Jones v Braund

[2020] NSWDC 32

District Court

New South Wales

Medium Neutral Citation:	Jones v Braund [2020] NSWDC 32
Hearing dates:	24-29 February 2020, 2 March 2020
Date of orders:	02 March 2020
Decision date:	02 March 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 13, 16-18, 37-38
Catchwords:	PRACTICE AND PROCEDURE – application to further amend statement of particulars – application made during hearing – impact on justice and efficient use of judicial resources   COSTS – claim for out-of-pocket expenses – claim for legal costs – claim for third party costs by employer to unrepresented litigant – whether an unrepresented litigant can claim costs for his time in preparing for and attending court proceedings
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 Cachia v Haines (1994) 179 CLR 403 Chaina v The Presbyterian Church (NSW) Property Trust (2007) 69 NSWLR 533
Category:	Procedural and other rulings
Parties:	Mr R Jones (Plaintiff) Mr M Braund (Defendant)
Representation:	Counsel: Plaintiff appeared in person Mr R O’Keefe for the Defendant   Solicitors: Mills Oakley for the Defendant
File Number(s):	2018/135378
Publication restriction:	Nil

Judgment

1. Today is day 6 of a trial that was given a five-day estimate. The plaintiff, who has been unrepresented since March 2019, applies, pursuant to s 64 of the Civil Procedure Act2005 (NSW) to further amend his amended statement of particulars.

2. This application was foreshadowed on day 3. I directed the plaintiff to serve the proposed amendment on the defendant, which occurred overnight on day 4. However, since then the trial has been dominated by the process of the expert witnesses for the parties (4 of them) giving evidence concurrently. I determined that this process take precedence over the amendment application, with the result that the amendment application is now being heard now.

3. The amendments are in three categories:

1. first, under the section in the document headed ‘Particulars of Out of Pocket Expenses’, there are revised or new items C to I (inclusive);

2. secondly, there are a series of documents and an apparently revised schedule of future out of pocket expenses or at least a reference to them; and

3. thirdly, in a covering letter supplied to the Court by the company, Sydney Building Defects Inspections and Reports dated 27 February 2020, there is a claim in respect to the plaintiff’s time and costs of preparing for and attending Court during the trial.

4. The defendant accepts some part, but not all, of the first category of amendments. He opposes the second categories of amendment. I do not understand him to vigorously oppose the second category.

BACKGROUND

5. By way of background, this proceeding amounts to a claim for damages for alleged professional negligence in respect to a special dentistry procedure known as the ‘All on 4 procedure’. Putting the matter very briefly, the procedure involves the removal of a patient’s teeth (the upper and/or lower jaw) and its replacement by a bridge which is implanted into the patient’s mouth. This procedure occurred, in this instance, in late April 2015, and a supplementary form of procedure occurred in late September 2015. The procedure failed and resulted in the plaintiff suffering pain and discomfort. He has since had treatment by other dental providers. The plaintiff sues the defendant for negligent advice and negligence in the way he administered the procedure.

6. The proceeding commenced in 2018, at which time the plaintiff filed the conventional statement of particulars applicable to personal injury proceedings. In its original version, the plaintiff relevantly advanced claims for past and future loss of income.

7. On 17 October 2019, and with the Court’s leave, he filed an amended statement of particulars where claims for past and future loss of income or earning capacity were excised.

8. The defendant says, unsurprisingly, that since the filing of that document and up to this point, he has conducted his defence of this proceeding on the basis that the plaintiff does not claim damages for future loss of income.

9. In deciding whether leave should be granted, the fundamental question is whether to allow the amendment would facilitate the overriding purpose of case management of civil proceedings, being the just, quick and cheap resolution of the real issues in the proceeding.

10. Specifically, I am required to act in accordance with the dictates of justice, a complex concept which to some extent is illuminated by the considerations in section 58(2) of the Civil Procedure Act.

11. I note also that a relevant consideration, indeed a mandatory consideration, is s 57 of the Civil Procedure Act which provides as follows:

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

CONSIDERATION

First Category of Amendments

12. I will deal with the first category of amendments referred to. It is convenient to do so with reference to the items C to I of the proposed further amended statement of particulars.

13. Item C is a sum for past out of pocket expenses proposed on behalf of the defendant, being $30,683.82. The plaintiff is in this respect actually reducing the amount for this in the corresponding item listed in his amended statement of particulars ($37,750.69). Unsurprisingly, the defendant consents to this amendment. I allow the plaintiff to amend to include item C.

14. The extent of the defendant’s opposition is to items F and G and any of the other items to the extent that what is being claimed does not amount to out of pocket expenses, but reflect only the legal fees or costs that the plaintiff has paid to his legal representatives. This, I note, is the costs paid at the time when the plaintiff was represented.

15. I agree that items F and G and other items reflective of legal costs indicates the plaintiff’s confusion between claiming for out of pocket expenses – a conventional head of damage in personal injury proceedings for all expenses created by the personal injury – and legal costs.

16. As was explained to the plaintiff during the argument in this application, the plaintiff has already made a claim for costs of the proceedings. Whether and to what extent he is entitled to his costs, and the quantum of such costs, will depend on the outcome of this proceeding. I refuse the amendments to allow for items F and G and the other items D, E, H and I to the extent that those respective items amount to payments made to legal representatives to assist the plaintiff with the preparation and conduct of this proceeding.

17. The total in item J should desirably be revised to take into account these rulings. Ultimately, at the point of address, the plaintiff will need to articulate the total of his past out of pocket expenses.

18. As to the second category of amendments to the statement of particulars, these appear to amount to a revision of the earlier articulation of this head of damage, based upon relatively recent reports from Dr Zoud and Dr Willey. There is a factual contest whether or not some of these have been paid and possibly also whether they relate to the injuries which the plaintiff claims in this proceeding. At the level of principle however, these amendments are unobjectionable and I allow them. I should say in relation to both the amendments in categories 1 and 2, and this is particularly for your benefit Mr Jones, I would encourage the parties to try to reach an agreement to the extent that they can on what the past out of pocket expenses are.

19. I now turn to the third set of proposed amendments. These were not made clearly apparent in the proposed further amended statement of particulars but were expressed in a covering letter from the aforesaid corporate entity ‘Sydney Building Defects Inspections and Reports’ (‘SBDIR’) dated 27 February 2020.

20. In support of the amendment application, I was referred by Mr Jones to 3 documents: what appears to be, in substance, a curriculum vitae of the plaintiff, under the letterhead of SBDIR; secondly, a fee schedule for that entity for its Professional Consultancy Work; and thirdly, an invoice addressed to the solicitors for the defendant, itemising as services, return trip (by the plaintiff) to the District Court and 7 hours per day in Court for the sum of $5,500. The covering letter identified the plaintiff as the Senior and only employee of the company.

21. In support of this application, the plaintiff referred me to the hallowed principle in Salomon v Salomon, referring to the separate legal identity of the corporate entity from that of its members. He submits that he is entitled to claim, in his own right, as his out of pocket expenses, a sum of money representing the time that the company lost through his personal involvement and conduct of this trial.

22. It may be seen that this application for amendment is not brought to simply bringing the statement of particulars into line or conformity with evidence as it is. It necessarily will facilitate the admission of additional evidence, including, but not limited to SBDIR’s tax invoice addressed to the defendant’s solicitors.

23. The main considerations which I take into account are as follows.

24. First, the application is late. It has been made midway through a trial. That is not an insuperable problem and very often, especially in trials where a party is unrepresented, estimates can readily be overrun. But one consideration which I am required to take into account is to eliminate or reduce delay (s 59 of the Civil Procedure Act).

25. Secondly, and related to the first, the plaintiff has been aware of the estimated length of the trial (which has now turned out to be an under-estimate) and that he would be away from working for his corporate employer during the trial. Such arrangement as he has with SBDIR would, I infer, have been entered into a not insubstantial period of time ago – I do not infer that it would have happened instantaneously with the commencement of the trial. It was therefore open to the plaintiff, should he wish to make this claim, to have formulated it well before the commencement of the trial, and if necessary sought leave before the trial, so that the defendant was fairly put on notice of the claim that the plaintiff now wishes to advance. In short, the plaintiff has not shown the expedition which is required of parties, even including self-represented litigants, to litigation. I acknowledge that the plaintiff represents himself. However, in that capacity, he twice previously availed himself of the opportunity to seek to amend his particulars in a timely way (in March 2019 and October 2019). To that extent, he cannot claim ignorance of the appropriate procedure to bring new claims for damages. In circumstances where the plaintiff has observed the requirements of the Court rules in connection with making earlier amendments to his case, I do not consider that this lack of expedition can be said to have resulted by forces outside of his control.

26. Thirdly, acceding to the amendments may, I expect, occasion the recall of the plaintiff to give evidence and further cross-examination of him on behalf of the defendant. That will cause further delay.

27. Fourthly, and more significantly, acceding to the amendments is apt to cause prejudice. The plaintiff has supplied to the Court three documents to support this new claim, but the defendant is not only entitled to test that evidence during the trial, but should have been placed in a position to examine it, with all appropriate recourse to the Court’s coercive processes (such as subpoena to produce). For example, it may wish to test the amount that SBDIR has charged in its tax invoice by reference to other work it has performed, but the defendant’s ability to test such evidence has now been attenuated at best. Some adjournment would likely be necessary in order for it to amass evidence to enable it to do so.

28. Fifthly, and related to the third and last points and although his precise financial position has not been put before the Court, there have been strong indications throughout the evidence given to date as to the plaintiff’s financial capacity. That is relevant should it be necessary for there to be an adjournment since the usual practice is that the party responsible for the adjournment will bear the other side’s costs. The matter concerning the plaintiff’s financial position is one of the circumstances which the evidence suggests may partly explain why the impugned dental procedure was selected for the plaintiff in the first place. Of course, impecuniosity of an individual is no bar to making a claim, but the consequence of acceding to the amendment is likely to be an adjournment application by the defendant to probe the factual merits of the new claim. Ordinarily, as I have said, the plaintiff would bear the costs of such adjournment which would not likely be insubstantial. There is a doubt, however, whether the plaintiff could meet such costs liability which would arise if an adjournment was granted.

29. Accordingly, I consider that the prejudice likely to flow from allowing the amendment, and permitting evidence to proceed (following an adjournment) would give rise to real prejudice to the defendant.

30. Sixthly, all of the matters referred to so far indicate that allowing the amendments would be inimical to the efficient use of judicial resources of the Court and the timely disposal of this proceeding, and all the other civil proceedings in this Court (s 57(1)(b)-(d) (inclusive) of the Civil Procedure Act).

31. Seventhly, there are some substantive issues which are raised which give rise to concern about the futility of allowing them; if not also the concern about delay, which I have already referred to. As to the claim for loss of income, from what the plaintiff said to me in argument, arguably the claim belongs not to the plaintiff personally, but would be maintainable by what is currently a third party who employed Mr Jones, being the action for loss of employee’s services[1] . That would necessitate joinder of the third party with a series of procedural consequences, including the need for an amended statement of claim and, conceivably, an application for security for costs against the corporate entity.

    1. The survival of this action was illustrated in Chaina v The Presbyterian Church (NSW) Property Trust (2007) 69 NSWLR 533.

32. I think that this particular amendment can be viewed in another way. It is not the company’s claim at all, but is, in substance, simply the plaintiff wishing to recover his personal costs of preparation and attendance at the trial. As I have said, such a claim is not at all a claim for out of pocket expenses, but is a claim for costs. As I said earlier, the claim for costs will only be adjudicated after the outcome of the litigation is known.

33. Viewed, as I think it should be viewed, in substance as a claim for the plaintiff’s personal costs of preparing for and attending this trial, there is a more fundamental problem. As I pointed out to the plaintiff when he first foreshadowed this application some time ago, the High Court’s decision in Cachia v Haines (1994) 179 CLR 403 stands against an entitlement in a self-represented litigant not only to claim his own costs, but also the costs of some third party who is not a qualified solicitor pursuant to an ordinary retainer. The High Court in that decision explained (at 410) that a reason why self-represented litigants should not receive their own costs, or those of those assisting them, is that legal costs are awarded to partially indemnify a party for professional legal costs actually incurred in the conduct of litigation (followed in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 at [22]). There is no suggestion that SBDIR is a professional legal service provider.

34. Although I am only considering these putative heads of loss at the interlocutory level, I am permitted to form an impressionistic assessment of the likely strength of the proposed new claim for damage. For reasons I have given already, they are not strong.

35. I take into account the prejudice to the plaintiff if he not be permitted to raise a claim (s 57(1)(a) of the Civil Procedure Act). I do not need to consider, and cannot consider, whether such a claim is reasonably arguable at the factual level, although I assume for the purposes of this application it actually is.

36. In my view, the dictates of justice tell against the proposed amendments in this respect. The proposed amendments are too late, will cause not insubstantial delay, may occasion prejudice which cannot be cured, and at least in respect to an action that may be available to the plaintiff in a personal capacity, it already appears doubtful, in law, about the prospects of success of the proposed claim, as it has now been articulated. To the extent that the claim is made on behalf of the third party, there is a string of consequential procedural steps that would consequentially follow from the joinder of SBDIR at this late stage of the litigation.

37. For these reasons, I refuse the plaintiff’s application to further amend his statement of particulars to claim the past or present costs of SBDIR.

38. The plaintiff should now re-draft his proposed Further Amended Statement of Particulars to accord with my rulings as explained in these reasons.

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Endnote

Decision last updated: 03 March 2020