| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MARTIN -v- COMMONWEALTH BANK OFFICERS SUPERANNUATION CORPORATION PTY LTD [2011] WADC 177 CORAM : DERRICK DCJ HEARD : 24 OCTOBER 2011 DELIVERED : 24 OCTOBER 2011 FILE NO/S : CIV 3715 of 2009 BETWEEN : KERRY JANE MARTIN Plaintiff
AND
COMMONWEALTH BANK OFFICERS SUPERANNUATION CORPORATION PTY LTD
First Defendant
PERMANENT TRUSTEE AUSTRALIA LIMITED
Second Defendant
COLONIAL FIRST STATE PROPERTY LTD
Third Defendant
COLONIAL FIRST STATE PROPERTY MANAGEMENT PTY LTD
Fourth Defendant
AIRLITE CLEANING PTY LTD trading as AIRLITE GROUP
Fifth Defendant
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ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : REGISTRAR HEWITT File No : CIV 3715 of 2009 Catchwords: Practice and procedure - Appeal against decision of deputy registrar extending entry for trial milestone and adjourning application for directions to 6 March 2012 Legislation: District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA) Result: Appeal allowed Representation: Counsel:
Plaintiff : Mr D C Rice
First Defendant : Ms F J Dempster
Second Defendant : Ms F J Dempster
Third Defendant : Not applicable
Fourth Defendant : Ms F J Dempster
Fifth Defendant : No appearance
Solicitors:
Plaintiff : Griffiths Rice & Co
First Defendant : Jackson McDonald
Second Defendant : Jackson McDonald
Third Defendant : Not applicable
Fourth Defendant : Jackson McDonald
Fifth Defendant : Greenland Legal Pty Ltd
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Case(s) referred to in judgment(s):
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Tobin v Ezekiel – Ezekiel Estate [2008] NSWSC 1108
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DERRICK DCJ: [This judgment was delivered ex tempore on 24 October 2011 and has been edited from the transcript.] 1 The first, second and fourth defendants (the appellants) appeal against the decision made by Deputy Registrar Hewitt on a chamber summons which came before him for hearing on 28 July 2011. The appeal is made pursuant to r 15(1) of the District Court Rules 2005 (the DCR).
Background 2 On 10 December 2009 the plaintiff (the respondent) commenced by writ of summons an action against the appellants, the third defendant and the fifth defendant. The action was for damages for injuries sustained by the respondent on or about 11 December 2003 when she slipped on a thin stream of water at the Midland Gate Shopping Centre and fell onto her right knee (the accident). 3 The writ of summons was not served on the appellants, the third defendant or the fifth defendant until around late March 2010. 4 In or around April 2010 the appellants, the third defendant and the fifth defendant filed memoranda of appearances. 5 On 4 February 2011 the appellants filed a chamber summons bearing that date seeking an order that the respondent file her statement of claim within seven days. 6 On 11 February 2011 the respondent filed an undated statement of claim. 7 On 24 February 2011 the appellants' application the subject of the chamber summons dated 4 February 2011 was dismissed by consent. 8 On 11 March 2011 the appellants filed their undated defence. 9 On 4 April 2011 the respondent filed her undated amended statement of claim. 10 On 5 April 2011 the respondent filed a notice dated 1 April 2011 seeking leave to discontinue its action against the third defendant. The action against the third defendant was subsequently discontinued (although for reasons that are not apparent to me the third defendant is still referred to in the title to the action). (Page 5)
11 On 8 April 2011 the appellants filed their undated amended defence. 12 On 4 May 2011 the appellants filed a notice of contribution and indemnity dated 3 May 2011 against the fifth defendant. 13 On 8 July 2011 the appellants filed a chamber summons dated 7 July 2011 by which they sought orders in the main action and in the contribution proceedings against the fifth defendant. It is this chamber summons which is the subject of the appeal. The orders sought by the appellants were as follows: 1. Within 14 days of the date of the order the fifth defendant file and serve a defence in the main action; 2. Within 21 days from the date of the order the respondent and the fifth defendant give discovery in the main action; 3. Within 14 days from the date of service of the order the appellants file and serve a statement of claim in the contribution proceedings against the fifth defendant; 4. Within 14 days from the date of service of the statement of claim in the contribution proceedings the fifth defendant file and serve a defence in the contribution proceedings; 5. The question of the fifth defendant to indemnify or make contribution to the appellants be tried at or immediately after the trial of the action as the judge shall direct; 6. The costs of the application be in the cause; and 7. There be liberty to apply. 14 On 11 July 2011 the court issued, pursuant to r 38(1) of the DCR, a form 2 Notice of Default (Entry for Trial) (the form 2 notice of default). By the form 2 notice of default the court informed the parties that the respondent had not entered the action for trial as required and that unless the respondent entered the action for trial on or before 26 July 2011 the action would become inactive. Consistently with r 38(2) and r 38(5) of the DCR, the form 2 notice of default also contained a statement that despite the fact that the action would become inactive if the respondent did not enter the action for trial on or before 26 July 2011 any party other than the respondent could enter the action for trial and could do so even if the action had become inactive. (Page 6)
15 On 19 July 2011 the respondent filed an undated chamber summons seeking an order that the entry for trial milestone be extended for 120 days. By the summons the respondent also sought an order that if the action had been placed on the inactive cases list it be removed and the entry for trial milestone extended to enable the parties to comply with the directions sought by the appellants in their chamber summons dated 7 July 2011. 16 On 20 July 2011 the fifth defendant filed its defence to the amended statement of claim dated 19 July 2011. 17 On 27 July 2011 the court issued to the parties pursuant to r 44D of the DCR a notice that the case was on the inactive cases list due to the failure to enter the case for trial within the time specified on the form 2 notice of default. 18 On 28 July 2011 the appellants' chamber summons dated 7 July 2011 and the respondent's undated chamber summons filed on 19 July 2011 came before Deputy Registrar Hewitt for hearing. The orders made by the deputy registrar on the appellants' chamber summons were that the application was adjourned to a directions hearing on 6 March 2012 and that costs were reserved. The orders made by the deputy registrar on the respondent's chamber summons were that the entry for trial milestone was extended to 6 March 2012, that the application was adjourned to a directions hearing on 6 March 2012 and that costs were reserved. The orders made by the deputy registrar were made on the basis of advice given from the bar table to the effect that the plaintiff might require further surgery later in the year.
Notice of appeal and orders sought 19 On 5 August 2011 the appellants filed a notice of appeal bearing that date against the deputy registrar's decision. In the notice of appeal the appellants assert that the final orders that the court should make on the appeal in the main action are as follows: (Page 7)
3. The matter be removed from the inactive cases list and the entry for trial milestone be extended to 26 September 2011. 20 The final orders which the appellants assert in the notice of appeal should be made on the appeal in relation to the contribution proceedings are as follows: 1. Within 14 days from the date of the order, the appellants file and serve a statement of claim in the contribution proceedings; 2. Within 14 days of the service of the statement of claim, the fifth defendant file and serve any defence; 3. Within 14 days of the date of service of the defence, the appellants and the fifth defendant give discovery to each other; and 4. The question of the liability of the fifth defendant to indemnify, alternatively make contribution to the appellants be tried at or immediately after the trial of the action as the judge shall direct. 21 In relation to costs the appellants seek by the notice of appeal an order that the fifth defendant and the respondent pay the appellants' costs of the chamber summons and the preparation for, and attendance at, the hearing. 22 By a document entitled 'Orders Wanted' dated 21 October 2011 the appellants have revised slightly the orders that they contend should be made on the appeal. The orders now sought are as follows: 1. Within 21 days from the date of the order the respondent and the fifth defendant give discovery in the main action; 2. Within 14 days from the date of service of the order the appellants file and serve a statement of claim in the contribution proceedings against the fifth defendant; 3. Within 14 days from the date of the service of the statement of claim the fifth defendant file and serve a defence in the contribution proceedings; and (Page 8)
4. The question of the fifth defendant to indemnify or make contribution to the appellants be tried at or immediately after the trial of the action as the judge shall direct.
Nature of the appeal 23 An appeal from the decision of a registrar to a judge under r 15(1) of the DCR is a hearing de novo: DCR, r 15(6); Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28. I am therefore to treat the chamber summons the subject of the appeal fresh as though it has not previously been determined. It is not necessary for the appellants to establish appellable error on the part of the registrar: Hazart v Rademaker (28); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13], [14].
Non-appearance by fifth defendant 24 By an email dated 24 October 2011 sent to the respondent's solicitors and copied to the court and to the appellants' solicitors, the fifth defendant's solicitors advised that the fifth defendant does not wish to take any active part in the appeal, will not appear at the appeal and concurs with the respondent. Consistently with the terms of the email there was no appearance for the fifth defendant at the hearing of the appeal.
Affidavit evidence on the appeal 25 In support of the appeal, the appellants have filed an affidavit sworn by Ms Fiona Dempster on 28 September 2011. Ms Dempster is a solicitor employed by the firm of solicitors engaged by the appellants. Ms Dempster has annexed to her affidavit copies of all correspondence in the possession, power or control of the appellants which has been produced by the respondent's treating orthopaedic surgeon or his clinic in relation to the respondent's medical condition. 26 In opposition to the appeal the respondent has filed an affidavit sworn on 5 October 2011. 27 The affidavit evidence establishes the following material facts. 28 On 7 September 2006 the respondent saw Dr Ben Kimberley, a consultant orthopaedic surgeon. On examination by Dr Kimberley the respondent had retropatella crepitus and pain in the anteromedial region of her right knee. Her X-rays revealed an area of fissuring in the retropatella cartilage and an area of fissuring in the medial femoral condyle weight-bearing area. Dr Kimberley suggested to the respondent that she (Page 9)
would be amenable to arthroscopic debridement of the involved areas. Dr Kimberley thought that this would be a reasonable consideration given the respondent's failure to improve with the passage of time. 29 In or about September 2006 the respondent underwent a right knee arthroscopy for a partial medial meniscetomy and MFC chondroplasty. 30 On 25 January 2007 the respondent was reviewed. She reported some resolution of symptoms since undergoing the arthroscopy. However, she described limited flexion and some pain mainly on the medial side of her leg. She also described some instability on climbing stairs. 31 On 13 February 2008 the respondent was reviewed by Dr Kimberley. The respondent reported to Dr Kimberley increasing pain in recent times mainly in the anterior part of her knee. Dr Kimberley offered the respondent a further arthroscopy in view of the fact that she had undergone a 'fair bit' of physiotherapy without any great improvement. 32 In or about late May or early June 2008 Dr Kimberley performed a further arthroscopy on the respondent's knee. At the time of surgery Dr Kimberley found retropatella cartilage damage which he was able to improve with debridement. 33 On 10 November 2008 an orthopaedic registrar, Aaron Tay, reviewed the respondent. The respondent advised that her pain had not settled since the second arthroscopy. Dr Tay explained to the respondent that there was very little in terms of surgical management for her symptoms. The respondent agreed to her knee being injected with a local anaesthetic and steroid to try and settle down any inflammation within her knee. 34 On 18 December 2008 the respondent consulted Dr Mark Hurworth, consultant orthopaedic surgeon. The respondent complained of ongoing pain and paraesthesia over her whole knee. After examination Dr Hurworth informed the respondent that there was nothing surgically that he thought would be appropriate for her present condition. 35 In July 2010 Dr Kimberley reviewed the respondent. At the review the respondent reported that she continued to have pain in the anterior knee particularly when she went up and down stairs. She reported that she experienced pain from prolonged walking. She reported that she had difficulty twisting and turning on the knee. She reported that there was a component of the pain that remained constant and that she required fairly (Page 10)
heavy painkillers to keep the pain under control. She reported that she occasionally experienced the knee giving way as well as swelling from time to time. 36 On examination of the respondent Dr Kimberley found patellofemoral crepitus with flexion and extension, and tenderness around the anterior part of the knee. The respondent exhibited positive signs of apprehension when putting pressure on the patella and tenderness around the medial joint line anteriorly within the knee. 37 Dr Kimberley diagnosed the respondent as having right knee cartilage damage within the medial femoral condyle region and also the retropatella region. He considered that this damage had resulted from the accident and subsequent deterioration. 38 On the basis of what the respondent had told him and his examination of the respondent, Dr Kimberley formed the view that the respondent would in the short term have persisting pain of the nature that she had experienced over the last few years with limitation in level of activity as a result. He considered that in the long term, possibly over 10 to 20 years, the changes that were present in the respondent's knee would gradually develop to become arthritic changes. He considered that there was a high likelihood that the respondent would require more involved treatment later if she developed arthritis. 39 In relation to future medical treatment Dr Kimberley formed the view that the respondent's patellofemoral cartilage damage may be prevented from deteriorating further by a realignment osteotomy of the patellofemoral mechanism. He considered that the probability of success of such a procedure in the respondent's case was about 80%. 40 With regards to the medial femoral condyle cartilage, Dr Kimberley formed the view that this may be treated with cartilage grafting. He considered that the probability of success of such a procedure was generally around 60% to 70% but that in the setting of a compensable case the success rate was even less, possibly only 30%. 41 Dr Kimberley concluded that the respondent's condition had plateaued and that it was certainly possible to finalise her claim. 42 Dr Kimberley informed the appellant that if she wished to have surgery he would be happy to organise it, but that she should not rush into surgery and that she should weigh up the considerations carefully and get back to him. (Page 11)
43 The respondent has an appointment to see Dr Kimberley on 28 November 2011. The purpose of the appointment is to discuss whether she will be required to undergo an operation to her right leg just below the knee and, if an operation is required, the arrangements for the operation. It is anticipated that if an operation is required it will take place some time in December 2011. 44 If the respondent does undergo an operation she will be required to wear a splint for approximately six weeks and thereafter require six weeks of intensive physiotherapy. She would be reviewed again after this 12 week period so that a further report could be prepared in relation to her condition. It is anticipated that the review would occur, and the report be prepared, in or around March 2012. 45 As is apparent from my summary of the evidence, it is not at this time clear if the respondent will undergo further surgery later this year.
Case management principles 46 The relevant principles of case management are not in dispute in this appeal. They are conveniently set out in the appellant's written outline of submissions dated 21 October 2011. They are as follows: 1. Actions in the court will, to the extent that the resources of the court permit, be managed and supervised in accordance with a system of positive case flow management the objects of which include promoting the just determination of litigation and facilitating the case being conducted and concluded efficiently, economically and expeditiously: Rules of the Supreme Court 1971 (the RSC) O 1 r 4B(1); DCR r 24(1); 2. The DCR should be construed and applied and the processes and procedures of the court conducted so as to best ensure the attainment of the objects referred to in O 1 r 4B(1) of the RSC and r 24(1) of the DCR; RSC O 1 r 4B(2); 3. Delay and costs are undesirable and delay has deleterious effects on the parties to the proceedings and on other litigants; 4. Litigants are entitled to a fair opportunity to present their case but this does not mean that they can take as long as (Page 12)
they like in doing so: Tobin v Ezekiel – Ezekiel Estate [2008] NSWSC 1108 [37]; 5. The obligation to ensure that litigation is conducted justly, quickly and cheaply is placed equally upon the court, the litigants and the legal profession; 6. The application of case management principles involves a recognition of the prejudice to a fair trial which may ultimately be caused by delay, of the enormous stress and anxiety which is usually caused to litigants by delay and of the fact that undue delay and inefficient use of the court's resources by some litigants has the potential to impair access to the court by others; and 8. The system of case management is designed to ensure that orders are made which fit with the needs of each particular case, but once those orders are made the case moves forward to trial or ultimate resolution and the parties are not to dictate at their whim the pace at which the case moves. 47 In stating the above principles of case management I have not referred to O 1 r 4A of the RSC which is referred to in par 1 of the appellants' written outline of submissions. I have not done so because O 1 r 4A of the RSC does not apply to a case in this court: DCR r 29.
Submissions of the parties on the appeal 48 The appellants submit that the orders made by the deputy registrar on 28 July 2011 effectively stay the action until 6 March 2012. The appellants contend that the orders made by the deputy registrar are, given a number of factors, not consistent with the principles and objectives of positive case flow management as I have just stated them. The factors identified by the appellants are: (Page 13)
4. The history of the medical treatment of the plaintiff since the accident; 5. The lack of medical evidence in relation to whether the plaintiff does or may require surgery; and 6. The fact that the uncertainty in relation to the plaintiff's future treatment impacts only on quantum and not on liability. 49 With respect to the delay factors, the appellants' counsel informs me that the appellants have already experienced difficulties associated with witnesses moving and witnesses' memories fading. 50 On behalf of the respondent it is submitted that her proposed treatment and her subsequent prognosis for the future ought to be finalised before she is required to give discovery and particulars of damages, and that it is appropriate for the entry for trial milestone to be extended to 6 March 2012 for this to occur. The respondent submits that the postponement of her obligation to provide discovery and particulars of damages until after 6 March 2012 is not inconsistent with the principles and objectives of case flow management, which she asserts to be that pre-trial procedures not be completed until after she has recovered from her surgery sufficiently for her surgeons to provide a final medical report. The respondent submits that the deputy registrar rightly exercised his discretion to extend the entry for trial milestone to 6 March 2012 on the basis that by that time she will be in a position to particularise her claim for damages. 51 I note in relation to the respondent's submissions that the appellants are not now seeking on the appeal an order requiring the respondent to file and serve her particulars of damages pursuant to r 45C of the DCR.
Decision 52 In my respectful view, when regard is had to the length of time that has elapsed since the accident, the time for which the action has been on foot, the history of the respondent's medical treatment (in particular the fact that past surgery has not provided her with long term relief from her pain symptoms, the fact that future surgery may not provide her with long term relief from her pain symptoms and the fact that Dr Kimberley has previously expressed the view that her claim can be finalised), the uncertainty as to whether or not the respondent will actually undergo further surgery, and the fact that the further treatment issues of the (Page 14)
respondent go only to the issue of quantum and not liability, the deputy registrar's decision to adjourn and thereby effectively stay the proceedings until 6 March 2012 was inconsistent with the overriding objectives of positive case flow management principles, namely to promote the just determination of litigation and to facilitate the case being conducted and concluded efficiently, economically and expeditiously. While I accept that the current uncertainty as to the respondent's future treatment needs and prognosis make it impracticable for her to file and serve particulars of damages pursuant to r 45C of the DCR, I do not see any reason why the other procedural steps which the appellants assert should occur cannot occur. I think that orders requiring these procedural steps to be taken can be made without inflicting any injustice on the respondent, and that the making of the orders will promote the just determination of the case in an efficient, economic and expeditious manner. 53 Accordingly, I will make orders as follows: 1. The appeal against the decision of the deputy registrar made on 28 July 2011 on the chamber summons of the first, second and fourth defendants dated 7 July 2011 is allowed; 2. The orders made by the deputy registrar on the first, second and fourth defendants' chamber summons dated 7 July 2011 and the plaintiff's undated chamber summons filed on 19 July 2011 are set aside; 3. Pursuant to r 44F(3) of the DCR the action is taken off the inactive cases list; 4. On or before 14 November 2011 the plaintiff and the fifth defendant give discovery in the main action; 5. On or before 7 November 2011 the first, second and fourth defendants file and serve a statement of claim in the contribution proceedings against the fifth defendant; 6. On or before 21 November 2011 the fifth defendant file and serve a defence in the contribution proceedings; 7. The entry for trial milestone is extended to 6 December 2011; (Page 15)
8. The requirement for the plaintiff to file and serve particulars of damages pursuant to r 45C of the DCR is extended to 6 December 2011; 9. There is to be a directions hearing before a registrar on 6 December 2011; 10. The plaintiff has liberty to apply to further extend the time for the filing and service of particulars of damages at the directions hearing on 6 December 2011; 11. The question of the liability of the fifth defendant to indemnify or make contribution to the first, second and fourth defendants be tried at or immediately after the trial of the action, as the trial judge shall direct; 12. The plaintiff and the fifth defendant pay the costs of the first, second and fourth defendants' chamber summons dated 7 July 2011, including the costs of preparing for and attending at the hearing of the summons, such costs to be taxed if not agreed; 13. The costs of the plaintiff's undated chamber summons filed on 19 July 2011, including the costs of preparing for and appearing at the hearing of the summons, are reserved; and 14. The plaintiff and the fifth defendant pay the first, second, and fourth defendants' costs of the appeal to be taxed if not agreed. |