Dickson v Hunter New England Local Health District

[2020] NSWSC 829

Supreme Court

New South Wales

Medium Neutral Citation:

Dickson v Hunter New England Local Health District [2020] NSWSC 829

Hearing dates:

16 June 2020

Date of orders:

16 June 2020

Decision date:

16 June 2020

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The plaintiff’s Notice of Motion filed on 10 March 2020 seeking leave to file its Amended Statement of Claim is dismissed.

(2) The plaintiff is to pay the defendants costs of the Notice of Motion seeking leave to file its amended statement of claim.

(3) The plaintiff’s Notice of Motion for expedition is dismissed for the reasons set out in my judgment.

(4) The plaintiff is to pay the defendant’s costs of the Notice of Motion seeking expedition.

(5) The proceedings are to be case managed by Lonergan J commencing today.

(6) The matter is listed for directions before Lonergan J at 9:00am on 13 August 2020. The parties should indicate to my Associate on the day prior any issues the parties may wish to ventilate and should come prepared to discuss the fixing of a hearing date should the matter have reached a sufficient state of preparation to that date.

Catchwords:

CIVIL PROCEDURE — hearings — expedition — application for expedition — health of plaintiff deteriorating — poor prognosis — matter not ready for hearing — multiple issues to be addressed before hearing — multiple prior directions hearings held — timetables for service of evidence not complied with — application refused

CIVIL PROCEDURE — court administration — overriding purpose — just, quick and cheap resolution — case management — ongoing case management as alternative to expedition of proceedings

COSTS — party/party — general rule that costs follow the event — proceedings discontinued or dismissed

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Cases Cited:

Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33; [1989] NSWSC 1010

Category:

Procedural and other rulings

Parties:

Robert Dickson (Plaintiff)
Hunter New England Local Health District (Defendant)

Representation:

Counsel:
M Daley (Plaintiff)
S Kettle (Defendant)

Solicitors:
Monaco Compensation Lawyers (Plaintiff)
NSW Crown Solicitors Office (Defendant)

File Number(s):

2017/101435

Publication restriction:

Nil

EX TEMPORE Judgment

1. The plaintiff, Robert Dickson, commenced proceedings against the defendant, Hunter New England Local Health District on 24 April 2017. He claims that in February 2015, the defendant failed to appropriately diagnose and treat symptoms of a stroke, and that if it had been more rapidly diagnosed and treated, he would have had a favourable recovery. Instead, at the age of 81, he has been left with significant disabilities and needs full-time care and assistance.

2. The defendant denies it was negligent, relies on s 5O of the Civil Liability Act 2002 (NSW) and disputes causation.

3. The proceedings were filed in the professional negligence list and have been given fairly close case management by the Registrar between the first directions hearing on 13 July 2017 and the last on 25 March 2020. There have been repeated timetables for service of evidence laid down by the Court, some of which have been complied with and many of which have not.

4. Against this background, the plaintiff filed two Notices of Motion on 10 March 2020 which have been referred to me for hearing today as the Duty Judge.

5. The Notice of Motion seeking leave to file an Amended Statement of Claim has been abandoned as at last Friday. The Notice of Motion seeking expedition of the hearing of the proceedings is pressed.

6. For the reasons that follow, I decline to grant the application for expedition, but I take the view that the matter would benefit from case management and I will personally case manage the matter from today.

Evidence and Procedural History

7. The evidence relied on by the plaintiff in support of the application for expedition comprises an affidavit of his solicitor, Nicola Jandura, affirmed 10 March 2020, a further affidavit of the same author affirmed 4 May 2020, and most significantly, an affidavit of the plaintiff himself affirmed on 12 May 2020. I should note that the firm with current conduct of the matter took over in April 2019 and obviously took the view that further work needed to be done and further expert reports obtained.

8. As pointed out by Mr Daley, who was engaged as counsel for the plaintiff late last year, a mediation was held late last year that was unsuccessful, and it had been hoped that the mediation would bring resolution of all issues between the parties.

9. In the affidavit of March 2020, Ms Jandura refers to the fact that she obtained a report of Professor Brew, a neurologist, dated July 2019, and that he referred to a poor prognosis for Mr Dickson and difficulties associated with his day-to-day needs. Professor Brew noted that there was likely to be general progression of Mr Dickson’s disabilities because of his advanced age and that Mr Dickson’s right-sided weakness diminishes his general physical reserves. His life expectancy was reduced by virtue of the stroke, and there are complications associated with his weakness and poor balance, leading to a significant increase in the risk of falls which would itself be associated with other difficulties including potential mortality.

10. Ms Jandura also noted that Mr Dickson has told her his condition continues to deteriorate.

11. In her affidavit of 4 May 2020, Ms Jandura refers to the state of readiness of the matter, expressing the rather optimistic view that the matter is, in effect, ready for hearing.

12. What the affidavit indicates to me, however, is that the matter is far from ready for hearing but could be made ready for hearing with concerted effort. To date, there have been no joint conclaves of experts and there are issues regarding a lack of clarity about the position of a report of Dr Raftos, and there would need to be some further steps for preparation. Given the demonstrated cooperation and professionalism between the parties, on both sides of the proceedings, I have confidence that matters will be soon attended to, but there does need to be time allowed for that to happen.

13. Mr Dickson's affidavit outlines his difficulties with movement, the limited care he has and his ongoing fall risks. His care at the moment consists of one hour in the morning and one in the afternoon, and he has no care at all on the weekends. From February 2020 his live-in carer departed pursuing other work. Mr Dickson had the assistance of that carer since late 2017. Mr Dickson recently suffered four falls and required medical treatment. He has been assisted by one month of respite care recently, but is on an aged care pension and only has a small amount of savings. Understandably, he wishes to remain at home if he can, rather than move to a nursing home.

14. The defendant relies upon an affidavit of Denise Aydin, solicitor for the defendant, sworn on 2 June 2020 which outlines the history of the proceedings in some detail. Amongst other matters, the affidavit notes that the plaintiff changed solicitors in April 2019 and that in June 2019, the new solicitors emailed her to note that Mr Dickson's condition had deteriorated markedly in the last twelve months and that he had a live-in carer.

15. In December 2019 it appears that the plaintiff's case was still not ready. The plaintiff’s solicitor advised that there would need to be a further report from Professor Brew addressing liability issues and that there was a likelihood of expansion of the allegations of negligence. There was some activity in January 2020 relating to a proposed amended statement of claim and the parties, to their credit, have sorted out and refined the issues in relation to that, and the notice of motion in respect of those amendments is no longer pressed.

16. On 25 February 2020 the plaintiff's solicitor had advised that he would be seeking expedition when the matter was next before the Court. The application was then filed on 10 March 2020.

17. There is a further timetable in place providing for the defendant to finalise its service of liability and quantum evidence by 30 April and 30 June 2020 respectively. I note there has been some cooperation regarding COVID-19 related difficulties associated with those assessments and I have been informed today by counsel for the defendant that assessments are to take place on 6 July 2020 with a neurologist, and 7 July 2020 with a geriatrician, and to the extent necessary, I will make an order extending time for service of associated medical reports when I next case manage the matter, or today if counsel wish me to do so.

18. No order was made permitting the plaintiff to serve further liability evidence but the plaintiff did so on 27 February 2020, serving a report by Associate Professor Raftos, an emergency specialist. Dr Raftos had not previously provided an opinion in the case and there has been correspondence between the parties about the relevance of that opinion and the lateness of its service.

Submissions

19. Mr Daley, on behalf of the plaintiff, draws my attention to the factors set out in the decision of Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33; [1989] NSWSC 1010 (“Greetings Oxford Koala HoteI”) at [42]-[43]. He emphasised the age and deterioration of the health of Mr Dickson, and the consequent need for 24 hour assistance. He also noted the contents of the report of Professor Brew and those matters I have referred to that Professor Brew raised in the July 2019 report.

20. Mr Daley made the point in his written submissions that the delays of the previous solicitor should not be visited upon the plaintiff. That is indeed a reasonable submission. He also noted that his instructing solicitor had contacted the registry to determine what hearing dates may be available and has been informed, and I accept, that for a hearing of five or more days, the first available dates are in August 2021. Mr Daley made the submission that a degree of expedition was warranted and given that it is unlikely a date could be allocated until after various other directions hearings, should this matter take the normal course, it may well be that the August 2021 dates will no longer be available. He submitted that given the age of Mr Dickson and the difficulties he is having, this would be a most unfortunate outcome.

21. Counsel for the defendant, Mr Kettle, submitted that the Court needed to have regard to the lack of expedition in the proceedings generally as well as the lack of expedition in prosecuting this motion since Professor Brew's July 2019 report became available. There have been 13 directions hearings, there are medical examinations yet to occur, the plaintiff has not yet confirmed that his service of evidence is complete and there is the issue regarding Dr Raftos' report. On application of the discretion to expedite consistently with the authorities and, in particular, the factors referred to by Young J in Greetings Oxford Koala Hotel at [42]-[43], the Court ought not grant expedition.

22. I need also to bear in mind, implicit in that submission, the dictates of justice and my obligation to take into account ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) in exercising my discretion or making any order or direction for the conduct and management of proceedings. In that regard, I am obliged to take into account other proceedings before the Court. That is particularly relevant when considering whether an order for expedition should be made.

23. As stated near the beginning of this judgment, I take the view that there have been delays in the proceedings and, in particular, since July 2019 and the report of Dr Brew, delay in bringing this application. Whilst I have great sympathy with the difficulties Mr Dickson has bravely faced, most recently alone, the submissions and matters raised by the defendant are persuasive and I decline to make an order for expedition.

24. I will, however, make an order that the matter be case managed by me from today and to that extent I invite further submissions from the parties as to what orders I can usefully make today. I will also hear from the parties in relation to costs.

Costs

25. The plaintiff's notice of motion for leave to amend the statement of claim was not pressed today and the defendants were only notified of that fact last Friday. Mr Daley noted, properly, that there was not much he could say to contest an order that the plaintiff pay the costs of the notice of motion in respect of the amendment to the statement of claim.

26. I am of the view that in the circumstances, the plaintiff should pay the defendant's costs of that notice of motion.

27. In respect of the costs of the notice of motion for expedition, the plaintiff has been unsuccessful and, as noted by Mr Kettle, costs would normally follow the event.

28. Mr Daley submitted that because of the notice of motion, the proceedings now have the benefit of judicial case management on an ongoing basis and that this should be taken into account against a costs order being made against his client.

29. In my view, this does not get around the fact that the defendant had to go to the time and expense of preparing material, preparing submissions and briefing counsel to appear to argue against expedition. The defendant’s arguments were successful, given the circumstances of preparation of the case and the delays associated with its preparation and in the filing and pursuing the expedition application. In my view, the proper order is that the plaintiff pay the defendant's costs of the expedition notice of motion.

Orders

30. I make the following orders:

1. The plaintiff’s Notice of Motion filed on 10 March 2020 seeking leave to file its Amended Statement of Claim is dismissed.

2. The plaintiff is to pay the defendants costs of the Notice of Motion seeking leave to file its amended statement of claim.

3. The plaintiff’s Notice of Motion for expedition is dismissed for the reasons set out in my judgment.

4. The plaintiff is to pay the defendant’s costs of the Notice of Motion seeking expedition.

5. The proceedings are to be case managed by Lonergan J commencing today.

6. The matter is listed for directions before Lonergan J at 9:00am on 13 August 2020. The parties should indicate to my Associate on the day prior any issues the parties may wish to ventilate and should come prepared to discuss the fixing of a hearing date should the matter have reached a sufficient state of preparation to that date.

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Decision last updated: 29 June 2020