Bugeja v VWA (Ruling)

[2022] VCC 1650

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. Cl-21-02582

STEPHEN BUGEJA	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2022
DATE OF RULING:	4 October 2022
CASE MAY BE CITED AS:	Bugeja v VWA (Ruling)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1650

EX TEMPORE RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:              Serious injury application – application to re-open case to tender medical report – inadvertent error – exceptional circumstances – probative value of evidence – prejudice caused by delay

Legislation Cited:      Civil Procedure Act 2010 (Vic)

Cases Cited:Goldsmith v Sandilands [2002] 190 ALR 370; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 25) [2020] VSC 172; Spotlight Pty Ltd v NCON Australia Ltd [2012] 46 VR 1 [25]

Ruling:  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Sidebottom	Maxiom Injury Lawyers Pty Ltd
For the Defendant	Ms S Manova	IDP Lawyers Pty Ltd

HER HONOUR:

1This is an application by the defendant for leave to re-open its case for the limited purpose of tendering a supplementary medical report of Dr Terence Saxby dated 2 August 2022 (“the report”), and for each party to make short written submissions about the report.

2The report was received prior to the conclusion of the serious injury application. It was inadvertently overlooked and not served on the plaintiff or tendered in court.

3The plaintiff opposes the application.  He says the defendant would have been aware that it was awaiting an additional report from Dr Saxby, but did not disclose this information to him or the court.  The plaintiff submits that he is prejudiced by any further delay and additional costs.  Furthermore, he says there is little probative value in the additional report.

Findings

4Leave ought only be granted where there are exceptional circumstances.  The court must consider all the circumstances, and determine whether the justice of the case favours the grant of leave to re-open.[1]

[1] Goldsmith v Sandilands [2002] 190 ALR 370.

5This requires a consideration of a number of factors helpfully set out by Elliott J in Cargill Australia Ltd v Viterra Malt Pty Ltd.[2]  Not all of those matters are of relevance in this application.

[2] [2020] VSC 172 [49].

6I make the following observations:

The nature of the case

7This is a serious injury application. Over the years, a great deal of time and effort has gone into ensuring that such applications are managed as efficiently as possible.  This includes the publication of a practice note limiting the time allowed for cross-examination, and the number of reports each party can rely on.[3]  However, the enforcement of those guidelines is itself a matter for judicial discretion.

[3] See County Court of Victoria, PNCLD 1-2022 – Serious injury applications.

Whether the occasion for calling the further evidence ought to have been foreseen

8I accept it was an error on the part of the defendant solicitor that the report was not tendered.  The defendant would have known that it had sought a supplementary opinion.  It is not clear why the supplementary opinion was not followed up, but is likely the result of human error.

Considerations of fairness

9The plaintiff is entitled to know the extent of the case at the hearing.  Having said that, there is nothing particularly new in the report that would take the plaintiff by surprise or have impacted the way in which he put his case  Any prejudice to the plaintiff if the application is granted by reason of additional cost could likely be dealt with by appropriate costs orders and is not a significant factor in the weighing of my discretion.

The importance of the issue on which the further evidence is sought to be adduced and the degree of relevance and probative value of the evidence

10The issue itself, that is whether there is a substantive organic basis for the plaintiff’s injury and whether he has any ongoing work injury is the central issue in this case.  The degree of relevance or probative value of the supplementary report is less obvious; the report essentially confirms Dr Saxby’s earlier opinion.  The criticism the plaintiff made of Dr Saxby’s earlier report dated 18 February 2022 will likely be repeated in relation to this report. The additional opinion Dr Saxby provides in this report is his view of the plaintiff’s medicolegal opinions.  This may be of assistance in the determination of the plaintiff’s application, but its probative value is by no means obvious.

Analysis

11There is always a strong public interest in the timely conclusion to litigation.  This must be weighed against the public interest in ensuring the overarching obligations pursuant to the Civil Procedure Act 2010 are achieved, that is, the just disposition of the real issues in dispute.

12I accept that this is a case where there has been an inadvertent error by the defendant, which led to the omission of Dr Saxby’s report.

13This error is of a kind that falls within the possible classes of case that courts have recognised may give rise to leave being granted to re-open a case.[4]

[4] Spotlight Pty Ltd v NCON Australia Ltd [2012] 46 VR 1 [25].

14Having considered the submissions of both parties and the legal principles, I am not satisfied that exceptional circumstances apply so as to warrant an exercise of the discretion in the defendant’s favour.  While it is a mistake, the mistake is one that could have been identified prior to the conclusion of the hearing.

15This is not a case where the interests of justice clearly favour re-opening the case.

16Accordingly, the defendant’s application is dismissed.

17The defendant is to pay the plaintiff’s costs of the application.