Remnant v Samuels Transport Services Pty Limited t/as Samuels Transport and Couriers

[2021] NSWSC 203

Supreme Court

New South Wales

Medium Neutral Citation:

Remnant v Samuels Transport Services Pty Limited t/as Samuels Transport and Couriers [2021] NSWSC 203

Hearing dates:

On the papers

Decision date:

10 March 2021

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

Order the plaintiff to pay the defendants’ costs of the appearance on 2 March 2021.

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Application of the rule

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 23.4

Civil Procedure Act 2005 (NSW), s 56

Category:

Costs

Parties:

Natalie Robyn Remnant (Plaintiff)
Samuels Transport Services Pty Ltd t/as Samuels Transport & Couriers (First Defendant)
Elgas Limited (Second Defendant)

Representation:

Counsel:
P A Beale (Plaintiff)
M E Kinna (First Defendant)
J F Clohesy (Second Defendant)

Solicitors:
CMC Lawyers (Plaintiff)
Colin Biggers & Paisley (First Defendant)
Wotton + Kearney (Second Defendant)

File Number(s):

2017/232844

Judgment

Introduction

1. Natalie Remnant (the plaintiff) claims damages against Samuels Transport Services Pty Ltd (the first defendant) and Elgas Limited (the second defendant) for injuries she sustained as a result of their alleged negligence when gas was delivered to her home by the defendants. The proceedings were commenced by statement of claim filed on 31 July 2017 and have had a lengthy history. There have been several directions hearings and several attempts to resolve the proceedings, including by mediation.

The present application

2. On 21 October 2020, I listed the matter for hearing to commence on 31 May 2021 with an estimate of 15 days. Also on 21 October 2020, I made directions relating to the service of any outstanding evidence, including that the defendants serve any refresher medical evidence by 12 February 2021. The defendants failed to comply with that direction. They sought to have the matter re-listed on 2 March 2021 for further directions.

3. Mr Clohesy, who appeared on behalf of the second defendant, sought an order under Uniform Civil Procedure Rules 2005 (NSW), r 23.4(1) that the plaintiff be required to attend a medical appointment. At the conclusion of the hearing, I indicated that I would make such an order if it was required. I was, however, assured by Mr Beale, who appeared for the plaintiff, that the plaintiff would attend refresher medical examinations in Sydney without an order. The parties subsequently provided draft short minutes of order to my chambers, which were in an agreed form, save as to costs. The directions altered some of the dates in the directions of 21 October 2020 with a view to ensuring that the matter would be ready for hearing on the date allocated.

4. I made the following orders:

“1. Pursuant to UCPR r 23.4, the Plaintiff attend 209/2 Pembroke Street, Epping NSW at 2:15pm on 11 March 2021 for examination by Associate Professor Peter Haertsch (Appointment).

2.   The Court notes that the Defendants will make arrangements for the Plaintiff’s return trip for the Appointment and meet the costs of same.

3.   Vacate orders 7 and 12 made 21 October 2020.

4.   Defendants to serve any refresher medical evidence (save for plastic and hand surgeons) by 15 February 2021.

5.   Defendants to serve refresher medical evidence of a plastic and hand surgeon by 22 March 2021.

6.   Conclaves (save for plastic and hand surgeons) to take place by 26 March 2021.

7.   Conclave of plastic and hand surgeons to take place by 7 April 2021.

8.   Confirm orders 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 made 21 October 2020.

9.   Liberty to restore at three days’ notice.”

5. The only outstanding issue is costs, about which there is no agreement. I made directions for written submissions and ordered that the matter would be determined on the papers.

6. The plaintiff contended that there should be no order as to costs. She argued that the defendants knew from about 18 November 2020 that Professor Meares would not be able to provide a refresher report in the matter and that, had the defendants’ solicitors acted expeditiously, they would have been able to arrange for another expert to examine the plaintiff in a timely fashion. The plaintiff submitted that the defendants’ solicitors were guilty of delay in failing to inform her that Professor Meares would not be re-examining her until 5 February 2020. She also contended that it was unreasonable to give her 13 days’ notice of an appointment with Associate Professor Haertsch, having regard to their own delay of almost three months. The plaintiff also submitted that it was difficult for her to attend such appointments on her own and the lack of notice made it difficult, if not impossible, for her husband, who accompanies her to such appointments, to accommodate the appointments with his work roster.

7. The defendants submitted that the plaintiff ought pay their costs of the re-listing because it was her lack of co-operation in attending refresher medical appointments that had necessitated the re-listing of the matter.

Consideration

8. The defendants propose to rely jointly on the evidence of the following experts whose reports have already been served:

1. Associate Professor Meares, plastic and general reconstructive surgeon (report dated 13 September 2019);

2. Dr Andrew Keller, occupational physician (report dated 24 September 2019); and

3. Ms Deborah Hammond, occupational therapist (report dated 17 August 2020).

9. The evidence adduced by the defendants (in the affidavit of James Clohesy affirmed 2 March 2021) established that the defendants made several attempts to arrange a refresher appointment with these experts.

10. As referred to above, Associate Professor Meares provided a report dated 13 September 2019. The defendants’ solicitors arranged a tentative refresher appointment with him for 15 December 2020. They were notified that he had retired and was no longer available to conduct a refresher examination with the plaintiff. The defendants’ solicitors arranged an appointment for the plaintiff to be examined by Associate Professor Haertsch on 14 December 2020. Due to an oversight, the plaintiff was not notified of this appointment. A further appointment was arranged for 18 February 2021 at 10.15am (being Associate Professor Haertsch’s first available appointment).

11. On 11 February 2021, the plaintiff’s solicitors advised the defendants’ solicitors that the plaintiff would not attend the examination on 18 February 2021. On 17 February 2021, the defendants’ solicitors arranged for two appointments with hand surgeons (Dr James Masson on 3 March 2021 at Sydney and Associate Professor Haertsch on 25 March 2021 at Epping) in order to provide the plaintiff with a choice of time and location. The plaintiff’s solicitors requested that the defendants provide a car service to transport the plaintiff to and from her appointment as her husband’s work commitments did not permit him to do this. The defendants’ solicitors confirmed that a car service would be booked and paid for by the defendants.

12. On 25 February 2021 the plaintiff’s solicitors notified the defendants’ solicitors that the plaintiff would not attend either appointment. This precipitated the application by the defendants to have the matter re-listed.

13. It appears that the plaintiff, who suffered substantial injuries as a result of the events which are the subject of the proceedings, had become weary of the litigation process and loath to undertake the journey to refresher appointments without her husband, who has acted as her support person throughout. Nonetheless, she accepted through her counsel that she has an obligation to attend such appointments and has indicated that she will do so. There was some suggestion that she was unwilling to see a new doctor but would have been prepared to see Associate Professor Meares. There was also a suggestion that she was unwilling to travel to Sydney and would prefer to have the examination conducted remotely on Zoom or a similar platform.

14. As referred to above, ultimately, Mr Beale accepted that the plaintiff was obliged to attend refresher medical appointments in Sydney and indicated that she would do so, even if her husband could not accompany her, as long as a car service was booked and paid for by the defendants. The dispute having been resolved by the parties, the timetable was altered as set out above to accommodate the further appointments and preserve the hearing date.

15. It follows from what has been set out above that the reason for the re-listing of the matter was that the plaintiff refused to attend a refresher medical appointment which had been arranged by the defendants’ solicitors. The impasse between the parties required the Court’s intervention although, in the course of the directions hearing, the impasse was resolved.

16. Section 56(1) of the Civil Procedure Act 2005 (NSW) (the Act) provides that the overriding purpose of the Act and the rules (including the UCPR) is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings.” Of present relevance, s 56(3) of the Act provides:

“A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.”

17. The defendants are entitled, as a matter of procedural fairness, to have the plaintiff re-examined close to the hearing date so that her current position can be proved by admissible expert evidence. The plaintiff is, by reason of s 56(3) of the Act, obliged to co-operate with that process and to comply with the Court’s directions. Her unwillingness to co-operate in that process in recent times has resulted in the defendants incurring the costs of having the matter re-listed. Although it would have been necessary, in any event, for the directions made on 21 October 2020 to be varied, this could have been done by sending draft consent orders to my chambers, which would have minimised costs and obviated the need for the matter to be re-listed. While the costs of directions hearings are generally regarded as costs incurred in the cause, I do not consider this to be the appropriate order in the present case. The reason for the re-listing was the plaintiff’s attitude to reasonable requests by the defendants, which was, in all the circumstances, unreasonable, even when due allowance is made for the plaintiff’s understandable frustration with the length of the litigation, the change in the identity of the specialist and the accepted circumstance that she continues to suffer the consequences of injuries she sustained as a result of the events which are the subject of the proceedings.

18. In these circumstances, I am not persuaded that there is any need to depart from the general rule that costs ought follow the event.

Orders

19. For the reasons given above, I make the following order:

1. Order the plaintiff to pay the defendants’ costs of the appearance on 2 March 2021.

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Decision last updated: 10 March 2021