Holland v State of New South Wales

[2014] NSWSC 916

Supreme Court

New South Wales

Medium Neutral Citation:

Holland v State of New South Wales [2014] NSWSC 916

Hearing dates:

4 July 2014

Decision date:

09 July 2014

Before:

Harrison J

Decision:

1. Vacate the hearing listed to commence on 11 August 2014.

2. Order the plaintiff to pay the costs thrown away or occasioned by reason of Order 1.

Catchwords:

WORKERS COMPENSATION - case listed for hearing - whether hearing date should be vacated due to failure by plaintiff to comply with timetable - whether plaintiff should be ordered to pay costs

Category:

Procedural and other rulings

Parties:

Malcolm James Holland (Plaintiff)
State of New South Wales (First Defendant)
TAFE Commission (Second Defendant)
Modcom Voice Data Mobility Pty Ltd (Third Defendant)

Representation:

Counsel:
B Tzatzagos (Plaintiff)
Solicitors:
Brydens Compensation Lawyers (Plaintiff)
Hicksons Lawyers (First and Second Defendant)
Moray & Agnew (Third Defendant)

File Number(s):

2011/79748

Publication restriction:

Nil

Judgment

1. HIS HONOUR: These proceedings came before me for directions on 4 July 2014. The case is listed for hearing commencing of 11 August 2014. The plaintiff wishes to retain that date. The first and second defendants want it to be vacated. The third defendant appears sanguine about the matter.

1. All parties filed affidavits for the purposes of the directions hearing. The plaintiff relies upon the affidavit of Samuel Ankomah sworn 3 July 2014. The first and second defendants relied upon an affidavit sworn by Michael Hunt dated 3 July 2014. The third defendant relied upon the affidavit of Morgan Campbell sworn 3 July 2014. The plaintiff later submitted a further affidavit of Samuel Ankomah dated 7 July 2014.

1. Mr Hunt's affidavit contains a helpful chronology. It refers among other things to the orders made by Registrar Bradford on 22 November 2013. The plaintiff has failed conspicuously to comply with the Registrar's orders either in a timely way or at all. Mr Hunt's affidavit annexes a copy of his letter dated 16 June 2014 to the solicitors for the plaintiff. It lists the rather unsatisfactory state into which preparation for the hearing had by then descended due to the plaintiff's failure to comply with the timetable. The final paragraph of that letter said this:

"Subject to service by the plaintiff prior to the directions hearing [on 4 July 2014] of further medical evidence, final particulars and evidentiary statements we will prepare an affidavit on behalf of our clients...concerning readiness to proceed to hearing on 11 August 2014."

1. As at 1 July 2014, the plaintiff remained in default of Registrar Bradford's order that the plaintiff provide evidentiary statements by 7 February 2014. Mr Ankomah suggests that they will be provided by today, or five months later than they should have been. Mr Ankomah asserts that all of his medical reports will be served by 12 July 2014. They are also unacceptably late. The plaintiff is also proposing further to amend his statement of claim.

1. Mr Ankomah's second affidavit contains the following paragraph:

"17 The plaintiff is desperate for his matter to proceed to hearing as soon as possible. However, given the recent medical developments, which was as early as 28 May 2014, regrettable, it appears that the hearing as schedule [sic] on 11 August 2014 will need to be vacated."

1. Even though the plaintiff is entitled to be frustrated with the delay, I agree that the hearing should be vacated. The defendants cannot be expected to be ready to proceed when the plaintiff's case is still not finalised.

1. The question of costs necessarily arises for consideration in these circumstances. The plaintiff seeks an order that the costs of a vacated hearing should be costs in the cause. That approach fails in my view to take account of the egregious delays by the plaintiff and corresponding failures to comply with orders of the Court. Recent developments, such as the plaintiff's decision not to undergo further surgery, are not reliable indicators of why the matter is not ready to proceed. That outcome has its genesis in the plaintiff's much earlier and continuing failures, which have even now not been corrected.

1. In my opinion the hearing listed for 11 August 2014 should be vacated and the plaintiff should be ordered to pay any costs occasioned by, or thrown away as a result of, that result. I note that those costs should be fairly insignificant given that the hearing is still four weeks away. I expect that the solicitor for the plaintiff will explain to him why these orders have been made by me.

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Decision last updated: 10 July 2014