James Phillip Coffey by his tutor Kathleen Amanda Coffey v Murrumbidgee Local Health Network Formerly Known as Greater Murray Area Health Service; Kathleen Amanda Coffey v Murrumbidgee Local Health Network Formerly..

[2015] NSWSC 1362

Supreme Court

New South Wales

Medium Neutral Citation:	James Phillip Coffey by his tutor Kathleen Amanda Coffey v Murrumbidgee Local Health Network Formerly Known as Greater Murray Area Health Service;  Kathleen Amanda Coffey v Murrumbidgee Local Health Network Formerly Known As Greater Murray Area Health Service [2015] NSWSC 1362
Hearing dates:	7 September 2015
Date of orders:	07 September 2015
Decision date:	07 September 2015
Jurisdiction:	Common Law
Before:	Wilson J - Duty Judge
Decision:	1. The hearing date of 26 October 2015 is to be vacated. 2. The plaintiff is granted leave to interrogate the defendant as to the usual practice at the time at the Wagga Wagga Base Hospital and of Doctors Bunting and Follett as to consultation with a visiting medical officer or other senior doctor and as to the consideration that may have been given to transferring Mrs Coffey to a tertiary hospital. 3. Expert conclaves are to be deferred until further order of the Court. 4. The plaintiff is granted leave to amend his statement of claim. 5. The defendant is to serve any further evidentiary statements within 28 days. 6. The plaintiff is granted leave to serve further opinion evidence on liability relevant to the matters raised in the statements of Doctor Currie, Doctor Bunting and Doctor Follett. 7. The defendant is given leave to amend its defence as it sees fit to encompass its case in relation to transfer to a tertiary hospital. 8. These orders are to apply additionally in the matter with the file registration of 2011/011048. 9. I make an order for costs to be costs in the cause. 10. Liberty to the parties to restore the matter to the list within seven days should there be an issue with any of the orders.
Catchwords:	PROCEDURE – civil – application to vacate hearing date
Legislation Cited:	Limitation Act 1969
Cases Cited:	Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Category:	Procedural and other rulings
Parties:	James Phillip Coffey by his tutor Kathleen Amanda Coffey (Plaintiff) Murrumbidgee Local Health Network Formerly Known as Greater Murray Area Health Service (Defendant)   Kathleen Amanda Coffey (Plaintiff) Murrumbidgee Local Health Network Formerly Known As Greater Murray Area Health Service (Defendant)
Representation:	Counsel: A J Bartley SC (Plaintiff) J Dowling (Defendant)   Solicitors: Commins Hendricks (Plaintiff) Curwoods (Defendant)
File Number(s):	2011/1087882011/110448
Publication restriction:	None

EX TEMPORE Judgment

1. On 4 September 2015 the plaintiff, James Phillip Coffey by his tutor Kathleen Coffey, filed a notice of motion seeking a number of orders, but most significantly the vacation of a date fixed for hearing of his claim against the defendant; that date being 26 October 2015. Also fixed for hearing on that date is the related claim of the plaintiff's mother, file reference 2011/110448. The matter has been fixed with a two-week estimate and so an order vacating that date will have significant cost and other consequences to the parties and to the Court.

2. Filed before the Registrar this morning was an amended notice of motion in which ten specific orders are sought. Those orders are:

“1.That the hearing date of 26 October 2015 be vacated.

2. That the plaintiff be granted leave to interrogate the defendant.

3. That expert conclaves be deferred until further order of the Court.

4. The orders to apply to the related matter of Kathleen Coffey.

5. Other orders as the Court deems fit.

6. The plaintiff to be granted leave to amend his statement of claim.

7. The defendant to serve any further evidentiary statements within    14 days.

8. The plaintiff be granted leave to serve further opinion evidence on    liability in response to opinion evidence advanced by the defendant    through the evidentiary statements of Doctors Currie, Bunting and Follett.

9. The defendant to amend its defence to encompass its changed case in relation to transfer to the Canberra Hospital.

10. The defendant to make an application pursuant to s 97 of the Evidence Act 1995 in relation to the usual practice, evidence which it seeks to adduce from Doctors Currie, Bunting and Follett.”

3. The defendant, the Murrumbidgee Local Health Network formerly known as the Greater Murray Area Health Service, opposes the orders sought by the plaintiff. The parties have both filed relatively voluminous evidence in support of their respective positions, much of its expert medical reports or hospital or other clinical notes. The plaintiff read and relies upon an affidavit of Courtney Hunter of 4 September 2015. Miss Hunter is the plaintiff's solicitor. She refers in her affidavit to a volume of evidentiary material, Ex CH-1, consisting of some 161 pages. The defendant read and relies upon an affidavit of Jacqueline Ann-Marie Fox sworn and filed on 7 September 2015. Miss Fox refers in her affidavit to a number of documentary exhibits, JAF1-FAF34. This material runs 164 pages in length.

4. The matter has come before me in a Monday duty list where it has vied for the Court's attention with a number of other matters, each of which was to be heard today. I am concerned that it is simply not possible to read and fully comprehend all of the evidentiary material relevant to the determination of the application and do justice to the parties in the very limited time the Court has available. It is necessary, however, to endeavour to do so since one of the orders sought relates to an expert conclave which is scheduled for tomorrow, 8 September 2015.

5. The plaintiff argues that the conclave should not go ahead as there are newly revealed evidentiary issues which the conclave should be asked to address but cannot, given the shortness of time and the incompleteness of the plaintiff's investigations into what is contended by it to be new material. The defendant's position could not be more different. It asserts that there is nothing new in its defence or in the evidence it will rely upon in furtherance of its case at trial, and nothing new to be raised with the conclave

6. The defendant contends that the plaintiff is, in effect, identifying as “new” evidence which is in fact well known, simply as a basis upon which to seek to vacate a hearing date that it is not ready for. The defendant asserts (and the plaintiff accepts) that the plaintiff has to date failed to file or serve any of its evidentiary statements. It asserts that the plaintiff is simply using an empty claim relating to purportedly new evidence to buy time to make up for tardiness in readying its case. If that were truly the motivation of the plaintiff, that would not just be quite improper but, arguably, an abuse of the Court's process.

7. Whilst there has clearly been significant delay in the preparation and prosecution of the plaintiff's case, I am not prepared to conclude on the material advanced that the motion now before the Court is no more than a cynical manoeuvre to obtain an outcome not truly deserved. That is particularly so since the plaintiff is an 11-year old child who can bear no personal responsibility for the conduct of his case by others.

8. The plaintiff was born on 19 January 2004 to his mother and tutor in these proceedings, Kathleen Coffey. Born at 26 weeks gestation, he was significantly premature. The plaintiff claims a number of birth-related injuries due to the alleged negligence of the defendant and the doctors in its employ or carrying out its work. The injuries particularised are brain damage, the need for intubation, intracranial bleeding, pneumonia, staphylococcal infection, shock, anxiety and the sequelae. Those injuries are said to have caused very significant and likely life-long disabilities. The disabilities particularised in the plaintiff's claim are brain damage, intellectual dysfunction, cognitive dysfunction, spasticity, visual disturbance, anxiety and depression, Should his claim be established, the damages would be substantial.    

9. The second plaintiff's claim is qualitatively and quantitatively different to that of her son but there is no issue that if the hearing into the plaintiff's claim is adjourned, so too must be that of his mother; the claims being linked.

10. The matter has some history and it is regrettable that 11 years after the plaintiff's birth his claim remains outstanding. As noted, the plaintiff was born at 27 weeks gestation on 19 January 2004. Prior to his birth, Mrs Coffey had been admitted to the Wagga Wagga Base Hospital with signs of labour. On 4 January 2004, Mrs Coffey was admitted to hospital but subsequently discharged on 10 January 2004. She was again admitted on 19 January 2004 and the plaintiff was born on the morning of that day. At issue is the propriety of the care that she received at Wagga Wagga Base Hospital and the care that the plaintiff received, together with the issue as to whether Mrs Coffey should in fact have been transferred, prior to 19 January 2004, to a tertiary hospital with specialised facilities for both obstetric and neonatal care.

11. The defendant denies negligence and denies liability.

12. Proceedings were not commenced by the plaintiff until 31 March 2011, over seven years after the date on which the injuries are alleged to have been occasioned. There will be preliminary issues to be determined here of whether the proceedings can be maintained in light of the provisions of ss 50C and 50D of the Limitation Act 1969 as amended.

13. Once commenced, the two matters were listed in the Professional Negligence List of this Court on some 15 occasions between and including 13 July 2011 and 2 September 2015. A significant volume of medical evidence has been filed and served by both plaintiffs and defendant. The defence was filed and served on 21 September 2011.

14. Reports of various doctors have been served by both sides, including from the defendant a report made available from Doctor Smee of 10 November 2003 provided to the plaintiff on 30 August 2011; a report of Doctor Lyneham of 14 November 2011 served on the plaintiff on 30 November 2011; a report of Doctor Evans of 9 October 2013 served on the plaintiff on 31 October 2013, and two reports of Doctor Child of 28 November 2011 and 31 March 2014 respectively. These reports were served on the plaintiff on 16 April 2014. The defendant contends that by that date at the latest, that is 16 April 2014, the plaintiff had all relevant and available information to enable the plaintiff to prepare a case for hearing.

15. The plaintiff does not dispute service of this material within the time frame as deposed by Miss Fox. What is disputed is that it was anywhere made clear that, firstly, it is possible that Mrs Coffey was at all times attended by and in the care of two very junior doctors only, rather than under the supervision of a senior doctor; and, secondly, that the defendant intended to assert and rely upon a defence that even had a transfer to a tertiary hospital been contemplated by the Wagga Wagga Base Hospital, transfer would not have been accepted by a tertiary hospital such as the closest hospital of that kind, Canberra Hospital.

16. There does appear to be at least some information in the voluminous documentation that perhaps should have alerted the plaintiff to this material. Certainly it was crystallised when the defendant served statements of Doctors Currie, Bunting and Follett in accordance with the timetable fixed by the Court. It is as a consequence of that crystallisation that the plaintiff brings the present motion.

17. The plaintiff contends that it is necessary to investigate the matters raised in the evidentiary statements, and further questions will need to be raised with the expert conclave as a consequence. The defendant says the plaintiff should have understood this before, and further time should not now be allowed to it to make good the plaintiff's failure to fully grasp the issues in the case. That may be so.

18. The Court is not usually enthusiastic about rewarding what may have been a lack of appropriate preparation by granting an adjournment. However, I am not persuaded that the issues relevant to the defence case were made as abundantly clear to the plaintiff as the defendant contends. In any event, I am conscious of the age of the plaintiff and the significant nature of his apparent disabilities. It would not be appropriate to visit the potentially dire consequences of a less than diligent preparation of the plaintiff’s case upon the child litigant.

19. There is no doubt that there is or is likely to be prejudice to the defendant as a consequence of a vacation of the hearing date. That is one of the matters that the Court must take into account. So too are the requirements of the just, quick and cheap determination of matters that come before the Court. Delay in this matter is likely to mean that justice will neither be quick nor cheap. One does, though, hope for justice.

20. I am conscious of the principles that attend to the requirements for speed and cost-effectiveness. In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 it was noted at [98]:

"Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a 'just resolution' is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re pleading, when delay and costs are taken into account."

21. It may well be argued that there is some basis to conclude that the plaintiff has had a proper opportunity to plead his case but, again, I return to the issue of his age and the fact that the conduct of his case by those who act for him cannot be laid at the door of an 11-year old child.

22. Having considered all of these matters and the interests of both a child litigant and a public health authority with limited means, I have decided to grant the plaintiff's notice of motion in part. I propose to vacate the date of hearing and the conclave fixed for tomorrow. I will also grant Prayers 2, 6, 7, 8 and 9. I do not propose to direct the defendant to serve a tendency notice pursuant to ss 97 and 99 of the Evidence Act1995 because I do not regard evidence of usual practice as falling within what is contemplated by that Act as tendency evidence pursuant to s 97. Any evidentiary questions that linger should be able to be dealt with by interrogatories.

ORDERS

23. The Court makes the following orders:

1. The hearing date of 26 October 2015 is vacated.

2. The plaintiff is granted leave to interrogate the defendant as to the usual practice at the time at the Wagga Wagga Base Hospital and of Doctors Bunting and Follett as to consultation with a visiting medical officer or other senior doctor and as to the consideration that may have been given to transferring Mrs Coffey to a tertiary hospital.

3. Expert conclaves are to be deferred until further order of the Court.

4. The plaintiff is granted leave to amend his statement of claim.

5. The defendant is to serve any further evidentiary statements within 28 days.

6. The plaintiff is granted leave to serve further opinion evidence on liability relevant to the matters raised in the statements of Doctor Currie, Doctor Bunting and Doctor Follett.

7. The defendant is given leave to amend its defence as it sees fit to encompass its case in relation to transfer to a tertiary hospital.

8. These orders are to apply additionally in the matter with the file registration of 2011/011048.

9. I make an order for costs to be costs in the cause.

10. Liberty to the parties to restore the matter to the list within seven days should there be an issue with any of the orders.

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Decision last updated: 15 September 2015