Kanar v GASPAR
[2015] WADC 89
•30 JULY 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: KANAR -v- GASPAR [2015] WADC 89
CORAM: SLEIGHT CJDC
HEARD: 17 OCTOBER & 22 DECEMBER 2014 & 4 JUNE & 25 JUNE 2015
DELIVERED : 30 JULY 2015
FILE NO/S: CIV 3729 of 2009
BETWEEN: MUSTAFA KANAR
Plaintiff
AND
SIDNEY CLIFFORD GASPAR
Defendant
Catchwords:
Practice and procedure - Breach of springing order to be medically examined - Judgment dismissing the plaintiff's claim - Relevant principles
Legislation:
District Court Rules 2005
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff: Mr A P Hershowitz and Mr T J Hammond
Defendant: Mr D W Williams and Mr J P Wilson
Solicitors:
Plaintiff: Simon Walters
Defendant: WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Bulstrode v Trimble [1970] VR 840
Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32
Hytec Information Systems Ltd v Coventry City Council [1996] EWCA Civ 1099; [1997] 1 WLR 1666
Janov v Morris [1981] 1 WLR 1389
Khamis v Regina [2010] NSWCCA 179
MTQ Holdings v Lynch & Ors [2007] WASC 49
MWJ v The Queen [2006] 80 ALJR 329; [2005] HCA 74
Precision Plastics v Demir (1975) CLR 132
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 7) [2010] WASC 351
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
SLEIGHT CJDC: The plaintiff, Mr Kanar, was involved in a motor vehicle accident on 30 June 2008. Mr Kanar made a claim for damages for personal injuries allegedly suffered in the accident. Proceedings were commenced by a writ of summons on 11 December 2009 against Mr Gaspar.
Liability is not in dispute and the action remained on foot in relation to the question of assessment of damages only.
On 28 April 2014, Deputy Registrar Harman made a springing order dismissing the plaintiff's claim if Mr Kanar failed to submit himself for an examination by Dr Alan Home on 8 May 2014 and by Dr Lawrence Terace on 4 June 2014. The plaintiff failed to submit himself for such examinations and on 1 July 2014 Registrar Kingsley entered judgment against the plaintiff dismissing his action.
By a Notice of Appeal dated 2 July 2014, Mr Kanar appealed against the order of Registrar Kingsley and sought an order setting aside the dismissal of the action.
Requirement to be medically examined
Section 30 of the Motor Vehicle (Third Party Insurance) Act 1943 provides that the Insurance Commission of Western Australia may require an injured person, who has made a claim, to submit himself from time to time for medical examination. If the injured person, without reasonable excuse, refuses to submit himself to any such examination, no action for damages shall be commenced, or any action commenced shall not be proceeded with, unless and until the injured person shall have submitted himself to the medical examination required.
Rule 47A of the District Court Rules 2005 expressly incorporates O 28 of the Rules of the Supreme Court 1971. Order 28, r 1(3) provides that:
If any person fails to submit himself for examination as required by this rule, or in any way obstructs the examination, the court may order that the proceedings be stayed either wholly or in part, until the examination has taken place, or that any pleading be struck out.
In addition to the powers which exist under the Act and the Rules of the Supreme Court, the court has a case management power to order a springing order for judgment in order to ensure compliance.
Chronology
It is important in this matter to detail the relevant chronology.
1.Mr Kanar was born in Turkey in 1977. He emigrated to New Zealand in 2000 and moved to Australia in 2007.
2.On 1 November 2007, Mr Kanar suffered an injury in the course of his employment at a bakery in Perth. His foot was caught under a trolley which was being moved with the assistance of another employee. As a result of the accident Mr Kanar suffered a laceration of the Achilles tendon and other injuries from a fall in the accident.
3.As a result of the incident on 1 November 2007, Mr Kanar did not return to work and made a claim for workers' compensation. Proceedings commenced by Mr Kanar under the Workers' Compensation and Rehabilitation Act 1981 were contested with the workers' compensation insurer, QBE Insurance (Australia) Ltd, contending that Mr Kanar was not permanently disabled and was malingering.
4.Mr Kanar was subject to video recorded surveillance by the workers' compensation insurer on 28 August 2008 and 4 September 2008. A DVD was made from the video recorded surveillance. A copy of this was examined by Dr Alan Home, consultant occupational medicine specialist, who prepared a series of reports including a report dated 28 October 2008. In his report dated 28 October 2008, Dr Home concluded, after viewing the DVD recording, that Mr Kanar's presentation was inconsistent with his complaints and that he was fit to return to his duties as a baker's assistant. In a report dated 8 February 2009, Dr Lawrence Terace, psychiatrist, concluded that Mr Kanar did not suffer from any psychiatric or depressive illness. He also concluded that Mr Kanar suffered from abnormal illness behaviour which may be caused by a conscious exaggeration of physical complaints rather than an unconscious exaggeration of physical complaints.
5.On 11 December 2009, Mr Kanar commenced the proceedings in the District Court claiming damages for personal injuries suffered in a motor vehicle accident on 30 June 2008.
6.On 31 August 2011, Mr Kanar lodged a complaint with the Commissioner for Equal Opportunity against the Chief Executive of WorkCover (WA) and QBE Insurance (Australia) Ltd, alleging that he had been unlawfully discriminated against on the grounds of race and impairment in the areas of employment and the provision of goods or services.
7.On 28 August 2012, the State Administrative Tribunal struck out the complaint of unlawful discrimination on the ground of impairment and referred the complaint of unlawful discrimination on the ground of race to mediation. The complaint relating to discrimination on the grounds of race was based upon a contention by Mr Kanar that he was required to communicate in English at medical assessments arranged by the workers' compensation insurer.
8.On 15 July 2013, a pre-trial conference was held in the District Court proceedings, in which Mr Kanar claimed damages arising from the motor vehicle accident. After the pre-trial conference the solicitors for the defendant sought up-to-date medical reports from Dr Terace, Dr Brian Dare, Dr Alan Home and Mr Richard Vaughan, all of whom had previously examined Mr Kanar. Appointments were made with each of the specialists.
9.By letter dated 23 July 2013, Mr Kanar wrote to his solicitors stating that he would not attend appointments with Dr Terace and Dr Home.
10.By letter dated 26 July 2013, Mr Kanar's solicitors wrote to him warning him that he was obliged to attend all medical reviews arranged for him by the defendant's insurers, the Insurance Commission of Western Australia (ICWA), and warned him that if he failed to attend the medical reviews then the ICWA would seek an order from the court that the action be stayed until he submitted himself for examination.
11.By letter dated 29 July 2013, Mr Kanar again wrote to his solicitors stating that he refused to attend appointments with Dr Terace and Dr Home.
12. On 27 August 2013, on the application of the defendant, Deputy Registrar Hewitt ordered that the plaintiff attend appointments with Mr Richard Vaughan and Dr Alan Home and make appointments with Dr Lawrence Terace and Dr Brian Dare. The order further provided that the action be stayed until the plaintiff complied with this order.
13.On 10 September 2013, Mr Kanar wrote to his solicitors stating that he refused to attend appointments with Dr Terace and Dr Home. He gave the following reasons:
1.I have seen Dr Terace and Dr Home many times in the past.
2.Each and every time they have discriminated against my race and nationality by stating in their reports that I am 'originally from Turkey', 'a liar' and 'a malingerer'.
3.Both Dr Terace and Dr Home have fabricated their reports with false evidence to the insurance company to cover up my work place accident and to stop me from getting proper medical treatment for my injuries. The consequence of their negligent actions have left me with permanent disability and an inability to work.
4.Dr Terace and Dr Home destroyed my medical notes, changed their diagnosis of my injuries and gave false testimony under oath to her Honour Taylor on May 2nd 2013 at the State Administrative Tribunal. These facts are well documented and can be seen clearly in all their reports. Apparently Dr Terace has a policy within the Federal Code of Conduct to destroy his patient's notes, as his notes are, as he described, to the State Administrative Tribunal, simply 'an aide-mémoire'.
5.Racism, discrimination, negligence, destroying a patient's notes and giving false testimony under oath is an extremely serious crime in this country.
In the same letter, Mr Kanar indicated that he was prepared to attend appointments with Dr Vaughan and Dr Dare but that he needed a Turkish interpreter.
14.The plaintiff failed to keep an appointment with Dr Terace on 26 September 2013 for which Dr Terace rendered an account for $640.00. Mr Kanar also failed to keep an appointment with Dr Vaughan on 1 October 2013 for which Dr Vaughan rendered an account of $220.00.
15.On 5 November 2013, Mr Kanar's solicitors wrote to the solicitors acting for the defendant advising that their client 'is satisfied to attend medical reviews subject to having a Turkish translator present'. The solicitors acting for the defendant made the following appointments:
Dr Lawrence Terace 25 September 2013;
Dr Richard Vaughan 1 October 2013;
Dr Brian Dare 25 October 2013, and
Dr Alan Home 21 November 2013.
Mr Kanar failed to keep any of the above appointments.
16.On 8 January 2014, the parties entered into consent orders which provided relevantly that Mr Kanar make and attend medical specialist appointments with Dr Terace, Dr Home, Dr Dare and Dr Vaughan. The appointments were to be made by the plaintiff who was to notify the defendant in writing of the dates and times of the appointments. The consent order further stated:
The reason for this order is that the plaintiff has to date failed and refused to attend on appointments made for him with Drs Dare, Terace, Home and Professor Vaughan but has now agreed to attend the appointments with a translator.
17.By letter dated 3 February 2014, the solicitors acting for the defendant wrote to the plaintiff's solicitors stating that if Mr Kanar 'without reasonable cause fails to attend any of the appointments with the doctors referred to in the consent order, then our instructions were to make an application to the court seeking a springing order.' The plaintiff failed to keep the appointment with Dr Terace which was made for 4 February 2014.
18.On 6 February 2014, Mr Kanar's solicitors wrote to the solicitors for the defendant stating that they had been advised shortly before the appointment on 4 February 2014 that the Turkish speaking interpreter was no longer available. A new appointment was made for Mr Kanar to see Dr Terace on 11 February 2014 but Mr Kanar failed to attend. Dr Terace issued an account for $2,360.16 for the two cancelled appointments. When an explanation was sought from the defendant, the solicitors for Mr Kanar wrote to the defendant's solicitors stating that Mr Kanar objected to attending appointments with Dr Home and Dr Terace. The reasons for his objection were set out in an enclosed letter from Mr Kanar dated 18 February 2014 which stated as follows:
Once again, I've seen Drs Terace and Home many times before. They have blocked me from receiving proper medical treatment for their own purposes. They have fabricated many medico reports about my injuries in the past. They have discriminated against my race and nationality. They have violated my civil rights. They destroyed my clinical medical notes and gave false testimony under oath. This has been recorded at the State Administrative Tribunal on May the 2nd and 3rd 2013. Terace said he has his own policy to destroy patient medical notes, as this is allowed under the Federal Court Code of Conduct as they are only, in his words, 'an aide-mémoire'. They have completely changed their diagnosis of my injuries and this has never been reported to the Federal Court. Their negligence has left me with permanent disability. Apart from my physical injuries as a result of the work accident and the car accident, the psychological torture, discrimination, racism from these doctors is inhumane and still unbearable.
I do not wish to receive any more threatening letters to set up appointments with Drs Terace and Home for me to be accused of being 'a liar', 'a malingerer', 'with abnormal illness disorder' and 'originally from Turkey'. I do not wish to be discriminated against because of my race and nationality nor psychologically tortured in their dodgy medical practice, only to have my medical notes destroyed so a report can be fabricated by them. I do not wish to be terrorised in this manner any further by these doctors.
19.In March 2014, the solicitors for the defendant filed an application seeking orders that Mr Kanar attend medical appointments arranged by the ICWA. By letter dated 7 March 2014, Mr Kanar was advised by his solicitors as follows:
You will note that the defendant is seeking orders that – – you make and attend appointments with Dr Lawrence Terace and Dr Alan Home within the next 28 days, failing which your claim be struck out and you pay the defendant's costs of defending the action.
In response to this letter, Mr Kanar wrote to his solicitors by letter dated 13 March 2014 stating as follows:
Firstly, please do not hesitate to allow their application to go ahead to strike out my case. I will fully support their application 200% guaranteed.
Regarding WHL Legal's threatening letter, it is very clear to me they haven't understood my point. Dr Teraci (sic) and Dr Home destroyed my medical notes, gave false testimony under oath, fabricated reports and changed their diagnosis, none of which has been reported to the Federal Court.
20.By letter dated 17 March 2014, Mr Kanar's solicitors wrote to Mr Kanar warning him that the defendant might apply for a springing order. The letter went on to explain:
A Springing Order operates to the effect that unless within a given period of time, you comply with the order, your entire claim is dismissed.
Kindly note, that even though you may have views about Dr Terace and Dr Home, and these views may well be correct, you are still obliged to obey the orders of the court.
If you do not make an urgent appointment to be examined by Dr Home and Dr Terace, your case will be dismissed and you will receive no financial compensation whatsoever and be ordered to pay the legal costs of the Insurance Commission.
. . .
Please pay careful attention to the contents of this letter, as I do not wish there to be any misunderstanding that you have not been warned specifically of the consequences of failing to make your appointments to see these doctors, despite your objections to do so.
21.By letter dated 20 March 2014, Mr Kanar's solicitors wrote to him again warning him of the consequence of not keeping appointments with Dr Terace and Dr Home, including that his claim will be dismissed and he will be ordered to pay costs.
22.On 25 March 2014, Mr Kanar signed an acknowledgement on the end of the letter which read:
I understand and agree with the contents herein. I understand that you have warned me that if I do not attend for a medical examination with Dr Terace and Dr Home, my claim will be dismissed by the court and I will be obliged to pay the legal costs of the Insurance Commission in defending the legal proceedings that I have commenced. I understand that you have advised me strongly to attend these appointments.
I do not wish to follow your advice, and I insist that I do not attend for medical examination with Dr Terace and Dr Home, despite your warning of the consequences of my failure to attend for these medical examinations.
23.By letter dated 24 April 2014, Mr Kanar's solicitors wrote to him confirming that the solicitors acting for the defendant had filed an application seeking a court order that Mr Kanar attend medical appointments with Dr Terace and Dr Home and that if Mr Kanar failed to keep the appointments that his action be struck out. The letter further warned Mr Kanar that if he refused to keep the medical appointments then it was highly likely the registrar would grant orders dismissing Mr Kanar's claim.
24.On 28 April 2014, on application by the defendant, Deputy Registrar Harman ordered that:
(a)The action be stayed until the plaintiff submit himself for medical examination by Dr Alan Home on 8 May 2014 at 8.30 am at Next Health, 383 Scarborough Beach Road, Osborne Park, and Dr Lawrence Terace on 4 June 2014 at 1.00 pm at Unit 28, 82 King Street, Perth.
(b)Should he fail to attend for such specified examination the plaintiff's claim be dismissed and he do pay the defendant's costs of the action including any reserved costs.
The plaintiff, Mr Kanar, failed to keep the appointments with Dr Home and Dr Terace as per the order. Dr Home rendered an account for $660.00 for the failed appointment and Dr Terace rendered an account for $599.50 for the failed appointment. In response to this account Mr Kanar sent a letter dated 5 May 2014 to Dr Terace's rooms stating:
I gave notice that I would not attend those appointments and I have not seen Dr Terace for those appointments, as I formally, clearly and repeatedly notified the lawyers, the District Court, the Medical Practitioners Board, AMA and the Federal Court.
25.By letter dated 9 May 2014, Mr Kanar's solicitors again wrote to him stating:
I recommend strongly that you keep appointments with Dr Terace and Dr Home.
If you fail to attend the appointments you will be in breach of court orders compelling you to do so and the likely outcome is your claim will be dismissed with no compensation to you and obligation that you pay the legal costs of the Insurance Commission.
26.By a further letter dated 20 May 2014, Mr Kanar's solicitors wrote to him enclosing a copy of the sealed court order. The letter again warned Mr Kanar that if he did not attend appointments with Dr Terace and Dr Home then under the terms of the order his claim would be dismissed. The letter further stated:
It is very unfortunate that the course of action you have chosen to take will lead to your claim being dismissed unless you agree to undergo the medical reviews, and I strongly recommend that you reconsider your position and then contact my office to let me know that this is the case.
27.On 1 July 2014, a springing order was made dismissing the plaintiff's action.
28.Mr Kanar lodged a Notice of Appeal dated 3 July 2014. The hearing of the appeal first came before me on 17 October 2014 but was adjourned to enable Mr Kanar to attend and be available for examination. In the meantime, further appointments were made for Mr Kanar to see Dr Terace on 9 October 2014 and Dr Home on 23 October 2014.
29.On 9 October 2014, an appointment with Dr Terace was rescheduled as the interpreter did not attend. A further appointment was made to see Dr Terace on 3 December 2014. Mr Kanar did not keep the appointment on 3 December 2014. He claimed that he did not receive notification of this further appointment. An account was received from Dr Terace for the non-attendance in the sum of $1,980.00 and this was paid by Mr Kanar.
30.A further appointment was made for Mr Kanar to see Dr Terace on 25 May 2015 and Mr Kanar attended this appointment. Dr Terace subsequently submitted a report dated 19 June 2015.
31.Mr Kanar attended the appointment with Dr Home on 23 October 2014 and Dr Home produced a report dated 23 October 2014.
Affidavit material
Both parties filed affidavits in support of their position on the appeal. There was also an affidavit filed by the defendant in support of its application before Deputy Registrar Harman. There is no need for me to refer in detail to all the affidavits filed but I will make some reference to the more pertinent material.
In an affidavit sworn by Mr Kanar on 8 October 2014, he sought to explain his non-attendance at medical appointments in the following way:
7. I did not attend the medical examinations with Dr Home and Dr Terace because I did not appreciate the seriousness of the orders made on 28 April 2014 by Deputy Registrar Harman.
8. I did not appreciate the consequences of failing to attend the medical examinations as English is not my first language.
Also an affidavit sworn by Anne Marie Christie on 19 December 2014 was filed in support of Mr Kanar's appeal. Ms Christie is the de facto partner of Mr Kanar. She is a qualified secondary English teacher. In her affidavit she stated as follows:
17.I've written letters for Mustafa that he has asked me to write and I've advocated for him in the past. When Mustafa receives correspondence it takes a very long time for him to use translating devices to decipher what the correspondence means.
18.Often throughout the last 7 years, in which there has been over 30 legal files, there has been a lot of confusion on Mustafa's behalf and he has required my help in explaining, in my limited knowledge, correspondence.
Further in the affidavit she states as follows:
25.I understand that Mustafa had some doctors' appointments that he was due to attend and that they have been sending him back to the same doctors who had blocked his treatment before.
26.He then asked me to write to the District Court to explain as to why he would like to see different doctors and to make a complaint to AMA.
27.In the AMA complaint I put my own name down because they required proof as to who was writing the correspondence.
28.In relation to the springing order that gave rise to the dismissal, Mustafa made it clear to me that he was not sure what a springing order was.
29.He in fact asked me what a springing order was and I was unable to explain to him what it was.
30.Mustafa and I have been to numerous doctors' appointments that have been scheduled by the insurer which have resulted in cancellations and non-attendances. On many occasions I have been very disappointed with the conduct of the doctors and the appointments cancellation.
31.In relation to the order made by Registrar Harman in chambers on 28 April 2014, it was evident that Mustafa did not understand the ramifications of not attending the appointments.
On 22 December 2014, I made an order that Mr Kanar provide discovery of all documents relating to appointments and advice given to him by his solicitors in relation to the springing order made by Deputy Registrar Harman. Following this discovery the defendant filed an affidavit of Lisa Jane Kitchen dated 21 April 2015 annexing correspondence between Mr Kanar and his solicitors. The relevant content of these letters has already been outlined earlier in this decision as a part of the chronology of events.
Mr Kanar has not filed any further affidavit seeking to explain the content of the correspondence between himself and his solicitors and the extent of his understanding.
Relevant legal principles
(a) Nature of application
The application by Mr Kanar before the court was filed in the form of an appeal against the decision of Registrar Kingsley (incorrectly described in the Notice of Appeal as a decision made on 27 June 2014 whereas in fact it was made on 1 July 2014) and seeking an order setting aside the order dismissing the plaintiff's action.
As a preliminary point, counsel for the defendant submitted that the form of the application was incorrect in that the application ought not to have been by way of an appeal but by way of an application to seek an extension of time to the springing order made by Deputy Registrar Harman. Counsel for the defendant wrongly identified in its submissions that the appeal was covered by r 50 and r 51 of the District Court Rules 2005. Rule 50 provides that an appeal is by way of rehearing in the form of a reconsideration of the evidence that was before the primary decision maker. Leave of the court is required to adduce further evidence and leave should not be given unless there are special grounds for doing so. Further, r 51 requires the Notice of Appeal to specify why the decision is wrong. However, an appeal against a registrar's decision is not pursuant to r 50 but r 15 of the District Court Rules 2005. Rule 15 provides that an appeal against a decision of a registrar is by way of a new hearing of the matter, that is, a hearing de novo.
Once it is accepted that the appeal is under r 15 of the District Court Rules 2005, it does not matter whether the matter proceeds by way of an appeal or by way of an application to extend the time of the original springing order. If I was to express a preference I would suggest that it is more appropriate to lodge an appeal seeking that the judgment be set aside and then as a consequential order the time for complying with the springing order be extended. Although the Notice of Appeal lodged by the solicitors acting for Mr Kanar simply seeks to set aside the judgment of dismissal, I believe it is implicit that an order is also sought for an extension of the time for compliance with the springing order.
(b) Setting aside springing orders
In the matter of MTQ Holdings v Lynch & Ors [2007] WASC 49, Master Newnes (as he then was) set out the relevant legal principles on an application to set aside a judgment arising from a springing order. From this judgment the following principles emerge:
1.A springing order is intended to be the last opportunity offered to a party to put its case in order: MTQ Holdings v Lynch [54].
2.It is plainly important to the administration of justice that orders of the court are complied with. Obedience to orders of the court is the foundation on which the court's authority is founded. It follows that an approach which intends to encourage the development of a culture of non-compliance, where orders, even pre-emptory orders, of the court are not given the attention and priority they require, must inevitably lead to undermine that foundation: MTQ Holdings v Lynch [40].
3.The power to extend time when a springing order has not been complied with is a power to be exercised cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with and not to be ignored: MTQ Holdings v Lynch [41].
4.A most relevant consideration is whether the failure to comply with the springing order is intentional and contumelious. Even in cases where the failure is not due to intentional and contumelious conduct, a party will not necessarily have the springing order set aside. There is authority, Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 at 1203, that to avoid a springing order the party seeking to obtain an extension of time must establish both that there was no intention to ignore or flout the order and that the failure to comply with it was due to circumstances outside the party's control (see also Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32 at 37).
5.An application to set aside a judgment based upon a springing order involves the exercise of a discretion which must in the end depend upon all the circumstances of the case, without being limited by conditions or guidelines articulated in other cases, and there must always remain sufficient flexibility to make reasonable allowance for human error. Whilst it is important that legal business be conducted efficiently that is not an end in itself. The ultimate object must be to do justice: MTQ Holdings v Lynch [50]; State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 155.
6.While no hard and fast rules can be laid down as to the matters to which the court should have regard, the exercise of the discretion of the court will normally have regard to the following matters:
(i)the circumstances in which the springing order came to be made;
(ii)the reason for non-compliance with the springing order;
(iii)the prejudice to the defaulting party if the time was not extended; and
(iv)the prejudice to the other party if the time were extended: MTQ Holdings v Lynch [55].
7.It will normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits – there being no point in resuscitating a case that is devoid of merit – but, on the other hand, the fact that a party has an apparently meritorious case cannot be permitted effectively to act to insulate it from the consequences of a failure to comply with a pre-emptory order of the court: MTQ Holdings v Lynch [56].
As stated above, a relevant consideration is whether the conduct of the default was intentional and contumelious. There is authority that if the disregard of a springing order has been intentional and contumelious then leave should not be given to extend the time for compliance with the springing order: Re Jokai Tea Holdings Ltd per Browne-Wilkinson VC at 1203 (Sir John Megaw, who agreed with the judgment of Browne-Wilkinson VC, thought 'contumacious' was more appropriate than 'contumelious'); Janov v Morris [1981] 1 WLR 1389. The basis for this principle is that orders of the court must be obeyed and that a litigant who deliberately and without proper excuse disobeys an order should not be allowed to proceed: Re Jokai Tea Holdings Ltd at 1202.
In Hytec Information Systems Ltd v Coventry City Council [1996] EWCA Civ 1099; [1997] 1 WLR 1666, it was stated that 'a sufficient exoneration will almost inevitably require that [the defaulting party] satisfies the court that something beyond his control has caused his failure to comply with the order' [1675]. Also see Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 7) [2010] WASC 351 per Le Miere J [6].
Notwithstanding these principles, as stated earlier in the summary of principles emerging from MTQ Holdings v Lynch, there are no hard and fast rules. Master Newnes (as he then was) stated as follows:
But as I said, in the end the matters are to be weighed in the balance, and the weight to be given to each, cannot be stated definitively but must depend upon the circumstances of the particular case [57].
However, on the basis of the authorities quoted above, once a court concludes that the conduct of the defaulter was intentional and contumelious, the defaulting applicant faces almost an impossible task to persuade the court to set aside the order.
Conclusion
The circumstances of the issuing of the springing order and the judgment being made against Mr Kanar are set out earlier in this decision. Central to the application made by Mr Kanar in this matter is the contention that Mr Kanar did not appreciate the seriousness of the order made by Deputy Registrar Harman and did not appreciate the consequences of failing to attend medical examinations as English was not his first language. However, the affidavit of Mr Kanar of 8 October 2014 does not provide any explanation as to what Mr Kanar thought was the effect of the order made by Deputy Registrar Harman and does not indicate what he thought the consequences would be if he failed to comply with the order.
Although English was not Mr Kanar's first language (and from Ms Christie's affidavit it is suggested that he had limitations in his ability to understand correspondence received), he did have the assistance of Ms Christie and she wrote letters on his instructions. The content of the letter from Mr Kanar to his solicitors dated 13 March 2014 reveals that Mr Kanar was clearly aware that if he failed to keep the appointments with Dr Terace and Dr Home, the solicitors acting for the defendant would apply to have the claim struck out. This is consistent with the acknowledgement he signed on 25 March 2014 that he understood and agreed that he had been warned that he needed to attend the medical examinations with Dr Terace and Dr Home and that his claim would be dismissed and he would be ordered to pay costs if he did not attend.
Although Ms Christie in her affidavit states that 'it was evident that Mustafa did not understand the ramifications of not attending the appointments', the content of letters written by him (presumably with the assistance of Ms Christie) suggest otherwise. He was clearly obsessed with his dissatisfaction with Dr Terace and Dr Home and was simply not prepared to keep an appointment with them regardless of the orders of the court.
It is clear from the correspondence that was sent to Mr Kanar by his solicitors that his solicitors went to considerable lengths to explain the nature of Mr Kanar's obligation, repeatedly and emphatically suggesting to him that he needed to keep the appointments made with Dr Terace and Dr Home and repeatedly advising him as to the consequences if he did not keep the appointments. Despite the correspondence annexed to the affidavit of Lisa Jane Kitchen sworn on 21 April 2015 suggesting Mr Kanar did have an understanding of the consequences of failing to comply with the springing order, Mr Kanar chose not to give any further evidence to explain the extent of his understanding of the advice he had received and his response to it. Under the rule of Jones v Dunkel this raises an inference that the evidence that he would have given would not have been of assistance to his application. On the other hand, it must be taken into account that Mr Kanar made himself available to be cross-examined by counsel for the defendant/respondent and counsel for the defendant/respondent chose not to cross-examine Mr Kanar. Under the rule in Browne v Dunn such a failure may, depending on the circumstances, be a good reason for accepting a witness' evidence, particularly if it is contradicted by other evidence. However, it must be kept in mind that the rule in Browne v Dunn is a rule of practice based upon fairness. Reliance upon the rule can be both misplaced and overstated: MWJ v The Queen [2006] 80 ALJR 329; [2005] HCA 74 at [40]. Where a witness' evidence upon a particular matter appears to be incredible or unconvincing, or if it were contradicted by other evidence which appeared worthy of belief, the fact that the witness has not been cross-examined might be of little importance in deciding whether to accept the evidence: Khamis v Regina [2010] NSWCCA 179 at [44]; Bulstrode v Trimble[1970] VR 840 at 848-9); Precision Plastics v Demir (1975) CLR 132 at 371).
In this matter Mr Kanar was clearly aware that the issue on this appeal included the extent to which he intentionally flouted the springing order made by Deputy Registrar Harman and that against him the defendant was relying upon the correspondence between Mr Kanar and his solicitors to demonstrate that he fully understood his obligation to attend medical appointments and the consequences if he did not do so, including that his claim would be dismissed. In my opinion, in the circumstances of this case, it is open to me to draw an inference from Mr Kanar's failure to give a response to the affidavit of Lisa Jane Kitchen of 21 April 2015 that his evidence was unlikely to be helpful to his application. In my opinion, the fact that he attended the hearing of the appeal and was available for cross-examination does not detract from this conclusion.
Based upon the material before me, I conclude that Mr Kanar intentionally refused to attend the appointments of Dr Terace and Dr Home. This is not disputed. Further, I conclude that in light of the repeated and emphatic warnings given by his solicitors, the assistance he had in interpreting their letters from Ms Christie, his letter of 13 March 2014 and his signed acknowledgement of 25 March 2014, Mr Kanar was aware that there was a springing order in place and that if he failed to attend the appointments with Dr Terace and Dr Home his claim would be dismissed. I am satisfied that in the circumstances, given the clear nature of the warnings he was given, his disregard of the springing order was contumelious and contumacious.
It is also relevant for me to consider any prejudice suffered by the defendant. It is common ground that the following fees were incurred by the defendant's insurer as result of Mr Kanar failing to keep the medical appointments made for him:
Dr Richard Vaughan $860.00
Dr Lawrence Terace $2,360.16
Dr Alan Home $660.00
Dr Lawrence Terace $599.50
Dr Lawrence Terace $1,980.00
Mr Kanar paid the last account of Dr Terace but all the other accounts have been paid by the defendant's insurer. Further, as result of the many cancelled appointments, the action has been drawn out over a period of time and presumably the defendant has incurred legal costs due to its solicitors having to deal with the delay and the cancelled appointments. Although a cost order may partly remedy the situation there is still the issue of recovering any costs ordered.
Counsel for the defendant has submitted that there has been lost an opportunity to make a continuing assessment of Mr Kanar's medical condition during the period he refused to see Dr Terace and Dr Home. However, in this case, I am not satisfied that this is likely to lead to any prejudice as primarily the focus at trial will be upon what disabilities Mr Kanar had prior to the accident and what disabilities he suffers at the time of trial. However, I accept there are always potential disadvantages arising from delay and these cannot always be readily identified.
It is also relevant to consider the merits of the claim of Mr Kanar. The nature of his claim is essentially one of the damages for soft tissue injuries. Although liability has been admitted this does not necessarily mean that Mr Kanar's claim is a strong case. Without detailing the content of the medical reports that have been presented, it is agreed that Mr Kanar's claim will largely depend upon his credibility and if his evidence is not accepted and the medical evidence of the defendant is accepted then his claim is likely to be dismissed. However, if the evidence of Mr Kanar and his medical experts is accepted, it is not possible for me to conclude what the quantum of damages is likely to be. It is agreed that it is unlikely to be an award similar to that given where the claimant has suffered catastrophic injuries. Accordingly, this is not a case where Mr Kanar's claim has sufficient merit for it to be said that if the claim is dismissed Mr Kanar has been denied the opportunity of proceeding with the claim that is likely to be successful.
As stated earlier in this decision, it is also a relevant consideration to take into account that the court, by setting aside springing orders, should not be seen to encourage a culture of non-compliance. This is particularly so in the unlimited jurisdiction of the District Court for personal injuries. In this jurisdiction practitioners representing the parties rely upon the co-operation of medical specialists to make themselves available to examine claimants, prepare medico-legal reports and if necessary attend court to give evidence. Medical practitioners who agree to participate in this process often experience inconvenience and often have to postpone other aspects of their practice to accommodate requests to examine claimants or attend court to give evidence. The willingness of medical practitioners to provide these services will be greatly diminished to the disadvantage of claimants and insurance companies if medical practitioners are frustrated by the non-attendance of claimants for arranged assessments. Further, the court's reputation will be greatly harmed in the medical profession and generally if claimants can pick and choose when they attend medical appointments and disregard court orders requiring them to attend.
Taking all these factors into account, I am not satisfied that I should exercise my discretion to set aside the judgment dismissing Mr Kanar's claim and grant him an extension to the springing order. Although reports have now been obtained from both Dr Terace and Dr Home, given my finding that Mr Kanar intentionally and contumeliously disregarded court orders against him, I am satisfied that in the circumstances of this case the interests of justice are best served by leaving the judgment in place. Accordingly the appeal is dismissed.
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