Dwyer v VWA (Ruling No. 1)
[2018] VCC 703
•21 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-00267
| Sean Dwyer | Plaintiff |
| v | |
| Victorian WorkCover Authority | First Defendant |
| Ceva Logistics Pty Ltd CAN 122 147 433 | Second Defendant |
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JUDGE: | His Honour Judge SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 May 2018 | |
DATE OF RULING: | 21 May 2018 | |
CASE MAY BE CITED AS: | Dwyer v VWA (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 703 | |
REASONS FOR RULING
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Subject: Application to adjourn trial date
Cases Cited: Ugly Tribe Co Pty Ltd V Sikola [2001] VSC 189
Ruling: Plaintiff pay the defendants’ costs thrown away by reason of the adjournment on a standard basis
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Hamilton | Mr R Donnelan (PRD Legal) |
| For the First Defendant | Ms R Annesley QC | Mr R Parrish (Russell Kennedy) |
| For the Second Defendant | Mr D Younane (HWL Ebsworth) |
HIS HONOUR:
1 This matter was fixed for trial on 11 May 2018 by the timetabling order made16 August 2017.
2 On 8 May 2018 an application was made on behalf of the plaintiff to vacate the trial date on the grounds that the plaintiff sought to make an amendment to its Particulars of Injury.
3 The application was opposed on behalf of the defendant.
4 It is beyond contention that the application was made at the 11th hour:
· after a mediation had been conducted in the matter; and
· at a time at which the defendant had briefed both Senior and Junior Counsel to appear at the trial.
5 Essentially the basis of the adjournment application was to allow the plaintiff to amend his Particulars of Injury so as to plead that as a consequence of the injury sustained to his left leg and his altered gate resulting from the injury the plaintiff has developed a degenerative condition in his right knee.
6 The only evidence available to the plaintiff upon which to base his amended Statement of Claim is that contained in a medical report from Mr John Bartlett, orthopaedic surgeon, who examined the plaintiff on behalf of the defendant on 26 February 2018.
7 It follows that at the time of making his application the plaintiff has no independent medical evidence to support the relationship between a disability with which he presents in his left knee and the symptoms with which he presents in his right knee from either a treating doctor or a consulting medical practitioner engaged by him.
8 Given the paucity of medical evidence upon the issue, and the uncertainty as to whether the plaintiff would be in a position to obtain supportive medical evidence, I allowed the plaintiff some time to consider as to whether or not he wished to pursue the application to adjourn the trial in circumstances in which there was no issue that a costs order would be made against him in favour of the defendant with respect to the costs thrown away by that adjournment, including the brief fees associated with the retention of both Senior and Junior Counsel to appear at the trial.
9 I am not satisfied that the plaintiff has provided a clear and compelling explanation as to the delay which occurred in making the application to vacate the trial date or the failure to recognise the presence of the alleged condition upon which that application was based.
10 Whilst the plaintiff was a resident of New Zealand for a significant period of time, there is no issue that the plaintiff:
· returned to Australia in December 2017; and
· first raised the presence of the condition in his right knee with his solicitor on 26 April 2018 notwithstanding the fact that he had for a considerable period of time been walking with an altered gate which had caused him to experience symptoms in his right knee which increased with the passage of time.
11 It is difficult to fix with any precision the time at which a reasonable person presenting with a disability of the type with which the plaintiff now presents in his left knee and right knee should have been on notice that there may be a causal relationship between the two conditions.
12 Whilst it would come as no surprise to any experienced lawyer that the onset of symptoms in the plaintiff’s right knee may be sponsored by the ataxic gait for which the injury sustained to his left knee was responsible, I am not satisfied that that issue would necessarily be apparent to a layperson.
13 Given the email evidence tendered on behalf of the plaintiff in the first affidavit sworn by Mr Parrish I am satisfied that the plaintiff most probably presents as a relatively simple man; his life experience is that of a truck driver and that he is most likely relatively naive as to medical issues of the type to which I referred above.
14 For that reason I am satisfied that it cannot be said that a reasonable explanation does not exist which diminishes the culpability of the plaintiff in making a late application to vacate a trial date on the basis of medical evidence the nature of which was barely adequate to justify the granting of the application.
15 It is clear that the defendant is entitled to its costs thrown away by reason of the adjournment. The issue for my determination is whether those costs should be paid on an indemnity basis.
16 There is no issue that the authorities relevant to the making of an order with respect to indemnity costs are those set out in Ugly Tribe Co Pty Ltd V Sikola[1], namely:
[1] [2001] VSC 189;BC 200103454 at [7]
(i) the making of an allegation, known to be false, that the opposite party is guilty of fraud;
(ii) the making of an irrelevant allegation of fraud;
(iii) conduct which causes loss of time to the court and to other parties;
(iv) the commencement or continuation of proceedings for an ulterior motive;
(v) conduct which amounts to a contempt of court;
(vi) the commencement or continuation of proceedings and wilful disregard of facts known or clearly established law;
(vii) the failure until the commencement of the trial, without explanation to discover documents, the timely discovery of which would have considerably shortened, and very possibly avoided, the trial.
17 It is clear that the circumstances which would justify the making of indemnity costs order are by no means closed and that every application for such an order should be considered on a case-by-case basis. The list to which I referred above however does recognise, in my view, the serious nature of the conduct which would justify the making of such an order.
18 Notwithstanding the very late stage at which this application was made and the paucity of the evidence upon which it was based I am not satisfied that it can be said that the presence of the indicia necessary for the making of an indemnity costs order has been made out.
19 For these reasons set out above I am satisfied that I should make the following orders:
1. The plaintiff is to pay the defendants’ costs thrown away by reason of the adjournment including the brief fees of both Senior and Junior Counsel to be fixed in default of agreement by the Costs Court on a standard basis.
2. The payment of those costs be stayed pending the determination of the matter or further order of the court.
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