Hadfield v State of Victoria and Anor (Civil Procedure Ruling)
[2019] VCC 1717
•21 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-06146
| Hadfield | Plaintiff |
| v | |
| State of Victoria | First Defendant |
| & | |
| Alexandra Timber Tramway & Museum Inc | Second Defendant |
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JUDGE: | SACCARDO | |
WHERE HELD: | MELBOURNE | |
DATE OF DIRECTIONS HEARINGS: | 12, 14 and 18 February, and 2 August 2019 | |
DATE OF RULING: | 21 October 2019 | |
CASE MAY BE CITED AS: | Hadfield v State of Victoria & Anor (Civil Procedure Ruling) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1717 | |
REASONS FOR RULING
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Subject:Enquiry into the pre-trial preparation by a model litigant relevant to their obligations under the Civil Procedure Act.
Catchwords: Civil Procedure Act inquiry, Self-represented litigant, pre-trial preparation of evidence and witnesses
Legislation Cited: Civil Procedure Act 2010 (Vic)
Cases Cited: Yara Australia Pty Ltd v Oswal [2013] VSCA 337
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APPEARANCES: | Solicitors |
| For the Plaintiff | Self represented |
| For the Frist Defendant | Victorian Government Solicitor’s Office |
| For the Second Defendant | Wotton + Kearney |
HIS HONOUR
1 The pre-trial management of this proceeding was undertaken by me upon the plaintiff becoming a self-represented litigant shortly prior to the date fixed for the trial of the proceeding.
2 On 12 February 2019 a direction hearing was convened in the course of which the plaintiff advised that he wished to maintain the trial date if possible.
3 In order to maintain the trial date I made a number of sequential pre-trial orders at very short notice to put in place a structure designed to accommodate a fair and orderly trial process.
4 As the result of those orders an issue arose as to which medical witnesses the first defendant (the State of Victoria) wished to cross examine in the course of the trial.
5 For the purpose of clarifying the defendant’s position a number of email exchanges occurred which may be summarised as follows:
· 14 FEB 2019, 12.16pm
The first defendant advises it requires the following five medical witnesses (“original five doctors”) to attend for cross-examination:
·Mr Thomas Kossman
·Dr David Weissman
·Mr Paul D'Urso
·Dr Henry Caudle
·Dr Mazier Baghaei
·14 FEB 2019, 4:37pm
Email from the Court to the plaintiff’s former solicitor enquiring whether the reports of the five doctors referred to in the first defendant’s email of 14 FEB 2019 (12.16pm) were the only medical reports exchanged to date and requesting those solicitors to inform the court as to the medical evidence which would have been adduced on behalf of the plaintiff had the plaintiff continued to be represented. This enquiry was made given the fact that the plaintiff as a self-represented litigant was not in the position to identify the medical evidence he should rely upon in the proceeding.
·14 FEB 2019, 5.35pm
The plaintiff’s former solicitor disagrees that the only medical evidence served on behalf of the plaintiff involves reports from the five doctors identified by the first defendant. She refers to numerous reports the subject of the serious injury application all of which have been served on the defendants a number of which would have been relied upon had the plaintiff continued to be represented.
· 15 FEB 2019 11.29 am
The court notifies the defendants as to the comments made by
the plaintiff’s former solicitor. The defendants are to notify the court by 2.30pm whether they take issue with the assertion that the defendants had in fact been served with the relevant material.
· 15 FEB 2019, 2.14pm
The first defendant advises that it has been aware of the extended list of medical evidence and advises that if the plaintiff seeks to rely on medical evidence in addition to the subject of the reports of the five doctors listed at the directions hearing the first defendant requires the following medical practitioners to be available to attend for cross-examination:
Dr Gregory Louis
Mr C Timms
Nova Thani
Mr Greg Malham
Dr Bill Atkin
Dr Ron Thompson
A/Professor Kate Drummond
Mr G Klugg
Mr P Kornan
Mr Bill Radley
Dr Walker
L Dickenson
Paul Graham
The first defendant comments:
“Whilst the list is lengthy the First Defendant is hopeful that not all of the listed medical practitioners will be required once the trial gets underway.”
· 15 FEB 2019,3.00pm
The Court informs the first defendant that its position is unacceptable and that:
·it is the defendant’s obligation to give appropriate notice of required witnesses; and
·a further directions hearing has been listed for both defendants to attend on 18 February at which the defendants would be heard as to whether any expert witnesses will be required to attend for cross-examination.
6 Whilst an order had been made on 14 February that the plaintiff’s previous solicitors were to secure the attendance at the trial of the proceeding of the five medical practitioners identified by the first defendant at that time, no such order had been made with respect to the 13 additional medical practitioners identified by the first defendant in its email of 15 February.
7 It follows that the position of the first defendant as at 2:14 PM on 15 February 2019 was such that the self - represented plaintiff was required to secure the attendance of 13 medical practitioners additional to the five medical practitioners about which notice had been given on 14 February 2019, which in turn would have required the plaintiff:
(i) to issue and serve subpoenas with respect to each of those medical practitioners; and
(ii) to undertake those tasks in addition to the tasks required of him to prepare for the trial which included the preparation of comprehensive witness statements both as to liability and damages.
8 In my opinion the position disclosed by the email chain referred to above makes it clear that during the time since the earlier vacation of the trial fixed for 6 June 2018, the first defendant as at 14 February 2019:
(i) had taken no action to consider and identify the medical witnesses who should attend the trial for cross-examination; and
(ii) had (albeit inadvertently by reason of its failure to appropriately prepare its defence of the case in a timely manner) misled the Court as to the medical witnesses who had opined in the case on matters which were relevant and whose opinions may require testing by cross examination.[1]
[1]It is beyond contention that the first defendant had ample opportunity to undertake this process given the fact that in November 2016 the first defendant had been served by the plaintiff’s then solicitor on record with all relevant medical evidence which been assembled on behalf of the plaintiff in the serious injury application.
9 Further, but for the intervention of the court:
(i) in making enquiries of the plaintiff’s previous solicitor as to the accuracy of the statement by the first defendant that reports of only five medical practitioners had been served upon it; and
(ii) taking issue with the defendant’s position that it required an additional 13 medical practitioners to be available to attend the court for cross examination;
it is clear that each of the 13 medical practitioners identified in the defendant’s email of 15 February would have had to make themselves available to attend the trial of the proceeding and make appropriate modifications of their medical practices to allow the process to occur.[2] It follows that each of those medical practitioners would have submitted invoices to the plaintiff with respect to the costs associated with that process.
[2] It goes without saying that it should not have been the expectation of the solicitor for the first defendant that the Court should act in the way it did to supervise its conduct in advising the Court as to the medical practitioners who were required to attend the court for cross examination.
10 Finally, the waste of resources associated with that process is demonstrated by the fact that at the trial of the proceeding only one medical witness was required to attend for cross examination, namely Mr Kossman.
11 The defendant seeks to explain its conduct in providing inaccurate information in the course of the directions hearing of 14th February as to the doctors which it required to attend for cross examination as arising by reason of the combination of the following factors:
(i)the timing of the mediation namely 20 December 2018;
(ii)the failure of the mediation to resolve the case;
(iii)the first defendant’s interpretation of various communications with the plaintiff’s then solicitor that there was a reasonable prospect of the proceeding resolving;
(iv)the notice received by the defendant on 30 January that the plaintiff’s solicitors would be making an application to withdraw as representatives for the plaintiff;
(v)the defendant’s expectation between the receipt of the above notice and the directions hearing on 12th February that the matter was unlikely to proceed; and
(vi)the fact that the defendant had on 14 February 2019 instituted a change in its management of the litigation by allocating that management to a new solicitor.
12 It is further put that:
(i)“decisions about which medical witnesses will be cross-examined in a civil trial are decisions heavily guided by the views of Senior Counsel and, often not conclusively decided until after evidence in chief has been adduced at a trial”;
(ii)the solicitor managing the preparation of the case had “not anticipated the number and nature of pre-trial steps that were required to account for the fact that the plaintiff had now become self-represented, nor the timeframes within which the first defendant would be required to meet those deadlines during the pre-trial period”; and
(iii)upon being required on 12 February 2019 to provide a list of medical witnesses which the defendant required the plaintiff to make available for cross-examination briefs were provided to Counsel on the afternoon of 13 February 2019, and on the morning of 14 February 2019 a conference took place to discuss the pre-trial orders the timing of which was such that Counsel did not have any real opportunity to review the brief and provide advice as to the witnesses who were required to attend the cross examination.
13 In my opinion there is little merit in the first defendant’s proffered explanations.
14 At all times it was the choice of the first defendant (in its position as both an experienced litigator and a model litigant) as to;
(i) whether it should obtain advice on evidence from Counsel; and/or
(ii) when it should brief Counsel for trial.
In either instance it was obligated to ensure that the relevant process was initiated in a timely manner to ensure appropriate trial management.
15 In my opinion it was incumbent upon the first defendant, at the very least, to brief Counsel within a timeframe which would have allowed Counsel to provide the defendant with advice (if such advice was sought) as to which medical witnesses should attend for cross examination and that the appropriate timeframe for that process should not have been influenced by the defendant being notified that the plaintiff’s solicitors intended to make an application to withdraw as solicitor on record for the plaintiff or the procedural activity involved in association with the hearing of that application.
16 As to the issue which arises in this instance namely the notification of medical witnesses as to their potential need to attend the trial, whilst it might be acceptable in litigation being managed by lawyers for a defendant to expect the plaintiff to ensure that the medical practitioners upon which the plaintiff relies to give evidence in a jury trial are available to attend the court, the circumstances of the present case in which the plaintiff was unrepresented fall into a completely different category.
17 In the course of the directions hearing undertaken on 12 February the defendant was put on notice as to the assistance required by the plaintiff to assemble the medical evidence which the defendant wished to test. In my opinion having regard to that notice, it could not be contended that appropriate trial management was facilitated by the first defendant’s failure:
· to take immediate action to identify the medical evidence which had been served upon it by the plaintiff’s previous practitioners;
· to formulate at least a preliminary position as to the doctors who might reasonably be required to attend the trial for the purposes of cross examination; and
· to ensure it was in a position to provide accurate information upon that issue to the Court within 48 hours of being ordered to do so.
18 The failure by the defendant to do so, and the position taken by the defendant that all medical practitioners were required to attend the trial, required the plaintiff to give extremely short notice to every doctor who had opined in the case and by so doing require each doctor to make adjustments to their practices which would allow them to attend court when in reality many of them would ultimately be informed that their attendance was not required.
19 Given the obvious and unnecessary dislocation to the practices of such medical practitioners and their patients, I am of the opinion that the practice of the first defendant in asserting that every medical practitioner who had opined in the matter should make themselves available to attend the trial of the proceeding subject to the proviso that the defendant would notify some or all of those practitioners after the commencement of the trial that their attendance was no longer required, should be condemned in the strongest possible terms.
20 Further, the first defendant’s behaviour in this instance needs to be considered in the context of its position as a model litigant and the plaintiff’s position as an un-represented litigant.
21 In my opinion those respective positions heighten the obligation upon the defendant to ensure the efficient and accurate pre-trial management of the litigation.
22 Whilst the defendant in explaining its position refers to the fact that comments were repeatedly made in the course of directions hearings which identified the pressure to which it was being exposed in complying with the pre-trial orders generated by reason of the fact that the plaintiff was appearing self- represented, no material has been submitted by the defendant to suggest that it did not have the ability to allocate further resources if necessary to the preparation of this matter given:
(i) my clear notification to the parties that the trial date should be maintained; and
(ii) the plaintiff’s desire that the trial date should be maintained and his undertaking to do the work required of him as a self -represented litigant to achieve that purpose.
23 It is clear that the issue which arises in this instance involves the adequacy of the first defendant’s approach to pre-trial preparation which in turn impacts upon third parties who are not involved in the litigation (namely medical practitioners, many of whom are treating doctors who are required to manage significant patient loads each day). In my opinion the obligation of members of the legal profession to ensure that trials are conducted with minimum delay and inconvenience assumes paramount importance when the trial impacts upon the lives of third parties who have no vested interest in the trial process.
24 In my opinion it is appropriate that the Court should make it clear that it is not for members of the legal profession to approach the preparation of the trial focused upon their own needs and with their eyes closed to the needs of witnesses and the exposure of those witnesses to unnecessary costs and inconvenience.
25 It is appropriate that lawyers involved in litigation recognise the fact that medical practitioners who are advised that they must attend a trial and who, on the basis of that advice make adjustments to medical practices, look with justified angst upon a legal process which involves those practitioners being advised at short notice that their attendance is no longer required.
26 In Yara Australia Pty Ltd v Oswal[3] the Court of Appeal carefully explained the operation of the Civil Procedure Act 2010.
[3]Yara Australia Pty Ltd v Oswal [2013] VSCA 337 (27 November 2013).
27 It is not necessary that I restate the provisions of the Act which are well known to the first defendant. In the course of its judgement in Yara the Court of Appeal commented:
The Act’s objective is the reform of the culture of unnecessary expenditure on civil litigation. Parliament has intended that this reform can only be achieved by holding parties to account for undesirable civil litigation practices[4]…
In my opinion this comment by the Court of Appeal has particular relevance to the conduct of the first defendants in this instance.
[4] Ibid [52].
28 As to the way in which the provisions of the Act should be implemented the Court of Appeal made the following comment:
[26] The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account
[27] Yet as we have observed, sanctions imposed for a breach of any overarching provisions have been a rarity at first instance. When no party invites the court to determine whether there has been a breach of the Act, there may be a judicial disinclination to embark upon such an own-motion inquiry for fear that inquiry as to the potential breach may be time consuming and may require the introduction of material that was not before the court as part of the proceeding. Such fears cannot relieve judges of their responsibilities. But we would not wish it to be thought that a judicial officer at first instance must undertake a substantial enquiry when considering whether there has been a contravention of the Act. As the sanction for a breach will usually lie in an appropriate costs order, a judge may at the conclusion of the reasons for judgment immediately invite oral submissions as to why there should not be a finding that the Act was contravened. The judge may in a relatively brief way deal with that issue in providing succinct reasons for a finding that there has been a breach of the Act and how that finding affects the orders for costs that are to be pronounced.[5]
[5] Ibid [26]-[27].
29 I am satisfied given the above statements by the Court of Appeal, that the approach to be undertaken in my analysis of the first defendant’s conduct in this instance is as follows:
(i) Firstly, I should consider whether the conduct of the first defendant is such as to involve a breach of the provisions of the Civil Procedure Act;
(ii) Secondly, I should consider whether the conduct even if it involves a breach of the provisions of the Act is such that it warrants the imposition of a sanction additional to the reprobation of the Court; and
(iii) Thirdly, if I am satisfied that a sanction is required, the only sanction which I should impose is one as to the defendant’s costs.
30 I take into account that the failure by the first defendant in this instance was rectified at short notice by reason of the timely responsive email by my Associate which had the effect of providing the parties with notice that the first defendant’s position was unacceptable and would be dealt with in the course of the directions hearing convened without delay at which the plaintiff was not required to attend.
31 Given the timing of that response I do not accept the position of the plaintiff that any real prejudice or emotional harm was occasioned to him by reason of the defendant’s behaviour about which I have been critical.
32 I am equally satisfied that some weight should be given to the unusual nature and intense level of the pre-trial management in this instance given the extremely short time frame between the date upon which the plaintiff became self-represented and the trial. There can be no issue that this time frame exposed the first defendant to the unexpected obligation to comply with a raft of orders which were designed to facilitate (as they did) an orderly and efficient trial, which in turn required the defendant to undertake numerous procedural steps at short notice.
33 For the reasons set out above I am satisfied that:
(i) the conduct of the first defendant in this instance does involve a significant breach of its obligations under the provisions of the Civil Procedure Act;
(ii) the breach is such that it warrants a statement by the Court which condemns the practice as being inappropriate generally but even more so given the first defendant’s position as a model litigant; but
(iii) the conduct of the first defendant when considered in the context of the totality of the circumstances does not warrant the imposition of a sanction in the form of an order as to the costs to which the first defendant is entitled in this proceeding.
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