Grech v Spitteler

[2023] VCC 1709

The

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-22-05455

GARY GRECH	Plaintiff
v
RACHAEL SPITTELER	Defendant

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JUDGE:	JUDICIAL REGISTRAR GURRY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2023
DATE OF JUDGMENT:	25 September 2023
CASE MAY BE CITED AS:	Grech v Spitteler
MEDIUM NEUTRAL CITATION:	[2023] VCC 1709

RULING
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Subject:PRACTICE AND PROCEDURE

Catchwords:              Plaintiff’s application for expedited/priority trial date refused

Legislation Cited:      Civil Procedure Act 2010

Cases Cited:

Judgment:                  The plaintiff’s application for an expedited trial date is refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin KC	Patrick Robinson & Co
For the Defendant	Mr D Guthrie	HWL Ebsworth Lawyers

HIS HONOUR:

Introduction and summary

1This is the plaintiff’s application for an expedited trial date which is not opposed by the defendant. If granted the defendant however seeks at least 6 weeks to sufficiently prepare for trial.

2The plaintiff commenced proceedings by way of writ dated 16 December 2022 with statement of claim dated 9 December 2022.  The plaintiff was involved in a transport accident on 20 December 2019 when riding a motorbike in Sydenham.  He sustained multiple physical injuries inclusive of a degloving injury to the left thigh, to the lumbar and cervical spine, to the left shoulder, hips, scrotum, abrasions, bruising and haematomas. Further he pleads chronic pain and depression.

3From the statement of claim I note the plaintiff was born in May 1969 and had, as from April 2011, worked fulltime with Crown Melbourne Ltd as an upholsterer in the property services section. A claim is made for loss of earnings and loss of earning capacity.

4The appearance was filed on 8 February 2023 and a defence on 6 March 2023.  The defendant admits negligence but denies the extent of loss and damage suffered by the plaintiff as particularised and further pleads contributory negligence.

5The standard Court timetabling orders for a jury trial were made on 6 March 2023, which included setting the proceedings down for trial on 27 May 2024 with an estimate of seven to ten days. The Court timetable required the proceedings to be mediated by 15 April 2024. 

6The plaintiff filed a directions hearing application form on 31 May 2023 seeking “permission from the Court to vacate his trial date listed on 27 May 2024 and have the matter listed for an expedited hearing”.  The basis of the plaintiff’s application was that he was facing severe financial hardship which may result in the loss of his family home.

7The application came on before me on 9 June 2023.  I was not satisfied at that time that there were grounds to justify ordering an expedited trial date.  However, I made an order for the proceedings to be mediated by 18 August 2023.  I further ordered liberty to apply to me if the matter did not resolve at mediation.

8The proceeding was mediated on 16 August 2023 and did not resolve.

9The plaintiff’s solicitors then wrote to the Court on 16 August 2023 referring to my orders of 9 June 2023, applying directly to vacate the trial listed on 27 May 2024 and have the proceeding listed with an urgent expedited trial date.  The request was for a date within four weeks of the email.

10The matter came on before me again on 1 September 2023.

Basis of plaintiff’s application

11In the plaintiff solicitor’s email of 16 August 2023, seven points were listed in support of the application which were:

·        The plaintiff was facing severe financial hardship that may result in the loss of his family home.

·        The extension for any home loan repayments was due to expire by 30 August 2023.

·        The plaintiff was ready to proceed to trial.

·        Both parties consented to the application for an expedited hearing lodged on 31 May 2023.

·        Liability has been admitted by the defendant.

·        The defendant has served three medico-legal service reports in the last several months.  The plaintiff believes that the defendant has the necessary medical information to proceed to hearing.

·        The plaintiff wished to avoid incurring additional costs of securing further medical reports in future.

12Whilst 2 affidavits were provided by the plaintiff’s solicitor in support of the application, there was no affidavit evidence from the plaintiff. 

13The affidavits were both from Conor Robinson with the first affirmed on 7 May 2023 (first affidavit), the second on 1 September 2023 (second affidavit).

14The affidavits provided information based upon what the plaintiff is said to have told his solicitor and exhibited was communication with the Commonwealth Bank (CBA) and Centrelink.

15Relevant to my ruling was that the plaintiffs TAC loss of earning payments were terminated on 20 December 2022, Job Seeker payments were received from 21 May 2023 to 7 June 2023, and the plaintiff’s application for the Disability Support Pension was rejected as he failed to provide sufficient medical evidence for them to assess his case.

16The communication with CBA identifies that he has received hardship assistance through extensions to his mortgage payments.

17The email of 30 May 2023 stated that a three-month deferral of repayments would expire on 30 August 2023.

Consideration and reasons

18The Common Law Division of the County Court has listed approximately 1,667 General List trials and 1,446 serious injury trials this year. For matters in the General List the Court timetable provides a trial date either 10 or 12 months after the issue of proceedings. That time frame allows for the completion of all necessary interlocutory steps and for the proceeding to be mediated.

19On each sitting day matters listed which have not resolved are allocated to a Judge and any remaining listed matters are placed in the Reserve List. Judges who are available will accept a Reserve Matter requiring placement.

20In the Common Law Division Practice Note PNCLD1-2023 no procedure for an application for an expedited trial date is stated. 

21It is important to note that an expedited trial date means a priority listing. This means a Judge will be available to hear the proceeding and it will be given preference over proceedings listed that day. It would be inconsistent with the concept of an expedited hearing to move the date forward only to be not reached and then allocated a later date.

22The practice note does provide at paragraph 12.11 that practitioners are to advise the Common Law Registry as soon as they become aware of any circumstances which may require the proceeding being given priority on the listed trial date.  Such circumstances include significant health issues of a party or the availability of an interstate or overseas witness.  It says, “the Common Law Registry will allocate the matter to be heard with priority if that is possible”.

23The long-established practice however has always been that if a party seeks for any reason an expedited/priority trial date, then application is to be made to the Court. There are many factors the Court will consider, and the application will be heard by a Judge or Judicial Registrar.  However, an allocation is not a guarantee or certainty.  My experience is that applications involving health issues are granted priority dates. Since COVID-19 and with greater use of audio-visual technology the need for a priority date due to a party or witness being overseas or interstate has greatly reduced.

24An important factor I must consider is the Civil Procedure Act.  Specifically, my obligation in giving effect to the overarching purpose in the exercise of my powers and my obligations is set out in s9 of the Act.

25I am required, in making any order, to have regard to sub-paragraph (1):

(a)   the just determination of the civil proceedings;

(c)   the efficient conduct of the business of the Court; and

(d)   the efficient use of judicial and administrative resources.

I must also consider, pursuant to sub-paragraph (2)(f), any prejudice that may be suffered by a party as a consequence of any order.

26The pivotal ground of the plaintiff’s application is his fear he will lose his home due to an incapacity to meet his currently mortgage repayments brought about by the delay in having his proceedings heard. It appears he considers that issue will resolve by having his trial heard sooner. Secondary is the preparedness of the matter now for trial.

27At the first directions hearing, I ordered the matter proceed to an early mediation for several reasons. These included that the plaintiff’s case was limited to damages with an argument for contributory negligence and the information I had been given about the plaintiff’s mortgage repayments.

28For reasons, the matter did not resolve at mediation but given the issues in dispute it must be a difference in views as to the assessment of damages.

29I have made inquiries with the listings manager to ascertain the current position for listings from mid-October and the first two weeks of November which is the listing period sought.  I am informed there are substantive listings for the rest of this year with several priority listings already at the end of October and beginning of November.

30Whilst I have noted the plaintiff’s concern about his mortgage repayments, I am not satisfied there are sufficient grounds for a priority date to be given this year.

31Any person practising within the personal injury jurisdiction will understand financial hardship is placed upon many injured litigants.  This was one reason why in the early 1980s, the state government introduced the Transport Accident Act and scheme, to provide greatly expanded statutory benefits from the old Motor Accidents Board entitlements. An objective of the Transport Accident Commission, as said in s11 of the Transport Accident Act, is to ensure compensation is delivered in the most socially and economically appropriate manner and expeditiously as possible.

32My reasons for refusing the application are:

(1) there is a lack of direct evidence from the plaintiff on his financial circumstances. I have no knowledge such as any other assets, whether he has a partner who works, whether he has any dependants, other possible Income sources etc. Such information is important if a decision is to be made to give priority to this plaintiff over other plaintiffs who may be in a similar or worse position.

(2) I have no knowledge whether he is in receipt of any income assistance such as Centrelink and there is a failure to explain why the plaintiff has been ineligible for Disability Support Pension payments.

(3) It is the plaintiff who says he cannot work and that may be the evidence available and presented at trial. However, I have no medical evidence before me. There is clearly some issue between the parties on damages which has prevented the matter resolving at mediation. Any plaintiff who brings proceedings for damages for future economic loss will argue they cannot work or have a reduced work capacity. What is different here to give this plaintiff priority over others?

(4), I am greatly concerned about the likely prejudice which will occur to other plaintiffs if priority is given to list this ahead of them on a trial date. That would mean they face a prospect of their matter not being reached resulting in a delay to them through no fault of the parties and legal representatives. This is especially so if they have waited approximately 12 months.

(5), As said, I do not consider the plaintiff’s circumstances so unique given many other litigants face similar financial hardship whilst awaiting trial. To give priority would mean they would also be eligible for a priority hearing. When considering the impact of that on the efficient conduct and use of judicial and administrative resources it cannot justify granting the application.

33Finally, the plaintiff submits that one of the advantages in providing a priority date would be that the parties would not be forced to obtain further medical evidence prior to trial which would reduce the costs incurred by the parties.  Without any medical evidence before me, it is impossible to determine what the state of the medical evidence is. All that may be required may be a supplementary report or reports prior to trial in a few months’ time. As the plaintiff is most likely to recover damages, he would therefore be eligible to recover costs of obtaining any supplementary reports.

34As the application was not opposed by the defendant and given the nature of the application, I consider the appropriate Order for costs should be costs in the cause.

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