b) matters of public importance;

(c) that the subject matter of the litigation will be lost if it is not heard quickly;

(d) that the litigation to date has been delayed through no fault of the applicant;

(e) that the applicant is suffering hardship not caused through his own fault;

(f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date);

(g) the nature of the case (for example, ejectment, child custody); and

(h) that there are large sums of money involved.

There may, of course, be other matters which can count as special factors, but the list that I have given is what occurs in the usual case. The health or age of parties or witnesses may, of course, come under (a), (c) or (e) or all of those headings.

(3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed?

(4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted.

Then there are two factors dealing with the exigencies of the list, viz:

(5) Any application for expedition must be judged in the light of the number of other cases of equal or higher priority that also seek an expedited hearing.

(6) Any “right” to expedition is a right to have the case fixed on one occasion. If, after a date has been fixed, it has to be vacated, it is difficult indeed to justify again expediting the proceedings: Ron Hodgson Cabramatta Pty Ltd v Wewoka Pty Ltd t/as B P Cabramatta Motors (Waddell CJ in Equity, 30 March 1989, unreported).

The question here is whether there is a seventh guideline, namely, that one should not expedite a case where the chances of the applicant for expedition securing what it wants in the proceedings are not high. This point arises because the defendant submits that because of the matters I have already canvassed, the chances of the plaintiff obtaining equitable relief must, according to the defendant, be slim.

I do not think that the Court, ought in an application for expedition, to make an assessment of the applicant's chances of success. However, I do agree that there is a seventh guideline, namely, that the Court should not expedite a case if it considers that in all the circumstances the chances of the applicant obtaining what it seeks in the litigation cannot be put as higher than speculative.

25. The criteria listed in Greetings Oxford Koala Hotel is not exhaustive, but arise in the usual case. Ultimately, the Court must exercise its discretion by balancing the various matters and interests of the respective parties on the facts and circumstances of a particular case.

26. In the present case, some of the criteria do not apply or are uncontroversial, while others depend on the exigencies of the list.

27. It is the party seeking an order for expedition that bears the onus.

Consideration

28. In my view, the plaintiff has established a proper basis for the grant of expedition. The plaintiff is suffering significant hardship, not of his own making, and his psychological state is precarious. Counsel for the plaintiff, Mr E Chrysostomou, referred to a loss of resolve resulting from the plaintiff’s circumstances which may result in the litigation being lost, not as a consequence of any failure to prosecute or any clear detriment in the prospects of success, but due to his deteriorating state.

29. There are plainly difficulties in days being found for a 7-day hearing in what is a 9-month period before the present hearing fixture. However, the matter is ready for hearing and both parties recognised that one consequence of expedition is that dates concerning availability may be used in the disposition of this matter. I note the plaintiff’s understanding as to prosecution of the matter.

30. I will, therefore, order expedition. It is appropriate, given the procedural history, that the matter be returned to Cavanagh J’s list at a time suitable to his Honour.

31. The parties should bring in short minutes of order reflecting this judgment.

Decision last updated: 30 June 2021