Ryrie v Tanner
[2020] ACTSC 74
•8 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ryrie v Tanner |
Citation: | [2020] ACTSC 74 |
Hearing Date: | 8 April 2020 |
DecisionDate: | 8 April 2020 |
Before: | Elkaim J |
Decision: | See [17] |
Catchwords: | CIVIL LAW – APPLICATION IN PROCEEDING – Application to vacate hearing date – reassessment of plaintiff by medicolegal expert – supplementary report not yet produced – application deemed premature |
Parties: | Nyssah Kate Ryrie (Plaintiff) Pat Tanner (First Defendant) Insurance Australia Group Limited t/as NRMA Insurance (Second Defendant) |
Representation: | Counsel S Whybrow (Plaintiff) M Nesbeth (Defendants) |
| Solicitors Baker Deane & Nutt (Plaintiff) HWL Ebsworth Lawyers (Defendants) | |
File Number: | SC 352 of 2019 |
ELKAIM J:
I heard this application earlier today and indicated to the parties that I would provide reasons for taking the course which is behind the orders I made, and which appear below.
The proceedings commenced on 5 October 2018 with the filing of an Originating Claim and a Statement of Claim in the Magistrates Court. The plaintiff was injured in a motor vehicle accident on 17 August 2015. She seeks damages from the allegedly negligent driver of a motor vehicle and that vehicle’s third-party insurer.
The proceedings were transferred to this Court on 29 July 2019.
At a listing hearing on 31 October 2019 the parties were directed to attend a mediation on 3 February 2020 and, if the mediation was unsuccessful, the matter was given a hearing date of 20 April 2020.
By an Application in Proceeding filed on 3 April 2020 (and amended 7 April 2020) the defendants wish the hearing date to be vacated. The application is supported by an affidavit of Ms Jessica Smith, a solicitor employed by the firm acting for the defendants. The affidavit was affirmed on 2 April 2020.
The mediation was unsuccessful. At about the same time as the mediation, the plaintiff’s representatives indicated that the plaintiff was to be reassessed by the medicolegal experts upon which she was relying.
On 24 February 2020 the plaintiff’s solicitors told Ms Smith, by email, that the plaintiff was going to be reassessed in early or mid-March.
On 4 March 2020 Ms Smith spoke to the plaintiff’s solicitor who told her that arrangements were in place for the reassessment and that one in particular, by a Dr Stening, was due to take place in early April. Ms Smith told her opponent that this would not allow the defendants sufficient time to arrange supplementary reports in reply.
I was informed today that the appointment with Dr Stening has taken place and he has been requested to provide his report as expeditiously as possible. It is hoped that it will be received by 15 April 2020.
On 23 March 2020 Mr Allan and Ms Smith, jointly, wrote to the plaintiff’s solicitors and said that unless the plaintiff indicated that she would not rely on any supplementary report from Dr Stening, an application would be made to vacate the hearing.
On 1 April 2020 the plaintiff’s solicitors served reports of Drs Eaton and Bentivoglio on the defendants’ solicitors and advised that “we have asked the exact same questions of Dr Stening”.
The email of 1 April 2020 than continued with this statement:
We still consider that given the amount of time you have been on notice of the Dr Stening appointment, and the fact that you have advised that you do not seek to have Ms Ryrie physically re-examined, on the basis that the Dr Stening report is served on you as soon we receive it you have sufficient time to obtain a responsive report on the papers and there is no need to adjourn this matter.
This advice from the plaintiff’s solicitors did not find favour with Ms Smith, leading to the Application in Proceeding being filed. Ms Smith ends her affidavit with this sentence:
The timing of the Plaintiff’s assessment with Dr Stening has prejudiced, and will prejudice, the preparation for the Defendants’ case for hearing.
At the commencement of the hearing this morning I informed the parties that I thought they had acted and reacted notwithstanding a missing element. Dr Stening has not yet produced a report and neither party knows what his view will be. If it does not affect his earlier view, the defendants will not be prejudiced. It is even theoretically possible that his opinion will favour the defendants. I note that the up-to-date reports of Drs Eaton and Bentivoglio do not seem be of concern to the defendants.
Accordingly, I said that the application was premature. I appreciate that the defendants were concerned to approach the Court at the earliest possible time to avoid continuing preparation costs. However, until Dr Stening’s report is produced and shows a need for a report in reply, I do not see that there is any proper basis for the hearing to be vacated.
After some discussion the parties agreed that the matter should be stood over to the hearing date to be dealt with by the judge assigned to hear the matter, or alternatively, if appropriate, by the judge conducting the list on 20 April 2020.
I made the following orders:
(a)Leave is granted for the defendants to file in court the Amended Application in Proceeding dated 7 April 2020.
(b)The Application in Proceeding is stood over to 20 April 2020 to be heard by the judge allocated to hear the matter or by the list judge, as appropriate.
(c)Both parties have leave to file and serve any further affidavits prior to 5:00pm on Friday 17 April 2020 without the need for compliance with the usual rules of service.
(d)The costs of today’s hearing are reserved.
(e)I note that the defendants do not rely on [11] in the affidavit of Ms Smith affirmed 2 April 2020.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 15 April 2020 |
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