Stapleton v Central Club Hotel (Ruling No 2)
[2016] VCC 799
•16 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-13-06035
| EILEEN MONICA STAPLETON | Plaintiff |
| v | |
| CENTRAL CLUB HOTEL | First Defendant |
| HARRY TSIGARIS | Second Defendant |
| and | |
| CABRINI HEALTH | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2016 | |
DATE OF RULING: | 16 June 2016 | |
CASE MAY BE CITED AS: | Stapleton v Central Club Hotel & Ors (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 799 | |
RULING No 2
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Subject: COSTS
Catchwords: Application by defendants for costs thrown away by reason of the vacation of the trial date
Legislation Cited: Wrongs Act 1958 (as amended); Civil Procedure Act 2010, s25; Supreme Court (General Civil Procedure) Rules 2015, r63.23(1)(c)
Cases Cited:Stapleton v Central Club Hotel & Ors (Ruling) [2016] VCC 91; Noone v Mericka (No 2) [2012] VSC 2
Ruling:Order that a percentage of the defendants’ costs thrown away by reason of the adjournment be paid by Mr McGregor.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F C Spencer | Victorian Law Co Pty Ltd |
| For the First Defendant | Mr S O’Meara QC with Mr B Jellis | Hall & Wilcox |
| For the Second Defendant | Mr S O’Meara QC with Mr B Jellis | IDP Lawyers |
| For the Third Defendant | Mr S O’Meara QC with Mr B Jellis | Minter Ellison |
HIS HONOUR:
1 In this matter, the defendants make application for their costs thrown away by reason of the vacation of the trial date fixed in this proceeding for 24 February 2016 (“the 2016 trial”).
2 In arriving at my ruling in this instance, I rely upon the chronology as to the history of the management of this litigation which I append to my ruling.[1]
[1]Appendix “A” – Chronology
3 The adjournment of the 2016 trial is the second adjournment of a trial date in this proceeding and came about as the result of an application by the plaintiff which was strenuously opposed by the defendants. But for the application the plaintiff would have been shut out from seeking compensation in the form of an award of general damages in respect of any physical or psychological injury suffered by her.
4 I am satisfied that the plaintiff found herself in such a position through no fault of her own but by reason of the decision by her then solicitor, Allan Lawrence McGregor:
· to delay for no good reason the service of an impairment certificate authored by Dr Epstein, this being the primary reason for the adjournment of the first trial; and
· to delay for no good reason the service of an impairment certificate authored by Mr Goldwasser, this being the primary reason for the adjournment of the second trial.
5 Given that the application in this instance is limited to the costs thrown away by reason of the adjournment of the second trial I will, in the course of my judgment, set out my reasons for making the latter of the two statements above. That having been said, it is nonetheless necessary to make some comments as to the history associated with the adjournment of the first trial given the content of the affidavit of Mr McGregor (dated 6 April 2016) and the submissions made on his behalf in this instance.
6 In the context of the tortured history of this litigation as demonstrated by the chronology, I find it appropriate to comment that I am satisfied that the management of this litigation by Mr McGregor smacks of incompetence borne of either a lack of familiarity with, or a wilful disregard for, both the Rules of the Court and the provisions of the Wrongs Act 1958 which govern the litigation, which has resulted in the following glaring deficiencies in the management of the litigation:
(i) Firstly, failing to ensure that the proceeding was issued within the Medical List or transferred to the List at the earliest possible time;
(ii) Secondly, unreasonable delay in the service of an impairment certificate from Dr Epstein dated 21 August 2012 (“the Epstein certificate”);
(iii) Thirdly, unreasonable delay in commissioning an impairment certificate from Dr Goldwasser dated 7 December 2015 (“the Goldwasser certificate”);
(iv) Fourthly, failing to take into account, when considering the issue as to the timing of the service of the Epstein certificate or the Goldwasser certificate, the statutory entitlement of the defendant to seek the determination of a Medical Panel as to a relevant impairment level within sixty days of the service of an impairment certificate.
7 Given the requests made by Minter Ellison addressed to Victorian Law Co Pty Ltd in May, July and September of 2014 to the following effect:
“In relation to your client’s claim that she is entitled to recover general damages please forward to us your client’s certificate of assessment, together with accompanying examination report”
the unexplained delay by Mr McGregor in serving the Epstein certificate until 16 March 2015, is difficult to excuse.
8 In these circumstances I find the position taken by Mr McGregor, which appears to assert that some responsibility for the delay which was occasioned in the generation by the Medical Panel of its assessment as to the plaintiff’s degree of psychiatric impairment should be visited upon the defendants by reason of the fact that they exercised their entitlement under the Wrongs Act to make a referral within sixty days of the service of the certificate by doing so towards the end of that period, to be completely without any merit.
9 Equally, that Mr McGregor was writing to Mr Goldwasser in November 2015 seeking an impairment assessment in the context of a trial date listed for 26 February 2016 demonstrates, in my opinion, a complete failure by Mr McGregor to have learnt anything from the mismanagement of the proceeding by him associated with the late service of the Epstein certificate which was a significant cause of the adjournment of the first trial date in the matter.
10 It is put on behalf of Mr McGregor that his omission in serving a certificate from Mr Goldwasser was contributed to by the failure of Mr Goldwasser to provide an impairment certificate which accompanied his report. Such a failure would have no consequence however had Mr McGregor ever turned his mind to his duty to serve a certificate within an appropriate time and acted upon that duty.
11 The statement by Mr McGregor in his affidavit filed on 6 April 2016 in which he attests to “my mistaken belief that service of the Goldwasser report was sufficient to satisfy the relevant requirements of the Act” makes it clear that Mr McGregor had failed to appraise himself as to the provisions of the Wrongs Act which governed the plaintiff’s entitlement to maintain a claim for general damages in this proceeding. I consider that failure to be inexcusable given the adjournment of this proceeding in 2015 which was at the very least contributed to by the delayed service of the Epstein certificate.
12 Further, although not relevant to the issues which I have taken into consideration in arriving at my ruling in this instance, it is appropriate that I comment upon the behaviour of Mr McGregor in filing an affidavit in defence of his own behaviour in which he repeatedly referred to conversations between himself, his client and counsel briefed by him which clearly contained information which was confidential and privileged.
13 I am satisfied, having regard to the content of paragraph 44 of Mr McGregor’s affidavit sworn 6 April 2016, that it was not until he had received advice from his current solicitors that he considered it appropriate to avoid disclosing confidential and privileged information, the disclosure of which was potentially detrimental to the position of his client, in an attempt to excuse his own failures of management.
14 It is put on behalf of Mr McGregor that the adjournment of the 2016 trial arose primarily by reason of the introduction of the 2015 Amendments to the Wrongs Act[2] (“the Amendments”).
[2]Wrongs Amendment Act 2015 (Vic)
15 The fallacious nature of that argument is demonstrated by the fact that had the plaintiff established her entitlement to rely upon the impairment assessment of Mr Goldwasser in respect of her physical injury, she would not have been required to prove the extent of the impairment associated with her psychiatric illness in order to recover damages in respect of the latter injury.
16 In his affidavit of April 2016, Mr McGregor attests to being apprised of the Amendments by Counsel on or around 24 November 2015. The correspondence generated by Mr McGregor and the solicitors acting on behalf of each of the defendants between 25 November 2015 and 14 December 2015 tends however to suggests otherwise.
17 In that correspondence no mention was made by Mr McGregor as to any issue which arose by reason of the Amendments. Rather the correspondence focussed upon what, in my opinion, was a largely spurious ground for the adjournment of the trial date, namely the right of the plaintiff to consider seeking judicial review of the Medical Panel’s determination as to the extent of her psychiatric impairment, which entitlement was to expire on 19 December 2015.
18 It is clear that as at 3 December 2015, the Amendments were not a factor in whether the trial should proceed. On that date:
· an application was made to the Court on behalf of the plaintiff to have the trial date adjourned to allow the plaintiff time to consider whether she should commence an appeal against the Medical Panel’s determination; and
· no mention was made of the existence of any issue which might affect the maintenance of the trial date by reason of the introduction of the Amendments.
19 The 3 December 2015 application was refused and was adjourned to 17 December 2015 for the purpose of accommodating:
· the timeframe during which the plaintiff had an entitlement to lodge a referral to the Medical Panel; and
· the trial date should the plaintiff fail to do so.
20 It is clear from the position adopted by Mr McGregor with the other defendants that as at 3 December 2015, the only impediment to the trial proceeding was the timeframe which applied to the plaintiff’s entitlement to appeal the decision of the Medical Panel as to the significance of her psychiatric injury and that this position persisted up to 7 December 2015, at which time Mr McGregor served the Goldwasser certificate.
21 The service of that certificate in circumstances in which the defendants had 60 days to refer the impairment the subject of the certificate to the Medical Panel was, in my opinion, an activity which made the maintenance of the February trial date an impossibility having regard to the controversy associated with the certificate, particularly insofar as it applied against the second and third defendants in which it aggregated the consequences of injuries in respect of which the liability of second and third defendants differed from that of the first defendant, which in turn made a referral likely.
22 It was not until 14 December 2015 that Mr McGregor first raised with the solicitors for the defendants the alteration in the threshold introduced by the Amendments and his assertion that the plaintiff was seeking a further certificate of assessment in respect of a psychiatric injury.
23 The relevance of the Amendments upon the need to adjourn the 2016 trial date is, in my opinion, also to be considered in the context of the behaviour of Mr McGregor on 21 January 2016, the day after the Order was made adjourning the trial date, at which time he sought a view of the first defendant’s premises for the purpose of obtaining an expert report as to the safety of the premises.
24 That Mr McGregor had not, prior to that date, sought to assemble expert evidence as to the primary liability of the first defendant, or to serve expert evidence as to the liability of the third defendant, further suggests that the trial was never likely to proceed in February by reason of the mismanagement by Mr McGregor on a number of fronts, and that the adjournment of the trial was not influenced in any determinative way by the introduction of the Amendments.
25 I am satisfied that Mr McGregor’s unreasonable delay in serving the Goldwasser certificate arose through his negligence in failing to manage the plaintiff’s litigation so as to provide her with an opportunity to establish the primary prerequisite necessary to allow her to seek and recover general damages, namely the service of a certificate attesting to that entitlement.
26 As to the failure to serve the impairment certificate in a timely manner, one need look no further than paragraphs 43-46 of the Medical List Practice Note which highlight the importance in that process of the time fixed by the Wrongs Act for a referral to a Medical Panel.
27 I am further satisfied that the necessity for adjournment of the 2016 trial date in this instance was virtually set in concrete by reason of the delay by Mr McGregor in:
· Unreasonably delaying the commissioning of an impairment certificate from Dr Goldwasser, the result being that the defendants had no opportunity to contest the certificate by a referral to a Medical Panel within a timeframe which could have resulted in a finding by the Panel which would have accommodated the trial date;
· Failing to obtain the expert evidence the subject of his request to the defendants on 21 January 2016.
28 For the reasons set out above I am satisfied that the timing of the Amendments had little relevance to the adjournment of the trial date. Although I make no finding as to this issue I am left with a strong impression that the influence of the introduction of the Amendments operated only to provide Mr McGregor with a basis to adjourn a trial which he well knew was not ready to proceed by reason of his failure to ensure it had been appropriately prepared.
29 Notwithstanding my comments above I am satisfied that the defendants did have a responsibility:
· to raise with Mr McGregor the absence of an impairment certificate with respect to the plaintiff’s physical injuries, given the opinion expressed by Mr Goldwasser that the plaintiff presented with a physical impairment which allowed her to maintain a claim for general damages by reason of her physical injuries; and
· to ensure that the proceeding was transferred to the Medical List at an earlier date and seek that the management of the proceeding be monitored via intensive supervision;
and that the order for costs to be made in favour of the defendants in this instance should be tempered to take into account those facts.
30 In my opinion, it could not be reasonably contended that the plaintiff herself bears any responsibility for the inability of the trial to proceed in February 2016. Rather I am satisfied that the adjournment of the 2016 trial date was a direct result of a comprehensive failure of Mr McGregor to comply with his obligation under s25 the Civil Procedure Act 2010.
31 For the reasons set out above I am satisfied that the finding which I have made as to the negligence of Mr McGregor in this instance when considered in the context of:
(i) the previous delay in the service of the Epstein certificate;
(ii) the previous adjournment of the 2015 trial in this proceeding and the resultant delay in the finalisation of this litigation at that time;
(iii) the further delay in the finalisation of this litigation by reason of the adjournment of the 2016 trial;
(iv) the breach by Mr McGregor of his duty under the provisions of s25 the Civil Procedure Act 2010;
is appropriately categorised as involving so serious a breach as to warrant the making of a costs order against him pursuant to the provisions of r63.23(1)(c) of the Rules of the Court.
32 For the reasons set out above, I am satisfied that it is appropriate that I make the following Orders:
(1) Seventy-five percent of each of the defendants’ costs thrown away by reason of the adjournment of the 2016 trial are to be paid by Mr McGregor on an indemnity basis;
(2) Mr McGregor may not seek to levy or recover from the plaintiff any costs or disbursements associated with the vacation of the 2016 trial date.
33 Given my findings as set out above I propose to refer the conduct of Mr McGregor in this instance to the Legal Services Board.
The costs associated with the application in respect of which judgment was delivered on 17 February 2016[3]
[3]Stapleton v Central Club Hotel & Ors (Ruling) [2016] VCC 91
34 I am satisfied that the defendants were wholly successful in the determination of the preliminary question in this instance and that the usual rule that the costs follow the event should be applied.
35 Whilst it is clear in this instance that my ruling may have had ramifications which extended beyond the current proceeding, I am nevertheless satisfied that the need for the ruling arose for the purpose of the plaintiff seeking to enforce a private right. The validity of that position is, in my opinion, demonstrated by the fact that the progress of the appeal lodged by the plaintiff in this instance has been delayed to allow the plaintiff to await the determination of the Medical Panel as to the significance of the physical injury with which she presents, the Court of Appeal having been informed that in the event of a finding by the Medical Panel which supports the plaintiff’s position as to the level of that impairment, the plaintiff will not proceed with the appeal.
36 It follows that in these circumstances I am satisfied that I should adopt the approach to costs taken by Justice Sifris in Noone v Mericka (No 2),[4] namely that the costs should follow the event, given my satisfaction that:
[4][2012] VSC 2
· the plaintiff’s claim the subject of my ruling in this instance involved the enforcement by her of a private right; and
· the fact that my decision may have had implications which extended beyond the interests of the immediate parties to the proceeding does not mean that the defendants should be deprived of an order that costs follow the event.
37 Subject to hearing from the parties I propose to make the following Orders as to the costs of the application in respect of which judgment was delivered on 17 February 2016:
(1) The defendants’ costs of the application be taxed in default of agreement and paid by the plaintiff.
(2) The taxation and payment of the costs be stayed until the resolution of the proceeding or further order of myself.
(3) Liberty is reserved to the parties to apply as to this Order.
38 Given that I have not afforded to the parties the opportunity to be heard as to the form of the orders I will reserve to the parties liberty to apply as to the orders in so far as the wording of the orders should be varied so as to give effect to my intention as disclosed by my reasons in this instance.
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Appendix “A”
Chronology
STAPLETON v CENTRAL CLUB HOTELS & Ors (CI-13-06035)
CHRONOLOGLY
Parties
PARTIES Allan McGregor (AMG) Plaintiff – Eileen Stapleton Hall & Wilcox Central Club Hotel Minter Ellison Cabrini Health IDP Lawyers Dr Tsigaras Summary
Allan McGREGOR (“AMG”) – solicitor on record for the plaintiff from 21 NOV 2013 to 11 MAR 2016
Dated AMG Received AMG Served EPSTEIN Report 30 JUL 2012 AUG 2013 EPSTEIN Certificate 21 AUG 2012 AUG 2013 16 MAR 2015 GOLDWASSER Report 28 FEB 2014 Early MAR 2014 10 OCT 2014 (Minter Ellison)
27 FEB 2015 (IDP Lawyers)
N/A (Hall & Wilcox)GOLDWASSER Cert. 7 DEC 2015 7 DEC 2015 “SECOND” GOLDWASSER Cert. 8 JAN 2016
DATE EVENT 2010 27 NOV 2010 Plaintiff injury (First fall, at Central Club Hotel, Richmond) 31 DEC 2010 Plaintiff injury (Second fall, at Cabrini Hospital) 2012 30 JUL 2012 EPSTEIN Report (dated) 21 AUG 2012 EPSTEIN Certificate (dated) 2013 AUG 2013 AMG retained by plaintiff
AMG receives EPSTEIN Report and EPSTEIN Certificate upon receipt of file from plaintiff’s previous solicitor.21 NOV 2013 Writ and Statement of Claim filed
Matter commences in the GENERAL LIST2014 28 FEB 2014 GOLDWASSER Report (dated) Early MAR 2014 AMG receives GOLDWASSER Report. MAY 2014 Proceeding served 9 MAY 2014 Appearance filed (MINTER ELLISON) 26 MAY 2014 Appearance filed (HALL & WILCOX) 3 JUN 2014 Defence filed (MINTER ELLISON) 5 JUN 2014 Appearance filed (IDP LAWYERS) 24 JUL 2014 Defence filed (IDP LAWYERS) 25 JUL 2014 Defence filed (HALL & WILCOX) 24 JUL 2014 AMG attempts to send to Hall & Wilcox the GOLDWASSER Report but it was actually omitted from letter 30 JUL 2014 AMG sends to Hall & Wilcox the GOLDWASSER Report (including other reports referred to by the GOLDWASSER Report) 21 MAY 2014
30 JUL 2014
9 SEP 2014Minter Ellison write to AMG requesting impairment assessment. 10 OCT 2014 AMG sends to Minter Ellison the GOLDWASSER Report (including other medical reports)
Letter refers to EPSTEIN Report, stating:
“I note that the Certificate of Assessment is attached to the report of Mr Michael Epstein and is dated 21st August, 2012.”15 OCT 2014 Fixed for hearing 7 AUG 2015 (Judge MISSO). 2015 27 FEB 2015 AMG sends to IDP the GOLDWASSER Report (including other medical reports)
Letter (similar to that to Minter Ellison of 14 OCT 2014) refers to EPSTEIN Report, stating:
“I note that the Certificate of Assessment is attached to the report of Mr Michael Epstein and is dated 21st August, 2012.”16 MAR 2015 AMG sent to all 3x defendants the EPSTEIN Certificate. 15 MAY 2015 All 3x defendants refer the EPSTEIN Assessment to the medical panel. 28 JUL 2015 Consent orders to vacate 7 AUG TD as matter has not yet mediated due to the pending medical panel determination. 25 AUG 2015 Judge O’NEILL makes orders based on consent orders of 28 JUL 2015.
Re-listed for 24 FEB 2016.7 AUG 2015 ORIGINAL TRIAL DATE13 OCT 2015 Medical panel determination - EPSTEIN Defendants seek mediation following medical panel determination. Plaintiff indicates not ready to mediate. 15 OCT 2015 Mediation deadline for SECOND TRIAL DATE 19 OCT 2015 (After the medical panel requested a number of time extensions for its determination)
AMG receives medical panel notification – psychiatric (EPSTEIN) injury does not meet threshold.19 NOV 2015 Changes to the Act reducing the threshold for psychiatric injury from “more than 10%” to “10% or more” 24 NOV 2015
(on or around)AMG advised by counsel that GOLDWASSER hadn’t produced a certificate of impairment. Also notified by counsel of the Wrongs Act threshold changes. 25 NOV 2015 AMG writes to Mr Goldwasser requesting an impairment assessment. 25 NOV 2015 AMG writes to defendants advising not ready to proceed to 4 DEC 2015 mediation, suggests late DEC or JAN mediation.
This based on considering judicial review of EPSTEIN medical panel denial and whether plaintiff could rely on the amended threshold.27 NOV 2015 Minter Ellison raise with AMG the absence of the certificate of assessment related to GOLDWASSER Report.
AGM states this is first time any defendant has raised with him the absence of a GOLDWASSER Certificate.1 DEC 2015 AMG writes to Minter Ellison indicating prepared to agree to further timetable with mediation deferred until early February and hearing adjourned to MAY 2016.
AMG notes they (the plaintiff) have until 19 DEC to lodge appeal.2 DEC 2015 AMG writes to court advising of appeal period (19 DEC) and that Trial Date 24 FEB should be vacated. 3 DEC 2015 Directions Hearing. AMG indicates considering appeal of medical panel EPSTEIN decision. Directions Hearing adjourned to 17 DEC. 7 DEC 2015 GOLDWASSER Certificate served on defendants. 14 DEC 2015 AMG writes to defendants indicating that a new certificate of assessment re psychiatric injury was being obtained in light of the changes reducing the thresholds in the Wrongs Act, as well as a physical injury certificate.
Notes that defendants have not yet notified whether they will refer GOLDWASSER Certificate to medical panel (note: they only received it 7 days earlier)
Notes that 24 FEB Trial unlikely maintainable and suggest refixing to 1 AUG 2016 with increased estimate of 10 days.15 DEC 2015 Hall & Wilcox respond by email. Allege repeated delay by failure to promptly serve certificates in accordance with Civil Procedure Act and practice note.
Indicate instructed to oppose vacation of TD and preclude reliance on the certificates.
Note: Matter still in General List at this time.17 DEC 2015 Directions Hearing. You requested submissions on the effect of the legislative change by 15 January 2016 to consider whether to ADJ the Trial Date. 2016 8 JAN 2016 AMG serves SUBSEQUENT GOLDWASSER Certificate on defendants. 21 JAN 2016 Directions Hearing – ORDERS of HH Judge SACCARDO
Trial date 24 FEB vacated, refixed to 5 May 2016 (THIRD TRIAL DATE).
Defendant given to 27 JAN to issue summons for determination of preliminary questionImmediately following this Directions Hearing (2:28pm same day) the plaintiff emailed the first defendant asking it to make its premises available for inspection by a new expert witness. 2 FEB 2016 Trial Date 5 MAY 2016 vacated, refixed to 1 JUN 2016 (FOURTH TRIAL DATE) 8 FEB 2016 HEARING – on the preliminary question of whether the new threshold applies. 17 FEB 2016 JUDGMENT – Plaintiff not entitled to rely upon new impairment thresholds. 24 FEB 2016 SECOND TRIAL DATE17 MAR 2016 Matter transferred to Medical List 28 APRIL 2016 ORDER – Trial Date 1 JUN 2016 vacated, refixed to 24 OCT 2016 (FIFTH TRIAL DATE)
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