Pappas v Neil-Smith

[2003] NSWCA 197

CITATION:	Pappas v Neil-Smith [2003] NSWCA 197
HEARING DATE(S):	26 March 2003
JUDGMENT DATE:	24 July 2003
JUDGMENT OF:	Handley JA at 1; Brownie AJA at 2; Shaw J at 33
DECISION:	Appeal dismissed with costs
CATCHWORDS:	The case turns on its facts.
LEGISLATION CITED:	Supreme Court Act 1970 - s 75A(8)
PARTIES :	Paul Pappas (Appellant) Brezniak Neil-Smith & Co (Respondent)
FILE NUMBER(S):	CA 40541/02
COUNSEL:	Applicant in Person G. Curtin
SOLICITORS:	Applicant in Person Mallesons Stephen Jacques

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	CL 20538/99
LOWER COURT JUDICIAL OFFICER :	Master Harrison

- 12 -

CA 40541/02
CL 20538/99

HANDLEY JA
BROWNIE AJA
SHAW J

Thursday 24 July 2003

Pappas v Neil-Smith

Judgment

1 HANDLEY JA: I agree with Brownie AJA.

2 BROWNIE AJA: The appellant underwent nasal surgery on 4 April 1991. Later, he sued the surgeon, Dr Kleiner, and a hospital. After a time, the respondent acted as the appellant’s solicitor in connection with that litigation. Before the trial the appellant withdrew his case against the hospital, but Dr Kleiner admitted having performing the operation negligently. The case was heard by Balla ADCJ (as she then was). In the course of her reasons for judgment her Honour said that the two issues that had been litigated were whether the appellant’s pre-existing schizophrenia had been worsened by the operation, and whether certain other symptoms of which he complained were causally linked to the operation. Her Honour found that certain symptoms were the consequences of a temporary two-year exacerbation of the underlying schizophrenia. She awarded damages consisting of $40,000 for general damages, $1,349.84 for out of pocket expenses, and $8,000 for interest. Dr Kleiner had previously made an offer to settle the case for $65,000, with the consequence that her Honour ordered the appellant to pay his costs after the date of the offer of settlement.

3 The appellant was dissatisfied with that result, and sued the respondent, seeking damages for negligence in relation to the conduct of the earlier litigation. The case was heard by Master Harrison, who dismissed the action with costs, and the appellant now appeals from that judgment.

4 On the hearing before the Master, the appellant appeared in person. The Master recorded that eleven matters had been argued as constituting negligence on the part of the respondent: first, withholding evidence; secondly, failing to obtain readily available evidence; thirdly, failing to obtain further evidence regarding economic loss; fourthly, releasing the hospital; fifthly, failing to plead the case properly; sixthly, failing to cross- examine Dr Kleiner; seventhly, failing to advise of the time limit within which an appeal had to be brought; eighthly, failing to file a notice of appeal; ninthly, representing that the plaintiff could not appeal until receipt of a report from the Health Insurance Commission; tenthly, overcharging; and eleventhly, failing to adduce evidence or make submissions concerning his state of health prior to the surgery.

5 On appeal, the appellant, who again appeared in person, said that he relied upon all these matters, and raised two additional matters: he asserted bias on the part of the Master; and he sought to adduce some “fresh” evidence.

6 As to the first of the eleven matters dealt with by the Master, there are a number of strands. The appellant complained that there had been a failure to serve upon Dr Kleiner prior to the trial reports of Drs Goldston, Logan, Pohl and Burchett, as well as a failure to serve a letter written by Dr Kleiner, and there was what seems to amount to an overlapping with the eleventh matter, namely, a failure to adduce evidence and make submissions before Balla ADCJ.

7 Prior to the trial, the respondent retained Mr Bates of counsel, and sought his advice on several occasions. In the proceedings before the Master, both the respondent and Mr Bates gave evidence. As the Master noted, the appellant gave detailed instructions to the respondent throughout the preparation of his case against Dr Kleiner; and in addition, he took some steps himself, without telling his lawyers what he was about to do. The trial commenced on 4 May 1998 and judgment was given on 1 June 1998.

8 One of the difficulties confronting the appellant in 1997, when the relevant preparation work commenced, was that he needed the expert evidence of some medical practitioner or practitioners to establish negligence on the part of Dr Kleiner. Another difficulty was that there was a fairly general consensus of opinion amongst the many medical practitioners whom he had consulted, over a period of years, that he was suffering from schizophrenia; and there was a question whether that condition had been exacerbated by the relevant surgery. A third difficulty was that the appellant complained about a variety of physical (as distinct from psychiatric) symptoms, with there being a question as to whether these symptoms were causally related to the surgery. Finally, it seemed likely that there would be an attack made upon the appellant’s credit which, if successful, might add to some of the other difficulties. The task of the respondent and of Mr Bates therefore involved forming a view as to which of the many medical reports which had been obtained should be served, prior to the trial. Apparently, a consideration of the last mentioned difficulty seemed to them to be important. That view was proved correct by the course of the trial in the District Court.

9 Mr Bates advised the respondent about these matters from time to time, generally in writing, and there were a number of conferences, between two or more of the appellant, the respondent and Mr Bates. On the evidence of the respondent and of Mr Bates, which the Master evidently accepted, from time to time Mr Bates gave advice that certain documents not be served; the appellant questioned that advice; a conference involving the appellant was conducted; at the end of that conference he accepted that advice; and he later questioned it again.

10 It is convenient to focus first on the question whether certain reports of Dr Pohl should have been served, since this was the principal question (within this group of questions) that was argued, both before the master and on appeal (as the appellant put it, “the axis upon which revolves…most if not all” of the appeal). In an advice dated 8 September 1997 Mr Bates advised that these (as well as other) reports should not be served. He noted that Dr Pohl’s reports were not required on the issue of liability, which could be proved by the reports of two other witnesses, namely, Dr Robinson and Dr Stevens. He referred to the need to prove that the lack of cartiliginous support (within the appellant’s nose) was causally related to the surgery; and he noted that Dr Robinson had opined that this lack of support was not causally related. Similarly, he noted that Dr Stevens considered that the appellant’s bulky turbinates were also unrelated to the surgery.

11 This advice, and the reliance of the respondent upon it, after consideration, seems unexceptional. Putting aside some further consideration given afterwards, the present problem arises from a further advice of Mr Bates dated 5 April 1998, generally updating previous advices concerning the service of documents required (subject to the possible exercise of discretion) to be served by the following day, that is, 28 days before trial. In this advice Mr Bates reconsidered the position concerning the reports of Dr Pohl, and of others. By then, there had come to hand a copy of a report, apparently sent by Dr Stylis to Dr Robinson. That report was dated 10 January 1991, but this was an error for 10 January 1992; and it seems clear enough that this error had been detected and made known to each of the respondent and Mr Bates before 5 April 1998.

12 In that report Dr Stylis referred to a history given to him by the appellant about breathing difficulties. In one part of his advice Mr Bates referred to this and said that it constituted a further reason for not serving the reports of Dr Pohl. At that moment Mr Bates was evidently taking the date on the report, 10 January 1991, at its face value, and he said that the history apparently given to Dr Stylis on that occasion, which Mr Bates regarded as some months before the surgery, tended to undermine one part of the appellant’s case, to the effect that he had first noticed breathing difficulties after the surgery. It is clear that, as at 5 April 1998, Mr Bates was concerned about the looming attack upon the credit of the appellant.

13 The appellant submits that Mr Bates was mistaken in giving this advice, and that the respondent should have detected the error, with the consequence that the reports of Dr Pohl should have been served. Assuming Mr Bates to have been relevantly in error, and that the respondent should have detected this error, it does not necessarily follow either that the respondent was negligent in not serving the reports of Dr Pohl, or that any adverse consequences followed from the respondent’s negligence.

14 The reasons given by Mr Bates in his advice of 8 September 1997 remained valid. The Master said that Dr Pohl’s reports had apparently commended themselves to the appellant because they referred to the appellant’s breathing difficulties, but that Mr Bates had opined that, on balance, the reports tended to negate this part of the appellant’s claim, in that Dr Pohl did not consider that these difficulties were causally related to the surgery; and therefore he advised against serving them. The Master then observed that, on the hearing before her, the appellant still failed to understand the distinction between the existence of those difficulties, and their cause. It seems likely that even now, he does not appreciate this distinction.

15 Further, the appellant could not point to any loss which he suffered from the non-service of the reports. Viewing the matter as at 5 April 1998, service of the reports of Dr Pohl, and the report of Dr Stylis, with the wrong date on the last mentioned report being unremarked, might have led to some ephemeral embarrassment to the appellant at trial, if it was suggested to him that he had given a history of breathing difficulties some months before the surgery. But that embarrassment, if it ever arose, would almost certainly have been promptly cured by the (easy to achieve) exposure of the error in the date on the face of the report.

16 The appellant submitted that he had lost an advantage, in that the report of Dr Stylis would have provided some confirmation of his statement that he did suffer breathing difficulties for the first time after the surgery. However, the report of Dr Stylis was tendered and Balla ADCJ found that the appellant had first encountered breathing difficulties after the surgery, so that the failure to serve this collection of Dr Pohl’s reports is not shown to have had any adverse consequences to the appellant.

17 The non-service of the reports of Drs Goldston and Logan was dealt with by the Master at [17] to [24], and the Master’s reasoning appears to disclose no error.

18 Dr Kleiner wrote a letter to a referring general practitioner, Dr Calligeros, dated 23 July 1984. The appellant submitted that if this had been tendered, it would have provided him with evidence favourable to his case on certain issues. However, as the Master noted, Balla ADCJ made findings of fact in his favour on those issues, so that the letter would have added nothing to the appellant’s case.

19 A report of Dr Burchett was not served, upon the advice of Mr Bates. The Master accepted that the advice was based on apparently cogent reasons: the report assisted the appellant’s case in some respects, but significantly undermined other parts of it. The appellant did not make explicit reference to this matter in his submissions, and the reasons for judgment of the Master appear to contain no error. Finally, in this connection, the appellant contended that certain material had not been placed before the trial judge. The Master found that it had been, and this seems to have been correct.

20 The second of the eleven matters complained about overlaps with the first. In the first place, the appellant says that the respondent did not obtain the clinical notes of Dr Kleiner, or a referral letter written by Dr Senanayake to Dr Kleiner. The Master found that neither would have assisted the appellant’s case. She referred to the difficulty that the appellant had before Balla ADCJ, in linking his breathing difficulties with the surgery, but the judge found this issue in favour of the appellant.

21 The Master also dealt at [49] to [59] with similar complaints about reports of Drs Baker and Samta. The appellant did not refer to these in his submissions, and the reasons for judgment appear to contain no error.

22 Thirdly, the appellant complained about the failure of the respondent to obtain further evidence concerning his alleged economic loss. Once again the topic was not really developed, and given the other findings the question is only of theoretical significance, but I respectfully join with the Master in doubting that the appellant, who was in receipt of a disability pension at the time of the surgery, lost a significant income, pursuing a career playing the guitar, by reason of the surgery.

23 Fourthly, it was said that the respondent was negligent in releasing the hospital from the proceedings. Since Dr Kleiner, who was apparently adequately insured, admitted negligence, this complaint leads nowhere. The appellant was entitled to only one award of damages, and it did not matter whether he recovered judgment against one wrongdoer or two. There is no need to explore the topic any further.

24 Fifthly, there was a complaint about the way the pleadings against Dr Kleiner were framed. The Master dismissed this in two lines, and the matter seems to be only formally in issue. No error has been shown.

25 Sixthly, the appellant complained that there had been no cross-examination of Dr Kleiner, but this was not possible because he did not give evidence. The finding that there was no negligence is unarguably correct.

26 I will deal with the next three matters together. The Master found, upon disputed evidence, that on the day on which Balla ADCJ gave judgment, the respondent and Mr Bates advised the appellant that he did not have any grounds for appeal, but that if he wished to appeal, he must lodge a Notice of Appeal within 28 days. The appellant said that he wished to appeal, and the respondent said that he would not act for him on any appeal (the respondent and, presumably, Mr Bates had acted for the appellant on the trial on “a speculative basis”). The appellant says that he was advised that the 28-day period would not commence until receipt of a report from the Health Insurance Commission. The Master found against him on this question, and upon well established principles, I do not see any basis upon which this Court can interfere with that finding.

27 The appellant relied on evidence, accepted by the Master, that he instructed the respondent, before the trial had even commenced, to instruct Mr Bates to prepare for a possible appeal. However, this does not matter since the respondent told the appellant, on the day judgment was given, that he would not act for him on any appeal.

28 The final matter requiring consideration concerns allegations that the respondent overcharged the appellant. The Master noted that there was no evidence that the charge was an overcharge, and the appellant had not cross-examined the respondent on the subject. No error is disclosed.

29 At the hearing, the appellant raised two further allegations. First, he asserted that the Master was biased. The hearing appears to have commenced on the afternoon of 9 August 2001. The transcript records the following, later that afternoon, during the cross-examination of Mr Bates:

“PAPPAS: Q. The question is the defendant’s solicitors subpoenaed so much evidence prior and post operation?
A. Yes.
Q. Why would they want to subpoena prior the operation?
A. Because – I didn’t speak to them but I imagine or I suspect they were trying to see what were your problems before you had the operation.
Q. That’s right. So if there was any problems prior then they would say this man is lying, he had these problems before?
A. They may not say you’re lying. They may just say you have the problems before, they don’t necessarily say you’re lying.
Q. They don’t say that but they try and drag you through the dirt no end?
A. They‘re trying to compare – in general – trying to compare your condition before the operation in 1991 and the condition afterwards.
Q. But if I had anything wrong, for example, if I had nasal problems before the operation, this man is trying to say these problems after the operation when he’s had them before, that does not make sense, does it? Therefore, his evidence is not valid?
A. That depends.
MASTER: Depends on what it is. People can tell – there’s varying different degrees, but I find sometimes people tell their accurate evidence on particular issues and on others they don’t. There’s people not telling the truth, there’s people that remember things incorrectly.
PAPPAS: Your Honour, the man is gathering evidence to find out --
MASTER: That’s what they normally do, check your condition prior to the operation, yes.
PAPPAS: Therefore anything post operation that I’ve had prior, yes, well --.
MASTER: It’s just a strange way of saying it, yes, I understand what you’re saying. If you’ve had some pre-existing symptoms, same sort of symptoms, is that what you’re saying, then they ask you questions about it, to see the magnitude of your injury, depending what it is. You can have, for example, a scratch on your leg. There might be something in your medical notes and then you break your leg. The scratches could have nothing to do with the break, but say you might have had a twisted knee and then you did it again, that would be relevant, so they would be looking for that sort of thing. It would probably be subpoenaed records to see if you had nasal problems or whatever – what other problems you had prior to the operation.
A. Because you’d had a – Dr Kleiner had operated on your nose once before, so in this particular case one of their concerns was whether, you know, there was any relationship between the previous operation, any continuing problem.
MASTER: Look, it’s gone 4 o’clock, normally it’s time to adjourn. I’m concerned you want to keep cross-examining Mr Bates. Have you got more questions for him?
PAPPAS: Your Honour – oh, definitely. I have not finished with Mr Bates by a long shot. The case has been listed for three days. I think it will probably go for three weeks at this rate.
MASTER: I can tell you now it’s not going for three weeks. I’m not sitting here for three weeks.
PAPPAS: Ma’am, perhaps it’s time to allocate another judge.
MASTER: Q. I’m sorry, I’m not allocating another judge. I’ve been very patient when you’ve been asking questions over and over so far. It might be better if you jot down the questions you want to ask and tomorrow we can get on with it, it would be helpful if you could do it in some sort of systematic order, I realise it’s cross-examination. It’s only listed for three days, it can go over tomorrow, probably Monday and probably Tuesday. Mr Bates, if you’ve got to come back, what suits you the most?
A. My difficulty at the moment is, your Honour, I’ve got a public liability case starting tomorrow, I think, there’s a reasonable prospect of settlement. I’ve been subpoenaed to give evidence in Canberra, Monday and Tuesday at my convenience. Tuesday, I’ve got a case here at District Court, so I’m trying to juggle things at the moment. If this case, which I’m trying to settle tomorrow, I could come back tomorrow.

Q. Can we leave it on the basis if Mr Bates’ case settles, come in tomorrow and give evidence, otherwise we’ll have to organise another day.
PAPAS: I don’t know, your Honour, I would prefer another judge.
MASTER: Unless you’ve got some reason why you should have another judge, that won’t be the case.
PAPPAS: Your Honour, I make a simple statement like why would the defendant obtain so much evidence prior to the operation and my point is to show whether the symptoms I’m supposed to have after the operation I’ve had prior.
MASTER: I understand that.
PAPPAS: You seem to have difficulty in understanding that.
MASTER: I actually understand it.
PAPPAS: Now, that you want to understand it, but could you please keep that same passion right through the case otherwise I cannot explain myself. If I’ve got to go back and forth, I would say it will take three weeks or more. If you can comprehend exactly what I just mentioned to you and we can proceed in that regard, yes, I think we’ll come to an understanding and there will be an honest decision made at the end of this case.
MASTER: Can we leave it if Mr Bates’ case, if it settles, he continues and comes in with his evidence otherwise we’ll have to organise another day he can come.
A. I’ll come as soon as I’m free, your Honour, or leave a message. I’ll come up anyway at lunchtime.
Q. He’s got a subpoena to be in another Court.
CURTIN: I’ve got a case on Tuesday of next week.
MASTER: We’ll keep going tomorrow at 10 o’clock. It might be that - -
PAPPAS: Ma’am I’ve got some pretty good arguments here and it seems to me that - -
MASTER: I’m very interested to hear them, Mr Pappas. By tomorrow I will have gone away and – I haven’t read Balla J’s decision.
PAPPAS: I’m putting my heart into this and I see you twiddling, playing as though you’re not listening at all.
MASTER: I’m actually writing in my notebook.”

30 The appellant submitted to the Master that she should “allocate another judge”. On this occasion, and other occasions, he suggested that the Master could not understand him, but the Master said that she did, and the transcript supports this. In any event, he did not ask her to disqualify herself, except to the extent that one might infer such a request from the passage quoted. More significantly, I cannot discern a basis for any reasonable suspicion of bias. To the contrary, as the respondent submitted, the Master extended to the appellant, as an unrepresented litigant, a considerable degree of latitude. In particular, she considered the eleven questions outlined above, although they extended well beyond his pleadings. She appears to have tried to assist him from time to time, and generally to have allowed him to ask questions which a professional lawyer would not have been allowed to ask.

31 Finally, the appellant sought leave to rely upon “fresh” evidence. The evidence in question was not “fresh”, and “special grounds” (within the meaning of s 75A(8) of the Supreme Court Act 1970) were not demonstrated. The appellant possessed the evidence before the hearing before the Master started.

32 I propose that the appeal be dismissed with costs.

33 SHAW J: I agree with Brownie AJA.

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Last Modified: 07/28/2003