Smith v Heneghen (Ruling)

[2014] VCC 710

IN THE COUNTY COURT OF VICTORIA

AT LA TROBE VALLEY

CIVIL DIVISION

 Revised
Not Restricted
 Suitable for Publication

DAMAGES AND COMPENSATION LIST
MEDICAL DIVISION

Case No. CI-13-00578

PAUL JAMES SMITH	Plaintiff
v
DR LORCAN MICHAEL HENEGHEN	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	La Trobe Valley
DATE OF HEARING:	9 and 16 April 2014 (at Melbourne)
DATE OF RULING:	30 April 2014
CASE MAY BE CITED AS:	Smith v Heneghen (Ruling)
MEDIUM NEUTRAL CITATION:	[2014] VCC 710

RULING
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Subject:   Application to amend Defence       
Legislation Cited:     Accident Compensation Act 1985; Civil Procedure Act 2010

Cases Cited:Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; Swannell & Anor v Farmer [1999] 1 VR 299; Hall v National and General Insurance Co (1967) VR 355.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Richards SC with Mr Malcolm Gray	Simon Parsons & Co
For the Defendant	Mr J Noonan SC with Mr Robert Harper	Meridian Lawyers Limited

HIS HONOUR:

1 In this proceeding the defendant makes application to amend its Defence so as to plead that the plaintiff is not entitled to maintain his claim by reason of the fact that the proceeding was instituted in contravention of the provisions of s134AB(12) of the Accident Compensation Act 1985 (‘the Act’), in circumstances in which the treatment by the defendant the subject of the claim involved treatment in respect of a compensable injury as defined by the Act.

2       The first issue for my determination involves whether I am satisfied that the proposed amendment to the Defence raises a legal issue which is arguable.[1]

[1]See Hall v National and General Insurance Co (1967) VR 355 at 367

3        I am satisfied having regard to:

·        The Answers by the plaintiff to Interrogatories 2, 3 and 6 of the Interrogatories administered by the defendant and the Further and Better Particulars supplied on behalf of the plaintiff with respect to his Answers to Interrogatories 2 and 3;

·        The medical histories provided by the plaintiff to Dr Robert Hjorth, as set out in his report dated 30 July 2012, and to Dr James Rowe, as set out in his report dated 17 May 2012;

·        The particulars provided by the plaintiff in his list of special damages as to his history of employment;[2]

that it is clearly arguable that the plaintiff sustained injury during the course of his employment on a shark boat, and that the treatment administered by the defendant to the plaintiff in this instance involved treatment with respect to an injury which was compensable pursuant to the provisions of the Act .

[2]For convenience the relevant passages of the material to which I have referred can be found in paragraph 7, sub-paragraphs (b); (c); (d); (f) and (i) of the defendant’s submissions dated 10 April 2014

4       In deciding whether I should allow the proposed amendment I am cognisant of:

(i)    The statements of the High Court in Aon Risk Services Australia Ltd v Australian National University[3] as to the caution which should be applied when considering a late application to amend a pleading, and the repeated statements made by the courts that an amendment may be refused because it is made at a late stage and because costs cannot adequately compensate the responding party.[4]

(ii)   My obligation under the Civil Procedure Act 2010 and that of the defendant to ensure the efficient and cost effective management of litigation

[3](2009) 258 ALR 14

[4]This latter point is not pressed on behalf of the plaintiff

5       It is beyond argument in my opinion that the proposed amendment raises an issue as to the jurisdiction of the Court to deal with this proceeding in that,   were the defendant’s Defence to be made good, it would follow that the maintenance of this proceeding would give rise to an abuse of process.[5]

[5]See Swannell & Anor v Farmer [1999] 1 VR 299

6       I am of the opinion that statements of the type made by the Court in Aon Risk  Services must be considered in light of the factual circumstances with which the Court was confronted at the time those statements were made and that, whilst such statements provide guidance as to the approach which I should take in deciding this application, they assume only modest relevance in the eventual determination of the application given my satisfaction that the issue raised by the proposed amendment, if made good, would mean that maintenance of this proceeding  would constitute an abuse of process.

7       In opposing the application the plaintiff points to:

·        The late timing of the application which is taken when the matter has been set down for trial: and

·        The effect which the amendment will invariably have in postponing the trial of the matter.

8       I am satisfied that there is merit in the points taken on behalf of the plaintiff in this regard.

9       Equally however, I am satisfied that account needs to be taken of the obligation of the defendant not to raise a pleading in defence until evidence is available which justifies the pleading.  In this instance that obligation must be considered in the context of the fact that the real justification for the amended pleading stems from the plaintiff’s own Answers to Interrogatories, in combination with an analysis of the medical reports to which I have referred, the content of which needs to be considered in the context of those Answers.

10      In these circumstances I am satisfied that the proposed amendment really became a live issue in approximately November 2013 and that the timing of this application should be considered in that context rather than in the context of the date upon which the initial Defence was delivered.

11      I am cognisant of the fact that the proposed amendment is sought with respect to a proceeding which is fixed for trial in August 2014.

12      I am satisfied however that whilst:

·        The proposed amendment is late;

·        The raising of the Defence will invariably involve an adjournment of the trial and a delay in the hearing of the matter for a considerable time;

the timing of the application is not such that I should disallow it when account is taken of the fundamental importance of the issue raised by the Defence.  

13      In making this finding, I take into account that the facts relevant to the Defence were largely within the knowledge of the plaintiff and his legal advisors involving as they do issues as to whether the plaintiff developed a condition in the course of his employment and sought treatment with respect to that condition, and that there is an obligation upon all the parties, including the plaintiff, to ensure that any proceeding commenced in the Court is one which the Court has the jurisdiction to entertain.

14 In the circumstances I am satisfied that it is appropriate that I allow the amendment which is sought by the defendant so as to raise the jurisdictional issue which arises by reason of the provisions of the Act.

15      I will hear the parties as to any further application which arises by reason of the ruling which I have made and also upon the issue of costs.

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