Franklin v State of New South (TAFE NSW)

[2022] NSWSC 1147

Supreme Court

New South Wales

Medium Neutral Citation:	Franklin v State of New South (TAFE NSW) [2022] NSWSC 1147
Hearing dates:	24 August 2022
Date of orders:	24 August 2022
Decision date:	24 August 2022
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Grant the defendant’s application for an adjournment.
Catchwords:	CIVIL PROCEDURE – hearings – adjournment – where delay in receiving subpoenaed documents – application for leave pursuant to s 151D Workers Compensation Act 1987 (NSW)
Legislation Cited:	Workers Compensation Act 1987 (NSW), s 151D
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Alicia Franklin (Plaintiff) State of New South Wales (TAFE NSW) (Defendant)
Representation:	Counsel: B. McManamey (Plaintiff) D.E. Baran (Defendant) Solicitors: Slater & Gordon (Plaintiff) Bartier Perry (Defendant)
File Number(s):	2021/307765
Publication restriction:	Nil

extempore Judgment (revised)

1. The matter listed for hearing before me today is the plaintiff’s, Ms Franklin, application for an extension of the limitation period under s 151D Workers Compensation Act1987 (NSW) for her to commence and maintain proceedings against her employer, TAFE NSW, for work injury damages. The proceedings have been commenced by statement of claim filed on 29 October 2021, but as is notorious, an order for an extension of time to bring the proceedings can be made nunc pro tunc. It is common ground that the proceedings were commenced out of time.

2. In very brief terms, Ms Franklin's claim for work injury damages relates to her previous employment with TAFE. She relies upon events which occurred between February 2015 and February 2016 when she avers that she was exposed to bullying and harassment in the workplace. She ceased work on or about 25 February 2016. It is obvious for common law purposes that the latest date on which her claim for work injuries damages could have accrued was on 26 February 2016. Her application for an extension of time has had something of a history in the common law division. It was first listed for hearing on 14 June 2022 before Associate Justice Harrison and was adjourned to today's date in circumstances which I will briefly summarise.

3. However, it is appropriate for me to record, by way of context for what will follow, that the power under s 151D is a general flexible discretionary power to extend time when it is just and equitable to do so. Over the last 30 years since the provision has been part of the law of New South Wales, principles have been developed which govern the exercise of that discretion. The starting point is that the plaintiff must provide an explanation for the delay. Generally speaking, this is necessary to demonstrate that the delay in bringing the proceedings is not due to a lack of forensic diligence on the part of the plaintiff himself or herself. Satisfaction of that informal condition will often turn on considerations involving the plaintiff's interaction with the legal profession: when did she consult a solicitor; what did she tell the solicitor; what advice did she receive about the putative cause of action; and importantly, about the limitation period. If the plaintiff received such advice, what instructions did she provide? Did she decide that she would prefer to stay on workers' compensation rather than claim work injury damages? All of these matters are the common area of inquiry in relation to that first condition.

4. The second condition relates to forensic prejudice affecting the defendant’s position because of the delay. The courts proceed on the basis that there must always be some prejudice, but the question is whether the prejudice is such that the defendant can no longer have a fair trial of the issues. And naturally, unless the plaintiff demonstrates an arguable cause of action the court will not exercise the discretion to extend time on the ground it would be futile to do so.

5. From this analysis it is clear that in very many cases the defendant will, before the application is listed for hearing, wish to make its own inquiries, so far as it can, as to each of those matters, including the first matter. The first matter commonly involves issuing subpoenas to solicitors whom the plaintiff has consulted to obtain access to the solicitor's file to check for itself whether there is a record of the plaintiff's instructions, of the advice given and particularly a record of advice given in relation to the limitation period. This process is generally facilitated by a plaintiff because the courts take the view that a plaintiff who comes to court seeking an indulgence in relation to a limitation period has an obligation of disclosure of such matters. Indeed, given the plaintiff carries the onus it is the usual case that the court will expect that the plaintiff will disclose those matters in his or her evidence so the court can see for itself what advice the plaintiff received, and accordingly, what knowledge the plaintiff had of his or her entitlements and the limitation period imposed by law. However, the defendant is not bound by what the plaintiff says but is entitled to use the processes of the court to make its own inquiries.

6. In this particular case, Ms Franklin at a very early stage consulted her current solicitors, who are a very large national plaintiff's law firm, in relation to her rights against medical practitioners and a hospital who had treated her for her condition. She sought that advice because, on her case, she suffered liver failure due to a reaction to the medication that she was prescribed for her mental disorder resulting from the bullying. She subsequently required a liver transplant.

7. As happens within law firms, there were specialist teams. There was a medical negligence team, and a work injury damages team. On Ms Franklin’s case, it was not until much later that she was referred to the work injury damages team for advice about her possible rights to claim work injury damages from TAFE. A claim was duly initiated, observing the pre-litigation steps required before action.

8. When the medical negligence proceedings which had been earlier commenced came to the attention of TAFE's solicitors, they, not unnaturally, subpoenaed Ms Franklin’s solicitor's files in very general terms so they could check for themselves what instructions the plaintiff had given the solicitors and what advice she had received in relation to the matters I have referred to.

9. There was some early correspondence about the breadth of the subpoena and suggestions made by the plaintiff's solicitors from the medical negligence team about how it could be reduced to save time and expense. The defendant's solicitors were not happy with what had been suggested and they responded that they were entitled to have access to the whole file so they could make up their own minds about what was important and what was not. There began a tale of unspeakable forensic woe.

10. The material from the medical negligence file, it is now known, runs to some 25,000 pages. Two boxes of material were apparently produced in answer to the subpoena in May or thereabouts, but, for some reason, the whole file was treated in the Court's records as being subject to a claim for privilege. Evidence before me suggests that then the solicitors only intended to claim privilege in respect of one box of the two and the privileged box was itself separated, apparently, into seven packets in respect of different classes of document over which privilege was then claimed.

11. Given the difficulties and having regard to the consideration that the matter was listed on 14 June, instead of picking up the telephone and ringing anybody, an email war erupted. When no satisfaction was achieved by that means the matter was listed before her Honour Justice Adamson, in her capacity as the duty judge, on the Friday afternoon before the Tuesday after a long weekend when the matter was listed for hearing. Her Honour made orders, including orders for access, to be given over the weekend to those non-privileged documents and requiring an affidavit to be provided setting out what the basis of the claim for privilege was in respect of the other documents. I think it can be adequately summarised by saying that there was only partial compliance with those orders over the long weekend. I interpolate that was probably unsurprising given the great volume of documents involved. So far as I can tell from the information I have received and the various affidavits I have read, no-one informed her Honour of the pertinent information that she doubtless would have wished to know, that the parties were talking about 25,000 documents.

12. In any event, later that afternoon, if not before, it certainly became apparent that one box was not privileged. But Mr Baran of learned counsel, who appears for the defendant before me, and did so before Adamson J, has explained to me that attempts on that afternoon to obtain access through the registry to the non-privileged documents were unsuccessful. In any event, it was clear on 14 June when the matter came before Harrison AsJ that the case could not proceed for want of the opportunity of the defendant to inspect all of the documents. Her Honour made further directions for access to these documents. It seems to me that her Honour must have garnered some feeling for the magnitude of the task because she allowed a number of weeks for that to happen.

13. The plaintiff's solicitors complied with the reiteration of Justice Adamson's orders by Harrison AsJ by filing affidavits setting out the privilege claim. Relevantly, there was no claim for privilege in respect of the work injury damages file, and the more expansive claim for privilege in respect of the medical negligence file was reduced to two documents. An affidavit from the solicitor handling that matter, a Mr Timothy Cummings, affirmed on 30 June 2022 was served on 4 July in compliance with Harrison AsJ’s orders.

14. One would have been entitled to think that was the end of it. However, it was not. Again, if I may say so with respect to all involved and with no criticism of them, given the way legal practice is conducted in the modern age, the email war re-erupted with renewed vigour. Not only was fire exchanged by email, but troops were marshalled within the warring camps by email as well, which has provided a very firm evidential foundation for the affidavits I have read, but apparently failed to achieve either side’s purpose.

15. A critical date is around about 15 July. Then, it became apparent to Ms Mackovic, the solicitor handling the work injury damages file for Ms Franklin, that something had to be done to break what was an apparent stalemate. I interpolate that the stalemate really was not due to any inertia on anyone's part because the emails continued to fly. Ms Mackovic contacted Mr Cummings to inform him there was still a problem with access to the medical negligence file and could he do something about it. I paraphrase. Mr Cummings has now forgotten that he did reply to that email and pointed out to Ms Mackovic that he thought he would have to attend Court to sort it out and requesting it be listed for return of subpoena the following week so that he could do that. I say he has forgotten this detail because he has affirmed an affidavit filed in court today dated 24 August stating he has no recollection of reading Ms Mackovic's email. I assume that he searched his inbox and not his sent box for the purpose of preparing his affidavit, as I have no reason to suppose anything else, but he did, as I say, respond in the manner I have outlined.

16. It seems that Mr Cummings' apprehension was well-founded, because earlier the solicitors for the defendant had attended on the return of other subpoenas before Senior Deputy Registrar Hedge, and as a result of the continuing problems with access to the medical negligence file the registrar ordered that the plaintiff's solicitors were, "to attend registry as necessary to identify and separate privilege documents from packet S1." Packet S1 was the designation of the documents produced from the medical negligence file. Mr Lamproglou, the defendant's solicitor, informed Ms Mackovic of that order by a letter dated 30 June 2022, which is obviously the matter which prompted her email to her colleague albeit on or about 15 July 2022.

17. It seems that despite an increasingly hot exchange of emails that the attendance at court did not occur until the matter was listed again for return of subpoenas on Thursday last, 18 August 2022. It may have been that there was another return of subpoenas in the interim which I have overlooked in these overly long reasons, because many subpoenas have been issued. In any event, nothing happened until then. At that stage the matter was sorted out and access was finally granted except to the two documents, I assume, in respect of which privilege was maintained. Mr Lamproglou arranged through his subordinates for law agents to attend the Supreme Court registry and obtain access to the documents and to print them. I think it was probably at that stage that the magnitude of the task was finally appreciated, and Mr Baran tells me that he's been looking at the documents and using his experienced eye to race through them as quickly as possible. He has not yet been able to complete that task, which does not surprise me given that there are 25,000 of the documents. It would be obvious to anyone that the vast majority of those documents would not be relevant because they will relate to the evidence gathered and the material obtained in relation to the medical negligence case and not exclusively to instructions received or advice given about common law rights whether generally or otherwise. However, I accept that the defendant is entitled to satisfy itself, given that in the end there was no objection to the breadth of production pressed, what documents it wishes to tender to adequately defend the application for extension of time.

18. Yesterday, the defendant filed a motion seeking an adjournment and consequential relief in relation to costs, including costs against the solicitors, the recipient of the subpoena. I granted leave for prayer 2 in the notice of motion which is the prayer seeking an adjournment to be returnable instanter, but not the other prayers.

19. I have heard argument from Mr Baran and from Mr McManamey of learned counsel for the plaintiff, and in the best common law tradition each has argued his case strongly as to, on the one hand, why the case must be adjourned, and on the other, why it must not.

20. It seems to me in the end, having set out essentially a narrative of the circumstances in summary form, that the defendant is entitled to satisfy itself as to what documents from among the 25,000 might have a relevant bearing upon the issues that I or another judge will have to determine to decide whether to exercise the s 151D discretion. Of course, in the modern age, courts hate adjournments worse than sin, but they are often necessary if the interests of justice are to be observed and implemented. It seems to me that although Mr McManamey confidently assures me that the defendant's searches will come to nothing telling against the plaintiff, that the defendant is entitled to satisfy itself that his confidence is well-placed. Although the history I have recounted is unfortunate, and I would like to think that perhaps could have been resolved by a cut through telephone call, it is not for me perhaps to cast aspersions upon modern methods of practising law.

21. I am satisfied that the defendant would be at a requisite disadvantage if I forced the matter on to conclusion today. It seems to me that the plaintiff is not at any particular prejudice if I allow an adjournment. The proceedings were issued late and out of time, and although delay is a bad thing for the administration of justice, fairness is a better thing. I am not satisfied that the prejudice of the delay that Ms Franklin will suffer outweighs the potential forensic prejudice suffered by the defendant if it is not given the opportunity to complete its preparations given the history I have recounted.

22. I say this bearing in mind that Ms Franklin's case against the employer has its origin in a claim for mental harm and one must always be sensitive to the stress that persons afflicted by such a condition may experience. However, I am sure that the matter can be dealt with expeditiously by the defendant so far as its preparations are concerned and that the matter can be relisted within a matter of months. That may seem like a long time, but when one considers that the claim has been some years in the making it is not a disproportionate time to ensure that both sides have an adequate opportunity to present their case in relation to the extension of time. For those reasons I propose to accede to the defendant's application for an adjournment.

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Decision last updated: 26 August 2022