Mills v Footprints Community Limited (ABN 15 100 277 492)
[2023] QDC 48
•24 March 2023
DISTRICT COURT OF QUEENSLAND
CITATION:
Mills v Footprints Community Limited (ABN 15 100 277 492) [2023] QDC 48
PARTIES:
JANE CATHERINE MILLS
(plaintiff)
v
FOOTPRINTS COMMUNITY LIMITED
(ABN 15 100 277 492)(defendant)
FILE NO/S:
BD541/22
DIVISION:
District Court of Queensland
PROCEEDING:
Civil
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
24 March 2023
DELIVERED AT:
District Court at Brisbane
HEARING DATE:
20 March 2023
JUDGE:
Kent KC, DCJ
ORDER:
1. The defendant is to pay the plaintiff’s costs thrown away consequent upon the adjournment of the trial listed to commence 28 March 2023
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – ADJOURNMENT – where the plaintiff claims damages pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld); where the plaintiff alleges she sustained injuries in the course of employment - where the defendant failed to disclose directly relevant documents until shortly before the trial –whether that late disclosure amounted to an “unreasonable delay” pursuant to s 318C of the Act – where the plaintiff failed to disclose updated medical records until shortly before the trial – where that failure by the plaintiff resulted in a failure to provide an updated statement of loss and damage pursuant to r 549 of the Uniform Civil Procedure Rules – whether that disclosure amounted to an “unreasonable delay” – where the trial was adjourned by agreement – whether there are two equal, opposing and counterbalancing unreasonable delays neutralising the plaintiff’s entitlement to costs
LEGISLATION:
Uniform Civil Procedure Rules 1999 (Qld) rr 5, 211, 214, 547, 549, 550, 551 and 552
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 318C
CASES:
Francis v MSF Sugar Limited [2020] QSC 16
Wallace v RSL Care Limited [2017] QDC 179
COUNSEL:
B Stringer for the plaintiff
J Rolls for the defendant
SOLICITORS:
Carter Capner Law for the plaintiff
Cooper Grace Ward for the defendant
Introduction
The plaintiff, Ms Mills, applies for an adjournment of the trial previously listed to commence on 28 March 2023. This is not opposed by the defendant. Further, however, she applies for her costs in respect of the application and the consequent costs of the adjournment. This is resisted. Broadly, the plaintiff complains of the defendant’s recent disclosure of seven new and relevant documents which require responses which are not possible in the time available; thus requiring the adjournment.
The application was heard on 20 March 2023. At the conclusion of the argument orders were made delisting the trial and listing the matter for mention on Friday 24 March. The issue in respect of which judgement was reserved was the plaintiff’s contested application for costs.
Background
The claim is for damages for personal injuries. It was commenced in court by filing of the claim and statement of claim on 7 March 2022. It relates to events arising on 29 August 2019. Broadly, the plaintiff was a worker for the defendant as an in-home support worker. The defendant carried on a community-based support services business for clients who needed such services. On the day in question the plaintiff attended, for the first time, a particular client who, on the plaintiff’s case, behaved extremely inappropriately and aggressively causing the plaintiff to suffer psychiatric injury in the form of significant Post Traumatic Stress Disorder. This is pleaded to have come about from a number of breaches of duty by the defendant including, of particular relevance to the present application, failure to appropriately train staff in relation to dealing with aggressive clients. Liability and quantum are both in issue.
Recent history of the action
The matter was previously listed for trial and for reasons not presently relevant did not proceed. The upcoming trial was listed in December 2022, to proceed, as outlined above, on 28 March 2023. I had previously reviewed the matter in relation to the upcoming trial; the present problems had not emerged at that stage.
Disclosure
As outlined in the material, the defendant recently disclosed seven new documents relevant to the matters in issue between the parties, including in relation to training. Broadly, these documents seem to have come to the attention of the defendant recently, rather than earlier, because the relevant employee, a Ms Hummel, had some of them at home. Training records were in a folder in her home office and finding them recently prompted her to go online and find source documents which have now been disclosed.
The documents were apparently in that location because the defendant’s Strathpine office had closed at the beginning of the Covid-19 pandemic, possibly early 2020. Possibly the documents not being in a central system of the defendant has impaired the process of them coming to light earlier in the disclosure process. When this came to the attention of the defendant’s solicitors, the plaintiff’s representatives were promptly informed, prompting the present application.
Against this background, the plaintiff in her submissions seeks to ventilate earlier complaints about ongoing problems with disclosure including prior to the issuing of the court proceedings. Mr Rolls on behalf of the defendant submits that the only presently relevant issues are those arising since the issue of the proceedings in court, and that seems with respect to be correct.
Statutory framework
Section 318C of the Workers’ Compensation and Rehabilitation Act provides:
“318C Costs order under div 2 for an interlocutory application
An order about costs for an interlocutory application may be made under division 2 only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties.”
It is common ground that s 318C governs the present application. For present purposes, the matter of contention between the parties is the presence or absence of “unreasonable delay”.
The plaintiff unsurprisingly argues that the late disclosure has meant that she has not been able to properly attend to a number of aspects of the case: to fully and properly particularise the allegations in the Statement of Claim; seek proper advice in relation to the matter; perhaps put her pleadings in a better form; had the opportunity to properly respond to the disclosed documents, or importantly, to request further documents which may arise from the late disclosure; more generally to conduct further appropriate investigations or indeed consider whether further assessment by a psychiatric witness might be relevant. It is thus argued that she is prejudiced in the running of her case and it is inappropriate that the matter proceed. This much is common ground.
Further, the plaintiff argues that the timeline of the disclosure represents unreasonable delay and it is an appropriate case for a costs order. Reference is made to Francis v MSF Sugar Limited [2020] QSC 16 at [20] where Bradley J dealt with a similar occurrence involving the non-disclosure of one document which resulted in a short adjournment of a trial and costs were granted pursuant to the defendant’s failure to comply with implied undertaking in r 5 of the Uniform Civil Procedure Rules 1999 (Qld).
The defendant submits that there has been no unreasonable delay in disclosure because as soon as the documents were located, they had been disclosed. Ms Hummel says that she was not aware of the relevant information until she came across it on the 13th March 2023.[1]
[1]Affidavit of Ms Catherine Ruth Dugdell, Court File Document No. 23, Exhibit CRD - 1
My conclusion is that this argument cannot be made good in the circumstances that at all material times the documents were relevant and were in possession of the defendant. No doubt it is true that Ms Hummel did not appreciate them or their significance, nor did they reach the consciousness of any of the other natural persons through whom bodies corporate such as the defendant necessarily operate, until the date stated. Nevertheless, the documents, as I understand the parties, were both generated by, and in the physical possession of, the defendant at all material times. They clearly fall within the duty of disclosure in Uniform Civil Procedure Rule 211, and the obligation thereunder arose 28 days after the close of pleadings[2] and continued. [3]
[2]UCPR 214 (2) (e)
[3]UCPR 211 (2)
The fact that the defendant’s natural persons employees and/or representatives did not previously appreciate their significance does not avoid, in my conclusion, the unreasonableness of the delay. The issues have been clear enough on the pleadings for some time and the failure to disclose them earlier was an error. The mere prompt disclosure of them upon the error being realised, does not convert an unreasonable delay into a reasonable one. However there is another aspect of the case, to which I now turn.
The medical records
The Defendant’s Argument
The second matter advanced by the defendant is that the plaintiff delivered an updated Medicare history 10 March 2023 (possibly merely as part of the ongoing obligation to update such information, particularly in view of the upcoming trial, where a Medicare charge would be part of the special damages). As a result the defendant requested updated GP records which were received on 17 March 2023 and showed that the plaintiff was hospitalised for diverticulitis for four days in September 2022 (apparently for antibiotic treatment) and was to undergo surgery – apparently a colonoscopy – in late 2022.[4] The defendant argues that it wishes to investigate this aspect of the matter and possibly obtain medical opinion as to its impact, for example, on damages.
[4]Affidavit of Ms Dugdell, Court File Document No. 22, at paragraphs 7 - 8
Thus it is complained that this information had not resulted in an updated statement of loss and damage pursuant to r 549 of the Uniform Civil Procedure Rules. This competing unreasonable delay, as it is argued, on behalf of the plaintiff gives rise to the result that adjournment of the trial would have been necessary in any event, and in those circumstances there ought to be no order as to costs; there are in effect two equal, opposing and counterbalancing unreasonable delays. Both parties had of course certified the matter as being ready for trial by signing the Request for Trial Date in September and October 2022.[5]
[5]Court File Document No. 7
The Plaintiff’s Response
The plaintiff points out that the defendant first obtained and disclosed the medical records from the plaintiff’s GP on 4 November 2022[6] which is well before both a previous trial listing in November 2022 and the date of the re-listing, 13 December 2022. The records clearly set out the provisional diagnosis, a request for a CT scan, and the treatment with antibiotics in a note of a consultation of 16 September 2022. The diagnosis was confirmed in the CT scan the same day.[7] The defendant nonetheless acquiesced in the retention of the first trial date and setting down of the matter for the new trial at the December mention date.
[6]Affidavit of Samuel Bernard Smith, Court File Document No. 21, paragraph 13 and Exhibit SBS-16 at p 53
[7]Mr Smith’s affidavit at p 56
Thus it can hardly be said that this problem was news to the defendant when it came up again in the more recent Medicare records, although some more details, such as the hospital admission, came to light.[8] This alone indicates the new records would not justify an adjournment; the defendant did not apparently previously regard the information as significant, and nothing of substance had changed. It is not clear whether the defendant, at the time of acquiring the GP records in November 2022 (it was the defendant who notified the plaintiff of the records having obtained them), was motivated to serve an updated statement of expert and economic loss listing the records; see UCPR 550, 551(3), 552(2) re: “significant” change.
[8]Supra, Exhibit SBS-32, at p 200
The plaintiff further submits that, although the records may have been within the ambit of UCPR 547(3)(g) in that they gave details of an illness suffered by the plaintiff since the original injury, they did not come within r 549(2), in that they did not amount to a significant change in the information given in the original statement of loss and damage and did not have much relevance to the action. Broadly, it is said that the diverticulitis (which apparently arose quite recently, long after the events the subject of the action) was quite separate and unconnected with post-traumatic stress disorder and the issues arising therefrom; it is difficult to see how it could significantly impact on quantum (as to the aspect of continuing employability and thus economic loss, or in any other significant way) and certainly is irrelevant to liability. Thus the emergence of this later unrelated separate illness has no significant relevance to the merits of the action and would not, of itself, have justified an adjournment of the trial, particularly when the defendant did not attempt to adjourn the earlier trial despite being generally aware of the issue.
Thus it is said that the information referred to does not therefore amount to a competing factor of sufficient weight such as to disturb the exercise of the discretion to award costs in the plaintiff’s favour for the adjournment consequent upon the defendant’s unreasonable delay in disclosure of significant documents.
The defendant argues in response that in truth the change in the relevant information was significant, thus an updated statement of loss and damage was mandated. The defendant refers to Wallace v RSL Care Limited[9] to argue by analogy that, as in that case, the plaintiff was in default of her obligation to provide an updated statement of loss and damage, with consequences as to costs. However that case was quite different. The plaintiff there had not disclosed later surgery to the injured ankle, a fact which necessitated adjournment of the trial so that the defendant’s orthopaedic surgeon could re-examine her; the defence hitherto knew nothing of the subsequent surgery. Clearly enough the later (hitherto undisclosed) procedure was central to the merits of the case; unsurprisingly the court concluded it was significant information which was required to be disclosed and the plaintiff was ordered to pay the costs of the necessary adjournment. Indeed it is hard to imagine a clearer case of undisclosed significant information.
[9][2017] QDC 179
The position here is quite different. As outlined above, the defendant did have timely notice of the plaintiff’s condition, including at the time when it acquiesced in the trial listing; the later illness is quite different from, and unrelated to, the injury the subject of the proceeding; it has little apparent impact on the merits of the action; and accordingly neither the original information nor the further details which emerged recently amount to “significant” undisclosed information in terms of r 549 such as to justify the adjournment of the trial at the plaintiff’s expense. The information does not counterbalance the defendant’s breach.
Conclusion
For the above reasons, in my conclusion the plaintiff must succeed. The defendant was in default of its disclosure obligations necessitating the adjournment of the trial, and there was no counterbalancing breach of the plaintiff’s obligations such as to disturb the exercise of the discretion to award costs in her favour. Subject to the parties agreeing on any necessary details, there will be an order that the defendant pay the plaintiff’s costs thrown away by reason of the adjournment of the trial.
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