Sayeda Safina Alam v Australian Capital Territory

[2019] ACTSC 153

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Sayeda Safina Alam v Australian Capital Territory

Citation:

[2019] ACTSC 153

Hearing Date:

7 June 2019

Decision Date:

14 June 2019

Before:

McWilliam AsJ

Decision:

See [36]

Catchwords:

PRACTICE AND PROCEDURE – Application for leave to file expert evidence out of time – Rules 1205 and 1241 of Court Procedures Rules 2006 (ACT) – where expert report are not yet sought to be tendered – where matter not yet listed for hearing and no prejudice arising – application granted

Legislation Cited:

Court Procedure Rules 2006 (ACT) rr 1205, 1240, 1241

Cases Cited:

Hinchcliffe v Carter’s Transport Australia Pty Ltd [2017] ACTSC 223

Pryce v Dunlap [2016] ACTSC 338

Steed v McDougall [2018] ACTSC 233

Parties:

Sayeda Safina Alam (Plaintiff)

Australian Capital Territory (Defendant)

Representation:

Counsel

N Watson (Plaintiff)

S Onitiri (Defendant)

Solicitors

Capital Lawyers (Plaintiff)

ACT Government Solicitor (Defendant)

File Number:

SC 106 of 2018

McWilliam AsJ

1.          The plaintiff in these proceedings has brought a claim in medical negligence in respect of her treatment over the period 2013-2014 at the Canberra Hospital, represented here by the Australian Capital Territory, the defendant. The present proceedings were commenced on 8 March 2018.

2.          The Application in Proceeding, filed 7 May 2019, is for leave to file and serve two expert reports, one from a clinical pharmacologist, Associate Professor Doogue, dated 5 March 2019, and the other from a consultant psychiatrist, Dr Phillips, dated 23 April 2019. Neither expert has provided a report previously in the proceedings.

3.          The reason the application is necessary is because on 1 April 2019, the Registrar directed the plaintiff to serve her liability and quantum evidence no later than 26 April 2019, and additionally directed the plaintiff ‘not to serve any liability or quantum evidence after 26 April 2019 without the Court’s leave’.

4.          The directions were apparently made in those terms as the plaintiff had been in repeated default of the Court’s directions, having first been directed to file and serve all liability and quantum evidence by 5 October 2018.

5.          Notwithstanding that the dates of each expert report indicate there was sufficient time to serve the material, the plaintiff does not appear to have received the reports until after 26 April 2108 and has therefore failed to comply with the directions of the Court.

6.          The application for leave to file and serve the two reports is said to be brought pursuant to r 1241 of the Court Procedure Rules 2006 (ACT) (Rules) however for reasons set out below, that rule is not yet enlivened and the question of whether the Court should grant leave more properly falls for consideration under r 1205.

The Court’s power

7.          Part 2.12 of the Rules sets out a detailed regime for the service, admissibility and procedural steps to be taken regarding expert evidence. The Court may give directions on its own initiative or on a party’s application in relation to expert evidence: r 1205(1). This includes a direction about the time for service of an expert report (r 1205(1)(a)) and any other direction in relation to expert evidence that the court considered appropriate (r 1205(1)(g)).

8.          Division 2.12.3 concerns the service of expert reports but importantly, it applies subject to any direction given by the court under r 1205: r 1240.

9.          Rule 1241 is located in Division 2.12.3. It is in the following terms (with emphasis added):

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.

…

(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.

10.       It will be seen from the emphasised words above that if r 1241(3) of the Rules applies, the plaintiff must demonstrate that there are ‘exceptional circumstances’ before leave may be granted by the Court. However, r 1241(3) only applies when a party seeks to tender a report. The clear rationale for such a heavy burden being imposed is to avoid parties belatedly seeking to tender fresh expert evidence at the hearing.

11.       The distinction is of some importance in this case, as the parties each devoted considerable attention to the applicable authorities and facts said to demonstrate ‘exceptional circumstances’. However, if r 1241 does not apply, the power being invoked is contained in r 1205, and the plaintiff does not need to establish that ‘exceptional circumstances’ exist.

12.       The plaintiff here is at a much earlier stage in the proceeding – she is not seeking to tender either report. She only seeks leave to file and serve the reports. In my view, r 1241 does not yet apply.

13.       Even if I were wrong and the rule were found to have broader application than the plain words suggest, it is subject to any order of the court and the entire division is subject to any order made under r 1205.

14.       I have given consideration to cases such as Pryce v Dunlap [2016] ACTSC 338 (Pryce) and Steed v McDougall [2018] ACTSC 233 (Steed). In Pryce, the application was heard and determined less than two weeks before the substantive hearing was to take place. Mossop AsJ (as his Honour then was) referred (at [6]) to r 1241 being limited to the point where the expert report is sought to be tendered, but did not need to finally resolve the circumstances in which exceptional circumstances might apply. Similarly in Steed, the application was dealt with by Murrell CJ three weeks before the hearing. The application was expressly directed to what evidence was to be relied upon at the hearing and there was no question that r 1241 applied.

15.       Here, the Court’s power to grant leave appears to me to more properly fall within the remit of r 1205. Nevertheless, the starting point is that parties must comply with orders imposed by the Court. In light of the orders made on 1 April 2019, the plaintiff will need to make a clear case for the Court to accede to an application for a further grant of time in which to file and serve expert evidence.

Should leave be granted to the plaintiff?

Plaintiff’s submissions

16.       The competing positions of the parties may be briefly summarised. The plaintiff relied on the affidavit of her instructing solicitor, Mr David Chen, sworn 1 May 2019. He deposes that the plaintiff has served a number of expert reports by two different medical practitioners, although none of these were in evidence.

17.       Counsel for the plaintiff took the view that there were some gaps in the reports and that further evidence from a suitably qualified clinical pharmacologist/endocrinologist and a consultant psychiatrist was required, rather than supplementary reports from the doctors who had previously provided reports.

18.       From the bar table, the submission was made that the nature of the plaintiff’s condition was somewhat unique, in that the medication the plaintiff was prescribed is alleged to have (among other things) produced a number of side effects, two of which were impulse control disorders, leading to pathological gambling; and hypersexuality, leading to the plaintiff becoming obsessed with internet pornography. The plaintiff had no prior history of any particular interest in either of those pursuits.

19.       It took some time to find the right doctor with relevant experience, and accordingly, the plaintiff has had to engage Associate Professor Doogue in New Zealand. It was submitted that the plaintiff also lost some time due to the Christmas holiday period. Both the medical and legal practitioners were unavailable, and this resulted in the previous non-compliance with Court orders.

20.       The plaintiff did attempt to update the defendant of the change in position. There is evidence that the plaintiff first notified the defendant of the intention to serve additional evidence on 29 March 2019 and that it was anticipated such evidence would be to-hand within the next month. It was on that basis that the directions on 1 April 2019 were made. Unfortunately, both Associate Professor Doogue and Dr Phillips took slightly longer than they had communicated to the plaintiff’s legal representatives.

21.       Upon receipt of the reports, the plaintiff immediately filed the present application. The plaintiff contends that each of the reports are critical to her case and she would be severely prejudiced if she were not permitted to rely upon them, that there is no prejudice to the defendant. Of particular importance is that the defendant has not yet had to file and serve its expert evidence responding to the plaintiff’s evidence and the matter has not yet been set down for hearing.

Defendant’s submissions

22.       The defendant submitted that r 1241 applied and that there were no exceptional circumstances to warrant the grant of leave. I have already dealt with that question above, but the matters raised are equally relevant to the Court’s discretion to otherwise grant leave. Relying on the affidavit of Ms Simone Richards affirmed 3 June 2019, the defendant drew attention to the broader context of the proceedings, being that the defendant was first notified of the claim in 2016, that the ambit of the claim has not changed since that time, and that there was a lengthy history of delays by the plaintiff.

23.       Ms Richards confirmed that the defendant has been on notice of the plaintiff’s intention to serve evidence from a psychiatrist who specialises in gambling and a clinical pharmacologist since 9 November 2018. The late application to rely on the evidence appears to be because of forensic decisions made by the plaintiff in conjunction with her legal representatives. The delays appear to be due to Counsel’s availability and the delays of the medical practitioners. These are not matters which would warrant the grant of leave.

24.       Counsel for the defendant disputed the submission that there were gaps in the evidence previously served which required the additional evidence. He drew attention to the lack of evidence before the Court which would enable a comparison to be made to verify whether that was the case.

25.       The defendant also disputed whether the plaintiff would suffer any prejudice if leave was refused to file and serve the reports. The defendant did not point to any prejudice it would suffer, but submitted that there was no obligation on it to establish any actual prejudice.

26.       Further, the defendant submitted that nothing ought to be taken from the fact that no hearing date has been set, as this might encourage parties to obtain evidence outside the directions of the court at any time up until a hearing date is set.

Consideration

27.       In light of the orders made on 1 April 2019, the Court may be taken as starting from a position of reluctance to accede to the application for a further grant of time to file expert evidence.

28.       There is no evidence that the plaintiff’s legal representatives had communicated to either practitioner the severe nature of the orders made on 1 April 2019. Had they done so, the plaintiff might perhaps not be in the present position of seeking an indulgence from the Court.

29.       In Hinchcliffe v Carter’s Transport Australia Pty Ltd [2017] ACTSC 223, Mossop J said at [14]:

Courts will generally be sympathetic to the realities of personal injury litigation. Often that will involve changes of position necessitated by new information or changing circumstances. Where a proper explanation is provided and the other parties will have a fair opportunity to respond to new evidence without the need to vacate a hearing date, it will often be appropriate to permit additional evidence to be served notwithstanding prior directions of the Court.

30.       His Honour went on to emphasise that in such circumstances, it is essential that the Court be fully informed of the reasons for the change of position. Counsel for the plaintiff here appears to take some responsibility for seeking to obtain the additional evidence, because she formed the view that further evidence was required from people with particular expertise, which more closely addressed the precise nature of the plaintiff’s condition and the reasons for it.

31.       This of itself is not determinative. Parties make forensic decisions throughout proceedings and there may be consequences for those decisions, regardless of whether the change in view or strategy is upon advice by counsel. I was informed that this is not a case where counsel was briefed late, but it does appear to be a case where there has been a delay in the proper analysis of the medical evidence to be relied upon. That is somewhat unsatisfactory, as is the fact that the plaintiff did not seek the leave of the Court until after the plaintiff had defaulted, even though it was known that the plaintiff would be in default of the orders of 1 April 2019 before the date had passed. Legal representatives must seek to proactively avoid their clients defaulting on the orders of the Court. It is poor practice to simply let Court dates pass and then confess and seek an indulgence of the Court after the event.

32.       However, the defendant will have a fair opportunity to address the contents of the reports. There is no issue arising about vacating a hearing date as one has yet to be set. That is an important factor in the ultimate outcome of this application. The delay in serving evidence (in May 2019) is approximately 7 months (from October 2018 when it was first meant to be filed), but that is not so egregious that the delay of itself would cause the Court to shut out the evidence at this stage of the proceedings. I have formed that view because it is apparent from the timeline that the plaintiff was attempting to obtain the extra evidence from at least November 2018 and had foreshadowed the evidence to the defendant from that time. I have also accepted that because of the nature of the plaintiff’s alleged side effects, it took some time to identify a practitioner with the requisite type of expertise.

33.       The evidence of the experts does appear to be of high relevance to the nature of the plaintiff’s claim as set out in the Amended Statement of Claim filed 20 July 2018. I do not need to read the previous evidence served to come to that conclusion and in any event, the previous evidence may not be relied upon at trial if the plaintiff is granted leave to serve the material the subject of this application.

Conclusion

34.       In those circumstances, I am satisfied that it is appropriate to extend the time in which to file and serve the evidence of Associate Professor Doogue and Dr Phillips to 17 June 2019. The timetable made on 29 April 2019 will need to be varied as a result and the parties are directed to forward short minutes of order to the Registrar within 7 days of these orders.

35.       As to the question of costs, there is little doubt that the plaintiff must pay the defendant’s costs of the application. It has been necessitated through no fault of the defendant.

36.       The orders of the Court are as follows:

(1)  The plaintiff has leave to file and serve the expert reports of Associate Professor Doogue dated 5 March 2019, and Dr Phillips dated 23 April 2019, on or before 17 June 2019.

(2)  The parties are directed to provide short minutes of order amending the orders made by the Registrar on 29 April 2019, to the Registrar within 7 days of these orders.

(3)  The plaintiff is to pay the defendant’s costs of the application.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: