Pryce v Dunlap
[2016] ACTSC 338
•16 November 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pryce v Dunlap |
Citation: | [2016] ACTSC 338 |
Hearing Date: | 16 November 2016 |
DecisionDate: | 16 November 2016 |
Before: | Mossop AsJ |
Decision: | Application dismissed. The plaintiff is to pay the defendants’ costs of the application, not to be assessed until the proceedings end. |
Catchwords: | PRACTICE AND PROCEDURE – Application for leave to tender medical reports at hearing – Court Procedures Rules 2006 (ACT), r 1241 – Meaning of “exceptional circumstances” – Whether “exceptional circumstances” established – Where reports went to utility of horse riding as a form of treatment – Significant benefit for the plaintiff in being able to rely on additional expert evidence – Where reliance on reports would require vacation of hearing date – Where pain medicine specialist not previously been qualified by either party – Whether prejudice suffered by defendant from inability to obtain opinion in response prior to hearing – Significance of statements in First Directions Hearing Questionnaire and Listing Hearing Questionnaire that experts briefed, expert reports served and counsel’s advice obtained– Application dismissed |
Legislation Cited: | Bail Act 1992 (ACT) Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), r 1241 |
Cases Cited: | AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Ho v Professional Services Review Committee No 295 [2007] FCA 388 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 |
Parties: | Cheryl Ann Pryce (Plaintiff) Juliana Dunlap (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel L E Edwards (Plaintiff) B Wilson (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Moray & Agnew (Defendants) | |
File Number: | SC 447 of 2015 |
MOSSOP AsJ:
The application
The plaintiff has applied for leave under r 1241 of the Court Procedures Rules 2006 (ACT) (CPR) to tender at the hearing the reports of Dr David Champion dated 27 September 2016 and 14 October 2016.
The grounds for the application are identified as follows:
1. The plaintiff has obtained reports from Dr David Champion rheumatologist dated 27 September 2016 and 14 October 2016 (served 11 October and 26 October 2016 respectively)
2.The plaintiff advised the defendants on 9 August 2016 of the reason for, and the fact of, obtaining reports from Dr David Champion, identifying his area of expertise.
3.The plaintiff serve the reports of Dr Champion on the defendants in time for them to be provided to the defendant experts and commented on in their review reports.
4. It is necessary and reasonable for the plaintiff to serve expert evidence from a rheumatologist/chronic pain specialist due to her chronic pain; and to obtain Dr Champion’s opinion about particular issues that have become contentious point the parties.
5. The plaintiff would consent to allowing the defendants flexibility in responding to the reports of Dr Champion.
6. There would be no prejudice to the defendants in allowing the plaintiff to tender the reports of Dr Champion at the hearing.
The application is opposed by the defendants.
Affidavits read
The plaintiff read the affidavit of Katherine Claire Bennett Woodford dated 28 October 2016. The defendants read the affidavit of Lauren Patricia Armstrong dated 15 November 2016.
Relevant Rule
Rule 1241 of the CPR provides:
1241 Service of expert reports
(1) Each party must serve on each other active party to a proceeding a copy of each expert report obtained by the party in accordance with any direction made by the court.
(2) If—
(a) a party obtains an expert report after serving reports under subrule (1); and
(b) either—
(i) the report is only responding to another report served under this rule; or
(ii) the report updates another report served under this rule;
the party must serve a copy of the report on each other active party not later than 3 days after the day the party obtains the report.
(3) An expert report must not be tendered, and is not admissible, in the proceeding unless it has been served in accordance with this rule, except with—
(a) the court’s leave; or
(b) the agreement of all active parties to the proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave or an order under this rule.
(4) The court must not give leave under subrule (3) (a) unless satisfied that—
(a) there are exceptional circumstances that justify giving leave; or
(b) the expert report only updates an earlier version of an expert report that has been served in accordance with this rule.
(5) This rule applies subject to any order of the court.
I observe that the scope of the circumstances where the “exceptional circumstances” requirement applies appears to be limited to the point where the expert report is sought to be tendered (“an expert report must not be tendered ...”).
The constraint in the rule is subject to orders of the Court: r 1241(5). In any event, if a direction is made, for example under r 1401, then that will mean that an expert report served in accordance with such a direction is served in accordance with directions referred to in r 1241(1) and hence r 1241(3) is not trigged. It would have been by this means that the issue would have been addressed if the present application had been made at a substantially earlier time.
The present application was drafted broadly enough to encompass either a grant of leave under r 1241(3) or a making of an order under r 1241(5).
Having regard to the outcome in this case, it is not necessary to finally resolve the circumstances in which sub-rules (3) and (4) and hence the requirement for “exceptional circumstances” applies.
Test for exceptional circumstances
Counsel for the plaintiff directed the Court to the authorities that have described what is required to establish exceptional circumstances in relation to a similarly drafted provision of the Uniform Civil ProcedureRules 2005 (NSW). I was referred to the summary in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]:
66 Another question of construction concerned “exceptional circumstances” in rule 31.18(4).In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a)Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b)Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c)Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
I was also referred to the decision in Khan v Rathjen (No 2) [2016] NSWDC 140 which involved an application to tender an expert report served outside the scope of directions made by the Court, although I note that the application was one made during the course of, rather than in advance of, the trial. In that case the Court referred at [20] to the requirement for exceptional circumstances in the following terms:
Pursuant to Pt 31, r 28(4) of the UCPR, leave is not to be granted unless exceptional circumstances warrant the granting of leave. I accept the submissions made by learned counsel for the defendant as to how the expression “exceptional circumstances” has been construed in respect of other rules. Part 31, r 28 does not proscribe what may constitute exceptional circumstances, and according to Ritchie’s “Uniform Civil Procedure Rules New South Wales”, an assessment of whether exceptional circumstances are made out depends on a careful consideration of the facts of each individual case – see [31.28.20]. The learned authors state that “exceptional circumstances” must be understood “in the light of the mandatory directions contained in CPA ss 56-58, the directions power in CPA s 62, and the general discretion, conferred by CPA s 14 (to dispense with the requirements of the rules)”. Further, the fundamental consideration in the exercise of the discretion to grant leave is the “just determination of the proceedings” – see Australian Securities & Investments Commission v Rich [2005] NSWSC 706. The learned authors go on to state:
“Consequently, principled exercise of the discretion will require consideration of the timing of any disclosure of the report, the reason for late service, the apparent materiality of the evidence, the time available for hearing, the ability of the opposing party to meet the report, and the availability of the expert for cross-examination. The mere fact that the opposing party is aware of the contents of the report is not necessarily sufficient to justify leave being granted to excuse non-compliance with this rule. … On the other hand, exceptional circumstances, sufficient to justify leave may exist where the opposing party is not only aware of the contents of the report, but has had ample notice of its likely tender … and the tender would not give rise to significant prejudice (New South Wales v Tyszyk [2008] NSWCA 107 at [188] – [208].”
That appears to be a useful summary of authorities, it is also consistent with the description of what constitutes exceptional in the judgment of Lord Bingham CJ in R v Kelly [2000] 1 QB 198 at [208], the statement of Rares J in Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [27] as well as the decisions of this Court in relation to the phrase “special or exceptional circumstances” in In the matter of an application for bail by Massey [2008] ACTSC 145 at [7]-[8] and in In the matter of an application for bail by Allen [2009] ACTSC 64 at [9]. The test in r 1241 is a more stringent one than that referred to in the Bail Act 1992 (ACT). That is because the test in r 1241 does not include the word “special” which would suggest a lower threshold than “exceptional”.
Consistently with the authorities to which I have referred, I accept that the establishment of exceptional circumstances may involve a combination of circumstances taken in aggregate and necessarily involves a detailed consideration of the facts, to which I now turn.
Evidence
By order made on 22 February 2016 the plaintiff was required to serve all her expert medical evidence by 4 March 2016.
The defendants’ defence was served on 1 March 2016.
Prior to the commencement of proceedings the plaintiff had on 18 November 2015 advised the defendants by way of particulars that she engaged in horse riding activities.
The first directions hearing took place on 22 February 2016 at which point directions were made that would lead to a listing hearing on 19 May 2016.
On 18 March 2016 the defendants made a request for “particulars” which included a series of questions about the plaintiff’s horse riding activities.
On 13 April 2016 the plaintiff’s solicitors responded to those questions including the questions relating to horse riding activities.
The statement of particulars was filed on 21 April 2016. That included as a particular of disabilities “need to engage in horse riding as a form of rehabilitation”.
The listing hearing took place on 19 May 2016. On that date the proceedings were listed for mediation on 25 October 2016 and for hearing with an estimate of 2 to 3 days commencing on 28 November 2016.
On 9 August 2016 the plaintiff’s solicitors wrote to the defendants’ solicitors disclosing that they considered it was necessary to obtain expert evidence in relation to the plaintiff’s chronic pain condition and proposed to get a further report from Dr Champion. The letter disclosed that the report was anticipated to be able to be served by 14 October 2016. The letter requested consent to that order. That afternoon the solicitor for the defendants indicated that in the absence of a proper explanation for the need for the report and a “practical solution to the challenges that it poses for the defendants” she anticipated that the defendants would not consent to a proposed variation of the timetable.
On 16 August 2016 a more detailed letter was written to the solicitors for the defendants explaining the reason for the additional report. It referred in particular to the “significant consternation” on the defendants’ part in relation to the plaintiff’s admission that she engaged in horse riding activities. The letter indicated that the plaintiff intended to make whatever application was necessary to have the evidence admitted and would accommodate any reasonable arrangements made by the defendants to attend any doctor to obtain a report in response.
On 16 September 2016 a letter of instruction was sent to Dr Champion by express post. It sought a report in general terms not specifically related to the plaintiff’s horse riding activities.
On 5 October 2016 the solicitors for the defendants wrote to the plaintiff’s solicitors in response to the letter dated 16 August 2016. That letter indicated that the plaintiff would need to seek the Court’s leave to tender the report of Dr Champion and that “until such time as any further report is served the defendants are not in a position to assess whether or not they need to adduce evidence in reply”. It pointed to the date of the mediation and the hearing and submitted that it was quite likely that the defendants would not be in a position to have the plaintiff assessed, if necessary, prior to the date for the hearing.
On 11 October 2016 the report of Dr Champion dated 27 September 2016 was served. Dr Champion’s report is detailed and extends over just more than 11 single-spaced pages.
On 11 October 2016 the plaintiff’s solicitors wrote to the defendants’ solicitors seeking confirmation of whether or not there was any objection to the plaintiff relying upon the report at the hearing.
On 12 October 2016 the solicitors wrote to Dr Champion requesting a supplementary report dealing specifically with horse riding and asking whether the additional information provided in the letter changed his opinion.
On 13 October 2016 the solicitors for the defendants wrote identifying that arrangements had been made for the examination of the plaintiff by the neurologist and occupational physician who had previously prepared reports for the defendants.
The plaintiff’s solicitors received the supplementary report of Dr Champion on 25 October 2016 and formally served it on 26 October 2016 which was the date of the mediation. The mediation did not lead to the settlement of the proceedings. The supplementary report of Dr Champion supported “the judicious equine therapy as you have outlined”.
On 26 October 2016 the plaintiff’s solicitors wrote a follow-up email noting the absence of any response to the letter of 11 October 2016. A response was received shortly after, indicating that the defendants had given instructions to object to the plaintiff’s reliance upon that evidence. It identified that Dr Champion was an expert in a different specialty to the experts that the defendants had already briefed. It contended that the defendants were not in a position to arrange any medical appointment in reply until Dr Champion’s report had been received, which was not until October.
The evidence of Ms Armstrong is that the next available appointment with a pain specialist with expertise to provide a report in reply to Dr Champion is on 22 December 2016, which is a date after the date on which the matter is listed for hearing.
Submissions
The submissions by counsel for the plaintiff indicated that there would be an issue at trial as to whether the alleged rheumatological symptoms suffered by the plaintiff were causally related to the subject motor vehicle accident and whether the use of horse riding as a form of therapy was useful treatment or whether it indicated that the plaintiff had embellished her claim.
The plaintiff submitted:
It would, with respect, be exceptional if the Court were to permit allegations of impropriety to be made in relation to the activities of the Plaintiff without affording her the opportunity to respond to those with the benefit of qualified medical opinion.
The submissions accepted that the application could have been brought earlier, but that it was “inconceivable that the court would not permit the plaintiff to obtain evidence, from an expert, in order to combat anticipated serious allegations of either embellishment or outright fabrication”.
The plaintiff pointed to the requirements of s 5A of the Court Procedures Act 2004 (ACT), but submitted that the plaintiff should be permitted to rely upon the Champion reports in circumstances where there could be no prejudice to the defendants. The plaintiff pointed to the decision of Thomas J in King v Nolan [1992] 2 Qd R 498 at 501 where his Honour said:
It is significant that there is no provision anywhere in the rule which 10 gives the court the power to exclude evidence when a defendant breaches the obligation imposed by para. (e). The sanction which prima facie prevents the calling of evidence (unless the court for special reason gives leave) is contained in para. (d), which applies only to failures under paras (a), (b) or (c). In the absence of a specific provision requiring the 15 exclusion of relevant evidence, it is unthinkable that a court should or could exclude relevant evidence as a means of some sort of sanction or punishment for breach of a procedural rule. Whilst there are certain recognised areas in which a judge has a discretion to exclude admissible evidence, especially in criminal jurisdiction, in general he has no right to 20 deprive a party of the right to call relevant admissible evidence. Similarly, a judge has no discretion to admit legally inadmissible evidence (Deputy Commissioner of Taxation v. Ahern (No. 2) [1988] 2 Qd.R. 158, 164).
‘‘It is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake 30 of deciding matters in controversy …’’ (per Bowen L.J. in Cropper v. Smith (1884) 26 Ch.D. 700, 710).
I observe in relation to the reliance upon the decision in King v Nolan that the present case is clearly distinguishable as there is a specific rule of Court precluding reliance upon the evidence and, in any event, the decision was one from 1992, well prior to the emphasis on case management of courts to ensure the expeditious disposition of cases and, in particular, the decision of the High Court in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
The defendants submitted that if leave was granted to rely upon the report the hearing date would need to be vacated so the defendants could meet the reports of Dr Champion. They accepted that there was no real contest about the content of the requirement for exceptional circumstances as I have articulated earlier in these reasons.
The defendants submitted that the formation of a view on the part of the plaintiff’s legal advisers that more evidence was required was a regularly, routinely or normally encountered occurrence and hence could not be considered to be exceptional. They submitted that the plaintiff was free at all times to provide instructions to her advisers about her horse riding activities. They pointed to the fact that Dr Champion is a rheumatologist/pain specialist and neither the plaintiff nor defendants had previously qualified a doctor with that specialty for the purposes of the case. They also pointed to the fact that the defendants immediately objected to the intended evidence when it was first proposed on 9 August 2016. They submitted that there is actual prejudice associated with the defendants’ inability to obtain an opinion in response to that of Dr Champion from a pain specialist before the scheduled hearing date. In the event that leave is granted they submitted that the hearing date would need to be vacated and the plaintiff required to pay costs thrown away.
Consideration
Issue and value for plaintiff
The reports of Dr Champion go not simply to the horse riding issue, but provide general support to the pain based claims of the plaintiff. I assume therefore that they support other expert evidence which the plaintiff proposes to rely upon. Although that other expert evidence was not before me, I was told that the plaintiff would rely upon the evidence of an occupational physician, a psychologist, occupational therapist and neurologist. There is obviously a significant benefit for the plaintiff in the going to trial with the benefit of additional expert evidence supporting her claims.
I do not accept the submission made by the plaintiff that it would be exceptional for the Court to permit allegations of impropriety to be made without affording the plaintiff an opportunity to respond to those with benefit of qualified medical opinion. The reason I do not accept that submission is because the underlying premise is that the plaintiff will been denied the opportunity to respond. While the other expert evidence which has been obtained by the plaintiff is not in evidence it is available, even if it is not specifically targeted at ongoing pain conditions or horse riding. Clearly the plaintiff will be in a less forensically advantageous position if she is denied the opportunity to deploy the reports of Dr Champion. However, that position arises not from some unexpected development in the course of the proceedings, but the decisions made by the plaintiff and her lawyers at previous stages of the proceedings about what expert evidence to obtain, from whom and when to make the present application.
Late forensic decision inconsistent with Listing Hearing Questionnaire
The reason why the plaintiff is forced to make the present application is that she did not serve the report in accordance with the directions made at the first directions hearing. In fact, she did not even identify that she proposed to obtain a report until well after the listing hearing. She identified in particulars that the need to engage in horse riding as therapy was part of her case. It is therefore not a new issue in the case, even though the defendants’ apparent excitement about the issue may have become more apparent over time.
The significance of this history must be assessed in the light of the procedures put in place by the Court to facilitate the early and efficient disposition of its caseload.
Under Practice Direction No 2 of 2014 a plaintiff is required to serve with the originating claim “a document setting out the specialisation of each medical expert or the area of specialised knowledge of any other expert from whom the plaintiff proposes to obtain an expert report”. This is designed to ensure that defendants have early notice of the specialties of medical experts which they may be required to engage and hence reduce the overall time taken for the case to be prepared. Clearly enough there will be circumstances in many cases where the case takes an unexpected turn and requires a departure from what is anticipated at the time of filing. However, the starting point is that there is early disclosure of the range of specialists to be called by the plaintiff.
That is reinforced by the terms of the First Directions Hearing Questionnaire required under Practice Direction No 2 of 2014 (in this case filed on 22 February 2016) which requires parties to identify whether any advice from counsel that it considers necessary has been obtained and whether the plaintiff has briefed its medical experts to obtain reports. Those questions are designed to focus the attention of parties on the need to obtain early advice from counsel or live with the consequences of not doing so and upon the need for the plaintiff to brief medical experts at an early stage. In the present case the plaintiff indicated in her First Directions Hearing Questionnaire that any advice considered necessary had been obtained and her medical experts had been briefed.
It must be noted that the Listing Hearing Questionnaire required by the same practice direction filed by the plaintiff identified that all necessary medical examinations save for reviews had taken place and that none further were required. It identified that all medical reports had been served. It identified that counsel had been briefed and counsel’s advice on evidence had been obtained. The content of the Listing Hearing Questionnaire is important because it discloses to the Court and draws to the attention of the parties the fact that at the point of the listing hearing the matter is in a position to be listed for hearing. Obviously if the relevant questions had been answered differently the Court might have formed a different view about whether or not it was appropriate to list the matter for hearing. The requirement to answer these questions is designed to document that solicitors for the parties have paid attention to obvious issues which are required in order that a matter be in a position to be listed for hearing.
Clearly, the reason why there is a specific question identifying whether or not counsel’s advice on evidence has been obtained is to avoid what would otherwise be a common phenomenon of parties acquiescing in the matter being listed for hearing and only subsequently obtaining advice from counsel which renders it impossible to fairly have the matter heard on the assigned date.
In the present case it appears that only after the matter was listed for hearing was senior counsel briefed and senior counsel has taken a different view to the counsel whose advice is said to have been obtained in the Listing Hearing Questionnaire.
Parties are, of course, entitled to delay briefing counsel or brief different or more senior counsel subsequent to obtaining the advice upon which they base their preparation of the case. However, the processes of the Court designed to bring proceedings to a hearing will often have a consequence that parties are required to live with the choices that they have made arising from the decisions about when to brief counsel.
Opportunity to respond
The plaintiff correctly identifies that from 9 August 2016 the defendants were on notice of the plaintiff’s intention to obtain an additional report. In the absence of an order permitting the plaintiff to do so, or an application for leave under rule 1241, it was not unreasonable, in my view, for the defendant to not take steps to meet the reports of Dr Champion prior to their service and an assessment of their content. Had the plaintiff made an application so as to have her entitlement to obtain Dr Champion’s report determined immediately then there would have been a better case for permitting reliance upon the report because the defendants would have been more likely to be in a position to obtain any necessary report from an equivalent specialist prior to the hearing.
Vacation of hearing date
It is significant that the effect of granting leave would be to require the vacation of a hearing date. The hearing is due to commence on 28 November 2016. I note that in circumstances where the application is made so close to the hearing date, it would have been preferable for the application to be made to the trial judge. Clearly enough the Court has allocated resources to the hearing of the matter on that date and the defendants have prepared the matter for hearing on that date. Those are factors which tend against granting leave.
Options
The alternative courses that are available are:
(a)Grant leave to permit reliance upon the report and vacate the hearing date. Having regard to the intervention of the Christmas period the trial date is likely to be set back by at least three months and possibly substantially longer.
(b)Refuse the application for leave and to permit the matter to proceed to a hearing on the allocated date.
Result
The rule makes it clear that there is a high threshold for departure from directions that have been made in relation to the service of expert reports. Having regard to the authorities referred to above I am not satisfied that the circumstances of this case are exceptional within the meaning of the rule. It appears to be an all too common situation which the procedures of the Court are designed to guard against.
If in the present case there was no requirement for the plaintiff to establish exceptional circumstances on an application such as this made prior to the actual tender of the report, I am not persuaded that it would have been an appropriate case in which to make an order either pursuant to r 1241 or otherwise, because the grant of leave would require the vacation of the hearing date and that would occur in circumstances where the reasons for late service were not persuasive and inconsistent with the proper management of cases to an early hearing date.
Orders
Therefore the orders of the Court are:
1. The application in proceedings dated 28 October 2016 is dismissed.
2. The plaintiff is to pay the defendants’ costs of the application.
3. The costs required to be paid under order 2 may not be assessed until the proceedings end.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: |
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