Corner bht M Corner v Gall

[2022] NSWDC 589

District Court

New South Wales

Medium Neutral Citation:

Corner bht M Corner v Gall [2022] NSWDC 589

Hearing dates:

11, 25 November 2022

Date of orders:

25 November 2022

Decision date:

25 November 2022

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 45

Catchwords:

CIVIL PROCEDURE – torts – motor accidents – plaintiff represented by tutor – defendant alleged fraud or misleading statements by the plaintiff and the tutor - long delay in prosecution of the proceeding – default by the plaintiff in compliance with order for her to attend medical examinations without explanation – whether proceeding should be dismissed for such default or (alternatively) for want of despatch

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57, 58

Motor Accidents Compensation Act 1999 (NSW) ss 86, 117, 118

Uniform Civil Procedure Rules 2005 rr 12.7, 23.4, 23.9

Texts Cited:

Ritchie’s Uniform Civil Procedure (NSW), LexisNexis

Category:

Principal judgment

Parties:

Corner BHT M Corner (plaintiff)
M Gall (defendant)

Representation:

Mr J Catsanos SC for the defendant

File Number(s):

2018/000315522

Publication restriction:

Nil

REASONS FOR Judgment

1. The defendant (the applicant) brings an application, by notice of motion, that the proceeding be dismissed pursuant to rules 12.7 and 23.9 of the Uniform Civil Procedure Rules 2005 (UCPR).

2. The motion was partly heard before me on 11 November 2022. No appearance was made for the plaintiff. There was some brief argument before me by Mr Catsanos SC, acting for the applicant, in which I questioned whether, on the assumption that the power to dismiss the proceeding under r 23.9 of the UCPR was engaged, it should be exercised in a way that would deprive the plaintiff (now unrepresented) from commencing a fresh action. With that indication, Mr Catsanos SC applied for and was granted leave to amend his client’s motion to add r 12.7 of the UCPR as an alternative source of power to dismiss the proceeding. The proceeding was then adjourned for two weeks to give further notice to the plaintiff of the amendment granted.

3. The applicant now renews his application to dismiss the proceeding.

Background

4. This proceeding commenced on 16 October 2018. The plaintiff commenced the proceeding through her tutor, being her husband. By the proceeding, the plaintiff sued the defendant for damages arising out of a motor accident on 16 October 2015.

5. By her statement of claim, the plaintiff alleged that on that day (at about 4:30pm) she was the rear seat passenger of a motor vehicle driven by the defendant at Boonoo Boonoo. She alleged that a kangaroo bounded onto the roadway, and that this caused the defendant to swerve in an attempt to avoid the kangaroo; but in doing so, the defendant lost control of the vehicle, veered onto the opposite side of the roadway, down a ditch before colliding with a tree. She alleges that the defendant drove negligently.

6. By her statement of particulars (filed 19 December 2018), amongst other things, she particularised her injuries as being those to her neck, her lower back, right shoulder and pelvis and, importantly, brain injury and psychological injury. Amongst the particulars are assertions that she is totally and permanently incapacitated for employment and that she needs her husband to give up his work to become her full-time carer.

7. The applicant issued a subpoena to NSW Police on 9 April 2019. According to the applicant, the Police produced documents on 15 May 2019, including an ‘Event Report’ (dated 7 December 2017) in which the suggestion was made that the plaintiff and her tutor, her husband, conspired to fabricate a brain injury resulting from the accident for the purpose of obtaining a payout.

8. By his defence (filed 30 April 2019), the applicant admitted that he was negligent. However, the applicant denied that the motor accident caused the psychiatric and psychological harm. Further, and more startlingly, he asserted, in effect, that the plaintiff has been dishonest in alleging that she suffered psychiatric and psychological harm for the purpose of obtaining financial benefits; knowing that the promotion of such non-existent injuries was misleading. This was said to be conduct that contravened ss 117(d) and or 118(1) of the Motor Accidents Compensation Act (the ‘MACA’). The defendant further alleged that the tutor, the plaintiff’s husband, facilitated and encouraged the plaintiff to behave dishonestly; also for the purpose of obtaining a financial benefit. He further denied that the plaintiff required the appointment of a tutor.

9. Consistently with these allegations, the applicant filed cross-claims, in which he sought damages, primarily representing the costs of investigating and defending the proceedings (including also exemplary damages), for fraudulent, false or misleading conduct. The plaintiff and the tutor (as cross-defendants) deny these claims and the allegations underlying them.

Prosecution of the proceeding

10. In August 2019, Tenterfield Community Hospital produced documents, including a report by Mr Andrew Daley, the Mental Health Care Co-ordinator, dated 7 December 2017. In summary, the report revealed the content of a telephone conversation that Mr Daley had with Constable Lorraine Dutton on that date in which the plaintiff confessed that she had ‘pretend(ed) to be like a child to get ‘more money from the accident’. The content of the note went on to suggest that the plaintiff was acting in accordance with the instructions or design of her husband with the intention of using a compensation payout to purchase a house. Those instructions involved suggested steps to limit or negate the effectiveness of any surveillance conducted on the applicant’s behalf as to the plaintiff’s activities. There was a hint, perhaps, that there may be concerns of domestic violence in her relationship with her husband.

11. Throughout 2021, certified reports have been obtained from certain medical assessors pursuant to the provisions of Part 3.4 of the MACA. On 28 February 2021, medical assessor Robin Fitzsimons found that the plaintiff sustained a minor superficial head injury as well as soft tissue injuries to her neck, right shoulder and lumbar spine; but none of those injuries had given rise to any permanent impairment. On 28 March 2021, medical assessor Tania Roberts found soft tissue injury to the pelvis but that this had resolved. On 14 December 2021, medical assessor Thomas Newlyn found that the plaintiff had no psychological injury caused by the accident.

Circumstances leading to the present application

12. The applicant applied to the Court, pursuant to r 23.4 of the UCPR (and s 86 of the MACA), for the plaintiff to be the subject of medico-legal assessments by a neuropsychologist (Dr Wendy Roberts), a psychiatrist (Dr Samson Roberts) and a neurologist (Associate Professor Paul Spira) on 1, 4 and 5 August 2022, respectively.

13. The motion was heard by Judge Gibson on 27 May 2022 and on that day, her Honour ordered that the plaintiff attend examinations before those persons on the nominated dates. Her Honour also ordered that the plaintiff attend those examinations in Adelaide by a flight to be arranged by and at the expense of the applicant. (The applicant had undertaken to meet the plaintiff’s reasonable travel costs, including but not limited to, costs arising from her stay, and her carer’s stay, in Adelaide, including an advance to pay for incidentals into the plaintiff’s solicitors bank account seven days prior to the flight departure). The plaintiff was ordered to pay the costs of this application.

14. On 28 June 2022, the applicant’s solicitors served notice that the firm required at least 15 working days’ notice of any cancellation and, indicated that if this was not received, the insurer would incur significant cancellation fees which would be ultimately payable by the plaintiff.

15. Because of vaccination requirements of Dr Roberts, the plaintiff’s appointment with her could not proceed. As a result, an appointment with another neuropsychologist (Dr Pauline Langeluddecke) was scheduled (still in Adelaide) on 2 August 2022.

16. Shortly before the first of the scheduled appointments, on 29 July 2022, the plaintiff’s solicitors, Firths, wrote to Ms Helen Li, an employed solicitor of the applicant’s firm, Barry Nilsson Lawyers. By then, I infer, the applicant, through its lawyers had transferred money into the Firths’ account to cover the incidentals of the plaintiff and her carer for the forthcoming trip.

17. It appears that this letter was sent following some unspecified request made by Ms Li to Mr Kospetas, a solicitor of Firths. The letter was authored by the principal of Firths in Mr Kospetas’ absence. The material part of the letter was as follows:

“Mr Kospetas rang me earlier today to report that he had had a telephone conversation with the next friend earlier in the day. In that conversation, the next friend claimed that the plaintiff was not in a fit state to attend. Mr Kospetas reminded him of the court orders and the arrangements which had been made at great expense and asked that he do everything in his power to ensure she attended.

The next friend replied in such a way that Mr Kospetas did not have any confidence that the Plaintiff would attend”

18. The author of the letter went on to state that “as a result of” the development, he had directed that his firm would file a Notice of Intention to File Notice of Ceasing to Act the next Monday.

19. Notices of Ceasing to Act were subsequently filed.

20. By a letter sent, by email to the tutor’s email address, dated 7 September 2022, the applicant’s lawyers enclosed a copy of their letter of 28 June 2022 and pointed out that they had been given less than the 15 days’ notice they required and set out details of the cancellation fees incurred. These were not only cancellation fees from the relevant medico-legal professionals, but also flight cancellation fees for the plaintiff and the tutor. In the aggregate, these fees amounted to the sum of $16,102.08. The applicant’s lawyers requested payment by the tutor of those fees.

21. By an email sent at 11:24 am on 7 September 2022, the tutor responded to this request for payment as follows:

“Once again can you please advise how i two pensioners are going to pay for anything when there’s zero money in savings account countless times I keep advising you that we have absolutely nothing as Amy requires full-time care Amy is on a disability pension I’m on a full-time carers pension there is no money with the cost of living becoming more more expensive there’s no way we will ever have that type of money.”

22. It appears that when the motion was before the Court on 27 May 2022, the Court did not make (and was not asked to make) provision for what might occur in the event that the medical appointments were not attended and the medico-legal professionals issued invoices for cancellation fees. But it is inferred from the correspondence that some arrangement had been made between the parties about this. The problem has arisen because the applicant has pressed for reimbursement of his payment of the cancellation fees, now, rather than at the conclusion of proceeding on a successful outcome (perhaps by way of damages on his cross-claims or more generally costs in the principal proceeding), and the tutor says that he cannot meet that. That explanation is not inherently implausible. The Court does not know of the tutor’s financial position. At any rate, the Court’s concern is not whether the plaintiff or her tutor stuck by an arrangement with the insurer as to who would incur liability for the cancellation fees. Its concern is separate and anterior to that matter: it is the elemental failure of the plaintiff to attend the medical examinations she was ordered to attend.

The applicant brings the motion for dismissal

23. On 21 September 2022, the applicant filed the present motion.

24. Service of the motion (in its original form) was proven by an affidavit of a process server, James Craswell, sworn 26 September 2022. The motion and the supporting affidavit of Ms Li was personally presented to the tutor at BP, Hutchinson Street, Coober Pedy.

25. The proceeding was returnable before this court on 30 September 2022, when this motion was set down for hearing on 11 November 2022. Certain other directions were made, including a requirement that the applicant notify the plaintiff of the directions generally.

26. By a letter dated 6 October 2022 to the tutor, such notification was supplied. The applicant proved service of the letter through another affidavit of Mr Craswell sworn 7 October 2022.

27. When the matter was called in court on 11 November 2022 and today, there was no appearance by or on behalf of the tutor.

28. I am however satisfied that the tutor has had adequate notice of the present application, in its original form and as amended.

29. At the outset of these reasons, I touched upon what occurred when the application was returnable before me on 11 November 2022.

30. After directions were made on that day, the applicant arranged to serve them on the plaintiff. Service was proven to have occurred on 14 November 2022. The plaintiff is therefore on notice of the additional ground upon which the applicant seeks the dismissal of the proceeding.

Submissions

31. The applicant relied upon written submissions of his Senior Counsel dated 4 November 2022 (MFI 1). In those written submissions, Mr Catsanos SC recounted the procedural chronology I have alluded to.

32. He emphasised to the Court:

1. the distance in time from the accident to today: proceedings have been brought three years after the accident and a further four years had since elapsed;

2. the applicant has been put to significant expense generally and, more recently by reason of the cancellation of recent medical appointments;

3. after putting the applicant to the expense of obtaining orders to attend medical appointments, no meaningful reason has been provided for the plaintiff’s failure to attend those examinations;

4. the evidence on this application indicates a real question as to the bona fides of the claim (at least in relation to psychiatric and psychological injuries);

5. there has been a significant breach of the court’s orders (of 27 May 2022), without explanation.

33. Senior Counsel for the applicant submitted that it was appropriate for the statement of claim be struck out and indicated that for the sake of avoiding the incurring of further costs, the defendant had elected to discontinue his cross claims. This approach would enable the proceedings to be finally disposed of in all respects.

Consideration

34. It is a well-known incident of practice that the Court’s power under r 23.9 extends beyond the power to dismiss to a power to stay a proceeding where, as here, the plaintiff has, unreasonably failed to attend medical examinations (see Ritchie’s Uniform Civil Procedure (NSW), LexisNexis [23.9.5]).

35. I accept that there has been default in compliance with the Court’s order and that this default has not been adequately explained. The only explanation, given second hand to the applicant, was a vague complaint that the plaintiff was not in a fit state to attend. There was nothing to suggest that any medical certificate was supplied to the applicant’s lawyers to indicate the nature and extent of such fitness.

36. The plaintiff and her tutor cannot say that they lacked the financial means to attend the examinations: these were met by the applicant’s insurer.

37. The real question now is what consequence should flow from the default in complying with the Court’s order on 22 May 2022 (and the directions made by the Court on 11 November 2022). When deciding to exercise a procedural power in its discretion, it is trite that the Court will consider the dictates of justice, and the Court is obliged to consider ss 56 and 57 of the Civil Procedure Act 2005 (NSW) and is entitled to take into account the other considerations in s 58(2) of that legislation.

38. The plaintiff’s conduct in not attending the medical examinations ordered of her and her willingness to allow the insurer to bear the costs consequences of her unexplained, or inadequately explained, failure to attend, is antithetical to the just, quick and cheap disposal of the real issues in the proceeding. The medical examinations bear upon the real issues in the sense that the principal issue in the proceeding is whether the plaintiff (with the encouragement or at the direction of the tutor) has fraudulently or dishonestly alleged certain kinds of personal injury. In such circumstances, it is virtually axiomatic or inevitable that a defendant would wish to have the plaintiff subjected to medical examinations and it is, from a distance, surprising that the tutor would have contested that entitlement. Be that as it may, the Court ordered her to do so. However her state of mind may be characterised, her conduct has not only not complied with a Court order, but has thwarted the defendant’s just entitlement to test her allegations and, consequently, brought the proceeding to an effective standstill. Quite apart from what it says about her attitude to the Court’s authority, her non-compliance has not only impaired the just determination of the proceeding, but has also impaired the efficient disposition of the Court’s business.

39. As I touched upon earlier, a large consideration weighing on the Court, and the reason for the adjournment of the matter from last November, was the consequence, accepted by the applicant’s Senior Counsel, that dismissal of the present proceeding would not shut out forever the plaintiff’s claim. That consideration is reflected in r 58.2(b)(vi).

40. It is relevant for the Court to assess the degree of expedition with which the parties (notably the plaintiff) has approached the proceeding (r 58.2(b)(ii)) and the degree to which they have fulfilled their obligations under s 56(2) (r 58.2(b)(iv)). By no means can it be said that she has shown the relative level of expedition; even for a personal injury proceeding involving alleged head injury or mental harm. By her resistance to the medical examinations in the first place, and her non-compliance with orders from the Court that she attend for medical examinations, the plaintiff has fallen well short of the obligation in s 56(2).

41. Further, the orders of the Court were made back in May 2022 and were due to be complied with in early August 2022.

42. Since then, the tutor has not done anything of substance to advance the proceeding. This is despite the circumstance that it is the plaintiff’s unexplained non-compliance with orders of the Court that she attend medical examinations which has led to the current impasse.

43. I am satisfied that in the circumstances, the plaintiff, by her tutor will maintain her resistance to submission to medical examinations that are likely to test her complaints without which this proceeding cannot progress. That is inconsistent with a plaintiff’s obligation to prosecute a proceeding with due despatch and is also apt to prejudice the defendant’s entitlements.

44. I am satisfied that, pursuant to r 23.9 and/or r 12.7 of the UCPR, individually or in combination, the proceeding should be dismissed.

Orders

45. The Court orders:

1. Makes orders in accordance with orders 1 – 3 of the defendant’s Notice of Motion filed 21 September 2022;

2. The Court also makes order 4 of the Notice of Motion, subject to the exclusion that the cross-defendants are not liable for the cross-claimant’s costs of the cross-claims;

3. If there be any application to vary order 4 of the Notice of Motion, it should be done within 14 days of these orders;

4. Dispense with the requirement to file a Notice of Discontinuance of the cross-claims.

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Decision last updated: 28 November 2022