McDougall v Nominal Defendant

[2020] NSWDC 194

District Court

New South Wales

Medium Neutral Citation:	McDougall v Nominal Defendant [2020] NSWDC 194
Hearing dates:	8 May 2020
Date of orders:	08 May 2020
Decision date:	08 May 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 25-26
Catchwords:	PRACTICE AND PROCEDURE – civil proceeding – joint application to adjourn hearing – reliance on COVID-19 pandemic as a reason to vacate – suitability and fairness of virtual courtroom process
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
Category:	Procedural and other rulings
Parties:	Mr GG McDougall Nominal Defendant
Representation:	Counsel: Mr R Quickenden for the plaintiff Mr S Hunt for the defendant   Solicitors: Brazel Moore Lawyers for the plaintiff Sparke Helmore Lawyers for the defendant
File Number(s):	2018/26211
Publication restriction:	Nil

Judgment

1. This proceeding commenced in January 2018. The hearing for this matter is listed for 18 May 2020. The parties commonly join in an application to vacate the hearing and for the matter to be listed in the Gosford sittings in August 2020.

2. The Practice Note for civil proceedings in this Court generally indicates that adjournments are not to be granted save for exceptional reasons.

3. The proceeding arises out of an alleged motor cycle accident on 22 July 2016. The plaintiff was the driver of a motor cycle. He says that he was riding south on the Pacific Highway waiting to turn right at the intersection of the New England Highway. He asserts that as he was trying to effect a right hand turn, a car struck him from his right side and hit the plaintiff’s rear exhaust. The defendant denies that any accident occurred. It also disputes any injuries, or any significant injury or disability.

4. The parties agree that liability is vigorously in dispute. Engineering experts are to be called for the parties. I am informed that the experts have been in the process of engaging in a conclave but it was uncertain whether they had prepared a joint report.

5. Also relevant to the application is that in April 2020, a Panel of the Medical Assessment Service (‘MAS’) determined that the plaintiff was not eligible to recover non-economic loss. I was informed that the plaintiff was considering an application for review of that decision.

6. The plaintiff submits that the order for vacation should be made because:

1. the liability (engineering) experts are in the process of undertaking a conclave and preparing a joint report, but that may not be available by the time the case is heard;

2. the plaintiff wants to review the MAS determination on non-economic loss;

3. the nature of the case, being one where the defendant essentially asserts either fraud or dishonesty by the plaintiff, is such that the plaintiff is likely to be vigorously cross-examined; including challenge to his credit. There are a number of lay witnesses as well; and

4. the COVID-19 pandemic is such that trial by virtual courtroom would be procedurally unfair.

7. The defendant generally adopted these submissions, but added that:

1. witnesses could be expected to look at a large range of documents;

2. given that the parties are likely to be represented by senior and junior counsel, it would cause inconvenience if they, and their instructing solicitors, appeared in different locations;

3. what might be called the “Pre COVID-19” practice was that where a party was to be subjected to credibility attack, the Court would not be inclined to have the party give evidence by audio-visual link; because of possible unfairness; and

4. the decision of Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (“Capic”), which might be regarded as endorsing the use of virtual courtroom trial procedure in civil proceedings, is distinguishable because in that case the parties did not consent to the adjournment.

CONSIDERATION

The relevance of the pandemic

8. I do not find the submissions relating to the COVID-19 pandemic to be convincing.

9. The Court is acutely conscious of the challenges presented by the COVID-19 pandemic. However, this Court has had the virtual courtroom mode of trial procedure in operation now for a not inconsiderable period. True it is that there might have been some hitches, but in my personal experience (in both the Court’s civil and criminal jurisdictions) the challenges are far from insuperable; even if the demands placed upon practitioners (and Judges and court administrative staff) have been heightened. To my mind, the Court should strive to give effect to what Perram J identified in Capic as the imperative to facilitate the continuation of the economy and essential services of government, including the administration of justice. The decision of Perram J was decided on 15 April 2020. That decision was delivered a few weeks ago now and I do not infer that the quality of technology has regressed in that time. To the contrary, I infer that it has improved.

10. I am also mindful of the fluid nature of attempts by government, at different levels, to respond to the pandemic. The submissions jointly put forward by the parties appear to assume that the current situation may sufficiently improve by the time of the August sittings, by which time, the Court may revert to the pre-pandemic mode of ordinary trial procedure. I do not consider that the Court can operate on that assumption at all. The reality is that the situation in August is entirely unpredictable. If the position remained the same in August as it is now, that would mean that the parties would doubtless urge the Court to adjourn the matter again at that point, for the same or similar reasons as they advance now.

11. In short, I do not accept the pandemic as offering sufficient justification to vacate this hearing.

The nature of the proceeding

12. Nor do I find convincing the parties’ joint submission that there is something particularly unique about this matter to make it unsuitable for virtual courtroom process.

13. As I have said, I have conducted civil and criminal trials since social distancing restrictions were imposed back in March; including trials where (a) the credit of the plaintiff or witnesses in a criminal proceeding has been vigorously contested; and (b) where significant documentation is relied upon.

14. Further, whatever reservations that have been expressed in the past by judges about the use of audio-visual link technology in cases where the credit of parties is in issue, the concern is, with respect, somewhat dated in view of the enhanced technology that has been efficiently and effectively deployed by Courts since the pandemic has arisen.

15. The Court has issued information to guide practitioners in virtual courtroom, and through the co-operation of the parties, they can be varied or tailored to meet the exigencies of the particular case.

Convenience of two Counsel

16. I do not regard this consideration of having any real weight. If it was, it would mean that in any trial by virtual courtroom, any who were minded to delay proceedings might adopt the expedient of having more than one counsel briefed.

17. In my experience, Counsel have had instructing solicitors in their Chambers during the virtual courtroom – sometimes more than one in number. On other occasions, solicitors have been in their own offices. I do not see why it presents a real problem that there are more than one Counsel.

The expert conclave

18. When the plaintiff’s solicitor, Ms Smith, swore her affidavit in support of this application on 30 April 2020, she said that the parties were in the process of undertaking a conclave and preparing a joint report. She noted that the plaintiff’s liability expert had prepared a report dated 28 June 2018. The defendant’s liability expert had also prepared reports, the last of which was dated November 2019. I was told that the plaintiff’s expert had not responded to the defendant’s liability expert’s last report. I was not informed why this was so 5 months later.

19. In the plaintiff’s submissions, it was then said that the conclave had not yet occurred. No further elaboration was supplied.

20. I presume that the hearing date was fixed on the basis of estimates and the convenience of lawyers and witnesses. I infer that this included the experts on liability.

21. There is no evidence to suggest that it is impossible, or even impracticable, between now and then for the experts to conclave – even if that is to occur on-line.

22. This is not a proper basis for vacation.

MAS review

23. This is the most weighty consideration, although the circumstance that the Panel only delivered a determination on this aspect in April 2020, a month from a trial in a proceeding commenced in January 2018, is not satisfactory. The reasons behind the timing of this determination were not disclosed.

24. In my view, the concern may be alleviated if the issues of liability are separated from damages. That will enable any challenge to the MAS determination to occur. Conceivably, the parties may be referred to mediation upon the determination of those liability issues, though I do not wish to pre-empt further consideration of that matter. I appreciate the concern that this is somewhat out of the ordinary, but I am also very conscious of the age of this proceeding and the importance of bringing it to resolution. It is not in the interests for this case to drift upon an assumption that circumstances might be different in August. Events in this matter go back to 2016.

25. I therefore dismiss the notice of motion and order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that the issues of liability be separately determined from damages. I also direct the plaintiff to notify the Court when it has lodged its application for review of the MAS determination.

26. As the parties jointly brought this application, the costs of this application are to be costs in the cause.

**********

Decision last updated: 13 May 2020