Northern Health v Kuipers
[2015] VSCA 172
•19 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0049
| NORTHERN HEALTH | Applicant |
| v | |
| ROBERT KUIPERS | Respondent |
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| JUDGES: | KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 June 2015 |
| DATE OF JUDGMENT: | 19 June 2015 |
| DATE OF REASONS: | 26 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 172 |
| JUDGMENT APPEALED FROM: | Kuipers v Northern Health (Unreported, County Court of Victoria, Judge Saccardo, 26 May 2015) |
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PRACTICE AND PROCEDURE – Application for leave to appeal from interlocutory order of County Court – Whether ‘real prospect of success’ test in s 14C of the Supreme Court Act 1986 applies.
PRACTICE AND PROCEDURE – Principles for resolving case management disputes – Civil Procedure Act 2010 ss 7, 8, 9, 25, 51.
PRACTICE AND PROCEDURE – Order made by County Court judge six weeks prior to trial date prohibiting applicant from relying on an expert report on a central issue in the proceeding – Whether expert report served after expiration of deadline set out in an earlier order – Deadline ambiguous – Applicant’s lawyers genuinely misconstrued deadline – Respondent did not submit that timing of service of expert report was likely to jeopardise trial date – Judge failed to take into account matters set out in s 9 of the Civil Procedure Act 2010 and failed to give effect to the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute – Exercise of discretion miscarried – Application for leave to appeal granted – Appeal allowed.
COSTS – Delays by applicant in complying with various case management orders made by County Court – Applicant’s conduct justified it being deprived of an order for costs notwithstanding its success on the appeal – Certificate granted to respondent under s 4 of the Appeal Costs Act 1998 in respect of its costs.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R H Gillies QC with Mr B Jellis | TressCox Lawyers |
| For the Respondent | Mr A D Clements QC with Mr A Mukherjee | Maurice Blackburn Lawyers |
KYROU JA
McLEISH JA:
Introduction and summary
This is an application for leave to appeal against paras 1 to 3 of an order made by Judge Saccardo of the County Court on 26 May 2015 (‘Prohibitory Order’). Paragraph 1 of that order prohibited the applicant from relying on the expert report of Professor William Rawlinson dated 4 May 2015 (‘Rawlinson Report’) and paras 2 and 3 dealt with costs. The proceeding involves a medical negligence claim by the respondent against the applicant and the trial is scheduled to commence on 1 July 2015.
The judge made the Prohibitory Order on the basis that the applicant had not complied with an earlier timetabling order made on 2 May 2014 (‘Timetabling Order’). That order — which is relevantly set out at [36] below — required the parties to: ‘exchange any medical and/or expert reports’ by 3 October 2014; and, by no later than 28 days before the trial, ‘exchange any further medical and/or expert reports’. The applicant served the Rawlinson Report on the respondent on 20 May 2015, six weeks before the trial was due to commence.
The applicant seeks leave to appeal from the Prohibitory Order on the following proposed grounds:
1. The decision by the learned primary judge to make the Prohibitory Order was unreasonable and/or plainly unjust having regard to the:
(a) significant prejudice that would be caused to the applicant in its defence to the respondent's claim;
(b) absence of any irredeemable prejudice to the respondent;
(c) report was served six weeks in advance of the date fixed for trial;
(d) reason given by the applicant for the delay, being its genuinely held construction of earlier procedural orders that purported to permit the service of any further expert report up to 28 days before the date fixed for trial;
2. The learned primary judge erred in his construction of [the Timetabling Order] and therefore erroneously held that the applicant:
(a) had not complied with those orders when it served the [Rawlinson Report] on the plaintiff on 20 May 2015; and
(b)was therefore required to apply for leave to serve (alternatively to rely upon) that report.
3. The learned primary judge erred because his Honour:
(a) failed to take into consideration a material matter, being the prejudice that would be suffered to the applicant's defence if it was not permitted to rely on the [Rawlinson Report] and/or
(b) alternatively, mistook the relevant facts by wrongly ruling that he was not shutting the applicant out from being in a position to deal with the applicant's case (Reasons at 30(8)) and finding that the reason given by the applicant for the alleged late service of the Rawlinson Report was not genuine (Reasons at [30](3)).
4. The learned primary judge erred in finding that:
(a) he found it difficult to accept the ‘bona fides’ of the applicant's position; and
(b) that the Rawlinson Report had the appearance of ‘expert witness shopping’ (Reasons at [27]);
in circumstances where no such allegation was made and the applicant was therefore given no opportunity to address his Honour as to the true position denying it natural justice.[1]
[1]Grounds 3 and 4 were added by leave granted by this Court at the hearing of the application for leave to appeal on 19 June 2015.
At the conclusion of the hearing of the application for leave to appeal on 19 June 2015, we made the following orders and stated that we would publish our reasons at a later date:
1. The application for leave to appeal is granted.
2. The appeal is treated as having been heard immediately and is allowed.
3. Paragraphs 1, 2 and 3 of the order made by his Honour Judge Saccardo on 26 May 2015 are set aside.
4. The costs of the application for leave to appeal and of the appeal are reserved.
These are our reasons for the above orders.
Preliminary issue: Applicable test for granting leave to appeal
Section 74(1) of the County Court Act 1958 (‘CC Act’) relevantly provides that any party to a civil proceeding who is dissatisfied with any order of the County Court ‘may appeal from the same to the Court of Appeal with leave of the Court of Appeal’. Section 74(2) relevantly provides that an application for leave to appeal must be filed within 28 days after the date of the relevant order. Section 74(2A) provides that the Court of Appeal may extend that time. Section 74(2B) provides that the application for leave to appeal must be made in accordance with the rules of the Supreme Court and s 74(2C) provides that the application may be amended at any time as the Court of Appeal thinks fit.
Section 14A of the Supreme Court Act 1986 (‘SC Act’) provides that ‘any civil appeal to the Court of Appeal requires leave to appeal to be obtained from the Court of Appeal’. Section 14A(3) relevantly defines ‘civil appeal’ as ‘an appeal from a judgment or order made in exercise of civil jurisdiction, including an appeal … for which this Act, any other Act or the Rules provide an appeal to the Court of Appeal’. Section 14C provides that the Court of Appeal ‘may grant an application for leave to appeal under s 14A only if it is satisfied that the appeal has a real prospect of success’.
Prior to the commencement of ss 14A to 14D of the SC Act on 10 November 2014, the test for determining whether this Court should grant leave to appeal from an interlocutory order was that set out in Niemann v Electronic Industries Ltd.[2]That test is whether the decision below is attended by sufficient doubt to justify the grant of leave to appeal and whether substantial injustice would be caused if the impugned order were allowed to stand.[3]
[2][1978] VR 431 (‘Niemann’).
[3]Niemann [1978] VR 431, 433, 441–2.
Where the interlocutory order was a discretionary one, the Niemann test had to be applied having regard to the principles in House v The King.[4] Those principles are as follows:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court at first instance.[5]
[4](1936) 55 CLR 499 (‘House’).
[5]House (1936) 55 CLR 499, 505.
The above principles impose a very high hurdle that must be overcome in order to successfully impugn the exercise of judicial discretion. The principles have given rise to statements in subsequent authorities that there is a strong presumption in favour of the correctness of the exercise of a judge’s discretion and that a discretionary decision should not be overturned by an appellate court unless it is satisfied that the decision was clearly wrong.[6] The authorities also recognise that there is a material difference between the exercise of discretion in respect of practice and procedure as against substantive rights, and a tight rein must be maintained against interference in the former class of cases.[7] However, where the exercise of a discretion pertaining to a matter of practice and procedure has the capacity to affect substantive rights, this rider to the general approach may not apply.[8]
[6]Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627. See also Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [30].
[7]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177, quoting Re the Will of Gilbert (1946) 46 SR (NSW) 318, 323.
[8]Lanzer v Patterson (2007) 18 VR 442, 456 [52].
Following the commencement of ss 14A to 14D of the SC Act, the test for determining whether to grant leave in respect of ‘an application for leave to appeal under s 14A’ is whether ‘the appeal has a real prospect of success’. In this context, a real prospect of success means a prospect of success which is not fanciful.[9] This Court retains a discretion to refuse leave to appeal even if the appeal has a real prospect of success.[10]
[9]Kennedy v Shire of Campaspe [2015] VSCA 47, [12] (‘Kennedy’); Note Printing Australia Ltd v Leckenby [2015] VSCA 105, [82].
[10]Kennedy [2015] VSCA 46, [14].
The question that arises is whether an application for leave to appeal from an order of the County Court is ‘an application for leave to appeal under s 14A’ of the SC Act.
On one view, such an application is an application under s 74(1) of the CC Act which, together with the other provisions of that section and the rules of this Court, is part of a self-contained procedure governing such applications. That procedure differs from the procedure in ss 14A to 14D of the SC Act in a material respect, namely, in relation to variation of the 28 day deadline for filing an application for leave to appeal. As discussed at [6] above, s 74(2A) of the CC Act provides that the Court of Appeal may extend that deadline. By contrast, s 14B of the SC Act stipulates that the rules of this Court may ‘otherwise provide’ in relation to the deadline and makes no express provision for extensions by this Court.
The opposing view is that the provisions of s 74 of the CC Act do not preclude an application for leave to appeal in accordance with those provisions constituting an application under s 14A of the SC Act. This is because the definition of ‘civil appeal’ in s 14A(3) of the SC Act is wide enough to cover an appeal from an order for which the CC Act provides an appeal to the Court of Appeal.
A similar issue arose recently in the case of Ikosidekas v Karkanis[11] in the context of an application for leave to appeal from an order of a Vice President of the Victorian Civil and Administrative Tribunal in accordance with s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998. In separate judgments, Mandie and Kyrou JJA left the issue unresolved because they concluded that leave to appeal would be granted in that case irrespective of which test was applicable.[12]
[11][2015] VSCA 121 (‘Ikosidekas’).
[12]See Ikosidekas [2015] VSCA 121, [57]–[60], [69]–[78]. The two tests that were considered in Ikosidekas were the test in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 and the ‘real prospect of success’ test.
Similarly, in the present case, we can leave the issue unresolved because the outcome would be the same irrespective of whether the Niemann test or the ‘real prospect of success’ test is applied.
County Court Rules and Practice Note PNCI 3-2009
Rule 44.03 of the CountyCourt Civil Procedure Rules 2008 (‘Rules’) relevantly provides:
44.03 Report of expert
(1) Unless otherwise ordered, a party who intends at trial to adduce the evidence of a person as an expert shall—
…
(b)not later than 30 days before the day fixed for trial, serve on each other party a report by the expert … and deliver a copy for the use of the Court.
…
(3) If the expert provides to a party a supplementary report, including a report indicating that the expert has changed his or her opinion on a material matter expressed in an earlier report—
(a) that party shall forthwith serve the supplementary report on all other parties; and
(b)in default of such service, the party and any other party having a like interest shall not use the earlier report or the supplementary report at trial without the leave of the Court.
Rule 44.05 of the Rules provides:
44.05 No evidence unless disclosed in report
Save with the leave of the Court or by consent of the parties affected, a party shall not, except in cross-examination, adduce any evidence from a person as an expert at the trial of a proceeding unless the substance of the evidence is contained within a report or reports which the party has served under this Order.
The proceeding below was entered into the County Court’s Damages & Compensation List — Medical Division (‘List’). Judge Saccardo is the Judge in Charge of the List. The County Court has published Practice Note PNCI 3–2009 which is titled ‘Operation and Management of the Medical Division’ and dated 1 June 2012 (‘Practice Note’).[13] The Practice Note also sets out a Standard Order for the List (‘Standard Order’), which parties who wish to have matters dealt with on the papers are invited to refer to when preparing minutes of consent orders. The Standard Order relevantly provides:
[13]More recent updates to the Practice Note are not relevant to this application for leave to appeal.
9. By 4:00 pm on (date):
a) the parties are to exchange any medical and/or expert reports concerning damages and liability;
…
10. By (date), the parties are to mediate the dispute.
…
15. No later than 28 days before the trial date:
a) the parties are to exchange any further medical and/or expert reports concerning damages and liability, along with supporting documentation;
Paragraphs 45 to 50 of the Practice Note address mediation of proceedings in the List. Paragraph 47 provides:
It is to be expected that all proceedings in the list will be subject to Mediation or other form of alternative dispute resolution prior to trial. The standard orders generally have mediation occurring two to three months prior to hearing. This timing allows the nature of the dispute to be fully articulated (usually after a first exchange of expert and other material) while occurring early enough before trial to give parties incentive to settle so as to save incurring additional expense of preparation for trial.
Other than at para 47, the Practice Note does not address why the Standard Order prescribes two different times for the exchange of expert reports, nor does it address the scope of each exchange or the interrelationship between them.
Civil Procedure Act
The Civil Procedure Act 2010 (‘Act’) is pivotal to the resolution of disputes about case management issues in civil proceedings to which the Act applies.[14] The Act is applicable to the proceeding below and to the application for leave to appeal to this Court. As the present case demonstrates, it is important that, in resolving such disputes, trial judges engage with the Act’s provisions in balancing the competing interests of the parties and those of the administration of justice more generally. As procedural rulings must often be made promptly with succinct reasons, that does not mean that trial judges must set out each applicable provision of the Act and state reasons in relation to it. However, it must be apparent from the reasons for the ruling — either expressly or inferentially — that the judge took into account the applicable provisions.
[14]See generally Eaton v ISS Catering Services Pty Ltd [2013] VSCA 361, [47]–[50].
In the light of the discussion at [22] above, we will set out the provisions of the Act that apply to the present case in some detail.
Part 2.1 of the Act is titled ‘Overarching Purpose’ and comprises ss 7 to 9, which are relevantly extracted below:
7 Overarching purpose
(1)The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
…
8 Court to give effect to overarching purpose
(1) A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers …
…
9 Court's powers to further the overarching purpose
(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a) the just determination of the civil proceeding;
(b) the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g)dealing with a civil proceeding in a manner proportionate to—
(i)the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
(2) For the purposes of subsection (1), the court may have regard to the following matters—
(a) the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;
(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e) the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
…
(3)This section does not—
(a)limit any other power of a court to make orders or give directions; or
(b)preclude the court from considering any other matters when making any order or giving any direction.
Part 2.3 of the Act sets out overarching obligations with which parties to civil proceedings must comply.[15] Of particular relevance to the present case is the overarching obligation in s 25 of the Act which provides as follows:
[15]See ss 10(1)(a) and 11 of the Act.
25 Overarching obligation to minimise delay
For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to—
(a) act promptly; and
(b) minimise delay.
Part 4.2 of the Act confers extensive case management powers on courts. Section 51 sets out a variety of sanctions which may be imposed for contraventions of case management orders made by a court. It provides:
51 Contravention of orders or directions under this Part
If a person to whom a direction has been given or to whom an order made under this Part applies contravenes the direction or order, the court may do any one or more of the following—
(a) dismiss the civil proceeding, whether—
(i) generally; or
(ii) in relation to a particular cause of action; or
(iii) in relation to the whole or part of a particular claim;
(b) strike out or limit any claim made by a plaintiff;
(c) strike out or limit any defence or part of a defence filed by a defendant, and give judgment accordingly;
(d) strike out or amend any document filed by the person, either in whole or in part;
(e) disallow or reject any evidence that the person has adduced or seeks to adduce;
(f) direct the person to pay the whole or part of the costs of another party or person;
(g) make any other order or give any other direction that the court considers appropriate.
Part 4.6 of the Act is titled ‘Expert Witnesses and Expert Evidence’ and comprises ss 65F to 65Q. Sections 65H(1), (2) and 65Q(1) relevantly provide:
65HCourt may give directions in relation to expert evidence
(1) A court may give any directions it considers appropriate in relation to expert evidence in a proceeding.
(2)A direction under subsection (1) may include, but is not limited to—
…
(b) the time for service of an expert's report; …
65QInteraction with other powers of court
(1) Nothing in this Part limits any other power a court may have—
(a) in relation to case management, evidence or witnesses, including expert witnesses; or
(b) to take any action that the court is empowered to take in relation to a contravention of a direction given or an order made by the court.
Relevant authorities on case management
The principles pertaining to an application to amend a pleading were explained in Aon Risk Services Australia Ltd v Australian National University.[16] As set out in the reasons of J Forrest J in Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London,[17] the factors that the High Court in Aon considered as relevant to an application to amend a pleading include:
[16](2009) 239 CLR 175 (‘Aon’).
[17][2011] VSC 370, [8] (‘Ultra’).
(a) whether there will be a substantial delay caused by the amendment;
(b) the extent of any wasted costs;
(c) whether there is an irreparable element of unfair prejudice caused by the amendment;
(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;
(e) whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.
In Thomas v Powercor Australia Ltd [Ruling No 3],[18] J Forrest J stated that the principles set out in Aon, as summarized in Ultra, were applicable, in a general sense, to the late service of an expert report.[19] In that case, he refused an application to allow the representative plaintiff in a class action to rely on an expert report which had been served on the third day of the trial. He had previously ordered that all expert reports were to be served and filed a number of months before the commencement of the trial. The trial concerned damage to the plaintiff’s property caused by the Black Saturday Horsham bushfire, which had commenced as the result of a conductor falling from a pole on a power line. The relevant expert report related to the manner in which a coach screw had been used to secure a pole top assembly to the pole from which the conductor fell. J Forrest J refused the application on the following four bases:
[18][2011] VSC 391 (‘Thomas’).
[19]Thomas [2011] VSC 391, [13]. See also Matthews v SPI Electricity Pty Ltd [Ruling No 20] [2013] VSC 197, [38] (‘Matthews’).
(g) First, he rejected the plaintiff’s explanation for the late service of the report. The plaintiff contended that his legal team only turned its mind to questions relating to the coach screw after receiving other expert reports from the defendant. J Forrest J observed that the issue had been ventilated two years earlier at the Victorian Bushfire Royal Commission and raised at the outset of the proceeding in the plaintiff’s statement of claim.[20] He concluded that the plaintiff’s legal team had known for approximately two years that there may be a potential issue relating to the manner in which coach screws were affixed to the pole and stated ‘[f]or reasons that I cannot fathom, it was determined to do nothing about it until the eve of the trial’.[21]
[20]Thomas [2011] VSC 391, [16]–[17].
[21]Thomas [2011] VSC 391, [18].
(h) Secondly, the coach screw had been in the possession of the plaintiff’s solicitors for over a year prior to the trial and had been available for examination by an expert throughout that time.[22]
(i) Thirdly, the introduction of the expert report raised the risk of derailing a conclave of experts which was scheduled one month after the expert report was filed, and in respect of which a joint expert report had already been prepared.[23]
(j) Fourthly, although there was no demonstrable prejudice to the defendant in permitting the plaintiff to file the expert report, this was not determinative. The orders of the court prescribing dates for service of expert witness reports were designed to facilitate a joint expert report and the giving of concurrent evidence and, consequently, ‘[t]o permit a further expert to join that debate simply because [the plaintiff’s] lawyers last week thought it was a good idea is not good enough.’[24]
[22]Thomas [2011] VSC 391, [19].
[23]Thomas [2011] VSC 391, [20].
[24]Thomas [2011] VSC 391, [21].
Subsequently, in Matthews v SPI Electricity Pty Ltd [Ruling No 20],[25] J Forrest J permitted a plaintiff to rely on a supplementary expert report which was filed and served at the beginning of week five of the trial and many months after the deadline for the filing of supplementary expert reports had passed. Relevantly, in reaching this conclusion, J Forrest J considered an argument by the defendant that permitting the plaintiff to rely upon the expert report would be contrary to the overarching purpose in the Act. In rejecting this submission, J Forrest J observed that s 9(1)(a) of the Act required the ‘just determination of the civil proceeding’ as a means of furthering the overarching purpose and that refusing the application of the plaintiff would therefore be contrary to the overarching purpose.[26]
[25][2013] VSC 197.
[26]Matthews [2013] VSC 197, [62].
In Aon, Gummow, Hayne, Crennan, Kiefel and Bell JJ relevantly stated:
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
…
In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.[27]
[27]Aon (2009) 239 CLR 175, 217 [111], [113] (citations omitted).
Similarly, French CJ stated:
Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.[28]
[28]Aon (2009) 239 CLR 175, 182 [5].
It has been said by this Court that Aon may have ‘re-invigorated the procedural paradigm’ insofar as time, costs and limited judicial resources are relevant considerations in the determination of whether to allow certain interlocutory processes.[29] However, as J Forrest J observed in Ultra, ‘the primary question still remains: what do the interests of justice dictate?’; Aon reminds courts that ‘the prism through which these interests are viewed is wider than just that of the moving party’.[30]
[29]Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16, [42].
[30]Ultra [2011] VSC 370, [9].
Facts and procedural history
The proceeding below — which was commenced on 11 December 2012 — relates to a claim of medical negligence against the applicant in the treatment of an open compound fracture in the respondent’s left wrist between 12 and 15 December 2009. By its amended statement of claim, the respondent alleged that the applicant was negligent in its management of the respondent’s fracture, including by ‘failing to recognise the high risk of bacteriological contamination in the [respondent’s] wound’ and by failing to provide proper ‘antibiotic cover’. In its defence, the applicant stated that there was not a very high risk of bacteriological contamination and denied the respondent’s allegations of negligence.
The facts relevant to the proceeding below may be summarised as follows:
(k) The respondent presented at the Northern Hospital, which was conducted by the applicant, on 12 December 2009 after falling from a ladder onto ground covered in dirt and soil. He underwent surgery on his left forearm on 13 December 2009 and received oral and intravenous antibiotic treatment before being discharged on 15 December 2009.
(l) On 16 February 2010, the respondent attended the emergency department of the hospital at which time it was discovered that he had a skin infection.
(m) The respondent received further treatment including the washing out of his wound and antibiotic treatment between 18 and 21 February 2010. On 23 July 2010, the respondent underwent further surgery in which metalware was removed from his wrist.
On 2 May 2014, Judge Saccardo made the Timetabling Order by consent on the papers. That order relevantly provided:
1 The proceeding is set down for trial on 01.07.2015 as a Jury (estimate 3-5 days).
…
3 Any application to vacate the trial date is to be made at least 28 days prior to the trial date to the Judge in Charge of the Damages & Compensation List — Medical Division.
…
10 By 4:00 pm on 3 October 2014:
(a) the parties are to exchange any medical and/or expert reports concerning damages and liability;
…
11 By 21 November 2014, the parties are to mediate the dispute.
…
16 No later than 28 days before the trial date:
(a) the parties are to exchange any further medical and/or expert reports concerning damages and liability, along with supporting documentation; …
Paragraph 16(a) of the Timetabling Order is based on para 15(a) of the Standard Order.[31] On 19 March 2015, Judge Saccardo attended a meeting of lawyers who regularly conduct cases in the List (‘users’ group meeting’). At that meeting, the judge proposed an amendment to para 15(a) of the Standard Order so that it would read ‘no [expert] reports are to be served after mediation absent leave [from the Court]’. The purpose of the proposed amendment was to ensure that parties filed their expert reports prior to mediation so that all of the issues could be considered prior to mediation. However, attendees at the meeting advised the judge that there was no need for a variation of para 15(a) because its meaning was understood.
[31]See [19] above.
The applicant served two medical reports by orthopaedic surgeons, Mr Bruce Love and Mr Steven Csongvay dated 20 May 2014 and 9 June 2014, respectively.
The respondent served a medical report by Mr Russell Miller, orthopaedic surgeon, on 28 April 2014 and an expert report by Associate Professor Bernard Hudson, an infectious diseases specialist, on 7 October 2014 (‘Hudson Report’). The Hudson Report addresses the applicant's management of the risk of infection to the respondent during his treatment and opines that appropriate antibiotic therapy should have been administered but was not.
On 14 November 2014, the respondent wrote to the applicant seeking a mediation date. The applicant advised that it would not be possible to mediate the matter in 2014. A consent order was subsequently made to extend the date for mediation to 27 February 2015.
In subsequent correspondence, the respondent suggested numerous mediation dates in February and March 2015, none of which were suitable to the applicant.
On 24 March 2015, the applicant served on the respondent a report by an orthopaedic surgeon, Mr John Harris dated 10 March 2015 (‘Harris Report’). In that report, Mr Harris opines that the antibiotic regime used during the respondent’s treatment at the hospital was appropriate. Mr Harris also referred to a description of the respondent’s injury in the hospital’s medical records as a ‘Grade II open fracture’. The respondent took no issue with respect to the late service of the Harris Report.
On 16 April 2015, the applicant conferred with an infectious diseases expert but did not obtain a report from that expert.
Mediation took place on 27 April 2015 but failed to resolve the proceeding.
At a directions hearing on 30 April 2015, the applicant advised Judge Saccardo that it intended to obtain a report from an expert in infectious diseases. The applicant submitted that it was authorised to serve this report by para 16(a) of the Timetabling Order. The judge cast doubt on the correctness of this submission, stating that para 16(a) was intended to apply only in respect of experts from whom reports had previously been served in the proceeding. The judge made an order that a further directions hearing take place after the applicant obtained the proposed expert report in order to determine whether the applicant could rely on it.
The applicant obtained the Rawlinson Report on 4 May 2015 to respond to the Hudson Report. Professor Rawlinson is an infectious diseases physician. In his report, Professor Rawlinson opines that the antibiotic regime, dosage, and its duration, were in accordance with reasonable medical practice. Following the service of the Rawlinson Report on the respondent on 20 May 2015, a further directions hearing took place before Judge Saccardo on 26 May 2015 (‘Interlocutory Hearing’).
Interlocutory Hearing and impugned ruling
The issue for determination at the Interlocutory Hearing was whether the judge should grant the applicant’s application for leave to rely upon the Rawlinson Report. At that hearing, the applicant was represented by its solicitor, Mr John Petts, and the respondent was represented by Mr Abhi Mukherjee of counsel.
In support of its application, the applicant relied on an affidavit of Mr Petts sworn on 22 May 2015 (‘Petts Affidavit’). The Petts Affidavit relevantly stated:
(n) Mr Petts understood the phrase ‘further … expert reports’ in para 16(a) of the Timetabling Order to include reports other than reports from experts whose reports had already been served.
(o) Prior to the mediation, Mr Petts’s firm had contacted an infectious diseases expert who was not Professor Rawlinson to ascertain whether, if a report were obtained, it would assist the applicant’s case. The firm decided to proceed to mediation, and if the mediation was unsuccessful, to obtain a report from an infectious diseases expert.
(p) Following the mediation and ‘with the aim of being able to resolve the proceeding prior to trial, and if necessary, to adduce evidence at trial’ the firm advised the applicant to obtain a report from an infectious diseases expert.
(q) The delay in the commissioning of the Rawlinson Report was due to Mr Petts’s misinterpretation of the Timetabling Order. Mr Petts had considered whether a report from an infectious diseases expert was required prior to mediation but he had not taken steps to obtain one prior to that time because he mistakenly believed that he would have the opportunity to obtain one after the mediation, if it was unsuccessful.
The Petts Affidavit also set out the following grounds upon which the applicant relied in support of its application:
(r) a period of six weeks between the service of the Rawlinson Report and the commencement of the trial was sufficient to enable the respondent to obtain a responsive report from Associate Professor Hudson and, accordingly, the trial date fixed would not be jeopardised if the application was allowed;
(s) if the application was refused, the applicant would be prevented from calling evidence that was important to its defence and it would be prejudiced because, on infection issues, the Court might prefer the evidence of an infectious diseases expert over that of an orthopaedic surgeon;
(t) there was no substantial prejudice to the respondent if the application was allowed;
(u) the applicant’s defence had not changed since the service of the Rawlinson Report. Instead, the Rawlinson Report merely provided further evidence in support of the matters pleaded in the defence and was based on medical and ambulance records held by both parties; and
(v) there had been a genuine mistake as to the construction of the Timetabling Order, and the extent of the prejudice that would be suffered by the applicant if its application were refused outweighed the inconvenience that the respondent would suffer in having to obtain a responsive report from Associate Professor Hudson.
The respondent opposed the application and relied on an affidavit from his solicitor, Ms Janelle Morgan, affirmed on 25 May 2015 (‘Morgan Affidavit’). The Morgan Affidavit stated that, if the applicant were permitted to rely on the Rawlinson Report, this would result in significant prejudice to the respondent including:
(w) ‘logistical difficulties’ in liaising with the respondent’s experts;
(x) difficulties faced by the respondent’s experts in view of the short time to absorb and respond to the contents of the Rawlinson Report, which was 46 pages long and raised significant and complex issues; and
(y) prejudice to the settlement process arising from the fact that the respondent would have to respond to new and detailed points contained in the Rawlinson Report.
During oral argument at the Interlocutory Hearing, Mr Petts drew attention to the following primary considerations in support of the application:
(z) the Rawlinson Report, in expressing a different opinion to that of Associate Professor Hudson, raised only one new issue in the proceeding, namely the extent of contamination of the respondent’s wound, which was a factual matter;
(aa) the issue of the extent of contamination of the respondent’s wound was raised in the Harris Report, which referred to hospital records describing the respondent’s injury as a ‘Grade II open fracture’, which the applicant contended was reflective of the level of contamination thought to be present in the wound;
(bb) the issue of the level of contamination of the wound was raised at the outset of the case in the applicant’s defence;
(cc) the respondent did not contend that the date fixed for trial would be jeopardised if the applicant were permitted to rely on the Rawlinson Report;
(dd) the Morgan affidavit did not identify any significant prejudice that would be occasioned by permitting the applicant to rely on the Rawlinson Report, nor did it suggest that the respondent would be unable to obtain a responsive report from Associate Professor Hudson; and
(ee) Mr Petts had turned his mind to engaging an infectious diseases expert however the significance of such an expert only crystallised at mediation as a consequence of the way the respondent put his case.
In opposing the application, Mr Mukherjee relied on the following considerations:
(ff) as at the date of the Interlocutory Hearing, the trial was only six weeks away;
(gg) the applicant had shown no good reason for significant delay in the service of the Rawlinson Report;
(hh) the applicant had been aware that the antibiotic regimen used by the hospital would be an issue in the trial from the time that the respondent filed his statement of claim on 23 December 2013;
(ii) if the applicant were permitted to rely on the Rawlinson Report, this would disrupt the respondent’s attempts to settle the proceeding and, in the alternative, prepare for trial, by requiring him to instead focus on substantive matters raised by the Rawlinson Report;
(jj) the Rawlinson Report raised complex matters and it was unclear what timeline Associate Professor Hudson would require to respond to such a report;
(kk) until Associate Professor Hudson provided a responsive report, the respondent’s legal team would be unable to advise him on the potential outcomes and risks associated with the proceeding;
(ll) the applicant’s late service of the Rawlinson Report was in breach of the Timetabling Order, which had been made for the purpose of facilitating a mediation where both parties would ‘know what the other side is saying’; and
(mm) as the applicant had previously relied on the Harris Report, the applicant should be required to rely on that report and the proceeding should proceed without the Rawlinson Report.
Mr Mukherjee stated that he did not question the fact that Mr Petts had made a genuine mistake in the construction of the Timetabling Order. In response to this statement, the judge stated:
I don't accept that in this list anyone should take the view that cases are — for as long as I've been practising, mediations were conducted on the basis that the cases went to mediation prepared so that everyone understood the case so whether or not that view was held genuinely, it makes no sense to me and I don't think I should give any weight at all … Whether it was a view that the rules were such that [the] commissioning of further reports was okay, whether that was a view that was held, it's not an informed view in my mind so I don't quarrel with what's said but the history, given the meeting that we had with respect to the user's group, given the discussion at the meeting, it's a non-event for me so don't waste time about that.[32]
[32]Transcript of Proceedings, Kuipers v Northern Health (County Court of Victoria, CI-12-06096, Judge Saccardo, 26 May 2015) 10–11.
The judge described the issue raised at the users’ group meeting, which is set out at [37] above, and asked Mr Petts whether he attended that meeting. Mr Petts advised the judge that no representative of his firm had attended the meeting.
The judge asked Mr Mukherjee whether, if he allowed the applicant to rely on the Rawlinson Report, Associate Professor Hudson would be available to comment on that report. Mr Mukherjee advised that Associate Professor Hudson was available and that the respondent’s legal team would ‘work very hard’, as it had to, to make sure that it discussed the Rawlinson Report with him if the applicant were allowed to rely on it.
The judge also expressed concern about the prospect that in order for Associate Professor Hudson to be in a position to respond to the Rawlinson Report, the applicant would need to provide further answers to interrogatories on the factual issue of the extent of contamination of the respondent’s wound when he was admitted to hospital. In response to this concern, Mr Petts stated that he would be able to provide those further answers to interrogatories by close of business the following day.
The judge delivered an oral ruling on 26 May 2015, in which he refused the applicant’s application to rely on the Rawlinson Report. The judge published his revised ruling on 16 June 2015 (‘Ruling’).[33]
[33]Kuipers v Northern Health (Unreported, County Court of Victoria, Judge Saccardo, 26 May 2015) (‘Reasons’).
Paragraph 30 of the Ruling — being the last paragraph — sets out eight reasons for refusing the application, which the judge said were based on the approach adopted in Thomas.[34] Paragraphs 1 to 29 contain a chronological history of the proceeding below and comments by the judge on the applicant’s conduct.
[34][2011] VSC 391. See [29] above.
In paras 19 and 20 of the Ruling, the judge rejected the position that the applicant contended that it had taken on the meaning of para 16(a) of the Timetabling Order, namely, as authorising it to serve the Rawlinson Report on 20 May 2015. The judge observed that the Timetabling Order was made in accordance with the well-established practice of the List. That practice was that: mediations were to be conducted at a time at which the parties had exchanged the expert evidence upon which they would rely so that informed decisions may be made by the parties as to the strengths and weaknesses of their positions; and an order allowing service of post-mediation reports dealt with the exceptional circumstance in which an issue arose in the course of a mediation which required the parties to revisit the opinions they had sought but did not allow them to recast their case by introducing new expert reports.[35] The judge said that this practice was well known, as evidenced by the discussion at the users’ group meeting about whether para 15(a) of the Standard Order ‘should be maintained … given its limited application’.[36] Accordingly, the judge described the applicant’s construction of para 16(a) of the Timetabling Order as ‘surprising and uninformed, given that it flies in the face of the practice adopted by the users group.’[37]
[35]Reasons [4], [21].
[36]Reasons [21].
[37]Reasons [22].
In para 27 of the Ruling, the judge stated that the applicant had delayed mediation for approximately four months in order to obtain and serve the Harris Report and had made a ‘deliberate decision to proceed to mediation without obtaining a report from the infectious diseases expert with which it had consulted prior to the mediation’. The judge also said that ‘the commissioning of the [Rawlinson Report] has the appearance of expert shopping’. In this context, the judge observed that he found it ‘difficult to accept the bona fides’ of the statement in the Petts Affidavit that the Rawlinson Report was generated with the aim of being able to resolve the proceeding.[38]
[38]Reasons [27].
The first of the judge’s reasons for refusing the application in para 30 of the Ruling was that he did not accept that the applicant commissioned the Rawlinson Report with the aim of being able to resolve the proceeding below prior to trial.[39] The judge stated that, if the applicant had considered that such a report was necessary to resolve the proceeding below before trial, he could see no reason why the report was not commissioned before mediation, particularly in the light of the fact that the applicant had previously turned its mind to the potential need for such a report and had conferred with an infectious diseases expert.
[39]Reasons [30(1)].
The second of the judge’s reasons was that the service of the Rawlinson Report constituted the applicant’s second major breach of the Timetabling Order, the first being the delay in the service of the Harris Report.[40]
[40]Reasons [30(2)].
The third of the judge’s reasons was that the Hudson Report was served by the respondent on 7 October 2014, and the applicant was aware since then that it would be required to meet the evidence in that report. In those circumstances, the reason for the applicant’s decision to delay commissioning a responsive report from an infectious diseases expert until after the mediation of the proceeding was unclear.[41]
[41]Reasons [30(3)].
The fourth of the judge’s reasons was that the service of the Rawlinson Report created the risk of the trial date being vacated. This was said to be because the respondent required additional information about the degree of the contamination which was present in the respondent’s wound before it commissioned a responsive report from Associate Professor Hudson. The judge said that the degree of contamination became a contentious issue only by virtue of the contents of the Rawlinson Report, which ‘puts in issue a pivotal plank upon which the [Hudson Report] is based.’ The additional information would need to be sourced from further answers by the applicant to the respondent’s interrogatories and from ambulance officers. [42]
[42]Reasons [30(4)].
The fifth of the judge’s reasons was that, until a responsive report by Associate Professor Hudson was served, the respondent’s solicitors would be in no position to advise him of the risks which he faced in establishing his claim against the applicant and, consequently, the respondent would not be in a position to engage in settlement discussions about the proceeding prior to trial. The judge stated that, in effect, the applicant was establishing a process ‘requiring the [respondent] to prepare his case on the basis of a timetable established by the [applicant] and effectively on the run’ as the trial date approached, which could not be regarded as appropriate pre-trial management.[43]
[43]Reasons [30(5)].
The sixth of the judge’s reasons was that the effect of granting the applicant’s application would be to undermine the ‘well-established practice’ of the List as set out at [59] above, which was intended to allow for the parties mediating their cases at a point where they had the opportunity to assess the strength of their respective positions and make decisions in the absence of extraneous pressures such as those which may arise by reason of the immediacy of an impending trial. The judge emphasised that expert evidence is of fundamental importance to the outcome of cases in the List.[44]
[44]Reasons [30(6)].
The seventh of the judge’s reasons was that a further effect of granting the applicant’s application would be to require the parties to attend further mediation, which would in turn require the respondent to revisit a process which he had already put behind him and expose him to additional costs and emotional pressure associated with the process.[45]
[45]Reasons [30(7)].
The eighth of the judge’s reasons was that, in the light of the applicant’s decision to prepare its defence in the proceeding by relying on the reports which it had commissioned and exchanged prior to the mediation, if the applicant were prohibited from relying on the Rawlinson Report, it would not be shut out from dealing with the respondent’s case. Instead, such a prohibition would have the effect of preventing the applicant from ‘changing the focus of its defence at this late stage’.[46]
[46]Reasons [30(8)].
Decision
For convenience, we will first consider proposed ground of appeal 2 before discussing grounds 1, 3 and 4.[47]
[47]The proposed grounds of appeal are set out at [3] above.
Decision on ground 2
The applicant submitted that it did not contravene the Timetabling Order because the Rawlinson Report was served within the time specified in para 16(a) of that order. The applicant contended that the reference to any ‘further … expert reports’ in that paragraph is to ‘additional’ expert reports and extends to a report that is obtained from a new expert in response to a report exchanged in accordance with para 10(a) of the Timetabling Order. According to the applicant, this interpretation of para 16(a) is supported by the specific reference to ‘supplementary report’ in r 44.03(3) of the Rules,[48] which is confined to a report from an expert witness who has already provided an earlier report. As para 16(a) did not use the phrase ‘supplementary report’, it was said to be incapable of being so confined.
[48]See [17] above.
The respondent submitted that the applicant’s interpretation of para 16(a) of the Timetabling Order is inconsistent with the objectives and long-established case management practices of the List and para 47 of the Practice Note. However, the respondent conceded that the meaning of para 16(a) was not entirely free from doubt.
In our opinion, the interrelationship between paras 10(a) and 16(a) of the Timetabling Order is unclear on the face of that order. While it is readily apparent from the adjective ‘further’ in para 16(a) that the order contemplates that the time in para 10(a) is the primary time for exchanging expert reports and that the time in para 16(a) is supplementary in some way, the precise scope of para 16(a) is unclear.
As the Timetabling Order is based on the Standard Order, the relationship between paras 10(a) and 16(a) should be considered in the context of the Standard Order and the Practice Note. The relevant provisions of the Standard Order and the Practice Note are set out at [19] to [20] above.
The Standard Order does not, on its own, assist in clarifying the interrelationship between the two deadlines for the exchange of expert reports. In particular, the Standard Order does not indicate the types of expert reports that are authorised to be exchanged by the second deadline.
Paragraph 47 of the Practice Note indicates that the first deadline, which operates prior to mediation, is intended to apply to expert reports that allow ‘the nature of the dispute to be fully articulated’ so as to facilitate informed settlement discussions at mediation. Paragraph 47 does not refer to the nature of the expert reports that may be exchanged by the second deadline. While it would not be inconsistent with the terms of para 47 to serve a report dealing with issues that emerged at the mediation, it would be inconsistent with those terms for a party to defer, until after the mediation, the service of an expert report on a central issue in the proceeding that was known by that party well before the mediation.
On the basis of the above discussion, it may be accepted that the scope of para 16(a) of the Timetabling Order is not entirely clear and that there is some ambiguity in the interrelationship between that paragraph and para 10(a). However, even a cursory review of the Standard Order and the Timetabling Order would readily convey to any lawyer that the second deadline cannot be unqualified, otherwise it would render the first deadline optional.
In these circumstances, it is easy to understand the judge’s frustration at being confronted with a substantial expert report on a central issue in the proceeding many months after it should have been served in accordance with the orderly operation of the case management processes underpinning the List. This is particularly so in the present case because the applicant received the Hudson Report well before the mediation and turned its mind to obtaining a responsive report from an infectious diseases expert prior to the mediation but did not actually commission a report from such an expert until after the mediation.
We are inclined to the view that, by serving the Rawlinson Report on 20 May 2015, the applicant breached the Timetabling Order. However, it is not necessary for us to decide the proper construction of that order or whether the applicant’s service of the Rawlinson Report contravened the order. This is because, for the reasons set out below, our conclusion that ground 1 is made out is not dependent on whether or not the applicant breached the Timetabling Order and thus that issue cannot affect the outcome of the application to this Court.
Accordingly, it is unnecessary for us to decide whether ground 2 is made out.
Decision on ground 1
The applicant submitted that the Prohibitory Order was ‘unreasonable and/or plainly unjust’ for reasons that mirror those it relied upon at the Interlocutory Hearing in opposing the making of that order. In summary, the applicant contended that:
(nn) the Prohibitory Order substantially prejudiced the applicant’s ability to fully defend the respondent’s claim;
(oo) the respondent had failed to demonstrate that he would suffer any irredeemable prejudice if the Prohibitory Order were not made;
(pp) the Rawlinson Report is brief and raises no new issues and thus the respondent should be able to deal with it without his case being prejudiced;
(qq) even if the applicant’s construction of the Timetabling Order were rejected, that order was ambiguous and the applicant provided an explanation for not serving the Rawlinson Report prior to 20 May 2015 which the judge did not find was not genuine; and
(rr) having regard to (a) to (d) above, the judge failed to exercise his discretion in accordance with the overarching purpose in the Act.
The applicant’s oral submissions focussed on comparing the prejudice that it would suffer by not being able to rely on the Rawlinson Report and the prejudice that the respondent claimed that he would suffer if the applicant were permitted to rely on that report. According to the applicant, its management of the risk of infection is the key issue upon which the outcome of the proceeding below is likely to depend and thus the Prohibitory Order severely prejudices its prospects of success. The applicant asserted with considerable vigour that the judge’s eighth reason[49] was not only plainly wrong but also contradicted his earlier statement in the Ruling that the Rawlinson Report ‘puts in issue a pivotal plank upon which the [Hudson Report] is based.’[50] The applicant also referred to statements made by the judge at the Interlocutory Hearing which were said to demonstrate his awareness of the importance of the Rawlinson Report to the applicant’s case. According to the applicant, the error in the judge’s eighth reason vitiates the entire Ruling. The error was said to affect the applicant’s substantive rights and thus substantial injustice would be caused to the applicant if the Prohibitory Order is allowed to stand.
[49]See [68] above.
[50]Reasons [30(4)]. See [64] above.
In relation to the prejudice claimed by the respondent, the applicant submitted that it all came down to whether the respondent had sufficient time to obtain a further report from Associate Professor Hudson to respond to the Rawlinson Report. The applicant contended that the respondent had failed to demonstrate that, as at 26 May 2015, there were any real impediments to obtaining such a report. The applicant highlighted the fact that the respondent had refrained from commissioning a responsive report from Associate Professor Hudson. The applicant argued that any concern that the contents of the Rawlinson Report might be disclosed through cross-examination of Associate Professor Hudson even if leave to rely on that report were ultimately refused was misconceived, as such cross-examination would constitute a breach of professional ethics and also contravene the Prohibitory Order. For those reasons, the applicant contended that the respondent had failed to establish any irredeemable prejudice from the making of that order.
The applicant also submitted that the judge was wrong to suggest that the fact that the Rawlinson Report was not served prior to the mediation meant that the mediation lacked utility. According to the applicant, even if a mediation does not resolve a proceeding, it can still be valuable in clarifying and narrowing the issues in dispute and in focusing the parties’ attention on the adequacy of their pleadings and evidence.
The respondent submitted that the Prohibitory Order was made in the proper exercise of the judge’s discretion, that ground 1 has no real prospect of success, and that the applicant would not suffer any substantial injustice if the order is allowed to stand. The bases for this submission reflect the contentions of the respondent at the Interlocutory Hearing and may be summarised as follows:
(ss) the applicant’s conduct of the proceeding below was characterised by constant delays and non-compliance with timetabling directions;
(tt) notwithstanding that the applicant was aware since the commencement of the proceeding below of the respondent’s allegation that it was negligent in the manner in which it managed the risk of bacteriological contamination of the respondent’s wound, and was also aware since 7 October 2014 that the respondent intended to rely on the evidence of an infectious diseases expert, the applicant unduly delayed in obtaining the Rawlinson Report;
(uu) the applicant will not suffer any substantial prejudice from the Prohibitory Order because it can rely on the expert reports of two orthopaedic surgeons, Mr Csongvay and Mr Harris, which have commented on the applicant’s management of the risk of infection of the respondent’s wound, including the reasonableness and appropriateness of the antibiotic regime employed by the applicant;
(vv) if the applicant suffers any disadvantage as a result of not being permitted to rely on the Rawlinson Report, such disadvantage has been solely caused by its own conduct;
(ww) the service of the Rawlinson Report six weeks prior to the scheduled trial date undermined the proper functioning of the case management objectives of the List and is contrary to the overarching purpose in the Act;
(xx) the Prohibitory Order is consistent with the provisions of the Act which emphasise the need for courts to manage cases with a view to ensuring that they are resolved in an efficient, timely and cost-effective manner;
(yy) if the applicant were permitted to rely on the Rawlinson Report, it is unlikely that the trial would be able to proceed on 1 July 2015 because it would be necessary and/or appropriate for at least the following further steps to be taken:
(i) the respondent would need to seek further answers to interrogatories from the applicant;
(ii) the respondent would need to seek a supplementary report from Associate Professor Hudson and there is no guarantee that such a report can be obtained prior to 1 July 2015; and
(iii) a further mediation should be held;
(zz) the respondent would be prejudiced if he obtained a supplementary report from Associate Professor Hudson commenting on the Rawlinson Report prior to the applicant obtaining leave to rely on that report because the applicant would be able to elicit the opinions in the Rawlinson Report by cross-examining Associate Professor Hudson, and thus circumvent the Prohibitory Order; and
(aaa) even if the respondent cannot demonstrate any prejudice from the service of the Rawlinson Report, that is not a determinative factor in an application by a party to rely on a late expert report.[51]
[51]The respondent relied upon Thomas [2011] VSC 391, [21]. See [29(j)] above.
In his oral submissions, the respondent accepted that the Prohibitory Order would cause some prejudice to the applicant. However, he submitted that such prejudice would not amount to substantial injustice and, in any event, such prejudice had to be balanced against the prejudice to the respondent and the proper operation of the List if the Prohibitory Order had not been made. According to the respondent, there was a real risk that the trial date would need to be vacated if the applicant were permitted to rely on the Rawlinson Report and the resultant delay in the hearing of the proceeding would cause prejudice to him which could not be overcome by an order for costs. The respondent emphasised that all the difficulties in the proceeding stemmed from the applicant’s decision to defer commissioning the Rawlinson Report until after the mediation, in contravention of the Timetabling Order.
The respondent also submitted that, in deciding whether the applicant had demonstrated that it had a real prospect of establishing that the Prohibitory Order is plainly wrong, this Court should focus on the order rather than the judge’s reasons. In this respect, the respondent relied upon the statement of Callaway JA in King v Lintrose Nominees Pty Ltd[52] that, in deciding whether a decision is attended with sufficient doubt so as to warrant a grant of leave to appeal, ‘[g]enerally speaking, it is the decision to which attention is directed and not the reasons for the decision.’
[52](2001) 4 VR 619, 627 [22] (‘Lintrose’).
In our opinion, ground 1 must be upheld.
With great respect to the judge, in his laudable endeavour to manage the proceeding below in accordance with the case management principles underpinning the List, he has failed to properly turn his mind to considerations that were material to the exercise of his discretion. In particular, the Ruling does not refer to the Act and it is not apparent from the Ruling — including by way of inference — that the judge considered some of the provisions of the Act which were directly relevant to the exercise of his discretion whether to make the Prohibitory Order.[53] In addition, the judge did not properly take account of the potential prejudice to the parties and other relevant considerations.
[53]See [22] above in relation to the pivotal nature of the Act in resolving case management disputes.
As at the date of the Interlocutory Hearing, the judge had an obligation under s 8 of the Act to seek to give effect to the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute in the proceeding below. In giving effect to the overarching purpose in the context of deciding what order to make at the Interlocutory Hearing, the judge should have had regard to the matters set out in s 9 of the Act, some of which are mandatory. While some of the matters in s 9 have a historical dimension — such as any non-compliance with previous timetabling orders — their main focus is forward looking and, in particular, in ensuring a fair and just determination of the real issues in dispute.
In exercising his discretion, the judge did not expressly advert to the overarching purpose in the Act or to some of the matters listed in s 9 which were obviously relevant in the present case. Rather, the judge unduly focused on historical events including, in particular, the fact that the mediation took place without the benefit of the Rawlinson Report. A comparison of the matters set out in s 9 of the Act with the judge’s eight reasons in his Ruling demonstrates the extent to which the judge failed to properly exercise his discretion.
Under s 9(1)(a) of the Act, the judge was required to consider the object of ‘the just determination of the civil proceeding’. This object overlaps with s 9(1)(e) which requires that timetables imposed for interlocutory steps must have regard to what is necessary for ‘the fair and just determination of the real issues in dispute’ and ‘the preparation of the case for trial’. The object also overlaps with s 9(1)(g) which relevantly requires that proceedings be dealt with in a manner proportionate to the importance of the issues in dispute. The judge did not expressly advert to these considerations. However, his eighth reason was that the Prohibitory Order would not shut out the applicant from dealing with the respondent’s case, but only prevent it from changing the focus of its defence. With respect, we cannot agree. As the issue of the proper management of the risk of bacteriological contamination of the respondent’s wound was one of the ‘real issues in dispute’ in the proceeding and very important to its outcome, the Prohibitory Order had the effect of seriously inhibiting the applicant’s ability to deal with that issue.
Under s 9(1)(b) of the Act, the judge was required to consider the object of ‘the public interest in the early settlement of disputes by agreement between parties’. The judge’s fifth reason engaged with this object, as it set out his concern that the timing of the Rawlinson Report was not conducive to informed settlement discussions conducted within the framework of appropriate pre-trial management by the Court. However, given that mediation had failed and six weeks remained prior to the scheduled trial date, a key consideration for the judge should have been to ensure that the parties were in a position to prepare their evidence and submissions on the real issues in dispute in order to ensure a fair and just determination of those issues.
Under s 9(1)(c), (d) and (f) of the Act, the judge was required to consider: the objects of ‘the efficient conduct of the business of the court’; ‘the efficient use of judicial and administrative resources’; and ‘the timely determination of the civil proceeding’. These objects were relevant to the question of whether, if the applicant were permitted to rely on the Rawlinson Report, the trial date would need to be vacated, and are discussed below in that context.
Under s 9(2)(a) and (c) of the Act, the judge could have had regard to the extent to which the parties had complied with pre-litigation processes and the degree of promptness with which they had conducted the proceeding. The judge took these matters into account in his second reason.
Under s 9(2)(e) of the Act, the judge could have had regard to the degree to which the parties had complied with the overarching obligations. Although the respondent complained that the applicant had unduly delayed in completing interlocutory steps, no express allegation was made that the applicant breached any overarching obligation. Had such a breach been alleged at the Interlocutory Hearing, the judge may well have been justified in finding that the applicant had breached the overarching obligation in s 25 of the Act to act promptly and minimise delay.[54]
[54]See [25] above.
Under s 9(2)(f) of the Act, the judge could have had regard to ‘any prejudice that may be suffered by a party as a consequence of any order proposed to be made … by the court’. In the circumstances of the present case, this consideration was highly significant. The judge dealt with it in his fourth and eighth reasons. In his fourth reason, the judge held that service of the Rawlinson Report created the risk of the trial date being vacated because the respondent required additional information about the contamination of the respondent’s wound before commissioning a responsive report from Associate Professor Hudson. As we have already stated, in his eighth reason the judge held that the Prohibitive Order would not shut out the applicant from dealing with the respondent’s case.
With great respect, having regard to the information available to the judge at the Interlocutory Hearing, his conclusion that there was a real risk of the trial date being vacated was premature. The information available to the judge was: that the applicant would provide, on the following day, further answers to interrogatories in relation to the contamination of the respondent’s wound; that Associate Professor Hudson was available; and that the respondent’s legal team would ‘work very hard’ to speak to him. With six weeks remaining prior to the scheduled trial date, and with both parties being represented by experienced lawyers, it is difficult to believe that these outstanding steps — and other necessary steps such as discussions with ambulance officers — could not be completed in time to allow the trial to proceed as scheduled. It is to be noted that the default period of service of an expert report under r 44.03 of the Rules is ‘not later than 30 days before the day fixed for trial.’[55] Thus the Rules assume that, ordinarily, a period of 30 days is sufficient.
[55]See [17] above.
Importantly, at the Interlocutory Hearing, the respondent made no submission that, if the applicant were permitted to rely on the Rawlinson Report, there was a risk that the trial date would need to be vacated. Rather, the prejudice upon which the respondent relied was as set out at [50] and [52] above. Moreover, the judge’s concerns could have been accommodated by adjourning the directions hearing for a brief period to determine whether the respondent could obtain a further report from Associate Professor Hudson, and by awarding costs against the applicant.
As against the prejudice claimed by the respondent, the applicant submitted that the Prohibitory Order would prevent it from presenting probative evidence in support of a major plank in its defence. As discussed at [91] above, the judge’s eighth reason mischaracterised the extent of the prejudice that the applicant would suffer from the making of the Prohibitory Order.
In all the circumstances, the judge failed to properly assess the prejudice to the parties emanating from a decision to make or to refuse to make the Prohibitory Order. In making that order instead of a less drastic order — such as an adjournment (perhaps with a special costs order) — the judge failed to properly balance the interests of the parties and the administration of justice as reflected in the overarching purpose in the Act.
We reject the respondent’s submission that the applicant would not suffer substantial prejudice from the Prohibitory Order because it could rely on the evidence of two orthopaedic surgeons to counter the evidence of Associate Professor Hudson. If the applicant is not permitted to adduce evidence from Professor Rawlinson, it is inevitable that the respondent will submit to the jury that, on issues relating to the proper management of infectious diseases, they should prefer the evidence of Associate Professor Hudson to that of Mr Csongvay and Mr Harris because only Associate Professor Hudson is an expert on such issues.
In his first reason, the judge considered, and rejected, the interpretation of the Timetabling Order for which the applicant contended. Even if it is assumed that the judge was correct to conclude that the applicant had breached the Timetabling Order in relation to the timing of the Rawlinson Report, it was also relevant to the exercise of his discretion for him to consider the applicant’s reasons for that breach. The applicant’s position was that, if it had breached the Timetabling Order, it had done so because of a genuine mistake by its lawyers.
Although parts of the Ruling are not entirely consistent, the judge did not find that the applicant’s lawyers’ interpretation of the Timetabling Order was not genuine. Indeed, the transcript of the Interlocutory Hearing indicates that neither Mr Mukherjee nor the judge cavilled with the proposition that the applicant’s lawyers genuinely believed in the correctness of their interpretation.[56]
[56]See [53] above.
In deciding whether to grant an indulgence to a party in respect of non-compliance with a court order, the reason for the non-compliance and the cogency of that reason are among the factors that usually need to be taken into account. In the present case, however, while the judge’s third reason indicates that the judge could not understand why the applicant delayed commissioning a report in response to the Hudson Report, the judge did not advert to the fact that the applicant’s non-compliance with the Timetabling Order arose from a genuine mistake about the deadline for serving a response to that report.
The judge’s sixth reason relies on case management considerations extending beyond the circumstances of the present case. The judge expressed concern that granting the applicant leave to rely on the Rawlinson Report would undermine what he described as the ‘well-established practice’ of the List, namely the practice referred to at [59] above. While general case management considerations are relevant in accordance with s 9(1)(c) and (d) of the Act, they must be assessed in the context of other applicable considerations and the circumstances of each case.
For the reasons discussed at [70] to [76] above, it is not apparent on the face of the Timetabling Order that the purpose of the second date for serving expert reports was to deal with matters arising out of mediation. At the Interlocutory Hearing, the judge stated that, at the users’ group meeting he raised the possibility of amending the Standard Order to make this purpose clear. As the applicant’s lawyers did not attend the users’ group meeting, the discussion at that meeting was not relevant to the exercise of the judge’s discretion. Also, once it is accepted that the applicant’s lawyers genuinely misinterpreted the Timetabling Order, it must follow that they were not aware of the ‘well-established practice’. Although the judge referred to the users’ group meeting in para 22 of the Ruling, he did not do so as part of his eight reasons. Accordingly, the discussion at that meeting may not have had any bearing on the exercise of the judge’s discretion.
In our opinion, the judge’s sixth reason indicates that he focused upon general case management considerations without giving any weight to the reasons why the Timetabling Order was not complied with in the present case.
The judge’s seventh reason is difficult to understand. Granting leave to the applicant to rely on the Rawlinson Report did not necessarily require a further mediation. With the trial looming, the judge could have deferred a decision whether to order a further mediation until after he was satisfied that the respondent was able to obtain a further report from Associate Professor Hudson and that both parties would be ready for the scheduled trial.
In his Ruling, the judge said that he adopted the approach of J Forrest J in Thomas.[57] However, as we have already explained, the manner in which the judge exercised his discretion in the present case failed to apply relevant provisions of the Act. In any event, our brief summary at [29] above of the reasons why leave to file the relevant expert report was refused in Thomas readily indicates that the circumstances of that case are distinguishable from those in the present case.
[57][2011] VSC 391.
It is not necessary for us to make a finding in relation to the parties’ competing contentions on the risks associated with the respondent obtaining a further report from Associate Professor Hudson prior to the status of the Rawlinson Report being resolved.[58] It suffices for us to say that there is always a risk that an expert may disclose in evidence inadmissible material which the expert has considered. Further, we can readily appreciate that the respondent could be concerned to delay exposing Associate Professor Hudson to material that might cause him to reconsider his opinion until such time as the admissibility of that material is clarified.
[58]See [82], [84(zz)] above.
We are unable to assess the respondent’s claimed risk that, if the Prohibitory Order is vacated and the applicant is permitted to rely on the Rawlinson Report, the trial date may need to be vacated. In any event, we need to decide whether the judge’s discretion miscarried on the basis of the circumstances that existed at the time of the Interlocutory Hearing. While the risk in question might be relevant to our residual discretion to refuse relief even if the test for granting leave to appeal is satisfied, the interests of the administration of justice in this case would be best served by a fair but delayed trial of the real issues in dispute rather than an unfair trial proceeding as scheduled on 1 July 2015.
It is not necessary for us to analyse the intended meaning or effect of Callaway JA’s statement in Lintrose.[59]This is because, in the present case, it would not have been possible for us to determine the application for leave to appeal without a close examination of the judge’s reasons in the Ruling.
[59]See [86] above.
For the above reasons, in making the Prohibitory Order the judge failed to take into account material considerations.[60] As such, his discretion miscarried. That is so, even assuming that the service of the Rawlinson Report breached the Timetabling Order. It follows that ground 1 is made out.
[60]See [9] above.
Decision on grounds 3 and 4
Having regard to our conclusion in relation to ground 1, it is not necessary for us to separately consider grounds 3 and 4.[61] The issues raised by ground 3 have already been considered under ground 1. As for ground 4, the judge’s observations which are the subject of complaint were made by him in para 27 of the Ruling, prior to setting out his eight reasons in para 30. Accordingly, it is unclear whether those observations had any bearing on the outcome of the applicant’s application.
[61]The proposed grounds of appeal are set out at [3] above.
Disposition
As ground 1 has been made out, we are satisfied that the appeal has a real prospect of success for the purposes of s 14C of the SC Act. In relation to the Niemann test,[62] we are satisfied that the Prohibitory Order is attended by sufficient doubt to warrant the granting of leave to appeal and that, if the applicant is prevented by that order from relying on the Rawlinson Report, it will suffer substantial injustice. This is because the applicant will be unable to adduce highly relevant evidence in support of its defence on one of the key issues in dispute.
[62]See [8] above.
We are not satisfied that there are any discretionary considerations that warrant the refusal of leave to appeal. The trial judge will have ample powers to deal with the consequences of the applicant’s failures to comply with interlocutory orders, including the making of special orders for costs if appropriate.
After we pronounced paras 1 to 3 of the order set out at [4] above, the applicant sought a further order that the proceeding below be heard by a judge other than Judge Saccardo due to the adverse findings that he was said to have made against the applicant and its lawyers. We were not persuaded that it was either necessary or appropriate for us to make any such order. The management of the future conduct of the proceeding will be a matter for the County Court. We also wish to stress that the fact that we have set aside the costs orders that formed part of the Prohibitory Order should not be taken as an indication that it would not be appropriate for the County Court to make an order requiring the applicant to pay the respondent’s costs of the Interlocutory Hearing (for example). The costs of that hearing will be a matter for that Court.
We also want to make clear that the outcome in this case reflects its special circumstances, which include:
(bbb) the lack of clarity in the Timetabling Order;
(ccc) the absence of the applicant’s lawyers from the users’ group meeting which clarified the scope of the Standard Order;
(ddd) the fact that those lawyers had genuinely misconstrued the Timetabling Order;
(eee) the service of the Rawlinson Report six weeks before the scheduled trial date;
(fff) the availability of Associate Professor Hudson to respond to the Rawlinson Report;
(ggg) the absence of a submission from the respondent at the Interlocutory Hearing that there was a real prospect of the trial date being vacated if the applicant were permitted to rely on the Rawlinson Report;
(hhh) the willingness of the applicant to promptly file further answers to interrogatories;
(iii) the absence of evidence of any real prejudice to the respondent from the service of the Rawlinson Report on 20 May 2015;
(jjj) the real prejudice to the applicant from the making of the Prohibitory Order; and
(kkk) the nature and cumulative effect of the errors made by the judge which caused his discretion to miscarry.
Parties to civil proceedings in the courts of this State must comply with the overarching obligations in the Act. Case management procedures that are adopted by courts seek to give effect to the overarching purpose in the Act in a manner that is fair to all parties while simultaneously advancing the administration of justice. The importance of compliance with case management procedures is reflected in the extensive sanctions that courts can impose under the Act in cases of non-compliance.
Parties conducting proceedings in a managed list, such as the List, must do all they can to comply with the Court’s timetabling orders. If they do not, they face the risk that orders will be made which may affect the manner in which, and the extent to which, they can conduct their case. For example, as appears from [26] above, under s 51 of the Act, the Court may order that a party be precluded from relying on particular evidence. Parties should not seek to avoid compliance with an order by adopting an artificial interpretation of the order or by taking advantage of any ambiguity.[63] Rather, they should endeavour to comply with the intended purpose of the order.
[63]There is no suggestion that this happened in the present case.
The judge was justifiably concerned that the applicant’s service of the Rawlinson Report after the mediation and only a matter of weeks before the scheduled trial date was inconsistent with the case management principles that underpin the fair and proper operation of the List. Those principles are consistent with the overarching purpose in the Act. They are important in ensuring that the parties to a proceeding in the List have the best opportunity to settle the proceeding at mediation and that a trial that follows an unsuccessful mediation is conducted fairly and efficiently in the interests of the parties and the administration of justice more generally.
It should not be assumed that a party to a County Court proceeding who has not complied with case management directions and is sanctioned for not doing so will be granted leave to appeal to this Court in order to seek relief against such a sanction. This Court has a discretion to refuse leave to appeal even if the applicable test for granting leave is satisfied. One basis for doing so is to prevent unacceptable fragmentation of the proceeding below.[64] In deciding whether to grant leave to appeal from an interlocutory order of the County Court, this Court will take into account whether the granting of leave would be contrary to the overarching purpose in the Act. As a matter of discretion, this Court may, in an appropriate case, refuse leave to appeal if the granting of leave to a party in default of a County Court order would enable that party to benefit from the default or would cause unfair prejudice to the party not in default.
[64]Ikosidekas [2015] VSCA 121, [57], [80]–[81].
Costs
As appears from [4] above, at the hearing of the application for leave to appeal, we reserved our decision on the costs of that application and of the appeal (collectively, ‘Appeal Costs’). We now deal with those costs.
The applicant sought an order that the respondent pay its Appeal Costs on the basis of the usual rule that costs follow the event. On the other hand, the respondent sought an order that the applicant pay his Appeal Costs, notwithstanding that it was the successful party, on the basis that its contraventions of the Timetabling Order had brought about the Interlocutory Hearing and the application to this Court. In the alternative, both parties submitted that this Court could order that the Appeal Costs be costs of the trial.
Although s 24(1) of the SC Act confers on this Court a wide discretion in deciding questions of costs, that discretion must be exercised judicially and in accordance with established principles. A well-established principle is that costs usually follow the event, that is, that the unsuccessful party is usually ordered to pay the successful party’s costs. However, there can be departures from that principle where the justice of a particular case so requires. In an appropriate case, the Court may decide (for example): that there be no order as to costs; that the unsuccessful party only pay part of the successful party’s costs; or that the successful party pay part or all of the unsuccessful party’s costs.[65]
[65]See generally Boz One Pty Ltd v McLellan [No 2] [2015] VSCA 145, [41].
In the present case, we have not been persuaded that it would be appropriate to award costs against the successful applicant. Although the applicant’s conduct warrants criticism for the reasons set out below, that conduct was not so egregious as to justify this Court taking the unusual step of requiring it to pay the costs of the unsuccessful respondent.[66] This is particularly so having regard to the ambiguity in para 16(a) of the Timetabling Order and the fact that the applicant’s lawyers had genuinely misconstrued that paragraph.
[66]See Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129, 149–156.
We have also not been persuaded that it would be appropriate to order that the Appeal Costs be costs of the trial. As these costs relate to a proceeding in this Court, this Court is best placed to determine who should be liable for them.
For the reasons set out below, we have concluded that we should not make any order as to the costs of the application for leave to appeal or of the appeal.
As appears from [36] to [46] above, the applicant failed to comply with the Timetabling Order in relation to the service of the Harris Report and was the cause of the mediation being delayed. At the outset of the Interlocutory Hearing, Mr Petts apologised for the fact that the applicant’s conduct of the proceeding had not been ideal, and he returned to this issue at the end of the hearing. He said:
Your Honour, look, I apologise to the court and to my learned friend that the carriage of this matter has not been ideal, I accept that. There were circumstances surrounding Mr Harris, he underwent a knee replacement which delayed his report from what the initial estimate was. I understand it could have been commissioned earlier and should have been. All I can say to Your Honour is it's a rare occurrence for me to be standing here in front of you dealing with matters such as this which is, I think, a more accurate indication of the majority of the matters that I have carriage of. Unfortunately this one is not a good example.
…
Your Honour, I said at the outset that I am embarrassed by this case and the way in which it has been brought forward and ---[67]
[67]Transcript of Proceedings, Kuipers v Northern Health (County Court of Victoria, CI-12-06096, Judge Saccardo, 26 May 2015) 1–2, 27–8.
The parties had an obligation not only to comply with the provisions of specific orders of the County Court, but also, separately, with the overarching obligation in s 25 of the Act to act promptly and to minimise delay.[68] The applicant did not appear to comply with this obligation in relation to the timing of the mediation and the service of the Harris and Rawlinson reports, and did not provide an adequate explanation to the judge as to why it did not commission a report from an infectious diseases expert prior to the mediation.
[68]Act s 12.
Although the Timetabling Order was not entirely clear, as we have stated at [76] above, it could not possibly mean that para 16(a) provided unlimited authority for the service of additional expert reports.
In a highly technical area of the law such as medical negligence, expert evidence is vitally important in assisting the parties and the courts in assessing the relative strengths and weaknesses of the parties’ cases. Accordingly, it is not surprising that para 47 of the Practice Note contemplates that the key expert reports of the parties be exchanged prior to mediation. The applicant’s failure to commission a report from an infectious diseases expert prior to the mediation meant that the prospects of a successful mediation were not maximised. This conduct was contrary to the proper and efficient operation of the case management principles underpinning the List.
We agree with the respondent’s submission that the importance of evidence from an infectious diseases expert would have been readily apparent to the applicant from the outset of the proceeding and, at the latest, when it was served with the Hudson Report on 7 October 2014. The applicant had already approached such an expert prior to the mediation. Even if the applicant had no intention of calling that expert because he was not independent of the applicant — as we were informed from the Bar table — the applicant has not provided an acceptable explanation for not obtaining a report from an independent infectious diseases expert well before the mediation. The applicant is a public authority which is represented by experienced lawyers and there has not been any suggestion that it lacked the resources to commission such a report on a timely basis.
In all the circumstances, we agree with the respondent’s submission that the case management difficulties in the proceeding below and the need for the application to this Court can be attributed to the applicant’s lack of diligence in completing interlocutory steps. The applicant’s conduct, in a real sense, dictated the pace at which those steps were completed and undermined the carefully constructed timetable in the Timetabling Order. That conduct was inconsistent with the modern case management principles set out in the Act and the principles to which we have referred earlier in this judgment.
The respondent has applied for an indemnity certificate under s 4 of the Appeal Costs Act 1998. A decision by this Court not to order any party to pay any other party’s costs of an application for leave to appeal or of an appeal does not deprive the Court of the power to grant such a certificate in favour of an unsuccessful respondent.[69] As the respondent in the present case incurred its Appeal Costs through no fault of its own, we will grant such a certificate.
[69]Re Pennington [1972] VR 869, 875–7; National Australia Bank Ltd v Horne [No 2] [2011] VSCA 414, [4].
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