Australian Capital Territory v Crawford
[2017] ACTSC 94
•3 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Australian Capital Territory v Crawford |
Citation: | [2017] ACTSC 94 |
Hearing Date: | 1 May 2017 |
DecisionDate: | 3 May 2017 |
Before: | Elkaim J |
Decision: | See paragraph [39] |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – appeal against the exercise of a discretion – history of delay – leave to file and serve an amended statement of claim – medical negligence |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A Court Procedure Rules 2006 (ACT) s 21, 52(2) |
Cases Cited: | Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Crawford v Australian Capital Territory [2015] ACTSC 282 Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419 |
Parties: Representation: | Australian Capital Territory (Appellant) Christopher Colin Crawford (Respondent) Counsel |
| Mr R Crowe SC and Mr N Oram (Appellant) Mr A Bartley SC and Mr F Tuscano (Respondent) | |
| Solicitors ACT Government Solicitor (Appellant) Ken Cush & Associates (Respondent) | |
File Number: | SCA 39 of 2016 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Magistrate Morrison Date of Decision: 25 May 2016 Case Title: Crawford v ACT File Number: CS 15/1090 |
ELKAIM J:
The plaintiff commenced proceedings in December 2012. He was then a prisoner at the Alexander Maconochie Centre (the AMC). He alleged that the prison staff gave him pineapple juice containing a significant amount of methadone. He allegedly suffered severe respiratory distress, cardiac arrest and psychiatric injury.
On 25 May 2016, Magistrate Morrison granted the plaintiff leave to file and serve an amended statement of claim and made various consequential orders. This is an appeal from the Magistrate’s decision. The appellant submits that the respondent should not have been granted leave to amend his pleadings.
The history of the case, since the inception of proceedings, is a long saga of delay, particularly on the part of the plaintiff’s solicitors.
This tale of woe is described by the Magistrate in his reasons – in particular, by reference to the decision of Mossop AsJ (as he then was) when he dealt with an application by the present appellant to dismiss the proceedings due to a failure to comply with a number of directions: Crawford v Australian Capital Territory [2015] ACTSC 282.
Mossop AsJ declined to dismiss the proceedings. However, he did make a series of orders designed to bring finality to the preparation of the case and enable the allocation of a hearing date. I note that his Honour also transferred the matter from the Supreme Court to the Magistrates Court.
Following the transfer of the matter, it was allocated a hearing date of 27 September 2016. The hearing was estimated to take three days.
The result of the Magistrate’s orders was that the hearing date was vacated.
The appeal has been brought as of right and is in the nature of a re-hearing. In addition, as this matter is an appeal from the exercise of a discretion, it is necessary for the appellant to demonstrate error on the part of the Magistrate before this Court could exercise its own discretion.
The appellant submitted that there were a number of errors in the Magistrate’s reasons. For present purpose, I think that two are significant.
Firstly, the appellant submitted that the concession recorded in paragraph [21] of the Magistrate’s reasons was simply never made. Paragraph [21] states:
There is an important point to be made at the outset of these reasons. As I understand the submissions the point is not in dispute. It is that the delay in identification of what the defendant now asserts to be the basis for the new cause of action is not the fault of the defendant or of is solicitors or of the doctors who saw him before he was seen by Dr Bell. The defendant’s advisers were investigating the causes and effects of what the plaintiff says was his involuntary ingestion of methadone. Although close in time to that event, there is no suggestion that the events forming the basis for the new claim were reasonably within the scope of proper investigation of the original claim. Further there is no suggestion that the plaintiff was at any time made aware of the connection between the grand mal seizures he suffered and what he now says was the negligent medical treatment he received or that he otherwise ought to have known of any such connection. The evidence is that the alleged causal connection came to light serendipitously as a consequence of a broad review of the background documents provided to Dr Bell as part of his reading in preparing to advise on the original claim. It is not submitted that the defendant or his solicitors are guilty of any delay in acting subsequent to the discovery of the basis for the new claim. “(the highlighted words refer to typographical errors where ‘defendant’ was used instead of ‘plaintiff’ or vice versa)”
I think that some confusion has arisen about the interpretation of paragraph [21]. The appellant’s point is that no concession was made about the delay in acting upon the report of Dr Bell. It is apparent from the discussion in the transcript, in particular from page 30, that the appellant’s submissions took the point that the history of the matter was relevant and that failings on the plaintiff’s part were of significance in the exercise of the Magistrate’s discretion.
The last sentence of paragraph [21], if restricted to the period after the receipt of Dr Bell’s opinion, is probably correct because it is confined to this period. However, the beginning sentences of paragraph [21] seem to indicate that his Honour was dealing with the history of the plaintiff’s solicitors’ conduct. If his Honour was suggesting that there was a concession concerning this history, then his identification of a concession is an error.
I think that the latter interpretation must be given because paragraph [21] only contained a discussion of the period after Dr Bell’s report arrived.
This interpretation is, I think, confirmed by His Honour’s remarks at paragraph [23]:
Insofar as of the new claim is concerned there is no equivalent criticism of the conduct of the plaintiff or of his solicitors about delay in investigation or in disclosure to the defendant. In relation to the new claim, there has been no past behaviour to be discouraged from continuing.
I think that the opposite was the case. The appellant made it very clear that it was its position that appropriate preparation of the case would have involved returning to Dr Bell, after he was initially consulted in 2014, to follow up on his opinion or perhaps seek an alternative opinion if Dr Wodak was not to be relied upon. It follows, therefore, that error has been demonstrated in respect of this issue.
The second important area of asserted error concerns his Honour’s treatment of the issue of proportionality, in particular at paragraph [43] of his reasons. At paragraph [43], his Honour notes:
The proposed amended statement of claim adds “three grand mal seizures” to the list of injuries and disabilities allegedly suffered by the plaintiff. There is no other evidence about the severity or duration of the seizures or any sequelae or as to whether the other injuries pleaded in the original claim are made more serious because of the grand mal seizures. Common knowledge tells me that grand mal seizures affect the brain and are a form of convulsion or fit in which a person loses consciousness and the muscles of their body are then subject to violent twitching and spasms. I can and do infer that regardless of the loss of consciousness the realisation that a seizure has been experienced must be extremely frightening and distressing to the victim regardless of any long term consequences. The plaintiff in this case allegedly suffered three such seizures.
The issue of proportionality raised by the appellant before the Magistrate concerned the investigation of the new claim together with the extended hearing date, both of which would result in the incurring of substantial costs. This was to be compared with the alleged damages from the new claims, namely the suffering of three grand mal seizures.
I note here that the three seizures said to be a product of the new allegation of negligence are separate from, and in fact precede, the negligence alleged in the original claim. They can, therefore, be seen as unrelated to the original claim.
In addition, the damages arising from the original claim, under the new pleadings, are not said to arise in any way from the negligence that led to the three seizures. In other words, the plaintiff’s original claim can be pursued without being prejudiced by the absence of the new claim. This is not to say that evidence concerning the matters alleged in the new claim will not be relevant by way of background. Rather, the damages capable of being recovered will not be affected.
The amended statement of claim, in giving particulars of “injuries and disabilities suffered by the plaintiff”, adds only “three grand mal seizures”. There is no suggestion of any other damage caused by the negligence or consequent upon the seizures.
Any damages arising from the negligence on the basis of the amendment are likely to be very limited. The respondent submitted that little weight should be given to the description of damages in the amended statement in claim because, in the normal course of preparation, a statement of particulars would be filed prior to the allocation of a hearing date. There are two difficulties with this submission:
(a)In a case which was beset by delays, there should have been evidence before the Magistrate setting out precisely what the effect of the new claim was alleged to be.
(b)Rule 52(2)(c) of the Court Procedure Rules 2006 (ACT) states that in personal injury claims “details of the nature and extent of the injuries and disabilities relating from” the alleged negligence should be provided in a statement of claim.
In dealing with the issue of proportionality, the Magistrate relied on more than the contents of the new pleading, bringing into account what he described as common knowledge. In my view, and with respect, his Honour was not entitled to take that approach in assessing the likely result of the case. I think that His Honour’s approach is akin to the error identified in Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419, where the trial judge applied his own personal medical knowledge to the facts of the case (see also Moussa v Confoy [2015] NSWDC 103).
I think that the approach taken here demonstrates a second error on his Honour’s part. Having reached the conclusion that error has been established, it is now open to me to exercise my discretion in respect of the plaintiff’s application to amend his statement of claim.
The exercise of the discretion, as also applicable before the Magistrate, involves consideration of s 5A of the Court Procedures Act 2004 (ACT). Section 5A was preceded by r 21 of the Court Procedure Rules 2006 (ACT), which applied before Mossop AsJ.
Section 5A is in the following terms:
5A Main purpose of civil procedure provisions
(1)The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes –
(a) According to law; and
(b) As quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the main purpose includes the following objectives:
(a) The just resolution of the real issues in civil proceedings;
(b) The efficient use of the judicial and administrative resources available for the purposes of the court;
(c) The efficient disposal of a court’s overall caseload;
(d) The timely disposal of civil proceedings;
(e) The resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil procedure provisions must be interpreted and applied, and any power or duty imposed by them (including the power to make rules) must be exercised or carried out, in the way that best promotes the main purpose.
(4)The parties to a civil proceeding must help the court to achieve the objectives.
(5)In this section – “civil procedure provisions” means –
(a) The rules made under section 7, in their application to civil proceedings; and
(b) Any provision of this Act in relation to the practice and procedure of a court in civil proceedings
“court” includes a tribunal that is a prescribed tribunal under section 6
In addition to s 5A, I was taken in some detail to the decision of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (Aon). As is now almost standard practice, the appellant relied on this decision to emphasise the fact that case management now plays a more influential role than the ‘old’ regime of a ‘costs order will fix it all’.
Aon has another role to play in this case. It was submitted by the respondent that it would be open to him to commence fresh proceedings in respect of the new cause action. It was submitted that, as these proceedings were factually tied to the original proceedings, it was inevitable that they would come to be heard together, and perhaps even be consolidated.
The appellant responded that any new proceedings were almost bound to be struck out as an abuse of process, or by the application of the Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
Further, Aon made it plain that the likelihood of fresh proceedings being struck out was not a consideration supporting an amendment. Aon dictates the contrary conclusion: for example, at paragraphs [86] and [29] onwards.
In my view, the discretion should not be exercised so as to allow the amendment. Firstly, I do not think that there has been any sufficient explanation for the delay in making the application. While I agree with the Magistrate’s view, as expressed in the final sentence of paragraph [21] of his reasons, I think that the issue of delay goes to the whole history of the matter, and in particular the period following the initial contact with Dr Bell, and not simply to the period after the receipt of Dr Bell’s report.
I appreciate that Dr Bell was, originally, not available to give evidence. However, that should not have been the end of the investigative process. Other doctors could have been contacted; especially when difficulties with Dr Wodak became apparent.
There is no explanation as to why an alternate opinion was not sought. In my view, the deficiencies pointed out by Mossop AsJ are equally applicable to the preparation of the amended statement of claim as they were to the overall preparation of the case.
Secondly, I am of the view that, even taking a generous attitude to the awarding of damages for the three seizures, on the evidence presently available there would be a marked lack of proportionality when these damages are compared to the costs incurred in defending what is essentially a case of medical negligence, in addition to the extra court time that would be necessary to meet the case.
I appreciate that the damages case may not have yet been fully prepared. However, in my view, against the background of this case, if the necessary particulars for the damages case went beyond the temporal limitations of the three seizures, it should have been included as part of the application. This is another example of the lack of appropriate preparation and is to be considered in combination with the failure to explain why it did not occur.
I observed in argument that in both r 21 and s 5A the first consideration mentioned is the “just resolution of the real issues in the proceedings”. I am also of the view that the importance of case management should not be allowed to dominate the need for justice to be done between the parties. The present is a somewhat exceptional case, where the dictates of case management have been largely ignored on behalf of the plaintiff. Accordingly, case management plays a greater role in the exercise of the discretion than might otherwise have been the case.
In addition, the amendment does not affect the “real issues in the proceedings”. It was made plain by learned Senior Counsel for the respondent that the amended statement of claim introduces a new cause of action. Although, for convenience, it would be better for both causes of action to be heard together, the fair adjudication of the existing proceedings is not prejudiced by the absence of the separate cause of action.
The fact that the original hearing date was vacated, such that there is no pressure on the appellant to prepare its case before a specified date, is not a factor that I can take into account in the exercise of the discretion. I refer here to the very useful decision of Doyle J in the Supreme Court of South Australia in PPG Development Pty Ltd v Capitanio [2016] SASC 169; 126 SASR 307 in which he both summaries the principles to be derived from Aon (at paragraph [39]) and also deals with the exercising of the discretion as if being exercised at the time of the original application (from paragraph [83]).
As a result of my conclusion, it is not necessary to deal with the argument concerning costs. This argument was raised by the appellant in the event that it failed in the balance of the appeal.
I make the following orders:
(i)The appeal is allowed;
(ii)The orders made by Magistrate Morrison on 25 May 2016 are set aside.
(iii)In lieu thereof, the application in proceeding dated 27 January 2016 is dismissed.
(iv)The respondent is to pay the appellant’s costs of the application in proceedings and of this appeal.
(v)The matter is remitted to the Magistrates Court for the allocation of a hearing date.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 3 May 2017 |
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