Leonard v Northside Community Services Limited
[2016] ACTSC 90
•26 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Leonard v Northside Community Services Limited |
Citation: | [2016] ACTSC 90 |
Hearing Date: | 22 April 2016 |
DecisionDate: | 22, 26 April 2016 |
Before: | Mossop AsJ |
Decision: | See [42] |
Catchwords: | PROCEDURE – Non-compliance with directions in relation to service of expert evidence – failure to provide affidavit evidence explaining delay – whether explanation for delay by defaulting party adequate – consequences of non-compliance – directions made amending timetable for service for all parties |
Legislation Cited: | Court Procedures Act2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), r 245 |
Cases Cited: | Crawford v Australian Capital Territory [2015] ACTSC 282 |
Parties: | Margaret Leonard (Plaintiff) Northside Community Services Limited (Defendant) |
Representation: | Counsel S Sharmin (Plaintiff) B Ness (Defendant in the interests of AAI Ltd t/as GIO Workers Compensation) N Willing (Defendant in the interests of Guild Insurance Ltd) |
| Solicitors Ken Cush & Associates (Plaintiff) Moray & Agnew (Defendant in the interests of AAI Ltd t/as GIO Workers Compensation) Hall & Wilcox (Defendant in the interests of Guild Insurance Ltd) Curwoods Lawyers (Defendant in the interests of QBE Insurance (Australia) Pty Ltd) | |
File Number: | SC 316 of 2014 |
MOSSOP AsJ:
Introduction
These proceedings were docketed to me by the Deputy Registrar on 18 April 2016. They had been listed before the Deputy Registrar because the plaintiff had sought a variation of orders made by the Deputy Registrar on 8 February 2016.
In her originating claim filed 8 July 2014, the plaintiff alleges that she suffered three injuries, the first in October 2009, the second in August 2012 and the third in November 2013. Two of those injuries were injuries to her right shoulder and one of them was to her left shoulder. Because of the period over which the injuries were alleged, three separate insurers have entered appearances pursuant to r 245 of the Court Procedures Rules 2006 (ACT) (CPR): AAI Ltd t/as GIO Workers Compensation (GIO), QBE Insurance (Australia) Pty Ltd (QBE) and Guild Insurance Ltd (Guild).
The orders made on 8 February 2016 provided a timetable for the service of expert evidence, participation in a mediation, the service of a statement of particulars and the conduct of a listing hearing. The first order required that the plaintiff file and serve all expert evidence that she intended to rely upon by 4 April 2016. The defendants were permitted seven weeks to serve their evidence. The plaintiff had an opportunity to serve evidence in reply before a mediation on 20 June 2016 and a listing hearing on 30 June 2016. Having regard to the nature of the proceedings, being personal injury proceedings arising out of the employment of the plaintiff by the defendant, it is not clear why the orders required filing of evidence as well as its service, but nothing turns on that for present purposes.
Default and correspondence
On 1 April 2016, the Friday before the Monday upon which service of all the plaintiff’s expert evidence was due, Mr Tierney, the solicitor for the plaintiff, wrote to the solicitors for the three insurers seeking an amendment to the timetable that would require the plaintiff to serve her evidence by 2 May 2016. The letter described what was sought as an extension in relation to order 1. However, the amended timetable had incorporated within it amendments to the subsequent orders that also had the effect of:
(a)shortening the period after the service of the plaintiff’s evidence in which the defendant’s insurers were required to serve their evidence from seven weeks to five weeks; and
(b)requiring the mediation to take place before the plaintiff’s evidence in reply had been served.
I observe that in circumstances where a party was seeking, on the Friday before the Monday, consent to an amendment to the orders making changes of substance to the timetable a reasonably competent solicitor acting consistently with the party’s duty under s 5A of the Court Procedures Act2004 (ACT) would, unless instructed not to, have provided some explanation of the reason why the changes were sought so that an informed decision could be made by the other parties as to whether or not it was reasonable to consent to those amendments. However, no such explanation was given in the letter which simply asserted that the solicitors were instructed to seek the extension and proposed the alternative timetable.
The response on Monday 4 April 2016 from the solicitor for Guild indicated that his client did not consent to the proposed orders. It suggested that although Practice Direction No 2 of 2014 (Practice Direction) did not apply to the proceedings (because of the date upon which they were commenced), it would nevertheless be appropriate for the plaintiff to comply with paragraph 28(b) of that practice direction. That paragraph of the Practice Direction provides that where a party is unable to comply with the directions made by the Court, and agreement cannot be reached with the other parties, then the party must file an application in proceedings seeking variation of the orders to avoid or remedy the breach. The application must be supported by an affidavit providing “full disclosure of the factual basis for the application”.
Late on Monday 4 April 2016, the solicitor for GIO indicated that its client did not consent to the application for the extension of time sought. The email said, accurately:
The information contained in your letter does not give the insurers any basis upon which to propose an alternative way forward or further assess their position. It simply requests an extension.
GIO is keen to see this matter progress and does not want it delayed unnecessarily-certainly not by one month or more and without reasonable basis.
On 5 April 2016, the solicitor for QBE indicated that his client neither consented to nor opposed the extension. However, he asked:
Can you please give an indication as to why the extension is sought as my client is becoming increasingly frustrated as to why this matter is failing to progress adequately since the [informal settlement conference] which was some 6 months ago.
Later on 5 April 2016, the solicitor for Guild wrote:
We invite you to have the matter relisted so that the timetable can be amended by the Court.
Our client will consider amendments to the timetable once information is provided that explains your client’s default and that would demonstrate to the Court the extent of variations that are necessary, if any.
I observe that these responses, which incorporated reasonable requests for an explanation as to the facts that required an amendment to the timetable, were perfectly appropriate and should have been anticipated by the solicitor for the plaintiff. It is for that reason that a reasonably competent solicitor would, unless instructed not to, have included that information in the letter seeking amendment to the timetable.
Remarkably in those circumstances, the solicitor for the plaintiff did not promptly provide a full explanation of the reason or reasons why the adjustment to the timetable had been sought. Instead, Mr Tierney wrote to the solicitors for the insurers thanking them for their responses and continuing:
It appears the position of the insurers is that they wish for further information to be provided so that they can make a decision about the amended timetable proposed by the plaintiff.
Would you please advise what further information your insurer client’s [sic] would like to assist their consideration of whether to consent to the amendments proposed by the plaintiff so that we may seek instructions to respond.
Having regard to the nature of the amendments that were sought to be made to the timetable, the complete absence of explanation in the letter of 1 April 2016 and the responses from the solicitors for the insurers, any reasonably competent solicitor who was not instructed to simply delay matters would have understood that the insurers were seeking whatever explanation the plaintiff had for the need to vary the timetable.
It is notable that at this point the plaintiff had:
(a)not complied with the orders requiring service of evidence;
(b)not provided any explanation as to why an amendment to the timetable was necessary; and
(c)not had the matter relisted in order that the plaintiff’s non-compliance be dealt with by the Court or made an application in proceedings seeking to vary the timetable.
Two minutes after Mr Tierney had sent his email, the solicitor for GIO responded with the obvious and proper answer to Mr Tierney’s request, namely, identifying the information required as being: “any information that you would provide to the court in support of your client’s application for an extension.”
On 6 April 2016, the solicitor for Guild once again suggested adopting the approach in paragraph 28(b) of the Practice Direction. He also suggested that additional guidance could be found in the decision of Crawford v Australian Capital Territory [2015] ACTSC 282 at [21]-[23] (Crawford), a decision which, I interpolate, should have been familiar to the plaintiff’s solicitors. He pointed out that Guild was not in a position to propose alternative orders because it was of the view that the extension would require an adjournment of the Court facilitated mediation scheduled for 20 June 2016.
On 7 April 2016, Mr Tierney thanked the solicitors for their emails and indicated that he would seek instructions and respond with further information shortly “in relation to the steps needed to progress the matter towards the amended timetable to see if we can sensibly reach an agreed position”.
Nothing had happened by 11 April 2016 and the solicitor for Guild emailed Mr Tierney enquiring how the plaintiff intended to address her default or any proposed variation to the existing orders. The email also indicated that because the defendant had obligations under the existing timetable, Guild’s solicitor was instructed to ask the Court to have the matter relisted if the plaintiff did not do so by close of business on 13 April 2016.
On 12 April 2016, the plaintiff’s solicitors wrote to the solicitors for the three insurers noting the insurers’ refusal to consent to an extension of time for the plaintiff to serve her liability evidence and continuing:
As previously advised, we confirm that all discoverable documents relevant to this claim is required to properly brief our liability expert. In that regard we note the disappointing history of discovery in this matter:…
Thirty paragraphs were then set out describing the history of discovery between December 2014 and 18 December 2015. The last two items in the chronology were the making of the orders on 8 February 2016 and the request for an amendment to the timetable. The letter complained that the insurers finally finished producing discoverable documents 54 weeks after the original request and after numerous assurances that all documents had been produced. The letter asserted that this was in contradiction to what the Court was advised on 19 October 2015 at the hearing of the plaintiff’s application in proceeding dated 6 October 2015. It then stated: “We further note the discovery is still inadequate and incomplete and we will write to the parties on this issue separately.” It then repeated the proposed variation of the timetable set out in the letter on 1 April 2016. Only at the bottom of the third page of the letter did it provide any explanation for the delay by the plaintiff in serving her expert evidence. That was as follows:
As to the reason for the delay we advise that counsel is still preparing the briefing material and identifying discoverable documents which ought to have been produced but have not to date. Our proposed expert subsequently became unavailable until August 2016 which has forced us to find another expert. This expert anticipates completing the report within two weeks of being briefed.
In the context of the 54 week delay caused by the defendant’s insurers we are disappointed that the defendant insurers have now refused to consent to a reasonable amendment of the timetable and forcing the parties to have the matter relisted which will incur unnecessary costs and delay.
The assertion in the final paragraph quoted was an unreasonable one having regard to the fact that it was only in this letter that, for the first time, any explanation at all had been provided to the insurers which might form a basis upon which to adjust the timetable. Even that explanation was, however, less than complete.
It was only after that letter was sent that the solicitors for the plaintiff sent an email to the Deputy Registrar requesting that the matter be relisted.
The letter of 12 April 2016 provoked a response for the solicitors for Guild pointing out:
(a)the information contained in the letter of 12 April 2016 was insufficient, not in affidavit form and did not properly explain why the plaintiff failed to comply with the direction to serve expert evidence or include information that would suggest that the plaintiff was capable of filing evidence by the proposed amended date of 2 May 2016;
(b)the issue of discovery had not been raised since 5 February 2016;
(c)the plaintiff agreed to the order being made on 8 February 2016 that required her to file her expert evidence by 4 April 2016; and
(d)noted that having regard to the decision in Crawford, the solicitors for Guild considered that:
(i)there was no evidence that the plaintiff had a reasonable basis for determining that she would be able to obtain expert evidence by 2 May 2016;
(ii)if there were reasons preventing the plaintiff from being able to file all her evidence by 4 April 2016 then that should have been drawn the attention of the Court on 8 February 2016;
(iii)the plaintiff should have provided affidavit evidence explaining her default so that the defendant (by its three insurers) could properly consider the amendment proposed, whether or not the new timetable could be complied with and whether or not an adjournment to the court-ordered mediation was required; and
(iv)the plaintiff should have applied to the Court for a variation of the order fully and frankly disclosing the basis for that application in appropriate sworn evidence.
On 15 April 2016, the plaintiff wrote to the solicitors for the three insurers identifying categories of documents which she alleged had not been discovered and seeking that those additional discoverable documents, and an amended affidavit verifying the list of documents, be filed within 14 days.
On 18 April 2016, the matter was listed for directions before the Deputy Registrar. The insurers were directed to provide a response to the plaintiff’s letter relating to discovery of 15 April 2016 by 22 April 2016. Costs of the hearing were reserved. Later that day the matter was docketed to me by the Deputy Registrar and listed on 22 April 2016.
On 20 April 2016, the solicitors for Guild proposed a timetable in advance of the hearing before me which:
(a)vacated the earlier directions and required the plaintiff to serve her expert evidence by 2 May 2016;
(b)allowed seven weeks for the defendants to serve their evidence; and
(c)provided for a later date for either a court facilitated or privately arranged mediation.
On 20 April 2016 the plaintiff’s solicitor, Mr Tierney, wrote to the defendant’s insurers’ solicitors outlining the reasons why, in the context of the case, discovery of particular documents was significant. The letter asserted that because the statement of claim alleged negligence in the nature and conditions of the plaintiff’s system of work from 2004 onwards, the briefing material for the expert required complete information about the system of work and nature and conditions of employment. The letter proposed that the defendant’s insurers file further amended affidavits verifying lists of documents within seven days, that those documents be forwarded within seven days of being requested and that the proceedings be adjourned to 20 May 2016 “for a timetable to be created”.
Hearing on 22 April 2016
At the hearing before me, the time by which the defendants insurers were required to provide a response to the letter of 15 April 2016 had not yet expired. The solicitor for Guild indicated that his client’s position in response to that letter was that no further discovery was required because discovery was complete.
At the hearing before me the position of the parties was largely that outlined in the correspondence from the solicitors for Guild dated 20 April 2016 and from Mr Tierney on behalf of the plaintiff on the same date. The effect of the orders proposed by Guild (supported by the other two insurers) would give the plaintiff the extension of time which had been sought on 1 April 2016, but then adjust the timetable so as to permit the insurers the same period that they would have had under the 8 February 2016 timetable (seven weeks) to serve their evidence in response. The proposed orders also sought to reschedule the mediation so that it occurred at a time after all expert material had been served. The plaintiff, on the other hand, contended that the existing directions should be vacated and the proceedings adjourned so that the plaintiff could seek to resolve the issue relating to discovery which she had identified in the correspondence. The plaintiff tendered a schedule of correspondence including the letters from Mr Tierney of 15 April 2016 and 20 April 2016, as well as some letters from 2015 relating to the issue of discovery.
Orders made on 22 April 2016
Having heard the submissions, the orders that I made on 22 April 2016 were as follows:
1. The orders made on 8 February 2016 are vacated.
2.The plaintiff is to file and serve all expert evidence she intends to rely on by 2 May 2016.
3.The defendant is to file and serve the expert evidence it intends to rely on by 20 June 2016.
4. The plaintiff is to file and serve all her expert evidence in reply by 11 July 2016.
5.The plaintiff is to pay the defendant’s costs (by all three of its insurers) of the hearing today, incurred by reason of the plaintiffs non-compliance with orders made on 8 February 2016 or thrown away as a result of the timetable amendment, including the reserved costs of the appearance on 18 April 2016; and
6.Liberty to apply is given to any party to apply for an order under rule 1753 or any other order that the solicitors for the plaintiff pay the costs ordered to be paid by the plaintiff under the previous order.
I also indicated that when I gave these reasons I would make orders in relation to participation in a mediation, an order relating to the service of a statement of particulars prior to that mediation and having the matter listed for a listing hearing after the mediation.
Reasons for making orders
My reasons for making the orders that I did are as follows.
The orders that I made gave the plaintiff the extension of time which she wished to have in order to serve her evidence. They also maintained the period which the defendant’s insurers had under the orders of 8 February 2016 after the service of the plaintiff’s evidence for the service of the defendant’s evidence. They recognised the reality that the mediation arranged for 20 June 2016 would have to be vacated as a result of the adjustment of the timetable rather than forcing a mediation to occur prior to the completion of the service of evidence.
I did not accept the plaintiff’s submission to the effect that everything should go on hold until its recently raised issue about discovery was resolved. That was for four reasons.
First, any attempt by the plaintiff to reframe the issue as one relating to discovery occurred in the context of the plaintiff’s non-compliance with the existing orders. There was no evidence on oath or affirmation explaining the steps that the plaintiff’s solicitors had taken in order to obtain expert evidence, the nature of the expert evidence that was proposed, whether the expert had been briefed or by what date the expert was able to report. The single paragraph in the letter of 12 April 2016 was inadequate both because it was not on oath or affirmation and because it failed to provide sufficient information to permit the other parties or the Court to make any accurate assessment of the reasons put forward.
Second, according to the chronology provided in the plaintiff’s letter of 12 April 2016, the final tranche of discovered documents was provided on 18 December 2015. The plaintiff then acquiesced in the making of orders by the Deputy Registrar which provided that she serve her evidence by 4 April 2016. The extent of the difference between the parties at that stage in relation to the service of the plaintiff’s expert material appears to have been that the plaintiff contended for the date of 18 April 2016, whereas the defendants contended for 4 April 2016. The important point is that the plaintiff permitted orders to be made setting a timetable which would be inconsistent with the scope of discovery needing to be resolved as a precondition to the service of expert material by the plaintiff.
Third, the plaintiff has not put on any application in relation to the adequacy or inadequacy of discovery and has simply relied upon the assertions of its solicitors in correspondence as to discovery being incomplete. Those assertions have only emerged well after the initial extension was sought. It is not clear at all whether the initial request for an extension was motivated by any asserted inadequacy of discovery or not. While schedules of correspondence are useful forms of evidence when it is only necessary to identify the positions of the parties as articulated in that correspondence, to disclose the procedural history of a matter or to prove the content of correspondence where that is the relevant fact, they are not suited to proving the facts asserted in the correspondence where those facts are contentious. Assertions of fact in correspondence are not on oath and cannot be tested by cross examination. The correspondence that is in evidence does not prove that there has been any default on the defendant’s part in relation to discovery, only that the plaintiff has recently made that assertion.
Fourth, it was, in my view, better to maintain a structured timetable which compelled the plaintiff to put on her material in a reasonable time. If in fact there is some further difficulty with the scope of discovery that has been provided, then that will be able to be resolved one way or another, but not in a manner which prevents the proceedings as a whole progressing in an orderly manner so that they may be completed in a reasonable time.
In relation to costs, I made the order that I did because I considered that the manner in which the plaintiff’s solicitors had addressed the question of an extension of time and amended timetable was inconsistent with the plaintiff’s obligations under s 5A. As I have pointed out above, in circumstances where a party is seeking an extension of time set by orders of the Court then it should have been obvious to any reasonably competent solicitor practising in personal injury litigation that a proper and frank explanation of the reasons for the request should (unless the solicitor was instructed not to provide it) have been communicated to the other parties so as to permit those parties to properly consider the request. Any other course was likely to increase the costs incurred by the parties and extend the scope of disputation. The plaintiff has not put before me, nor sought an opportunity to put before me, affidavit material that explains the reasons for her agreement to the setting of a timetable on 8 February 2016, the reasons for her default in complying with the directions of the Deputy Registrar or the reasons why the issue of discovery was only raised after she was in default of the orders relating to expert evidence. In those circumstances the other parties should not have to bear the costs incurred as a result of this conduct by the plaintiff and should have their costs arising out of the plaintiff’s default.
I granted liberty to seek orders against the plaintiff’s solicitors because, without expressing any view as to whether or not such an order would be appropriate, I did not wish to preclude the possibility that in the circumstances either the plaintiff herself or the defendant’s insurers may wish to seek such an order.
Additional orders
The additional orders that I will make in relation to a mediation, statement of particulars and listing hearing are as follows:
(a)The parties are to participate in a mediation at a time, date and place and before a mediator agreed between the parties, to take place no later than 11 September 2016 and each party has liberty to apply in the event that no agreement is reached in relation to the mediation within 28 days;
(b)The plaintiff is to file and serve a statement of particulars under r 1304 of the CPR no later than seven days prior to the mediation; and
(c)The proceedings are listed for a Listing Hearing on 16 September 2016 at 9.30 am.
In an attempt to ensure that Court directions are complied with and to make clear the process to be followed in the event of non-compliance, I will also order that paragraphs 17 to 22 and 26 to 48 of Practice Direction No 2 of 2014 apply to these proceedings.
Finally, the orders I made on 22 April 2016 picked up the terms of the draft orders proposed by Guild, which repeated the requirement of the 8 February 2016 orders that the expert evidence be filed as well as served. Filing appears to be unnecessary and I will amend the orders that I made to remove that requirement.
Summary of orders
So that the orders are clear, the combined effect of the orders that I made on 22 April 2016 and today are as follows:
1. The orders made on 8 February 2016 are vacated.
2. The plaintiff is to serve all expert evidence she intends to rely on by 2 May 2016.
3. The defendant is to serve the expert evidence it intends to rely on by 20 June 2016.
4. The plaintiff is to serve all her expert evidence in reply by 11 July 2016.
5. The plaintiff is to pay the defendant’s costs (by all three of its insurers) of the hearing on 22 April 2016, incurred by reason of the plaintiff’s non-compliance with orders made on 8 February 2016 or thrown away as a result of the timetable amendment, including the reserved costs of the appearance on 18 April 2016.
6. Liberty to apply is given to any party to apply for an order under rule 1753 or any other order that the solicitors for the plaintiff pay the costs ordered to be paid by the plaintiff under the previous order.
7. The parties are to participate in a mediation at a time date and place and before a mediator agreed between the parties to take place no later than 11 September 2016 and each party has liberty to apply in the event that no agreement is reached in relation to the mediation within 28 days.
8. The plaintiff is to file and serve a statement of particulars under r 1304 no later than 7 days prior to the mediation.
9. The proceedings are listed for a Listing Hearing on 16 September 2016 at 9.30 am.
10. Paragraphs 17 to 22 and 26 to 48 of Practice Direction No 2 of 2014 apply to these proceedings.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 9 May 2016 |