MAZHARI v ARTMODE Holdings Pty Ltd - [2006] WADC 187

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MAZHARI -v- ARTMODE HOLDINGS PTY LTD [2006] WADC 187

CORAM: COMMISSIONER ELLIS

HEARD: 31 OCTOBER & 1 NOVEMBER 2006

DELIVERED : 1 NOVEMBER 2006

FILE NO/S: CIV 763 of 2003

BETWEEN: SHAMS AZAR MAZHARI
Plaintiff
AND
ARTMODE HOLDINGS PTY LTD
Defendant

Catchwords:

Adjournment

Legislation:

District Court Rules 2005

Result:

Hearing adjourned part heard

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr P V Lansell

Solicitors:

Plaintiff: Not applicable
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

State of Queensland & Anor v J L Holdings (1996) 141 ALR 353

Case(s) also cited:

Nil

COMMISSIONER ELLIS: These are my reasons for decision in relation to the plaintiff's application for an adjournment of this matter. My reasons were delivered orally, and have been revised, as to their form, for publication.
The application for an adjournment was made by the plaintiff shortly prior to lunch on the second day of the hearing. Although the plaintiff did not specify the grounds for the adjournment in making her application, it is apparent from the course of the proceedings to date that the reason for seeking the adjournment was my decisions declining to admit into evidence much of the material upon which the plaintiff sought to rely. That material related to the nature and extent of the injuries suffered by her. That evidence was not admitted because the plaintiff had failed to disclose medical reports on which she proposed to rely on or before 21 October 2005 in accordance with a direction made on 26 August 2005 and also because the plaintiff did not propose to call the authors of the reports on which she relied.
Although there was disclosure, it appears, of one or two of the reports, the plaintiff was not a position to show that the documents as a whole had been disclosed. She indicated that her solicitors had the documents and ought to have disclosed them, but this is by no means the same thing. The defendant, through its counsel, denied that the documents had been received and for the purposes of those applications, I was satisfied the documents had not been provided. I was also satisfied that the defendant suffered prejudice as a result.
The effect of my rulings was that there would have been little, if any, evidence that the plaintiff had suffered any injury in the alleged accident on 29 February 2000. It was apparent during the course of submissions made by the plaintiff that she claimed very extensive injuries and loss resulting from the incident on 29 January 2000. It also became apparent that, on the basis of the limited medical evidence which was admitted into evidence that the plaintiff would not have been successful in establishing substantial damages without those reports.
These results would have followed without the court being able to consider the nature and extent of the claimed injuries.
The defendant opposes the adjournment. Mr Lansell argued that there had been substantial delay already in connection with the progress of the claim. The alleged injury occurred in 2000 but the proceedings were not commenced until 2003. There had been applications brought by the defendant to strike the matter out for want of prosecution. There were a number of pre‑trial conferences and listing conferences which were adjourned. Mr Lansell pointed out that the matter involves a lay witness. The events took place in 2000 and any further delay in the trial will adversely impact upon his recollection of events.
Mr Lansell pointed out that the plaintiff has been represented by solicitors for much of the course of these proceedings. Failings by the plaintiff's solicitors to adequately progress the matter and to disclose documents are not matters which should be sheeted home to the defendant. A weighty factor relied upon by the defendant was the stage of the proceedings at which the application for an adjournment was made. Mr Lansell reminded me that the trial had started yesterday, was listed for four days and that the defendant has arranged for medical witnesses to attend at court.
Mr Lansell also referred me to the case management principles found in the District Court Rules 1996 and also to passages from Seaman's "Civil Procedure in Western Australia" which refer to the need for the expeditious disposition of proceedings. Seaman points out that once proceedings have commenced, the fact that there has been inadequate preparation does not necessarily entitle an applicant to an adjournment.
Mr Lansell asserted that difficulties would arise in obtaining adequate evidence relating to the cause of the plaintiff's various medical conditions. He pointed out that some of the events the subject of the proposed evidence, and in particular, a laminectomy, took place in 2005 and because of the nondisclosure, the defendant was prevented from obtaining contemporaneous medical opinions about those matters. While this is factually true, it does not necessarily follow that the quality of reports which the defendant can obtain is significantly compromised. Doctors not infrequently give opinions about the cause of injuries and operations a considerable time after those injuries occur or operations take place.
Mr Lansell also indicated that the case was apparently a much larger case than it had initially appeared, involving a number of medical witnesses rather than the more confined medical dispute which the matter might have initially appeared to be. In my opinion, this is a matter of appearance rather than substance.
In considering an application of this nature, the primary obligation of the Court is to have regard to the interests of justice. This overriding principle was re‑affirmed in the High Court decision of State of Queensland & Anor v J L Holdings (1996) 141 ALR 353 .
While I express no views as to the substantive merits of the plaintiff's case, I would not be in a position to consider the substantive merits of the plaintiff's case unless the plaintiff's additional medical material could be considered by me. In my opinion, the interests of justice require that this matter be adjourned subject to the making of stringent orders relating to the costs of the adjournment and the further progress of this matter. For these reasons, I would allow the adjournment. I will shortly deal with some orders which I propose and which may assist with the further disposition of the matter but first I would like to take the opportunity to stress to the plaintiff a couple of matters.
First, the mere fact that a report is disclosed does not necessarily mean that it will be admitted into evidence and be considered by the Court in making its decision. The decision must also be relevant and properly proved in accordance with the rules of evidence.
Secondly it is the plaintiff's responsibility to ensure that her case is properly prepared for trial. The fact that the plaintiff may find it difficult to obtain and retain solicitors and to provide them with instructions from oversees is not a matter which ought to prejudice the defendant and is unlikely to be a ground for further delay in the progress of the matter.
In the circumstances, it appears that, subject to comments from the parties, the following orders may be appropriate:
(1)The trial be adjourned sine die, to be re‑listed as soon as practicable after the defendant has had a reasonable opportunity to consider any medical reports disclosed in accordance with Order 5 below;
(2)The plaintiff do pay the defendant's costs thrown away as a result of the adjournment, to be taxed and paid forthwith;
(3)The taxation do proceed on the basis that the hearing time associated with this matter to date, other than the time devoted to the plaintiff's viva voce evidence (and excluding that period of time concerned with the admissibility or otherwise of the documents tendered by the plaintiff), be treated as having been thrown away;
(4)Unless the plaintiff do pay the defendant's taxed costs within 21 days of the day of service upon her of a taxed bill, or within such further times the Court may allow upon an application to it by the plaintiff, the claim of the plaintiff be dismissed and judgment be entered in the action with costs to be taxed;
(5)The time limited for the plaintiff to file and serve on the defendant any expert material upon which she proposes to rely by the orders of the Deputy Registrar made on 26 August 2005 be extended until 1 December 2006;
(6) The Court directs that the informal provision of documents to counsel for the defendant on 31 October 2006 shall not be treated as compliance with Order 5, it being the intention of the Court that the plaintiff do provide a formal indexed bundle of medical reports upon which she proposes to rely;
(7)The plaintiff be precluded from relying at trial on any medical evidence which has not been disclosed in accordance with Order 5, subject to special leave being granted.
(8)Any application by the plaintiff for leave to amend her statement of claim be made on or before 1 December 2006.
(9)The plaintiff do give further and better discovery on affidavit by 1 December 2006.
(10)There be liberty to apply.