MJD v The Benedictine Community of New Norcia Inc
[2024] WADC 25
•18 APRIL 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MJD -v- THE BENEDICTINE COMMUNITY OF NEW NORCIA INC [2024] WADC 25
CORAM: RITTER DCJ
HEARD: 1 MARCH 2024
DELIVERED : 18 APRIL 2024
FILE NO/S: CIV 1324 of 2022
BETWEEN: MJD
Plaintiff
AND
THE BENEDICTINE COMMUNITY OF NEW NORCIA INC
Defendant
Catchwords:
Costs - Adjournment of trial - Late issue of subpoenas by plaintiff
Legislation:
Nil
Result:
The plaintiff do pay the defendant's costs, on a party-party basis, thrown away by reason of the adjournment of the trial listed to commence on 6 March 2024
Representation:
Counsel:
| Plaintiff | : | Mr B J Willesee & Mr T J Hammond SC |
| Defendant | : | Mr T H Offer |
Solicitors:
| Plaintiff | : | Judy Courtin Legal |
| Defendant | : | Cornwalls |
Case(s) referred to in decision(s):
Nil
RITTER DCJ:
On 7 March 2024 the trial in this application which had been listed for hearing on 11 March 2024 was adjourned. The application to adjourn the trial was made by the defendant however it was not opposed by the plaintiff. On that date the defendant sought an order for costs. The terms of the order sought were contained in written submissions of the defendant's counsel provided on that date. It was submitted that the defendant ought to have the costs thrown away by reason of the adjournment and that given the nature and extent of the failures which had led to the adjournment application the defendant should be indemnified for the costs on a solicitor/client basis.
The plaintiff submitted that the application for costs ought not to be determined at this stage, but instead costs should be reserved and later determined. The plaintiff submitted, essentially, that the application for costs could be better dealt with at a later occasion than now.
With all due respect, I do not find that submission persuasive. In my opinion the application for costs is a discrete matter which can and should be determined now. It is appropriate to deal with it now as the cause for the application has eventuated recently and I am fully apprised of the circumstances which led to the adjournment application and the application for costs.
In the written submissions of the defendant that I have referred to above, it was made clear that the defendant applied for the adjournment somewhat reluctantly. There are essentially two reasons for the adjournment application. The first mentioned in the written submissions was that on 6 March 2024, in the evening, the defendant received a document entitled Substance of Evidence relating to the expert opinion of psychiatrist Dr Bala. From the document it appeared that Dr Bala signed the Substance of Evidence on 2 March 2024. The defendant submitted that the Substance of Evidence document was brief and failed to disclose the basis upon which expressed opinions were formulated. There was some particularisation of this concern in the written submissions. Having regard to that, I am not persuaded that the issues relating to the Substance of Evidence document were not such that they could have been cured in a way which would have allowed the trial to proceed to hearing.
However the second issue in my opinion was of greater concern. This concerns the late issuing of subpoenas to produce documents.
On 23 February 2024 the matter came on for a case management hearing. This followed the plaintiff on 22 February 2024 advising the defendant that it proposed to issue subpoenas seeking the plaintiff's personnel file from Services Australia and also obtaining medical records from 14 separate general practitioners.
The requirement to obtain the medical records from the general practitioners arose because the plaintiff's solicitors in or about February 2023 obtained records from Medicare which indicated that the plaintiff had consulted with these 14 general practitioners. Accordingly it was within the plaintiff's power to obtain these medical records and, properly, steps needed to be taken to obtain them. However there has been no reasonable explanation to the court as to why this did not occur until February 2024, having regard to the then trial date set for commencement on 5 March 2024.
At the case management hearing concern was expressed as to whether there was any reasonable prospect of the subpoenas being complied with prior to the then listed commencement date for the trial.
Accordingly a further directions hearing occurred on 1 March 2024. By that time some subpoenas had been answered by some of the general practitioners but there had been no response to the service of the subpoena on Services Australia. Accordingly the hearing of the trial was ordered to not commence on 5 March 2024 but instead a further directions hearing was to occur that afternoon.
On 5 March 2024 the position relating to subpoenas remained unchanged. There was still a number of general practitioners' practices who had not responded and critically Services Australia had not complied with the subpoena issued by the court by the date that it was required to do so.
It was in those circumstances that I acceded to the defendant's application, which as I said was not opposed, to adjourn the trial. Accordingly the trial dates were formally vacated. In my opinion it is clear that the trial has been adjourned because of the failure by the plaintiff to obtain documents when it was, with respect, reasonably obvious that they should be obtained. This should have occurred long prior to the date when it did.
It was because of this that documents which may be quite relevant to the trial were not obtained prior to the commencement of the trial and therefore the trial had to be adjourned. Accordingly in my opinion it is appropriate that the court order that the plaintiff pay the defendant's costs thrown away by reason of the adjournment of the trial.
However I am not persuaded that the defendant should be indemnified for their costs on a solicitor/client basis.
In my opinion the circumstances as I have described do not give rise to an indemnification of this type.
In the written submissions of the defendant there is raised the possibility of the court making an order against the legal representatives of the plaintiff rather than the plaintiff herself. However in oral submissions the defendant's counsel expressly said that this order was not sought by the defendant. In those circumstances I do not at this time give further consideration to the making of such an order.
Accordingly, the order that I make with respect to the application is:
1.The plaintiff do pay the defendant's costs thrown away by reason of the adjournment of the trial listed to commence on 6 March 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
18 APRIL 2024
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