Matte v Delandro (No 2)

[2018] NSWDC 234

District Court

New South Wales

Medium Neutral Citation:	Matte v Delandro (No 2) [2018] NSWDC 234
Hearing dates:	21 – 23 May 2018
Date of orders:	23 May 2018
Decision date:	23 May 2018
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Application for adjournment refused
Catchwords:	CIVIL – Interlocutory application – Application for adjournment – Whether opportunity to obtain report in proper form is grounds for adjournment
Legislation Cited:	Civil Procedure Act 2005 Motor Accidents Compensation Act 1999
Category:	Procedural and other rulings
Parties:	Karm Sabah Matte (Plaintiff) Yvonne May Delandro (Defendant)
Representation:	Counsel: Mr R McIlwaine SC (Plaintiff) Mr J Catsanos (Defendant)   Solicitors: Stacks Goudkamp (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2017/50922
Publication restriction:	Nil

Judgment

1. HIS HONOUR: This is an application for an adjournment made by the defendant. The plaintiff sustained very serious injuries in a collision between the motorcycle he was riding and a motor car being driven by the defendant on 14 March 2015 at the intersection of the Princes Highway and Anzac Avenue at Engadine. The plaintiff in particular suffered severe head injuries which have led to his legal incapacity. He is represented in these proceedings by his sister as his tutor. It is common ground that the plaintiff cannot give any evidence about the circumstances in which the accident occurred and indeed he has not been present at any time since the hearing commenced on Monday.

2. Each party has had time in which to prepare his or her case. As I have just mentioned, the accident occurred on 14 March 2015. There has been, as I understand it, intensive investigation of the circumstances of the collision by the NSW Police. Some of the exhibits before me were generated by the NSW Police.

3. The plaintiff, through his current tutor, made a claim for motor accident personal injury benefits on 24 April 2015. These proceedings were commenced by a statement of claim filed on 17 February 2017. I assume that liability was disputed and the matter was exempted from a CARS assessment by CARS itself. Be that as it may, the proceedings were commenced on 17 February 2017, some 15 months ago. The defendant filed a notice of appearance on 27 February 2017 so has been well aware of the existence of these proceedings since that time. That is also 15 months ago. The defendant eventually filed a defence on 14 July 2017. In the meantime, consent orders were made on 29 March, 6 September and 23 October 2017 and on that day the current hearing date was fixed with an estimate of four days.

4. The plaintiff closed his case at the conclusion of the evidence on Monday 21 May. The defendant commenced its case on Tuesday 22 May 2018. Evidence was adduced from two witnesses and the matter was then stood down until 2pm when it was anticipated that the defendant's expert would arrive from Adelaide and be able to give evidence. In an earlier ruling I made it is clear that the defendant's expert, Mr Hall, was asked to put in writing the calculations he had made that lay behind the figures given in his primary report. I was told shortly after 3.18 that the plaintiff was not yet able to meet with the matter contained in what eventually became exhibit VD1. The matter was then adjourned until this morning. At that time, Mr McIlwaine, on behalf of the plaintiff, objected to the tender of the whole of Mr Hall's primary report of 14 August 2017 and also to the tender of what became exhibit VD1. For reasons which I have already given, and which will no doubt be transcribed, I rejected the tender of both Mr Hall's primary report and exhibit VD1.

5. The defendant then indicated that she would seek an adjournment. I adjourned at 12.40pm, not having taken any morning tea adjournment, in the pious expectation, which has been blasted, that the parties might come to some accommodation themselves. However, on my return to the Bench, the defendant pressed the adjournment application.

6. The defendant presses the adjournment application in order to obtain a report in proper form from her expert, Mr Hall and the defendant indicates that an adjournment of only some six weeks will be required because Mr Hall can generate a report in proper form within 14 days, and a month should be adequate time in which the plaintiff's lawyers could consider Mr Hall's report and retain an expert of his own, if so advised.

7. Practically, however, an adjournment of only six weeks cannot occur. That is because, before the end of six weeks, I will go on five weeks' leave and on my return to the Bench I have commitments which would not permit me to consider the hearing of this matter until 4 September. But, at that time, Mr McIlwaine will be beyond the seas himself and it transpires that the earliest time that I could return to the hearing of this case, that is shortly after Mr McIlwaine's return to Sydney in early September, the earliest time I could give the matter my consideration again, would be on 16 October this year. That is, the adjournment would in fact amount to some four and a half months.

8. To sweeten its application for an adjournment, the defendant acknowledges that it will need to pay the costs thrown away by the adjournment and the defendant has offered to pay to the plaintiff $500,000 pursuant to s 82 of the Civil Procedure Act 2005.

9. The adjournment is opposed by the plaintiff on the basis that it will bring closure to an outstanding matter which is of concern not only to the plaintiff but to his tutor and members of his family. The plaintiff has been admitted to the Lifetime Care and Support Scheme established under the Motor Accidents Compensation Act 1999. However, that does not provide the plaintiff with everything that he requires. For example, the Scheme has paid for the provision of modifications to the plaintiff's motor vehicle but does not provide him with a driver. That is costing the plaintiff's family $600 a week. The Scheme only pays for two hours of physiotherapy each week, but that is not adequate for the plaintiff's needs. The Scheme only provides one hour of "NeuroMoves", a form of specialised therapy for persons in the plaintiff's position, but, again, he needs longer time undergoing that therapy. The Scheme does not pay for any outings, excursions, or holidays. It does not pay all the plaintiff's medical and pharmaceutical needs. The plaintiff, at the moment, is living in transitional accommodation, which is paid for by the Scheme, but when the plaintiff obtains adequate funds, presumably from the outcome of this litigation, he will move into more appropriate accommodation which will be "permanent".

10. For his ordinary outgoings of life, such as food and clothing, the plaintiff currently relies on the Disability Support Pension. The fact that the plaintiff has been admitted to the Lifetime Care and Support Scheme, whilst it might moderate the severity of circumstances caused by the proceedings being adjourned until another day, does not obviate inconvenience and clearly the plaintiff's desire to have the litigation completed will remain unachieved. The anxiety suffered by him and the other members of his family cannot be underrated.

11. The defendant relies on the "dictates of justice". The Court is required to determine matters in accordance with the dictates of justice including any order granting an adjournment. However, pursuant to s 58(2)(a) of the Civil Procedure Act, the Court must have regard to the provisions of ss 56 and 57. Section 56 commences with the well-known provision of subs (1):

"The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings."

The proposed course of action is neither "quick" or "cheap".

12. Section 59 of the Civil Procedure Act provides this:

"In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial."

It is important to bear in mind that that provision does not refer to the elimination of any lapse of time during the hearing. It is based on the presumption that the hearing will be continuous from its commencement until its end. That is the normal practice.

13. Here the defendant had Mr Hall's report on or shortly after 14 August 2017, such that it was served upon the plaintiff on 28 August 2017. The report was available to the defendant for at least eight months prior to its being sought to be tendered. Neither the defendant's solicitor nor counsel considered whether the report was admissible in the form in which it was published by its author. I drew attention to its deficiencies on Tuesday morning and an attempt was made on Tuesday afternoon to ameliorate the deficiencies. However, even that attempt was inadequate, leading to the ruling that I made earlier today on the admissibility of both the primary report and the supplementary handwritten workings which are exhibit VD1. As has been submitted by learned counsel for the plaintiff, the defendant took a gamble. The defendant ought to have realised before the commencement of the hearing that the report was inadequate and sought an adjournment of the hearing, rather than an adjournment after the closure of the plaintiff's case. In other words, what has been submitted is the defendant gambled and lost.

14. However the point remains that the defendant adopted a certain forensic course of action, not seeking to adjourn the hearing ab initio so that it did not start, and if it had adjourned the matter ab initio then the Court comprised by another judge may have been able to commence a hearing in the six weeks' time referred to by Mr Catsanos, which as a matter of pragmatism is no longer available.

15. The point remains the defendant has had adequate opportunity to prepare its case, and that not having been done, the loss must fall on he who has incurred the detriment. However there is no good reason why the matter should be adjourned. It runs contrary to the normal course, contrary to this Court's practice notes, contrary to normal practice of the Courts. The application for an adjournment is accordingly refused.

**********

Decision last updated: 29 August 2018