Maskell-Dunstan v Victorian YMCA Community Programming Pty Ltd (Trading as Numurkah Aquatic and Fitness Centre) and VWA
[2017] VCC 769
•16 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05408
| KYLIE MASKELL-DUNSTAN | Plaintiff |
| v | |
| VICTORIAN YMCA COMMUITY PROGRAMMING PTY LTD (TRADING AS NUMURKAH AQUATIC & FITNESS CENTRE) and VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2017 | |
DATE OF RULING: | 16 June 2017 | |
CASE MAY BE CITED AS: | Maskell-Dunstan v Victorian YMCA Community Programming Pty Ltd (Trading as Numurkah Aquatic & Fitness Centre) & VWA | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 769 | |
REASONS FOR RULING
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Catchwords: Accident Compensation Act 1985 – serious injury application – contested matter – case closed – judgment reserved – application by plaintiff to re-open case three weeks after judgment reserved – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Barbante & Associates Pty |
| For the Defendant | Mr RH Stanley | Lander & Rogers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application by the plaintiff to re-open her case some three weeks after it was closed, judgment having been reserved. The matter is a serious injury application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985. The application was contested before me on 27 and 28 April last. The plaintiff is seeking to bring proceedings in respect of both pain and suffering damages and loss of earning capacity damages and relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The plaintiff gave oral evidence. The balance of the evidence on her behalf was documentary in nature. The defendant called no evidence, other than that of a documentary nature.
2 Essentially the evidence concluded, save for some records that were to be tendered, on the afternoon of 27 April last – see Transcript (hereinafter referred to as “T”) 73. On the following morning, some handwritten notes and two letters written by Dr Peter Blombery were added to the Plaintiff’s Court Book, which had been tendered. The addition of Dr Blombery’s material to the Plaintiff’s Court Book was not opposed – see T75. There was some further discussion, and, at T77, I enquired as to whether that was the case for each party, the closure of evidence having been foreshadowed on the previous day. I was told that it was. Counsel then went into addresses, to parts of which I shall return. At the end of closing addresses, I reserved my judgment, effectively saying that there could be some delay, because of other matters awaiting judgment – see T109-110. Effectively, I indicated that there would be a delay of at least “a couple of weeks” before judgment was handed down.
3 As stated, the case concluded and judgment was reserved on 28 April last. On 19 May, a letter from the plaintiff’s solicitors was e-mailed to the County Court. The letter itself did not arrive until 24 May, but I accept that it was e-mailed on 19 May. That is three weeks after the conclusion of the case and the reservation of judgment.
4 Omitting formalities, the content of the letter of the plaintiff’s solicitors reads as follows:
“We advise that the Plaintiff seeks the matter be listed for Mention next week, or at a time convenient to the Court, to deal with an issue of fresh evidence in support of our client’s ‘Serious Injury’ Application.
We advise that on the 17th May 2017, the Plaintiff received a medical report dated the 5th May 2017 from one of the Plaintiff’s treating specialists. The medical report is important and integral to the Plaintiff’s claim for ‘serious injury.
Further, the medical report was produced following a recent examination which was performed by the medical practitioner on the 4th May 2017.
We advise that the Plaintiff requests that the above matter be listed for Mention for the purpose of seeking leave to tender the medical report.”
5 Whilst it has no particular bearing on the application, I might say that, when this letter was received, the writing of the judgment was well under way and nearing completion.
6 The application to re-open the case came on before me on 30 May last. It immediately became apparent that the plaintiff was seeking to re-open the case in order to have admitted into evidence a medical report from Dr Blombery, such report being dated 5 May 2017. The following observations should be made in relation to the application, treatment of the plaintiff by Dr Blombery, the possible impact of its inclusion in the evidence and the previous discussions concerning the presence or absence of evidence from him.
(a) Dr Blombery’s qualifications are that he is a Consultant Physician (Vascular Disease) and it is well-known in these courts that an aspect of his area of speciality relates to Chronic Pain Syndrome. In any event, the plaintiff was referred to Dr Blombery by her treating general practitioner, Dr Esraa Al‑Sammak of the Quinn Street Clinic. That referral resulted in a report or letter from Dr Blombery to Dr Al-Sammak on 5 May 2016.
(b) The plaintiff was well-aware of this referral, as one might expect, but so too were her legal advisers. In her affidavit of 27 July 2016, sworn before Mr Carmelo Barbante, the plaintiff’s solicitor, the plaintiff swore as follows:
“In about March 2016 I was referred by Dr Esraa (Dr Esraa Al-Sammak) to Dr Peter Blombery. I have seen Dr Blombery on two occasions, namely in or about April 2016 and May 2016. I was advised that I was suffering from Chronic Pain Syndrome Type 2. Dr Blombery prescribed Lyrica which I take one a night. I am to see Dr Blombery again in October 2016.”
In her affidavit of 3 April 2017, also sworn before Mr Barbante and only a few weeks before the hearing, the plaintiff swore as follows:
“I refer to paragraph 30 of my First Affidavit and say that I continue to see Dr Blombery. I last saw Dr Blombery in about February 2017 at which time he recommended increasing Endep, almost doubling the dosage from 15mg to 25mg and recommended that I take Lyrica. Dr Blombery diagnosed that I was suffering from Chronic Pain Syndrome.”
(c) Also contained in the Plaintiff’s Court Book and obviously available to the plaintiff’s legal advisers is a report of 21 February 2017 from Dr Al-Sammak to those solicitors. In any event, the following is stated to Dr Al-Sammak:
“On 05/05/16 Ms Maskell was referred to Dr Blomberry (sic) a consultant physician by myself, for further assessment as she was still not progressing well. She had swelling of the calf and thigh particular (sic) with dependency and the knee becomes hot and cold with morning stiffness. She was diagnosed with Complex Regional Pain Syndrome. Treatment and follow-up arranged for her.”
(d) Further, there is a reference to the plaintiff being seen by Dr Blombery in the report of Mr Garry Grossbard, orthopaedic surgeon, who examined the plaintiff at the request of her solicitors and reported to them. That reference is contained in a report of 2 November 2016. Mr Grossbard also refers to medication which the plaintiff then took upon the recommendation of Dr Blombery.
(e) Thus, it is quite apparent that, prior to the commencement of the hearing of this case, the plaintiff and her legal advisers were aware of the fact that the plaintiff had been referred to Dr Blombery, who had seen her as recently as February 2017, and that he was a treating consultant physician.
(f) In cross-examination of the plaintiff, she agreed that she had been referred to Dr Blombery, a pain specialist, who had seen her in April and June 2016 – see T40.
Further, it was put to the plaintiff that she had sought treatment from Dr Blombery because of general aches and pains. The following evidence can be found at T41-2:
“Is it in part that that (sic) you seek treatment from Mr Blombery the pain specialist? --- Not for that. I get that because my knee – he’s treating my knee, Mr Blombery. Yeah.
Is there any reason to your knowledge, why Mr Blombery has not provided a report in this proceeding? --- No. Not at all.
You say that you have seen Mr Blombery, you think, on at least three occasions? --- Yeah.
You have an ongoing appointment to see him in the future? --- I do, but I’ve got – I’ve had that many appointments lately, like, I can’t remember when – when my next appointment with him is, but it is booked in.”
I then asked whether it was Dr Blombery who prescribed medication and the plaintiff answered in the affirmative, saying Endep and Lyrica. Whilst it is not entirely clear from the Transcript, I believe that I then asked whether he was the person who prescribes the Endep as well, the answer being in the affirmative.
(g) The above references to Dr Blombery were on 27 April 2017. At the resumption of the hearing on 28 April, Mr Walsh, on behalf of the plaintiff, indicated that the plaintiff sought to place in evidence, by attaching to the Court Book, some handwritten notes of Dr Blombery of 29 April and 14 June 2016, together with two typed letters from Dr Blombery to Dr Al-Sammak, these being of 5 May 2016 and 21 June 2016. These were described as being the entirety of the clinical records currently held in this regard. Mr Walsh added the following:
“I believe the plaintiff saw Dr Blombery this year in February but we don’t have that material, your Honour.”
Mr Walsh went on to say that that was the sum total of the material the plaintiff had from Dr Blombery. There was no opposition to it being attached to the Plaintiff’s Court Book and placed in evidence – see T75.
(h) In his closing address, which preceded that of Mr Walsh, Mr Stanley made the following submission:
“Your Honour, in the context of not asking Mr Blombery, “What about the knee pain alone, how does that affect her work capacity”, Your Honour is at a loss, and it must be the final nail in the coffin of that case. Your Honour, it also affects the pain and suffering aspect …” – see T88
(i) In his closing address, Mr Walsh, on behalf of the plaintiff, stated the following at T104:
“She (sic – a reference to the general practitioner) has referred the plaintiff to Dr Peter Blombery in 2016. He has suggested there are features of a complex regional pain syndrome type 1 and that is found in her report of 5 May 2016 … The GP has considered that material, your Honour, and at p.58, has said that she is still under assessment by Mr Blombery for chronic pain management.
A return to work is uncertain, as well as her capacity and duration”.
HIS HONOUR: A question raised by Mr Stanley was what do I make of permanence given that – bear in mind that some of the evidence in particular, I think he referred to Mr Blombery, if he did not, I now do. What do I make of permanence?
MR WALSH: “We say, Your Honour, the situation is permanent, because this is a situation where there is no sign of improvement”.
(j) In further submissions by Mr Walsh about prognosis generally, the following exchange took place at T105:
“HIS HONOUR: I am talking about – I think Mr Stanley mentioned it, in the context more of (indistinct word), focussed his attention upon pain and suffering. I am not saying this is the answer to that, but ---
MR WALSH: Permanence of the economic loss.
HIS HONOUR: It also applies to economic loss. Mr Blombery he was a treater. A current treater. He says, in May 2016, ‘Hopefully at this stage, we will be able to obtain significant improvement, although there is a significant chance she may require further intervention.”
There was some discussion about a possible missing page of the letter of Dr Blombery to Dr Al-Sammak. That discussion is now irrelevant, as I accept there was nothing of moment on the missing page.
(k) I then read to Mr Walsh an extract from the second letter of Dr Blombery to Dr Al-Sammak, this letter being dated 21 June 2016, as follows:
“Hopefully, there will be some improvement with the longer course of Prednisolone and I will see her again in two months’ time.”
Mr Walsh’s response was as follows:
“Well, Your Honour, that is … they are the extent of the clinical notes we have, and that is something that clearly – it is hard to predict Dr Blombery’s opinion, Your Honour, but certainly the general practitioner had an ongoing relationship with Dr Blombery, and she is cautious about any return to work.”
There was then some discussion, largely irrelevant, about the reports of Dr Blombery over the years.
(l) The following exchange then took place between Mr Walsh and myself:
“The bottom line is still there is no up to date report from a treating specialist, and I think even – say we classify Mr Blombery as a specialist.
MR WALSH: In an ideal world, Your Honour, a report should’ve been there.
HIS HONOUR: Should be there, yes.
MR WALSH: In an ideal world. Unfortunately, Your Honour, that’s not there. She most recently saw Dr Blombery, I believe, March this year, and the plaintiff indicated in her affidavit that she saw – in her second affidavit – that she returned to see Dr Blombery …”
There are then the references to Dr Blombery in the plaintiff’s affidavit, which references have been set out above. In relation to the extracts from the Transcript which have just been quoted, they are to be found at T105-107.
7 The above represents virtually every reference to Dr Blombery that occurred in the plaintiff’s affidavits and during the conduct of the trial. The following seems to me to be quite clear:
(a) The plaintiff was referred by Dr Al-Sammak to Dr Blombery for treatment, Dr Blombery being a consultant physician in relation to vascular diseases.
(b) The plaintiff saw Dr Blombery twice in 2016. This was clearly known to the plaintiff’s legal advisers and is contained in the plaintiff’s affidavits.
(c) The plaintiff’s legal advisers were in possession of a report of 21 February 2017 from Dr Al‑Sammak in which the referral to Dr Blombery was discussed.
(d) The plaintiff was cross-examined concerning the referral to Dr Blombery, the fact that there was an appointment to see him in the future and as to whether there was any reason why a report from him had not been provided. That relevant material from Dr Blombery could be of significance seems to have occurred, albeit somewhat belatedly, to the plaintiff’s advisers, because some clinical notes of Dr Blombery and two comparatively short letters from him to Dr Al‑Sammak were placed in evidence. It was quite apparent that these were not up to date, did not address the essential questions to be determined and raised the possibility of significant improvement. No application was made to adjourn the matter or to indicate that more current and relevant material might be obtained.
(e) All of the above occurred or was known prior to the plaintiff closing her case.
(f) After the plaintiff’s case had formally been closed, but before the conclusion of the addresses and the reservation of judgment, there were comments by Mr Stanley effectively concerning the absence of relevant material from Dr Blombery. No attempt was made on behalf of the plaintiff to re-open the case, adjourn it so that material could be obtained or the like.
(g) During the closing address of Mr Walsh, the issue of the absence of material from Dr Blombery was raised several times by me. The ultimate response was that, in an ideal world, there would have been a report from Dr Blombery. Again, at a time when the plaintiff’s case had not long since been closed, there was no attempt to seek to re-open the case, adjourn the matter, provide further material or the like.
8 It is against the above background that the application to re-open the case was foreshadowed, some three weeks after the closure of it and the reservation of judgment. Even then, details of the basis of such application or the identity of the treating specialist from whom a report had been obtained, or the basis upon which the application would be argued generally, were not provided. I note that a copy of the letter sent to my associate was also forwarded to the defendants’ solicitors, presumably on the same day. If that is all that was provided, both the defendants’ solicitors and myself were left to make an educated guess as to what was involved in the application to re-open and what was the basis for it.
The submissions on behalf of the parties
9 The submissions of Mr Walsh on behalf of the plaintiff could be summarised as follows. The clinical note of the plaintiff’s attendance upon Dr Blombery in February 2017 and the full clinical file did not arrive by the conclusion of submissions on 28 April 2017. On 28 April, the plaintiff’s solicitor wrote to Dr Blombery seeking a medical report.
10 At T112, I interrupted Mr Walsh to ask him why, if there was a problem with Dr Blombery’s clinical notes or regarding any report, did the matter go to a conclusion. The answer to that was that the plaintiff was then seen again by Dr Blombery on 5 May last and the effects of that examination were unknown. I raised with Mr Walsh the fact that the plaintiff’s advisers knew that an examination was coming up – that the plaintiff was due to see Dr Blombery again. She had said so in cross-examination. Mr Walsh then accepted that there had been an oversight and “it should have been done” – see T113.
11 Mr Walsh then directed my attention to the decision of the Court of Appeal in Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 and to the reference at paragraph 25 thereof to the judgment of Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22. In that case, Kenny J expressed the view that there were four recognised classes of case in which a court may grant leave to re-open. The first of these, and the one upon which the plaintiff relies, is where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available. The medical report of Dr Blombery of 5 May last falls into that category. Reference is also made to what is contained in paragraph I 49.01.75 of “Civil Procedure Victoria” as follows:
“Even after a hearing has concluded and before judgment which has been reserved is delivered the court has power to allow a party to admit further evidence. It has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it, the evidence if believed would most probably affect the result, the evidence could not by reasonable diligence have been discovered before, and the evidence could be admitted on conditions which ensured no prejudice to the other party by reason of its introduction late.”
12 It is submitted that the medical opinion of Dr Blombery does satisfy the requirement that it is so material that the interests of justice require its admission. It does contain an opinion about the plaintiff’s ability to return to the workforce in suitable employment and thus bears on the ultimate decision concerning economic loss.
13 Effectively, I asked Mr Walsh to comment upon the reference in the extract from “Civil Procedure Victoria” to the apparent requirement that the evidence could not by reasonable diligence have been discovered before. Mr Walsh replied that I might find that such was the case and he put it no more strongly than that – see T117. Very fairly, he also referred me to an observation by Tate JA and Beach AJA in Spotlight at paragraph 17 to the effect that there are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. It is a tough test to satisfy – again, see T117.
The submissions on behalf of the defendant
14 The submissions of Mr Stanley on behalf of the defendant could be summarised as follows. The defendant strenuously objects to any attempt to re-open the matter. The plaintiff and her solicitors had notice that she had seen Dr Blombery prior to the trial commencing or even being listed for hearing. The plaintiff’s solicitors had organised for her to be seen by Mr Garry Grossbard, orthopaedic surgeon, who reported to them on 2 November 2016. In the history taken by him, he stated that the plaintiff had been referred to a pain specialist, Dr Peter Blombery, whom she consulted in April 2016. That is what is contained in the plaintiff’s affidavits. There is a reference to her seeing Dr Blombery in the report of Mr Dominic Yong of 28 November 2016. It was amply clear to the plaintiff and her legal advisers that she was attending on Dr Blombery. That a report was not obtained was not due to mere inadvertence, a slip or an accident. In counsel for the plaintiff’s closing address, there was a frank admission that there should have been a report from Dr Blombery put before the Court. If the absence of a report from Dr Blombery was the result of an error or inadvertence, an affidavit to that effect and in support of the present application should have been provided. There is no such affidavit.
15 The plaintiff’s advisers had a great deal of knowledge concerning Dr Blombery before the hearing of the proceeding commenced. There was also the plaintiff’s evidence concerning Dr Blombery on the first day of the hearing. There was no application to adjourn the proceedings and seek an additional report form him. The matter was raised again in submissions the following day and in discussion between counsel for the plaintiff and the Bench. There was no application to re-open the case. Subsequently, Dr Blombery was asked to provide a report to the plaintiff’s solicitors for their consideration. It was then considered and presumably was a favourable report. Only then was an application to re-open the case made. This was tactical manoeuvring that should not be entertained.
16 Reference is made to the recent decision handed down by Macaulay J in Advanced Fuels Technology Pty Ltd v Sean Darrell Blythe & Ors [2017] VSC 250. There is no doubt that an application can be made after all the evidence has been adduced, submissions made, and the judgment is pending. Essentially, what needs to be considered is the justice of the situation, viewed in the light of the guidelines contained in cases such as Bradshaw.
17 One factor to be considered in the present situation is that this is a serious injury application which should be able to be conducted efficiently and without delay. Next, a potentially relevant circumstance applying to the re-opening of a case is whether the necessity of calling the further evidence ought to have reasonably been foreseen. Further, in fairness, the defendant is entitled to know the evidence which it is to meet before embarking on a case. In the circumstances, to allow re-opening of the case would be unfair to the defendant. Further, this was an issue of importance and should have been relied on at the outset. Another factor referred to in Rich is the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time. There would be such time wastage because, if the report of Dr Blombery is let in, his opinion would need to be referred to the defendant’s doctors and it is likely that Dr Blombery would be required for cross-examination. There is prejudice to the defendant in terms of the delay in the completion of the proceeding. Further, it is in the public interest that there be the timely conclusion of litigation. In addition, the last factor raised in Rich is relevant. That relates to the explanation offered by the plaintiff for not having called the evidence. No real explanation has been given. No affidavit in support of the present application has been tendered. All that has been heard is some comment from the Bar table to the effect that the plaintiff’s advisers were remiss. That is not satisfactory.
18 It is repeated that there would have been an issue with Dr Blombery concerning the disentangling of psychiatric consequences from physical consequences. In Advanced Fuels, Macaulay J referred to the decision of the High Court in Smith v New South Wales Bar Association [1992] HCA 36. In particular, the following was said:
“If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application.”
19 In the present case, given that the plaintiff’s solicitors were aware that she was receiving treatment from Dr Blombery well prior to the commencement of the trial, that she gave evidence about it, that there were submissions made by the defendant and comments made from the Bench, there would appear to have been a deliberate decision not to call evidence from Dr Blombery until a favourable report had been obtained from him. A deliberate decision was taken. That is not a satisfactory basis for an application to re-open evidence. It is not the proper approach in an adversarial contest.
20 Further, in Advanced Fuels, there was reference to the Civil Procedure Act 2010. The conduct of civil proceedings needs to be just and efficient and applications, such as the present one, do not promote that. The application should be refused.
21 The reply of Mr Walsh was brief. Essentially, he argued that the evidence in question did not exist at the time of the trial, the report having been produced on 5 May last. Reference is made to the decision of J Forrest J in Matthews (Ruling No 28) [2013] VSC 523, which decision is referred to in Advanced Fuels. In Matthews, the plaintiff received leave to re-open the case in order to tender a piece of evidence which had been in existence. In the present case, the report was not in existence at the time that the case was closed.
22 Secondly, the defendant’s solicitors subpoenaed Dr Blombery’s file, which seems to have been received by the Court on 27 April last. That file was never produced and the plaintiff was not provided with the subpoenaed file.
23 I might say that I commented to Mr Walsh that I was uncertain as to how far this particular point took matters. Subpoenaed files are released to the parties upon the usual basis of objections concerning privilege and the like. This argument seemed to be more that Dr Blombery’s file has been subpoenaed, but those advising the plaintiff were not aware that it was available. I say now that this does not seem to me to relieve the plaintiff’s advisers from making some form of contact with the current treating specialist, when they were patently aware of his involvement.
Ruling
24 I am of the opinion that this application must fail. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(a)This is not a situation where an unexpected or previously unobtainable item of evidence has become available after the closure of a case. That the plaintiff was receiving treatment from Dr Blombery on referral from Dr Al‑Sammak patently was known to the plaintiff’s advisers prior to the swearing of her affidavit before her solicitor on 27 July 2016. Contained in that affidavit is the statement that such referral had taken place in March 2016 and that she had seen Dr Blombery in April and May of that year. Also contained in that affidavit is the assertion that she was to see him again in October 2016. Thus, as early as 27 July 2016, the plaintiff’s solicitors were aware of Dr Blombery’s involvement in the treatment of the plaintiff and were also aware that it was on a referral, or what could be described as a specialist, basis. As is evident from that affidavit, the plaintiff’s solicitors were also aware that Dr Blombery had diagnosed Chronic Pain Syndrome and had prescribed Lyrica in relation to it. In other words, this was the diagnosis of, and treatment for, a condition concerning which there had been no previous specialist treatment.
(b)As earlier described, as was reinforced in the plaintiff’s second affidavit, again sworn before a member, if not the principal, of her solicitors, to the effect that she had again seen Dr Blombery in February 2017 and that he had increased the level of her medication. Again, no report from Dr Blombery seems to have been sought.
(c)Effectively, there was no reference to Dr Blombery in the opening on behalf of the plaintiff. However, there were early warning signs that the absence of any material from him had not gone unnoticed. As has been mentioned, at T41, in cross-examination the plaintiff was somewhat pointedly asked as to whether there was any reason why Dr Blombery had not provided a report in these proceedings. Unsurprisingly, she could not provide one. She agreed that she had seen him on three occasions and that there was an upcoming appointment. In answer to a question of mine, she described the medication which she was prescribed by him. The cross-examination by Mr Stanley and my apparent interest in what was being prescribed should have alerted those advising the plaintiff to the fact that the absence of material from Dr Blombery was a live issue. As shall be discussed, the fact that the plaintiff subsequently tendered some of his clinical notes and two letters from Dr Blombery to Dr Al‑Sammak underlines the fact that an awareness of the possible significance of Dr Blombery’s evidence existed. However, there was no application for an adjournment or for time to discuss the situation. The matter simply proceeded. This was so, even though the plaintiff had an upcoming appointment with Dr Blombery.
(d)That treatment by, and the opinion of, Dr Blombery were potentially of considerable significance is highlighted by the fact that the plaintiff, before closing her case, ultimately tendered some clinical records and the two letters from Dr Blombery to Dr Al‑Sammak. The handwritten records are extremely difficult to read and only seem to cover two attendances, these being on 29 April 2016 and 14 June 2016. The two letters from Dr Blombery to Dr Al‑Sammak are dated 5 May 2016 and 21 June 2016. The letters could not be described as full reports. In comparative terms, they are also considerably out of date. To further complicate matters, the letter of Dr Blombery to Dr Al‑Sammak of 5 May 2016 concludes with the following observation:
“Hopefully, at this stage we will be able to obtain significant improvement although there is a significant chance she may require further intervention in regard to the knee.”
Whether, in the opinion of Dr Blombery, that “significant improvement” has occurred, or is in the course of occurring, is not known. As earlier stated, in his second and brief letter to Dr Al‑Sammak of 21 June 2016, he expressed the hope that there would be some improvement with the longer course of Prednisolone and he was to review the plaintiff again. Whether that hoped-for improvement occurred and what happened when he saw the plaintiff again are matters that remain unknown.
(e)The plaintiff closed her case. As previously discussed, that did not mark the end of referrals to Dr Blombery and the potential impact of the absence of current material from him, in addition to the fact that the plaintiff had an upcoming appointment with him. I shall not set those matters out again. Suffice to say that, despite the issue of Dr Blombery having been raised again, there was no application to re-open the case for the purposes of obtaining material from him. Rather, in essence I was told that, in an ideal world, there would have been a report before me. Addresses were finalised, the hearing concluded and there was no application to re-open the plaintiff’s case for some three weeks.
(f)I agree with Mr Stanley. Firstly, this was not a situation where there has been an unfortunate and accidental failure to tender an item of evidence before closing a case. The issue of Dr Blombery was well and truly on the table. What occurred was a forensic decision to continue with the matter, close the case and make no application to re-open it prior to the reservation of judgment. A forensic decision to apply neither for an adjournment nor for immediate leave to re-open the case was taken.
(g)Secondly, as argued by Mr Stanley, what occurred has the appearance of a tactical manoeuvre A report was sought from Dr Blombery. The basis on which it was so sought and the questions put to Dr Blombery are not known. Presumably the report was favourable to the plaintiff, or at least had “a bearing on the ultimate decision about economic loss” – see the submission of Mr Walsh at T115. Mr Walsh also said, quite fairly, that he was reluctant to seek to put a report before me and “unfairly assist my client’s interests”. In any event, I can understand how, from the defendant’s viewpoint, the suspicion of tactical manoeuvring (not seeking to re-open the case or adjourn the matter until a report had been obtained from Dr Blombery and its contents considered) could arise.
(h)Thirdly, there seems to me to be force in the argument of Mr Stanley that, if this had been a simple oversight or accidental omission, supporting affidavit material could have been expected in support of the application to re-open the case. No such material was put before me. There is no supporting affidavit. Mr Walsh asserted that there had been oversight – see T113, but, given the events, I am of the view that that is a difficult argument to maintain and particularly in the absence of any supporting affidavit material.
(i)I would refer to the following extracts from the authorities and from “Civil Procedure Victoria”:
·In Bradshaw, Kenny J set out four recognised classes of case in which a court may grant leave to re-open. Effectively, the only one of these on which Mr Walsh relied was “… where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available”. That is not the situation in the present case. Fresh evidence, in the form of a full report from Dr Blombery covering the three consultations which he had had with the plaintiff, was reasonably discoverable before the case commenced. Again, there is no affidavit material or the like before me to suggest the contrary. The fact that there was an upcoming appointment was also known.
·In Smith, the High Court stated that, if an application is made to re-open on the basis of new or additional evidence that has become available, it will be relevant then to enquire as to why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. In the present case, there appears to have been a deliberate decision to press on with the case and not to adduce, or even attempt to adduce, evidence from Dr Blombery. Again, there is no supporting affidavit material which provides some sort of explanation to the contrary.
·In Matthews v SPI Electricity Pty Ltd (Ruling No. 28) [2013] VSC 523, J Forrest J permitted the re-opening of the plaintiff’s case so as to allow in an additional piece of evidence. Importantly, his Honour emphasised that the decision not to adduce the evidence had been made upon a combination of minor misjudgement and misunderstanding of counsel, and not a deliberate tactical decision to gain a forensic advantage. It is very difficult to see how what occurred in the present case represents a minor misjudgement or misunderstanding, even leaving to one side any question of whether it was a deliberate tactical decision in order to gain a forensic advantage.
·In Advanced Fuels Technology, Macauley J pointed out that, while the primary purpose for all rules was procedure in evidence is to further the interests of justice, those interests are pursued in the context of the adversarial system which permits the parties to determine the issue and adduce such evidence as they choose. A trial does not involve the pursuit of truth by any means, but is rather a pursuit by means of the adversary system. To state the obvious, this case was pursued in an adversarial fashion and a decision seems to have been taken not to seek the opportunity to obtain the evidence in question before either the closure of the plaintiff’s case or before the reservation of judgment.
·In “Civil Procedure Victoria” at (I)49.01.75, it is said that, even after a hearing is concluded and before judgment which has been reserved is delivered, the Court has power to allow a party to admit further evidence. However, it is also pointed out that it should be admitted only if a number of conditions are met. One of these is that the evidence could not by reasonable means have been discovered before. That is not the situation here. The evidence could have been and should have been discovered earlier. There is no material before me to suggest that it could not have been. At least an application for an adjournment in order to obtain that evidence should have been made, even if this was contested.
·In Spotlight, the Court of Appeal referred to the four recognised classes of case in which a court may grant leave to re-open, as set out in Bradshaw. Their Honours then went on to state the following:
“These classes are not closed; but the present case shares with Bradshaw the distinction that it falls into none of them, and no applicable new category is suggested. The overriding principle is that the court consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen. We are satisfied that, in the present case, it does not.”
Similarly, in this case, the situation falls into none of the classes and no applicable category was suggested. Taken as a whole, the justice of the case does not favour a grant of leave to re-open.
25 The general principles concerning the desirability of bringing litigation to an end and the provisions of the Civil Procedure Act 2010 are to be taken into account. There needs to be finality in litigation. In addition, in accordance with ss7, 8 and 9 of the Civil Procedure Act, the Court, while having regard to the object of obtaining a just determination of a civil proceeding, must seek to give effect to the objective of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute and to the efficient conduct of the business of the Court. To apply to re-open a case in the circumstances that have been described seems to me to run contrary to the general approach that has been adopted over the years and to the provisions of the Civil Procedure Act.
26 A final point to be borne in mind is that the stated purpose of the application to re-open is not to introduce an existing piece of evidence that was overlooked, or, indeed, deliberately not called. The piece of evidence in question did not come into existence until one week after final addresses and the reservation of judgment. Apparently it was not received by the plaintiff’s solicitors for another twelve days. Further, it did not come into existence until a medical examination had been conducted six days after the case finished. I do not say that this is a factor which is automatically conclusive against the plaintiff’s present application, although it is certainly something which does not favour the granting of such application. One can imagine the outcry if, after the evidence closed and judgment was reserved, a defendant attempted to re-open the case on the basis of wanting to put into evidence a film of the plaintiff taken six days after such closure. Apart from the general principles involved, a court would be entitled to take into account the resultant necessity of recalling such plaintiff and possibly other witnesses, the obtaining of further medical opinions and the like. The present situation is not vastly different. Apart from the fact that it seems inherently wrong to allow such a situation to occur, the putting into evidence of the additional report of Dr Blombery could well necessitate his being required to give evidence, the recalling of the plaintiff and the obtaining of further medical opinions. There has to be an end to a contested piece of litigation, and an end to the introduction of evidence.
27 In my opinion, in the present case, that point has been reached. I am not persuaded by the argument to the contrary. There is an absence of supporting affidavit material. A decision to permit the re-opening of the case would seem to me to run contrary to the principles which I have set out above.
Conclusion
28 The application is dismissed. I shall hear the parties as to any ancillary orders that are required.
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