SA (a pseudonym) v Hatfield

[2025] NSWDC 56

District Court

New South Wales

Medium Neutral Citation:

SA (a pseudonym) v Hatfield [2025] NSWDC 56

Hearing dates:

27 February 2025

Date of orders:

27 February 2025

Decision date:

27 February 2025

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

Orders:
In relation to the Notice of Motion filed on 21 February 2025:
1. The application to vacate the hearing date is dismissed.
2. The plaintiff is to pay the defendant’s costs of the Notice of Motion as agreed or assessed.
Note:
(a) The defendant will seek an order for payment in relation to costs incurred for the cancellation of joint conclave conferences.
(b) Counsel for the plaintiff indicates that in light of the current expert evidence, some heads of damage cannot be properly provided until the conclusion of expert oral evidence.

Catchwords:

PRACTICE AND PROCEDURE – vacation of hearing date – relevant factors

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

DekkanvPicciau [2008] NSWCA 18

Hans Pet Constructions Pty Ltdv Cassar [2009] NSWCA 230

HP Mercantile Pty LtdvClements [2013] NSWSC 1974

MorrisonvJudd [1995] NSWCA 300

Category:

Procedural rulings

Parties:

SA (Plaintiff)
Angela Hatfield (Defendant)

Representation:

Counsel:
J Hillier (Plaintiff)
J Downing SC (Defendant)

Solicitors:
Commins Hendriks (Plaintiff)
Barry Nilsson (Defendant)

File Number(s):

2022/00302690

JUDGMENT – ex tempore

1. Before the Court is a Notice of Motion filed on 21 February 2025 by the plaintiff, seeking orders vacating the hearing date.  In support of the application, the plaintiff, who was represented by Ms Hillier of counsel, read the affidavits of Geoffrey John Potter dated 14 January 2025, 31 January 2025, 24 February 2025 and 25 February 2025.  The Court has reviewed the material in those affidavits.

2. The defendant, who opposed the application, was represented by Mr Downing of senior counsel, who read the affidavits of Neroli Jane Martin of 25 February 2025 and 26 February 2025.  In addition, some documents were tendered on the application but, importantly, as Exhibit B on the application, was the joint expert conclave report of various specialists, which conclave occurred on 19 February 2025 and has been signed by the specialists on 25 and 26 February 2025.

3. The background to the matter is that the proceedings were commenced by Statement of Claim on 11 October 2022 by the plaintiff, against Dr Hatfield, who is an orthopaedic surgeon, asserting medical negligence in the treatment of the plaintiff by Dr Hatfield.  In substance, it is alleged that the surgery performed by Dr Hatfield was not indicated.

4. The Notice of Motion also seeks leave to file and serve an Amended Statement of Claim, in the form annexed to the Notice of Motion and marked A. That Amended Statement of Claim seeks to join, as additional defendants to the proceedings, Drs Masson and Sammons, who provided treatment and surgery to the plaintiff.  Dr Masson saw the plaintiff in September 2013, and performed surgery on the plaintiff after Dr Hatfield, in 2017 and 2022.  Dr Sammons performed surgery in 2023.  The procedures by Dr Hatfield occurred in May and December 2016.

5. On 7 February 2024, I set the matter down for hearing on 3 March 2025 with an estimate of eight days.  The hearing date has been confirmed on a number of occasions, including by me.  On 3 February 2025, I rejected an application by the plaintiff to vacate the hearing date, on the basis of the evidence then before me.

6. At the outset, I wish to say that the submissions by both counsel have been of a very high standard, and have assisted the Court considerably in considering the application. 

7. Ms Hillier, who appears for the plaintiff, submitted, in general summary as follows:

1. That the plaintiff has been actively seeking treatment for his pain condition;

2. He consulted Dr Davis who referred him to Dr Lim, a pain specialist, who recommended inpatient treatment, which involved alternative treatment;

3. Dr Lim, in a report dated 8 February 2025, set out, in some detail, the inpatient treatment which the plaintiff received from 26 January to 6 February 2025, and Dr Lim’s assessment of the plaintiff. As I said, Dr Lim is a consultant in rehabilitation and pain medicine.  Dr Lim, in his report, indicated that the plaintiff had been treated with ketamine in relation to his pain condition and that this had assisted the plaintiff, including with his desensitisation and also his grip strength.  The detail is set out in the report.  The pain severity and pain interference on admission and on discharge with the ketamine was indicated, and the plaintiff’s position had improved.  It was proposed that further treatment be given to assist the plaintiff.

8. Ms Hillier submitted that Exhibit B on the application, being the joint conclave report, sets out clearly the fact that the two specialists retained on behalf of the plaintiff considered the inpatient treatment and the ketamine infusions and the consultation with a multidisciplinary pain team and were of the opinion that, in summary, the plaintiff had not reached maximum medical improvement and it was uncertain what the effect would be of the ketamine infusions with the central sensitisation and neuropathic pain problems of the plaintiff, and whether that assistance will last for weeks or months would only be determined by time, but the plaintiff’s symptoms would remain intrusive when the pain returns.

9. Ms Hillier submits that the issues raised in the case affect not only the liability of the additional doctors sought to be joined but also causation issues, and damages.  She stated that she would have real difficulties as counsel appearing for the plaintiff in putting forward an appropriate damages schedule because of the uncertainties.  In substance, it is submitted that the plaintiff’s condition has not settled, that he has not reached maximum medical improvement, and, accordingly, the trial date should be vacated and the plaintiff should be allowed to raise the additional issues against the other doctors.

10. The plaintiff’s proposed pleading, Ms Hillier submits, is quite different because it now states that none of the surgical procedures were warranted in the light of the plaintiff’s condition.  Ms Hillier raises the points that if the matter is not vacated then:

1. The plaintiff will have to bring proceedings against the other two doctors separately;

2. There will be two separate proceedings with the prospects of inconsistent factual findings, further appeals, additional costs, and further imposition on the plaintiff.

11. Ms Hillier also raised in reply the possibility of Dr Hatfield being brought in by way of cross‑claim by the other two doctors.  In substance, Ms Hillier submitted that it was in the interests of justice to vacate the hearing date, such that the proceedings could all run together at the same time.  Ms Hillier placed particular reliance on Exhibit B.  She submitted that Dr Dalton, the defendant’s retained specialist, noted that he had not received any correspondence or reports in relation to recent treatment.

12. Mr Downing SC made the following submissions:

1. The Court had already refused a vacation of the trial date, and it appeared the difference now was the desire of the plaintiff to join the two defendants based on the recent reports of Dr Lim and Dr Giblin.

2. Relevant factors indicated that the application should be refused including because of the prejudice to Dr Hatfield by a substantially delayed hearing date.

13. Mr Downing pointed not only to the financial consequences for the defendant by the substantial cancellation of consultations and surgeries with patients, which are set out in paragraphs 4 to 6 of Ms Martin’s affidavit of 25 February 2025, but also the effect on the public patients quite apart from private patients.

14. Mr Downing submitted that it was unclear what consultations and procedures, if any, could be “rescued”, but that Dr Hatfield would have to replicate making similar time available in 2026 if the matter was vacated.  He submitted that this was a considerable prejudice to Dr Hatfield and would, in essence, result in the matter being over her head for another up to 15 months. 

15. In relation to the matter put forward by the plaintiff that the vacation is sought to join Dr Sammons and Dr Masson, reference was made in particular to the letter dated 5 September 2013 from Dr Masson to the plaintiff’s general practitioner in which Dr Masson expressed the opinion that [SA] had prominent distal flexor muscles which moved up and down with finger flexion, that the forearm ultrasounds were normal, and that he was of the view that surgery was not recommended.

16. Mr Downing submitted that this letter was available to the plaintiff's lawyers even before proceedings were commenced, but certainly by 2022 and, in fact, it had been briefed to one of the plaintiff’s experts, Dr Giblin, orthopaedic surgeon. He submitted that is clear from the material annexed to Ms Martin’s 25 February 2025 affidavit: see in particular the document at p 104.  In other words, the letter was always available.  Mr Downing took the court to the decision of the Court of Appeal in Morrison v Judd [1995] NSWCA 300 where Kirby P, with whom R P Meagher and Powell JJA agreed, expressed the opinion that an availability of an action in negligence against a legal representative is relevant “because common sense says that it is so.” However, his Honour expressed the view that it was a consideration which cannot carry much weight.

17. It is a factor to take into account that this material was available to the plaintiff’s solicitors in 2022-23.  I do not for one moment suggest that the plaintiff should have understood the complexities of it. I am not suggesting that the plaintiff would have a strong claim against his instructing solicitors, but, in my view, it is a factor to take into account. 

18. Mr Downing took me to the High Court decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 and referred to ss 56 to 59 of the Civil Procedure Act 2005 (NSW), including the issue of delay. He submitted that Aon stands for the proposition that costs will not always be an entirely adequate remedy for an adjournment.  He submitted that, in the present case, the delay involved and the effect on other litigants was a factor to take into account.

19. In relation to the maximum medical improvement issue, Mr Downing submitted that courts deal with issues like this every day and give buffers for future medical costs. 

20. It appears to me that would be a subject that could be cross‑examined on with experts, and I think it likely that Ms Hillier could put together a schedule of damages seeking an appropriate amount, however undesirable that may be having regard to the slightly uncertain position in the light of Dr Lim’s report. 

21. In relation to Dr Dalton not having read into the correspondence to the same extent as the other doctors, Mr Downing noted that the inpatient records were not available to anyone and there was limited additional material provided to the plaintiff’s retained additional experts.

22. Mr Downing referred to the plaintiff having a long history of seeking alternative pain treatments for his condition, having seen a number of experts over a number of years. He submitted that it was quite reasonable in the plaintiff seeking to assist himself, but this was yet another treatment that the plaintiff was seeking. 

23. Ms Hillier accepted the Aon points.  She referred, as I indicated, to the possibility of Dr Hatfield being brought in to new proceedings, and she referred to the 2013 Dr Masson letter as being a factor taken into account by Dr Giblin in giving his revised opinion that no surgery at any stage by anyone in the circumstances on the evidence was warranted.  Aon was distinguished by her because the plaintiff here had not reached maximum medical improvement.  It was submitted that this was not like a standard case involving buffers because of the uncertainty about the success of future ketamine infusions on the plaintiff.

24. The Court takes into account various principles in coming to its consideration of the appropriate order to make.  The vacation of a hearing date is an important step to take.  Good cause must be given for the vacation of a hearing date. 

25. In HP Mercantile Pty Ltd v Clements [2013] NSWSC 1974 Black J, at paragraphs 26 to 29, set out the principles applicable in relation to the vacation of a hearing date. His Honour referred to Aon Risk Services and the prejudice arising from delay in dealing with applications of that kind. His Honour also, in some detail, referred to ss 56 to 58 of the Civil Procedure Act 2005. I take the matters referred to by his Honour and those sections into account.

26. His Honour also referred to the Court of Appeal decision in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230. Black J in HP Mercantile, concluded that in the light of the matters in that case, it would not be consistent with the just, quick and cheap resolution of the real issues in dispute in the proceedings, to vacate the hearing date. 

27. It is important in this case to take into account particularly s 58 of the Civil Procedure Act because of the nature of the application in the present case. Section 58 sets out the matters to take into account in relation to an order granting an adjournment, and makes clear that the Court must seek to act in accordance with the dictates of justice.

28. In relation to the amendment sought by the plaintiff, the Court takes into account s 64 of the Civil Procedure Act, and the matters referred to in s 64(2) which provides, subject to s 58, that all necessary amendments are to be made for the purpose of determining the real questions raised by, or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. Those factors are relevant here, and I will mention them again shortly.

29. I take into account a case which I raised in discussion with counsel, being Dekkan v Picciau [2008] NSWCA 18. There, Basten JA, with whom Hodgson and Tobias JJA agreed, considered an appeal from a judge of this Court in relation to the refusal to vacate a hearing date. Their Honours indicated in relation to that matter, that an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment. It will do so if the refusal will result in a denial of justice to the applicant, and the adjournment will not result in any injustice to any other party: at [36]. At [41] and [51] the Court noted that a failure of a lawyer to prepare for a hearing may provide a basis for a claim against a lawyer by his or her client, but absent some particular justification, will not entitle a party to an adjournment to the prejudice of the opposing party.

30. The factors relevant to the exercise of the Court’s discretion whether to vacate the hearing date, include, in my opinion:

1. That the matter was commenced in 2022.  It is therefore a relatively old matter.

2. The parties informed the Judicial Registrar in January 2024 that the matter was ready for hearing.

3. On 7 February 2024, I set the matter down for hearing on 3 March 2025 for eight days.

4. The hearing date has been confirmed on a number of occasions, including by me.

5. On 3 February 2025, I rejected an application by the plaintiff to vacate the hearing date, but for different reasons, I accept.

6. The plaintiff, by this proposed amended pleading, wants to join two other doctors as defendants, who provided medical services before and after the defendant, Dr Hatfield.

7. The case is already complex.  The amendment would add difficult issues of liability, causation and damages, and would add two other parties if the leave is granted for the pleading.

8. Substantial additional expert medical evidence would be required.

9. It is desirable to determine all issues in dispute between the parties to a hearing, if appropriate. I, again, refer to s 64(2) of the Civil Procedure Act.

10. Not allowing the amendment has the potential for another complex proceedings, involving similar factual and expert evidence issues.  This would also substantially increase costs and court time.

11. There would be the potential for inconsistent factual findings, which possibility should be avoided, if appropriate.

12. A vacation of the trial date would be required if the leave to amend was given.

13. Another hearing would not occur, on my inquiries with the Registry, until May 2026, unless the matter were expedited.

14. The 5 September 2013 report of Dr Masson was known to the plaintiff’s solicitors and Dr Giblin, one of the plaintiff’s retained experts, in 2023.

15. The matters in Exhibit B expressed by the plaintiff’s retained experts, as contrasted with the opinion of Dr Dalton, in substance, that there has been a long and chronic history with the plaintiff, with the unlikelihood, according to Dr Dalton, that there would be a complete resolution of the plaintiff’s symptoms.

31. The prejudice to the parties must be examined if a vacation were ordered.  This is clearly the position, but Dekkan seems to emphasise that in particular. It is noted:

1. The plaintiff would have a delayed hearing until 2026.

2. The plaintiff would not have all his claims heard in the one case if vacation did not occur.

3. There would be substantial costs wasted by the vacation by both the plaintiff and the defendant, because counsel and experts would need to read into the matter again.

4. The trial date has been in place for a long time.

5. The parties and experts have organised themselves to the current date, and the vacation would allow for one hearing instead of possibly two, which is a matter of significant prejudice to the plaintiff. 

32. The prejudice to the defendant, in my view, is considerable:

1. She has had this case hanging over her head for three years, as has the plaintiff;

2. She has made extensive plans to be available for the trial, as set out in Ms Martin’s 25 February 2025 affidavit.  Not only would she suffer financial loss personally, it would appear, but there would be substantial interruption to her practice if the matter were vacated, and I take into account, as Mr Downing submitted, the effect on public patients.  She would need to set aside time again on the second occasion if a new trial is ordered;

3. What is already a difficult case for the defendant would be made more complex with the addition of the two extra doctors;

4. Significant costs would be wasted by vacation of the hearing date to Dr Hatfield.

33. I emphasise again that I do take into account the potential for two hearings for the plaintiff, and the potential for inconsistent findings, and the costs and stress of two hearings to the plaintiff.

34. Balancing all of the matters and taking into account, in particular, Ms Hillier’s clear and persuasive submissions in relation to the change in the plaintiff’s position and the ketamine infusions he has received, and the difference in the case and the uncertainties that are involved, I am still not persuaded that it is in the interests of justice to vacate the hearing data so shortly before it is set. 

35. The prejudice to the defendant, in my view, is considerable, and this matter has been hanging over her head for a long time.

36. I take into account the plaintiff’s long history of seeking assistance for his pain, which, in my view, is understandable and commendable in trying to ameliorate his position, but to me the prejudice is significant to the defendant. In the end, I am not satisfied that the prejudice to the defendant is outbalanced, taking into account the factors in ss 56 to 59 and 64(2), by the prejudice to the plaintiff. The delay which has occurred, and the delay that would occur of some 15 months, are very important, in my view, and, in the end, I am not persuaded to vacate the hearing date.

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Decision last updated: 14 March 2025