Lt v Trustee of the Vincentian Fathers

[2017] NSWSC 947

Supreme Court

New South Wales

Medium Neutral Citation:

LT v Trustee of the Vincentian Fathers [2017] NSWSC 947

Hearing dates:

14 July 2017

Date of orders:

14 July 2017

Decision date:

14 July 2017

Jurisdiction:

Common Law

Before:

Garling J

Decision:

1. Decline the request by the plaintiff to amend the court orders.

 

2. Direct that the court orders as present exist remain in place.

 

3. Matter will remain listed for directions before the Registrar on 1 September 2017.

 4. Liberty to restore.

Catchwords:

CIVIL PROCEDURE – overriding purpose – provision of expert conclave report

  CIVIL PROCEDURE – orders – decline to vary orders as present

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural and other rulings

Parties:

LT (P)
Trustee of the Vincentian Fathers (D)

Representation:

Counsel:
L Mathias / A Clarke (P)
R Anderson (D1-D5)

  Solicitors:
Porters Lawyers (P)
Makinson d'Apice Lawyers (D1-D5)

File Number(s):

2016/33807

Publication restriction:

Anonymisation of plaintiff’s name.

EX TEMPORE Judgment

1. This proceeding is one of a number of matters before the Court, dealing with a civil claim for damages arising out of an allegation that the plaintiff was sexually assaulted whilst a school student.

2. It is in the interests of the parties to the litigation and in particular, of the plaintiff, that the trial is heard at the earliest reasonably available opportunity. It is in the public interest and the interest of the administration of justice, that any case which involves the determination of controversial facts which occurred about 40 years ago, are heard and determined as soon as reasonably possible. That is because of the difficulty of proof of contested facts which rely upon memory and recall.

3. Because of the nature of the proceedings, this case has been identified as a matter requiring judicial case management, in order to do all things possible to promote the overriding purpose identified in the Civil Procedure Act 2005, namely, the just, quick and cheap resolution of the real issues in the proceedings.

4. This Court has for many years, as a general rule in claims for damages arising out of personal injury, or mental harm, required experts who are giving evidence, to engage in a conclave with other like experts for the purpose of preparation of a joint report, identifying the matters that are in issue and are agreed and the matters which are in issue but which are not agreed. A joint report also sets out the basis of the disagreement between the experts. This is done as a prelude to the giving of evidence jointly by experts, from the same fields of expertise. As well, this procedure is followed because it assists the parties to identify the real issues in the proceedings, and often leads to a much earlier resolution of claims than would otherwise be the case.

5. I assume that when experts are retained for the purpose of giving evidence in proceedings in this Division in this Court, that either they are aware of the Court's general practice with respect to expert evidence, or if not, they have been made aware of it, by those that retain them.

6. When this matter last came before the Court, the Court was informed that a conclave of experts was to take place on 5 July 2017. Apparently, that conclave did not take place because one of the participants thought it appropriate to reassess the plaintiff and prepare an up to date assessment, prior to meeting with the other expert in conclave. Because the Court was told that there was to be a conclave on 5 July 2017, it made orders providing for the conclave to occur before the end of July with a joint report to be prepared by the end of August, and the matter to come back before the Court on 1 September 2017, with the intention that the matter would be fixed for hearing.

7. The parties relisted the matter before the Court today in accordance with the leave of the Court. The Court was informed that the conclave had not taken place on 5 July 2017, and that it was now appropriate for a date to be fixed for that conclave to take place before the end of September 2017, with a report to be provided to the Court by the end of October 2017 and the matter to come back before the Court in November 2017.

8. The effect of these amended orders is that the date at which the Court would be able to fix a hearing date for the plaintiff's claim would be much delayed. I am informed that, notwithstanding their best efforts, solicitors for the parties have not been able to find a mutually convenient time for the two experts to spend a maximum of an hour on the telephone, exchanging their views and recording their agreement and their disagreement at any time before the end of July, when one of the experts departs for a period of four weeks on leave overseas.

9. It is surprising to me that experts who agree to undertake medico-legal assessments would be unable to find a mutually convenient time to discuss a matter of their assessments and reach such agreement as they might over the telephone prior to the end of July. Presently, that is the course which the Court’s orders require and I am simply unpersuaded that, with proper efforts and a degree of good will, together with a recognition of their obligations to the Court, these two experts cannot find an hour prior to the end of July to discuss the matter and agree upon a joint report.

10. Accordingly, I decline the application by the plaintiff to amend the Court’s orders and I direct that the Court orders as present exist remain in place.

11. The matter will remain listed for directions before the Registrar on 1 September 2017, but the parties have leave to restore the matter to the list at any time.

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Decision last updated: 14 July 2017