Donald v Rail Corporation of New South Wales

[2015] NSWSC 1057

Supreme Court

New South Wales

Medium Neutral Citation:	Donald v Rail Corporation of New South Wales [2015] NSWSC 1057
Hearing dates:	20; 21; 22; 23 July 2015
Date of orders:	23 July 2015
Decision date:	23 July 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The matter is adjourned and fixed for further hearing before me at 10am on 2 November 2015 with an estimate of five days plus; The plaintiff is to serve either a statement of Albert Price, if he will cooperate, or, a narrative of his expected evidence if he will not, and any supplementary statement from Ms Stevens on the first and second defendants by 20 August 2015; The defendants are to serve any supplementary evidence arising out of material served by the plaintiff or the course of the evidence during this hearing by 17 September 2015; Fix the matter for directions before me at 9.30am on 27 August 2015.
Catchwords:	PROCEDURE – civil – application of adjournment – subpoena of lay witness by plaintiff – where case has no prospect of finishing within time estimate COSTS – application for plaintiff to pay costs thrown away by adjournment – costs reserved until further evidence is heard
Legislation Cited:	Civil Procedure Act 2005 (NSW); Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Category:	Procedural and other rulings
Parties:	Alan Donald (Plaintiff) Rail Corporation of New South Wales (First defendant) Staff Innovations Pty Ltd t/as Banford Family Trust (Second defendant)
Representation:	Counsel: DR Campbell SC with S Longhurst (Plaintiff) RJ Burbidge QC with A Casselden (First defendant); M Windsor SC with R Perla (Second defendant) Solicitors: Acorn Lawyers (Plaintiff); Hicksons Lawyers (First defendant); Moray & Agnew Lawyers (Second defendant)
File Number(s):	2010/00349997

1. Mr Donald is claiming damages from Rail Corporation New South Wales and his then employer, Staff Innovations Proprietary Limited, in respect of personal injuries which were sustained at work as long ago as May and June 2008. The case initially started in the District Court and was transferred to this Court. It came on for hearing before Schmidt J in 2013, at which time it was adjourned to enable the second defendant to be joined. That process, I infer, involved jumping through the various hoops that are put in the way of plaintiffs by the provisions of Ch 7 Workplace Injury Management and Workers Compensation Act 1998 (NSW), and the matter has come up for hearing at this late stage of July 2015.

2. From the joint memorandum of issues in dispute, and the memorandum of agreed facts which have been filed by the parties in compliance with this Court's normal case management procedures, it was evident that from the commencement of the hearing that almost everything that could be disputed in Mr Donald's case would be disputed. Indeed, that obvious, available impression has been reinforced, if anything, by the course of the hearing before me so far, and the content of the cross-examination that has been directed to Mr Donald.

3. I am now asked in these circumstances to adjourn the case to enable a lay witness to be subpoenaed and his attendance secured to give evidence in the plaintiff's case.  I allow myself the comment, given the nature of the issues, and the content of the plaintiff's own evidential statement, that Mr Albert Price is a key witness who might be required to make good the plaintiff's case which should have been obvious from at least the time that the joint memorandum of issues in dispute was signed back in April 2015, and certainly from the time that lay evidence on behalf of the first defendant was exchanged in accordance with the practice notes. I am told that there are a number of lay witnesses, and I infer from the content of the cross-examination as I have said, those witnesses must have made statements which would reinforce what should have been obvious already, that the fact of injury is highly contested.

4. Mr Govan, the solicitor for the plaintiff, has sworn an affidavit today which has been read in support of the application for the adjournment, in which he very frankly accepts responsibility for the oversight of failing to secure the attendance of Mr Price for the hearing this week.

5. From the evidence I have heard, Mr Price and the plaintiff, Mr Donald, are old friends, and have stayed in touch, at least somewhat, over the years since they worked together at the Rail Corp site.  I suppose in those circumstances, it might have been thought that Mr Price would be a witness amenable to coming to court under his own steam.  However, prudence might have required, or suggested anyway, that he be given a subpoena, just in case.  However, I accept that Mr Govan's evidence about it without hesitation.

6. In the circumstances I have outlined, the prospect of an adjournment might seem poor.  However, there is one factor which I think changes that scenario, and that is, when the matter was called on for hearing on Monday of this week, Mr Burbidge of Her Majesty's counsel, who appears with Mr Casselden for the first defendant, with the concurrence of other learned senior counsel in the case, informed me that there was no prospect of this case finishing this week.

7. Appropriate apologies were made to the Court for the error made in the estimate, but it has been indicated to me that even if there was evidence available to take me through to 4 o'clock tomorrow, when the case resumed at some time in the future, more than a week might be left in the case; as I have said, there is a hot contest about the primary facts.  I understand from the material I have received that there is also a hot contest between the expert ergonomists as to liability issues, and from the course of the cross-examination, I infer there is a hot contest about the medicine. Evidence in all of those departments will need to be called.

8. True enough, if I grant the adjournment today, that Mr Campbell of senior counsel seeks, we will lose a day and half of hearing time that could have been put to good use.  I interpolate that neither defendant wishes to go into evidence until they have heard all of the plaintiff's evidence on liability.  That is completely reasonable and entirely understandable, especially in the circumstances of the case. Notwithstanding the more flexible procedures adopted these days in running these common law cases, I would not require, or seek to persuade, either defendant to depart from that wise position.

9. The plaintiff's case, if it is accepted in due course, is that he suffered a very significant back injury which has effectively put him out of the work force; as it is sometimes put, on the industrial scrap heap. And he is only 40 years of age.  Clearly the potential of the case, and its significance to him, is vast; at least the latter, if not the former. It seems to me that while attempting to do justice between, or amongst, all of the parties, it is legitimate for me to take into account his particular personal circumstances in that regard. 

10. Given that an adjournment was inevitable in any event, I think that this case is one in which I should accede to Mr Campbell's application to enable proper steps to be taken to secure the attendance of Mr Price to give evidence.

11. Undoubtedly as Mr Burbidge pointed out yesterday, Mr Price's evidence, if it proves in the event to be favourable to the plaintiff, might require detailed cross-examination, given the case of the first defendant.  So that additional time may be taken up at the adjourned hearing over and above what was expected to be involved.  Notwithstanding that, bearing in mind that the primary function of the Court is to do justice among the parties, and notwithstanding the efficiency provisions of the Civil Procedure Act 2005 (NSW) I propose to adjourn the matter to enable the plaintiff, as it were, to put his house in order.

12. There is another factor which is the plaintiff's partner is required to give evidence. Given the attack that has been mounted against the plaintiff's credit, she is required, as I understand the contents of her statement, to provide some corroboration in relation to some of the matters the plaintiff says about the development of his injury and its effect upon him in the early stages.

13. She is in Nyngan with their family, and it is understandable that she could not be here this week when there are four children to look after there.  It was hoped that perhaps her evidence could be taken by audio visual link.  However, given the issues, I am informed by Mr Burbidge that he would prefer her attendance in person to give evidence, and again that is an understandable position.

14. Moreover, what I am told about the potential for actually making an audio visual link does not, I must say, fill me with complete confidence that it can be successfully undertaken.  In all the circumstances, as I have said, I propose to grant the adjournment now, rather than at 4pm tomorrow.

15. Mr Burbidge has very properly asked for an order that the plaintiff pay the costs thrown away by this earlier than anticipated adjournment, and indeed, has asked for an order that those costs be payable forthwith, and that the matter not proceed to further hearing until that order is satisfied.

16. It is apparent to me that unless the lawyers were to pay any costs out of their own funds, such an order would inevitably go unsatisfied.  Mr Donald, according to the evidence I have heard, apart from a couple of days in the early months following his alleged injury, has been on worker's compensation for eight years. It seems to me that even guessing at the costs that might be involved for a day and a half of the array of legal talent I have had the benefit of me all week, that it would be impossible for him to make any impression upon that, and that such an order would inevitably lead to the case being stayed.

17. Mr Burbidge has clarified his client’s position and I need not explain why I would not make such an order, as I was about to do at some length.  It has been made clear that what is sought is the usual order, that is to say that the costs thrown away by reason of this early adjournment be granted in favour of the first defendant.  Mr Windsor has not made any such application.

18. In the circumstances I have decided that although at first blush a wasted costs order would be almost inevitable, I am satisfied that the case was bound to come to a halt at this stage in any event.  I have got no doubt that all counsel can be usefully employed in continuing the preparation for this case over the next day and a half, and I think it appropriate, as Mr Campbell has suggested, that I reserve the costs of all parties to be determined by me at the time I make my final decision.  I will make some orders in a moment.

19. After the reasons I have just pronounced Mr Burbidge QC submitted that I should, at the very least to protect the defendants' position, make an order that the defendants' costs thrown away by the earlier than anticipated adjournment stand as the defendants' costs in the cause.

20. I have already said that I think that Ms Stevens' absence is reasonable in the circumstances I have outlined and I am not satisfied that I should change the order I made in relation to costs.  By reserving the costs I certainly intend that the issue will be revisited and not overlooked after I have the benefit of hindsight when I see the course of the further evidence that is called.  I make it clear I am not shutting out any application by any party in relation to what might be wasted costs by reason of this adjournment.  The order I pronounce will stand.

1. The matter is adjourned and fixed for further hearing before me at 10am on 2 November 2015 with an estimate of five days plus;

2. The plaintiff is to serve either a statement of Albert Price, if he will cooperate, or, a narrative of his expected evidence if he will not, and any supplementary statement from Ms Stevens on the first and second defendants by 20 August 2015;

3. The defendants are to serve any supplementary evidence arising out of material served by the plaintiff or the course of the evidence during this hearing by 17 September 2015;

4. Fix the matter for directions before me at 9.30am on 27 August 2015.

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Decision last updated: 30 July 2015