Coote v Kelly

[2014] NSWSC 1540

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Coote v Kelly [2014] NSWSC 1540

Hearing dates:

24/10/2014

Decision date:

24 October 2014

Jurisdiction:

Common Law

Before:

Garling J

Decision:

With respect to the Notice of Motion filed 22/8/2014:

(1) Refuse Order 1.

(2) Stand over Order 2 for a period of 14 days to 9.30am on 7/11/14 before Garling J.

(3) Order the costs of the Motion be costs in the cause.

(4) In the event that any party so decides, any summons seeking an order pursuant to s 140 of the Civil Procedure Act of the transfer of current District Court proceedings, may be returnable before Garling J at 9.30am on 7/11/14.

Catchwords:

PROCEDURE - civil - jurisdiction - transfer of proceedings to District Court of NSW; application for - Civil Procedure Act 2005; s 146(1) - proceedings could properly have been commenced in the District Court, whether - damages would not exceed jurisdictional limit of District Court - related proceedings in District Court - Civil Procedure Act 2005; s146(4)(b)(ii) - other sufficient reason for hearing the proceedings in the Supreme Court, whether - substantial past history in Supreme Court - expedited trial - appeal - original judgment set aside - new trial ordered - complexity of issues and interests - previous evidentiary rulings - balancing exercise - interests of justice - PROCEDURE - civil - pleadings - statement of claim - amendments; application for - delay - prejudice, whether - cause of action sufficiently pleaded, whether - interests of justice - COSTS - costs in the cause

Legislation Cited:

Civil Procedure Act 2005
Compensation to Relatives Act 1897
Uniform Civil Procedure Rules 2005

Cases Cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Coote v Dr Kelly [2012] NSWSC 219
Coote v Kelly [2013] NSWCA 357

Category:

Procedural and other rulings

Parties:

Melissa Coote (Applicant)
Dr Stephen Kelly (Respondent)

Representation:

Counsel:
R O'Keefe (Applicant)
J Morris SC / E Elbourne (Respondent)
Solicitors:
Stacks/Goudkamp P/L (Applicant)
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2011/339988

EX TEMPORE Judgment

1. This is the hearing of a Notice of Motion brought by the plaintiff, Ms Melissa Coote, as the executor of the Estate of the Late Malcolm Coote against the defendant Dr Stephen Kelly, which was filed on 22 July 2014. In the Motion the plaintiff seeks two orders of substance: first, an order pursuant to s 146 of the Civil Procedure Act 2005 that these proceedings be transferred to the District Court of New South Wales; secondly, pursuant to s 64 of the Civil Procedure Act that the Statement of Claim in these proceedings be amended in accordance with annexure A. Finally, the plaintiff seeks an order that the defendant pay the plaintiff's costs of the application.

Procedural History

1. Some short history is necessary although this judgment is necessarily brief having regard to the fact that the Motion has been heard and determined in the course of the duty list.

1. On 14 March 2012, Schmidt J delivered a judgment after an expedited hearing of the proceedings. Her Honour ordered that there be judgment for the defendant, and that costs should follow the event: see Coote v Dr Kelly [2012] NSWSC 219.

1. On 23 May 2013, the late Mr Coote died and the present plaintiff, his widow and executrix, was substituted as a party. An appeal was lodged against the decision of Schmidt J which was heard by the Court of Appeal on 8 and 9 October 2013. In its decision of 28 October 2013, the Court upheld the plaintiff's appeal and also a Notice of Contention filed by the defendant, set aside the judgment and the orders made by Schmidt J and ordered that there be a new trial: see Coote v Kelly [2013] NSWCA 357.

1. In [7] of the judgment of Leeming JA (with whom Basten and Hoeben JJA agreed), his Honour said this:

"Mrs Coote challenged the finding of no causation, and Dr Kelly challenged the finding of breach. The finding of breach turned on the resolution of conflicting testimonial evidence of primary fact, which fell to be evaluated in the light of the contemporaneous documents as well as the inherent probabilities which were the subject of conflicting expert evidence. The question of causation was considerably more complicated, factually and legally, but plainly enough the starting point was the existence and extent of any melanoma on Mr Coote's foot in September 2009."

1. His Honour's judgment then went on to consider the relevant facts and found that there was considerable difficulty with the finding of both breach of duty and causation. In so doing, his Honour correctly, in my respectful view, paid tribute to the primary judge at [39], in this way:

"With respect to the primary judge who heard and determined in urgent circumstances what she candidly described as "an exceptionally difficult case"..."

1. The judgment noted, with respect to breach, that the effect of the findings of fact was felt not just by the parties but also by two doctors who were witnesses. Leeming JA said of the finding of breach of duty with respect to those doctors that the findings amounted implicitly to findings of serious breaches of duty by both practitioners.

1. The point to be drawn from the judgment is that the issues in contest between the parties, and which remain in contest at any further hearing are factually complex and particularly important not just to the parties but also to the professional reputations of a number of individual witnesses of fact. As well, the complications of the expert evidence underlie amply the conclusions expressed by the Court of Appeal.

Transfer to the District Court

1. In considering the question of transfer to the District Court, under s 146 of the Civil Procedure Act, the parties are agreed that the threshold in s 146(1), namely, that the proceedings could properly have been commenced in the District Court has been satisfied.

1. Further, in respect of s 146(4) of the Civil Procedure Act, the parties agree that the amount which may now be awarded to the plaintiff, if she is successful, is unlikely to exceed the jurisdictional limit of the District Court. The parties were agreed that the issue for consideration on the question of transfer is whether there is "... other sufficient reason for hearing the proceedings in the Supreme Court": see s 146(4)(b)(ii) Civil Procedure Act.

1. The factors relied upon by the plaintiff to support the transfer to the District Court can shortly be described as the present quantum of the claim, and the existence of other proceedings in the District Court which have been brought by the plaintiff claiming damages for mental harm, and a claim by the plaintiff under the Compensation to Relatives Act 1897. Both of these actions involve in substance the same allegations with respect to breach of duty by the defendant, and whether that breach caused the damage of which complaint is made.

1. The factors upon which the defendant relies to oppose the transfer can be summarised in this way. The past history of the matter in this Court including that evidence has been taken on commission with respect to two witnesses in the past, the general familiarity of the Court with the proceedings, the complexity of the issues and interests referred to in the Court of Appeal's judgment, in particular [7] and [40], and the reality that any judge hearing the re-trial does so in the context of past evidentiary and other rulings with respect to case management of a judge of this Court, and it would therefore be inappropriate for a judge of the District Court to be put in the position of having to, in effect, sit in judgment on such past rulings.

1. Finally, the defendant submits that the terms of the order for retrial made by the Court of Appeal was that there be a retrial in this Court. He submits that in the absence of any application having been made at the time of judgment to the Court of Appeal to transfer the hearing of the retrial to the District Court, this Court ought not, in effect, amend the order of the Court of Appeal.

1. The question is one of balance; there is no obviously right or wrong answer. Neither of the alternative positions are unarguable, neither is dominant.

1. One matter which is always considered when making such an order is what the interests of justice are. In that respect, given the likely size of any verdict if the plaintiff succeeds, a question would arise as to the application of r 42.34 of the Uniform Civil Procedure Rules 2005 with respect to whether the plaintiff's solicitors would recover her full costs if the matter remained in this Court.

1. By email dated 10 July 2014, the solicitor with the day-to-day care and conduct of the matter for the defendant informed the plaintiff that:

"The defendant will not seek to rely upon rule 42.34 of the Uniform Civil Procedure Rules 2005 in the event that the proceedings in question, being case number 2011/339988, remain, continue to be prosecuted and are completed in the Supreme Court of New South Wales".

1. The effect of that statement on behalf of the defendant, which senior counsel for the defendant has confirmed remains the position, is that there would be no monetary prejudice to the plaintiff in terms of costs were the matter to remain in this Court.

1. As well, the Court needs to keep in mind the overriding purpose of the just, quick and cheap resolution of the proceedings when making orders of the kind sought: ss 56, 57 and 58 Civil Procedure Act.

Discernment

1. I have carefully considered the facts and circumstances of this case and taken into account the matters to which I have made reference and in particular, the consideration that making any order of the kind sought, that the Court must give to the overriding purpose of the Act, I am satisfied that there is "... other sufficient reason for" hearing the proceedings in this Court, particularly having regard to the complexity of the matter, and its history in this Court which is such as would justify the Court declining to order a transfer of the proceedings to the District Court. I will make an order to that effect.

Amendment of Statement of Claim

1. The second claim for relief in the Notice of Motion is one dealing with the question of an Amended Statement of Claim.

1. The defendant objects to any amendment to the Statement of Claim as a matter of principle for reasons which can, without any disrespect, be categorised as general case management reasons. The application is made very late. No adequate explanation is given as to why it has been made so late. The parties have effectively already embarked upon a hearing of the matter because the retrial will necessarily incorporate part of the evidence at the first trial. Finally, the defendant submits that the proposed pleading does not adequately plead the relevant causes of action. As well, the defendant says that on its reading of the proposed Statement of Claim there has been a significant change in the case by the plaintiff from when it first went to trial, and that such change in the case causes it considerable prejudice.

1. The plaintiff, as a consequence no doubt of hearing the defendant's submissions articulated orally, and having had the benefit of considering issues raised by the defendant and the Court with respect to the pleading, accepts that the proposed Amended Statement of Claim requires some further careful drafting in a number of respects.

1. The plaintiff's submissions to me satisfy me that the plaintiff's real case does not reflect any significant change to the way in which the case was presented at the time of the first trial, and, accordingly, prejudice of the kind feared by the defendant falls away.

1. The matter then becomes one as to whether in the interests of justice an amendment to the claim ought be permitted.

1. I am conscious of the decision of the High Court of Australia in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, in particular at [96]. I am conscious that as a general approach, amendments to pleadings are not automatically granted simply for the asking. However, considerable changes have taken place since the matter was first pleaded, and there is no doubt that the first trial took place in circumstances of extreme urgency.

1. The parties have had the benefit of a decision of a judge of this Court and of the Court of Appeal. No doubt both parties have on reflection been able to carefully consider what matters can and can't now be proved. Such a process of winnowing, and seeking of greater clarity of allegations is inevitable as a consequence of the history of this matter. Broadly speaking, such a process is more beneficial to the parties than harmful. If the issues are clearer now than they once were that is in the interests of the parties and in the interests of justice.

1. Conscious as I am of the authority to which I've been referred and the UCPR, I nevertheless think it is appropriate to permit an amendment to the Statement of Claim.

1. However, rather than grant leave in a vacuum, I propose to deal with this by requiring the plaintiff to provide to the defendant, and the Court, a further draft of the proposed Amended Statement of Claim. At a subsequent hearing, I will consider any particular issue which may be raised by the defendant with respect to that proposed pleading.

Costs

1. In substance, this is a case in which the plaintiff has sought to transfer the matter and has lost; the plaintiff has sought to amend its Statement of Claim and has succeeded. Although costs are sought on the Notice of Motion, this is a case management hearing in which costs ought to be costs in the cause. I will make such an order.

Orders

1. With respect to the Notice of Motion filed 22/8/2014:

(1)   I refuse Order 1.

(2)   I stand over Order 2 for a period of 14 days to 9.30am on 7/11/14 before Garling J.

(3)   I order the costs of the Motion be costs in the cause.

(4) In the event that any party so decides, any summons seeking an order pursuant to s140 of the Civil Procedure Act of the transfer of current District Court proceedings, may be returnable before Garling J at 9.30am on 7/11/14.

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Amendments

06 November 2014 - Typographical error respondent counsel's name

Amended paragraphs: Coversheet

Decision last updated: 06 November 2014