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Northern Health v Kuipers

Northern Health v Kuipers

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Case Copied 19 June 2015 65 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSCA 172
Decision Date: 19 June 2015

CaseChat Overview and Summary

Northern Health sought leave to appeal against an interlocutory order of the County Court in relation to a medical negligence action brought by Ms Kuipers. The order prevented Northern Health from relying on an expert report which had been served after the expiration of a deadline set out in an earlier case management order. Northern Health argued that the expert report should be admitted because it was not served in breach of the order, and because it was necessary to determine the prospects of success of the action.

The Court was required to determine whether the real prospect of success test applied under section 14C of the Supreme Court Act 1986, and whether the County Court judge had given effect to the principles of case management in the Civil Procedure Act 2010. The Court held that the real prospect of success test did not apply because the County Court judge had exercised a discretion to make a case management order, rather than to refuse an interlocutory application. The Court held that the County Court judge had misapplied the principles of case management because the judge had not taken into account the matters set out in section 9 of the Civil Procedure Act 2010, and because the judge had failed to give effect to the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute. The Court found that the County Court judge had failed to consider the impact of admitting the expert report on the efficient resolution of the proceeding, and had not considered that Northern Health’s lawyers had genuinely misconstrued the deadline for serving the report. The Court held that the County Court judge had exercised his discretion to make the order in a way that was inconsistent with the principles of case management.

The Court granted leave to appeal and allowed the appeal. The Court found that Northern Health had a real prospect of success on the appeal, and that the County Court judge’s order had deprived Northern Health of a fair opportunity to adduce evidence on a central issue in the proceeding. The Court found that Northern Health was not entitled to an order for costs of the appeal because it had delayed in complying with case management orders, and that the respondent was entitled to a certificate under section 4 of the Appeal Costs Act 1998 in respect of its costs.

Orders