Nominal Defendant v Workers Compensation Nominal Insurer

[2010] NSWCA 376

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Nominal Defendant v Workers Compensation Nominal Insurer [2010] NSWCA 376

FILE NUMBER(S):
2009/336433

HEARING DATE(S):
10 December 2010

EX TEMPORE DATE:
10 December 2010

PARTIES:
Nominal Defendant (Appellant)
Workers Compensation Nominal Insurer (Respondent)

JUDGMENT OF:
Beazley JA McColl JA Young JA   

LOWER COURT JURISDICTION:
Compensation Court

LOWER COURT FILE NUMBER(S):
2009/336433

LOWER COURT JUDICIAL OFFICER:
Robison DCJ

LOWER COURT DATE OF DECISION:
14 May 2010

COUNSEL:
SG Campbell SC;  SE McCarthy (Appellant)
M J Jenkins (Respondent)

SOLICITORS:
Lee & Lyons (Appellant)
Turks Legal (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987

CATEGORY:
Principal judgment

CASES CITED:
Bidder v Bridges (1884) 26, Ch Div R 1
In re the will of Gilbert [1946] 46 SR (NSW) 318
House v The King [1936] HCA 40, 55 CLR 499

TEXTS CITED:

DECISION:
1. The application for an extension of time in which to file the summons for leave to appeal be refused;
2. The summons be dismissed with costs.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/336433

BEAZLEY JA
McCOLL JA
YOUNG JA

Ex tempore 10 December 2010

Nominal Defendant v Workers Compensation Nominal Insurer

Judgment

1. BEAZLEY JA: The applicant seeks leave to appeal from an order made by Judge Robison in the District Court on 14 May 2010 pursuant to the Uniform Civil Procedure Rules 2005 (the UCPR), r 24.3(1)(a) for the examination of a witness, Ms Mongia, otherwise than in a trial.

2. The underlying proceedings involve a claim by the respondent seeking an indemnity under the Workers Compensation Act 1987, s 151Z. The indemnity claim relates to the recovery of workers compensation payments made to Ms Mongia who was allegedly injured on her way to work when struck by an unidentified motor vehicle.

3. The applicant requires an extension of time in which to bring the summons for leave to appeal.  The time in which to file the summons expired on 11 June 2010, 28 days after his Honour made the order.  The summons for leave to appeal was not filed until 13 August 2010, some 13 weeks out of time.

4. The applicant's solicitor, David Lee, has sworn an affidavit in the proceedings in which he accepts responsibility on his own behalf and on behalf of his firm for the delay.  The affidavit evidence reveals that initially the applicant’s solicitors acted promptly in recommending to the applicant that leave to appeal should be sought from his Honour's orders.  In this regard, steps were taken on 19, 21 and 27 May 2010.  However, the applicant's solicitors did not inform the applicant that the time in which the summons was to be filed was 28 days from the date of the making of the order.  Further, the matter was not reviewed by the applicant thereafter to follow up those instructions until about 20 July.

5. On 26 May 2010, the solicitors for the applicant agreed to the evidence of Ms Mongia being taken on commission on 29 July 2010.

6. On 3 June 2010, the availability of Mr Bridge of Senior Counsel to take the evidence on commission on that date was confirmed.

7. By letter dated 4 June 2010, Ms Mongia was advised of the intention of the parties to take her evidence on commission on that date.  Also by letter dated 4 June 2010, the intention to take Ms Mongia’s evidence on 29 July was confirmed with the applicant.  It seems this letter was received by the applicant's solicitors on 7 June 2010.

8. On 23 June 2010, the respondent retained the services of Merrill Legal Solutions to provide a transcript technician and equipment for the purposes of Ms Mongia's examination.

9. On 20 July 2010, the applicant's solicitors received confirmation from the appointed examiner confirming the appointment for the taking of evidence on commission on 29 July 2010.  The following day the applicant's solicitors sought instructions from their client in respect of filing a summons for leave to appeal from his Honour's orders.

10. In the following days the applicant's solicitors were active in obtaining instructions, briefing counsel, seeking an adjournment of the examination by consent, and also by filing a notice of motion in the District Court seeking a stay of the orders made by his Honour on 14 May 2010 to allow this Court to determine the summons for leave to appeal.

11. The notice of motion for a stay was listed before Judge McLoughlin of the District Court at 2 pm on 28 July 2010 and again on 29 July at 9 am.  His Honour refused to order a stay.

12. The taking of the evidence before the examiner commenced at about 11 am on that day.  At the conclusion of Ms Mongia's evidence-in-chief, the matter was adjourned to 2 pm for the purposes of resuming at that time for the cross-examination of Ms Mongia.

13. During the adjournment period counsel for the applicant advised the applicant's solicitors that there were good prospects to continue with the appeal from the interlocutory orders made by Judge Robison, as Ms Mongia's cross-examination had not as yet then commenced.

14. Thereafter, a series of steps were taken, including telephone conferences between the applicant and the applicant's solicitors discussing whether an appeal should be pursued.  Final instructions to proceed with the summons for leave to appeal were not received by the applicant's solicitors until 13 August 2010.

15. On 30 August 2010, Campbell JA in this Court refused a stay upon a further application having been made by the applicant.  Ms Mongia's evidence by way of cross-examination was completed before the examiner on 3 December 2010.  Accordingly, the orders made by his Honour have been satisfied in full.

16. In my opinion, a delay of just over three months, although not commendable, is not so serious that, of itself, it would preclude an extension of time in which to file the summons for leave to appeal.  In expressing that opinion, I keep in mind the statutory requirements of the Civil Procedure Act 2005, s 56. However, I consider that there are three factors which militate against the extension of time.

17. The first is that neither the applicant nor the applicant's solicitors took any steps on or shortly after 7 June 2010 when it received the listing notice.  At that time the 28 day period in which to file the summons for leave to appeal had not expired but, regardless of that, the notification of the listing for the taking of the evidence should have been sufficient of itself to re-activate the applicant's consideration of whether a summons for leave to appeal should be filed.

18. I should also add that it is relevant that the applicant's solicitors had actively participated in the process of arranging for the examination earlier on 26 May 2010, as I have already stated.

19. The second matter of relevance raises similar considerations.  On 20 July 2010 the applicant received notification from the examiner confirming the date for the taking of the evidence pursuant to his Honour's orders.  Although the applicant's solicitors were active in the ensuing nine days up to and including 29 July 2010 including seeking a stay of the orders of Judge Robison, no summons for leave to appeal was then filed.

20. The applicant described itself at this stage as an unwilling participant in the process.  That self-description belies its inactivity up to and including 21 July 2010 and, even more particularly, belies its active participation in the processes of arranging for the examination to proceed.

21. Further, notwithstanding this activity between 21 and 29 July, the summons for leave to appeal was not filed for a further 14 or 15 days.  In the meantime as I have said the orders made by his Honour were commenced to be acted upon.

22. In my opinion, if the criticality of taking steps in relation to an appeal from his Honour's orders had not impressed itself upon the applicant or the applicant's solicitors on or about 7 June 2010, it must have done so on 20 July 2010.  I reiterate, however, that notwithstanding the activity in which the applicant's solicitors and the applicant engaged in the next nine days, that activity did not result in the filing of the summons for another three weeks.  In my opinion, no reasonable explanation has been given for that delay.

23. The third factor of relevance in considering whether an extension of time should be granted is the fact that the examination of Ms Mongia has in fact been completed in its totality.  I consider, therefore, that the Court should refuse to extend the time in which to file the summons for leave to appeal.

24. I have reached this conclusion up to this point without having regard to the prospects of success of the summons for leave to appeal.  It is appropriate that I consider that matter, but I do so briefly in the circumstances.  It is also appropriate that as the matter was listed before the Court for a concurrent hearing of the summons for leave to appeal and, if leave is granted to appeal, that brief consideration be given to the prospects of success of the appeal.

25. The first matter to note is that that leave to appeal is sought from an interlocutory order on a matter of practice and procedure.  It is well-established in the authorities that an appellate court will exercise restraint in interfering in an order of that type:  see In re the will of Gilbert [1946] 46 SR (NSW) 318.

26. Secondly, his Honour's order was discretionary.  Accordingly, for an appellate court to interfere with such an order, a House v The King type error must be established:  see House v The King [1936] HCA 40, 55 CLR 499.

27. In this case, the applicant contends that a number of specific errors falling within the principles stated in that case were made by his Honour.  The applicant also contends that the result arrived at by his Honour was so unreasonable or unjust as to suggest that his Honour must in any event have fallen into a House v The King type error.  The specific errors for which the applicant contends are contained in appeal grounds 5(a)-(c).  I will deal with each briefly.

28. The applicant contended that his Honour made an error of principle in failing to give any or any sufficient weight to the principle of open justice.  This submission is misconceived.  Evidence which is taken by an examiner may be tendered at the trial.  Once tendered, it is as much a part of the public hearing as any other aspect of evidence given at trial.

29. The applicant next contended that his Honour made an error of fact in concluding that the witness was unable, by reason of infirmity, to give evidence at the trial. For myself, I am not satisfied that that was actually his Honour’s conclusion and, secondly, I am of the opinion that questions of infirmity are only one of a range of considerations that may be taken into account in a court determining whether or not it is appropriate to make an order under UCPR, r 24.3. I will explain this a little later in these reasons.

30. The hearing of the applicant's claim had first proceeded before Judge Gibson.  Ms Mongia was not only a principal witness, she was the principal witness.  Her Honour, at 2.20 pm on the first day of hearing, adjourned the matter by reason of what her Honour described as “the serious ill-health of Ms Mongia”.  Shortly prior to adjourning the matter, her Honour observed that Ms Mongia was obviously really anxious and her Honour stated that she, that is, her Honour, was getting very worried about this.  Her Honour expressed concern about the witness's ability to answer questions.

31. After a short adjournment, counsel for the appellant applied for an adjournment of the proceedings on that day to enable steps to be taken, including putting the witness's evidence-in-chief into an affidavit.  Her Honour granted an adjournment and directed that the matter be listed before the judicial registrar, observing that on that listing date a notice of motion would be returnable seeking an order that evidence be adduced by way of affidavit and seeking such other orders as the parties deemed appropriate.

32. A notice of motion was filed and was supported by an affidavit of the respondent's solicitor deposing to the fact that, in his observation, Ms Mongia had no difficulties of recall when he was conferring with her.  He also stated in his affidavit that, during the course of giving her evidence, Ms Mongia was nervous and anxious and after a while had complained that she was unwell.  He stated that when he spoke to her during the short adjournment granted by her Honour, she confirmed that was how she was feeling and that she felt overwhelmed by the court environment.  She said she told the solicitor that the formality of the judge and the court had caused her to feel anxious and unwell.

33. The notice of motion was also supported by a medical report tendered in evidence from Ms Mongia's general practitioner, who stated that Ms Mongia “has hypertension for which she takes medication”.  The medical report also stated:

    “At a recent hearing [Ms Mongia] had experienced symptoms of anxiety, tiredness, dizziness, aches and pains and generally feeling unwell.  This appeared to be related to the length of the proceedings where she was giving evidence.

    I have suggested that in order to prevent recurrence of such symptoms, any future court appearance as a witness should be of short length.”

34. The applicant did not seek to cross-examine the respondent's solicitor or the doctor. The complaint which is made in respect of the material is essentially one as to the weight that ought to have been given to it by the trial Judge. The submission itself was bound up with the primary submission that this evidence was not sufficient to establish that Ms Mongia was of such infirmity that an order ought to have been made under r 24.3.

35. As acknowledged by Senior Counsel for the applicant, the rules of court themselves do not make any reference to either r 24.3 or r 31.1 being predicated upon proof of infirmity of a witness. The submission, however, is that, on the authorities, the principle that informs r 31.1 is that, before a court will permit evidence to be given otherwise than orally before the court: see r 31.1(2) and leaving aside the case where a witness is overseas or outside New South Wales, the person is unable to attend court to give evidence orally because of infirmity.

36. Senior Counsel for the applicant submitted that the old decision of Bidder v Bridges (1884) 26, Ch Div R 1, stands as authority for that proposition.  Two things may be said about the submission.

37. The first, for my part, I do not consider that Bidder v Bridges stands for that proposition. In that case, the Earl of Selborne stated, in respect of the court’s power to make an order of the type now encompassed within r 24.3 said, at 9, “There may be many cases in which the ends of justice may require [the making of such order]”.  His Honour then went on to consider whether, in the case before him, such an order should be made in respect of a group of 30 witnesses who were aged between 70 and 75. 

38. Those factual circumstances have no relevance to the present case but, in my opinion, what his Honour stated is in effect a statement of the extent of the discretion which exists under the present rules of court properly construed.

39. Rule 24.3 confers a discretion at large upon a judicial officer subject only, of course, to the overriding principle that the discretion must be exercised judicially.  In my opinion, there is nothing in the criticism the applicant makes which went so far as to assert that the trial judge erred in relying upon the evidence of the solicitor and of the doctor.

40. The applicant next contended that his Honour took into account the following irrelevant matters:  that courts are intimidating places;  the observations of Judge Gibson as to any infirmity to give evidence when there was no medical evidence at that time to support any such conclusion;  the impressions of the respondent’s solicitors, also uninformed by any medical opinion;  and the medical certificate of Dr Dracos, which did not proffer any evidence of a condition for which he had previously been treating her rendering the witness unfit to give evidence in court.

41. The remarks which I have already made very much address these particular challenges and I do not think it is necessary to expand upon my reasons in that regard.

42. In my opinion, it has not been demonstrated that his Honour erred or that the matters he took into account were irrelevant given the wide discretion which is conferred by the rule.

43. I am also of the opinion that strictly the matters raised by Senior Counsel for the applicant are premature, in the sense that they are really more properly directed to the considerations to which the Court will have to come under UCPR, r 31.1 when the matter resumes before the Court and when, presumably, the transcript of the evidence taken upon the examination will be tendered.

44. I accept the submission that there is undoubtedly an interrelationship between rr 31.1 and 24.3. The rules, after all, are an integrated process as to how matters should proceed in court but, for the reason which I have given, I am firmly of the view that neither r 31 nor r 24.3 is confined either by or to questions of infirmity.

45. For these reasons, I do not consider that there was any error established by specific challenges raised against his Honour's judgment, nor do I consider that the order was so unreasonable as to fall outside the bounds of the reasonable exercise of a judicial discretion.

46. Accordingly, had it been a matter for determination, I would have considered that it was appropriate that leave to appeal in this matter be refused, because of the unlikely prospects of success of the appeal.

47. The orders I propose are:

    1.The application for an extension of time in which to file the summons for leave to appeal be refused;

    2.            The summons be dismissed with costs.

48. McCOLL JA:  I agree.  The applicant's principal complaint is that the effect of Judge Robison's order is to deprive the trial Judge who hears the principal proceedings of the opportunity to observe the witness's demeanor.  That difficulty could have been overcome, to some extent at least, by ensuring that an audio-visual recording was made of her evidence.  That was a course which the respondent apparently proposed, but the court was informed, without demur, was opposed by the applicant.  In those circumstances the applicant is, in my view, to a large extent the author of whatever misfortune it suffers by reason of the witness's evidence only being available by way of a transcript of the proceedings before the Commissioner.

49. I agree with the orders the presiding Judge proposes.

50. YOUNG JA:  Mr Campbell SC has said everything that could be said in favour of the application but not even he could convince us that it is proper to extend the time for filing a notice of intention to appeal or indeed to grant leave to appeal in the circumstances of the present case.

51. I found Mr Campbell's analysis of the court rules as to taking evidence from witnesses in the courts of this State interesting.  However, court process has changed so much over the last couple of decades that one must discount a lot of what was said about evidence on commission in former years because it relates to the culture of litigation and court procedures of the past.

52. I agree with the proposed orders outlined by the presiding judge that time should not be extended and that, even if it were, leave to appeal would have been refused and I agree basically with her Honour's reasons.

53. BEAZLEY JA:  I agree with the judicial comments made by McColl JA and Young JA.

54. The orders are as I have proposed.

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LAST UPDATED:
25 February 2011