Tamaresis v CSR Limited
[2015] VSC 47
•23 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 02576
| PARASKEVI TAMARESIS | Plaintiff |
| v | |
| CSR LIMITED | Defendant |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 February 2015 |
DATE OF RULING: | 23 February 2015 |
CASE MAY BE CITED AS: | Tamaresis v CSR Limited |
MEDIUM NEUTRAL CITATION: | [2015] VSC 47 |
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PROCEDURE – Adjournment of trial – Delay in issuing subpoenas – Foreign evidence – Fair trial – Trial procedure – Civil Procedure Act 2010 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Semmler QC with Mr S Tzouganatos | Adviceline Injury Lawyers |
| For the Defendant | Mr D Curtain QC | CBP Lawyers |
HIS HONOUR:
Mrs Paraskevi Tamaresis, the plaintiff, sues CSR Ltd (CSR), the defendant, for damages for her psychological reaction to the death of her father, Dionysios Pastras. Mr Pastras died in Sydney in 2006 from mesothelioma allegedly as a result of exposure to insulation materials distributed by ‘Hardie – BI Company’, a trading partnership of CSR and James Hardie and Coy Pty Ltd.
The hearing of Mrs Tamaresis’ proceeding against CSR is scheduled to commence on 6 March 2015, in Melbourne. However, in accordance with orders made by an Associate Justice, the bulk of the viva voce evidence is to be taken in Greece, commencing 12 March 2015.
On 19 February 2015, CSR, without notice at a directions hearing, applied to have the case adjourned for a period of approximately two-and-a-half months so that it could proceed in late May. This is the second occasion upon which CSR has sought to vacate a March trial date. Daly AsJ, on 18 December 2014 refused this request. The basis for the application before me was two-fold – the late provision of the taxation records of Mrs Tamaresis and CSR’s inability to obtain medical records relating to her treatment which may be held by medical practitioners in Greece.
Mrs Tamaresis opposes any adjournment of the trial. Her counsel argues that CSR had been on notice of this claim for at least six years and had been dilatory in the preparation of the defence of the claim. Further, it is said that it is simply speculative as to whether anything relevant to Mrs Tamaresis’ claim would be forthcoming if the subpoenas are answered. It was also said that any further delay of the trial would adversely affect her already fragile mental state.
I have concluded that CSR’s prospect of a fair trial is not compromised by proceeding on 6 March 2015 and the taking of evidence in Greece commencing 12 March 2015, and that the application for adjournment should be refused. These reasons address the basis for my conclusion, as well as several other procedural matters relevant to the conduct of the trial.
Applicable principles
In considering an application such as this, the Court is obliged to take into account the overarching purpose of the Civil Procedure Act 2010 (Vic) under s 9, which includes the following objects:
(a) the just determination of the civil proceeding;
(b) the efficient conduct of the business of the Court;
(c) the efficient use of judicial administrative resources;
(d) the timely determination of the civil procedure;
(e) dealing with the civil proceeding in a manner proportionate to:
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
Of particular relevance to this application are the matters to be addressed in ensuring that the obligations under s 9(1) are fulfilled. The following are relevant:
(a) the degree of promptness with which parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(b) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(c) the degree to which each person to whom the overarching problem applies has complied with the overarching obligations in relation to the proceeding;
(d) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the Court; and
(e) the extent to which the parties have had the benefit of legal advice and representation.
Accordingly, whilst a Court will always keep in mind the need to ensure that the parties are afforded a fair trial, as far as is reasonably practicable, it also has regard to the history of the proceeding, the conduct of the parties and any potential prejudice which may be caused by an application to adjourn the trial.[1]
[1]See Mercieca v anor v SPI Electricity Pty Ltd & ors (No 3) [2012] VSC 6.
Background to this application
Mrs Tamaresis’ claim in the Dust Diseases Tribunal
Although it was correct, as counsel for CSR stated, that this proceeding was commenced in this Court on 22 May 2013, the controversy between the parties goes back further and it is necessary to set out some aspects of the procedural history of Mrs Tamaresis’ claim, both in the Dust Diseases Tribunal of New South Wales (DDT) and in this Court.[2]
[2]The following summary is extracted from the minutes of reason of Mukhtar AsJ of 4 September 2013.
In 2006, Mr Pastras (and, following his death in October 2006, his estate) brought proceedings in the DDT against CSR which were ultimately settled.
In 2009, Mrs Tamaresis brought a claim against CSR in the DDT. However, that claim was abandoned in 2013, as a result of the decision of the New South Wales Court of Appeal in Trustees of the Sydney Grammar School v Winch.[3]
[3][2013] NSWCA 37 (Winch).
By way of explanation, Winch was originally decided in the plaintiff’s favour in the DDT in October 2011. The appeal was heard in August 2012 and, on 27 February 2013, the Court of Appeal held that the DDT’s jurisdiction did not extend to claims for pure psychiatric injury (as opposed to a psychiatric injury secondary to a physical injury) arising out of the death of a person from a dust-related disease.[4]
[4][2013] NSWCA 37, [179] and following.
There is one other matter to mention arising out of Mrs Tamaresis’ DDT claim. The DDT Statement of Particulars filed in May 2012 by Mrs Tamaresis is a voluminous document that contains a lengthy history of her illness, including details of her medical treatment.
This proceeding
Mrs Tamaresis filed her writ in this Court on 22 May 2013.
CSR sought to have the proceeding dismissed or stayed on the basis that there was a concurrent proceeding for the same cause of action in the DDT. Alternatively, CSR applied for the proceeding to be transferred to the Supreme Court of New South Wales.
The application was heard on 4 September 2013 by Mukhtar AsJ. In rejecting CSR’s application to dismiss the proceeding, his Honour held that the Court of Appeal’s decision in Winch meant that Mrs Tamaresis’ proceeding was beyond the jurisdiction of the DDT, concluding that ‘there is no basis for the defendant to seek a dismissal or stay on the ground of concurrent proceedings’.[5]
[5]Minutes of Reasons of Mukhtar AsJ.
Mukhtar AsJ referred CSR’s application for cross-vesting of the proceeding to New South Wales to the Trial Division of this Court. On 15 December 2013, Kyrou J dismissed the application and also rejected CSR’s application for security for costs.[6]
[6]Tamaresis v CSR Ltd [2013] VSCA 613.
On 19 February 2014, Zammit AsJ fixed the matter for trial on 3 March 3015 and, I accept, urged the parties to engage in an exchange of material. There is nothing in the orders of Zammit AsJ that would lead one to conclude that her Honour was, in any way, suggesting to the parties that they should not engage in what are basic forensic steps – such as subpoenaing medical or hospital records and files. As will be seen in a moment, it is clear that in any event the solicitor for CSR took the view that there was a point at which cooperation between the parties could not be relied upon and the parties should resort to the usual forensic process.
Zammit AsJ also ordered that parties issue any subpoena under Order 42A by 31 October 2014.
On 20 November 2014, Daly AsJ made further orders in relation to interlocutory matters. Of relevance to this application, her Honour adjourned CSR’s application to vacate the trial date to 18 December 2014.
On 18 December 2014, Daly AsJ vacated the trial date of 3 March 2015 and refixed the trial to commence on 12 March 2015 (apparently for the convenience of counsel). In other matters, her Honour noted as follows:
I am not satisfied that the defendants [sic] will be unable to proceed on or around the scheduled commencement date of the trial, and the anxiety and inconvenience to the plaintiff of a further adjournment outweighs the potential burden upon the defendant.
The subpoenas
Eight subpoenas for service in Greece were issued on 4 December 2014, addressed to:
· Dr Ioannis Apostolatos;
· Dr Anastasios Kalofonos;
· Dr Konstantinos Aramaos;
· Dr Manuela Plataki;
· Dr Ioannis Vitsos;
· Dr Maria K Dimitrakoudi;
· Zakynthos General Hospital; and
· Kastalia Psychiatric Clinic;
in relation to Mrs Tamaresis’ treatment.
In addition, a subpoena was issued and served on notary Ermanos Zampatis in relation to Mrs Tamaresis’ employment.
On 29 January 2015, solicitors for CSR contacted my associate via email, advising that the Greek Ministry of Justice had advised that the subpoenas had not been served due to the relevant service fee not having been paid. I understand that there was some confusion as to when the service fee was required to be paid, for which CSR’s solicitors were not responsible.
On 30 January 2015 and 4 February 2015, I made orders extending the time for service and production of the subpoenas (which had originally been returnable on 2 February 2015) to 3 and 4 March 2015 respectively, in response to an application by the solicitors for CSR.
At the directions hearing on 19 February 2015, I was informed by senior counsel for CSR that the subpoenas had been served as at 18 February 2015.
Two of the doctors under subpoena, Dr Kalofonos and Dr Dimitrakoudi, have produced their documentary material (clinical notes) via the solicitors for Mrs Tamaresis.
This application: directions hearing
As has been noted, Daly AsJ, having heard lengthy argument including an application by CSR to adjourn the trial, fixed the trial with evidence to commence in Greece on 12 March 2015.
Earlier this month, I decided to convene a directions hearing for 24 February 2015. Following a request from Mrs Tamaresis’ solicitors to bring forward the date of that hearing, the solicitors for both parties were advised on 17 February that it would take place on 19 February. The purpose of the directions hearing, as indicated in the email to the parties sent by my associate, was to endeavour to sort out aspects of the trial process in Greece.
At the commencement of the directions hearing, counsel for CSR sought to rely upon an affidavit of Ms Raniolo, the solicitor with conduct of the defence, to supplement other affidavits filed on behalf of CSR. After a short discussion, it was clear that the affidavit had not been served on Mrs Tamaresis’ solicitors, nor filed with the Court. I refused the tender of the affidavit although, as will become clear in the course of these reasons, I have had regard to the material filed by CSR throughout the course of this proceeding and in particular in relation to the material filed in support of the application before Daly AsJ. I should add that in the course of the application I accepted what I was told from the Bar table by senior counsel for CSR: his client had experienced problems in effecting service of the subpoenas upon a number of the Greek residents named in the subpoenas. I was told that the subpoenas had now been served and that CSR is awaiting production of the documents, which are due by 4 March at the latest.
Analysis
There are multiple reasons for refusing the application by CSR.
First, this case has now been on foot in one guise or another for over eight years. Putting to one side the DDT claim, the case has been in this Court for almost two years. Two fundamental matters underlying the case – Mrs Tamaresis’ psychiatric reaction and her residence in Greece – have been known to CSR for many years. It was patently foreseeable that if the case proceeded to trial then there would be an abundance of evidence concerning Mrs Tamaresis and her treatment in Greece. It has to follow that it was plain that any forensic challenge to that evidence would need to be not only well-resourced but resourced in a timely fashion. The subpoenas (issued pursuant to Order 42A of the Supreme Court (General Civil Procedure) Rules 2005) were not issued until 4 December 2014. It is clear from both the orders of Zammit AsJ and the affidavits of Ms Tsalamandris (solicitor for the plaintiff) and Ms Raniolo that the question of subpoenas has been alive since February of last year.
Second, and as noted above, Zammit AsJ in her orders of 19 February 2014 made it clear that the last day for the issue of Order 42A subpoenas was 31 October 2014. This order was not complied with. Indeed, consistent with my observations in the preceding paragraph, this was the latest time at which a solicitor could reasonably have contemplated the issue of subpoenas, in a case involving witnesses in a foreign country, with a trial date set in early March 2015. This was demonstrated by the following email to Ms Tsalamandris on 2 April 2014, from Ms Raniolo:
Hi Andrea
I will wait until 31 May 2014 before I commence the subpoena process. If this can be done without the need for me to go down the subpoena track, then I am willing to wait until then.
With a hearing date of 3 March 2015, however, and bearing in mind that the process of serving a subpoena overseas is not a straightforward one, I do not believe that we can wait no longer than 31 May 2014 for the records. By then you should have responses to your letters to the plaintiff’s treating doctors.
Third, there has been no satisfactory explanation as to why subpoenas were not issued until 4 December 2014. There is a veiled suggestion in the affidavit of 20 November 2014 of Ms Raniolo that the solicitors were awaiting the receipt of the determination of a Medical Panel as to significant injury although Ms Raniolo acknowledged that this would not have prevented the claim continuing to trial.
In my opinion the prospect of an adverse finding by the Medical Panel should not have inhibited preparation for trial.[7] The existence of a significant injury under Part VBA of the Wrongs Act 1958 (Vic) related solely to Mrs Tamaresis’ claim for non-economic loss. At all times she was entitled to pursue a claim for economic loss, which would, regardless of the outcome of the significant injury determination, need to be met by CSR. In addition the outcome was quite uncertain bearing in mind that a medical practitioner must have certified Mrs Tamaresis injury as satisfying the threshold for CSR to dispute the existence of significant injury.
[7]Affidavit of Rose Raniolo dated 20 November 2014.
Fourth, I am satisfied that the solicitors for Mrs Tamaresis have taken all reasonable steps to provide as much information to CSR’s solicitors as they can. The clinical records of the two treating doctors have been provided and, whilst not as fulsome as one might have hoped, each side is, to use the vernacular, ‘stuck’ with their contents.
Multiple attempts were made by Ms Tsalamandris to obtain the relevant records, as outlined in some detail in her affidavit of 19 November 2014. It is apparent that Ms Tsalamandris kept the solicitors for CSR informed as to her lack of progress throughout 2014.
Fifth, I accept the submission of counsel for Mrs Tamaresis that it is highly speculative as to whether these subpoenas will produce any practical result. They may or may not be answered by the recipients. This Court has no compulsory power to require production of the documents. Mrs Tamaresis endeavoured to obtain material from these doctors without success. Moreover, there is simply nothing to indicate that these subpoenas will produce anything of substance. The two medical witnesses upon whom Mrs Tamaresis relies have provided notes, and their evidence will be able to be tested by counsel for CSR in cross-examination.
Sixth, there is little substance in the complaint about the provision of Mrs Tamaresis’ tax returns at a late point of time. These returns confirm what CSR already knew: that Mrs Tamaresis worked for a public notary in Zakynthos until her employment was terminated in 2008. The only variables introduced by the production of the tax returns are the precise date upon which Mrs Tamaresis ceased work and a reference to two short periods of employment since Mrs Tamaresis ceased full-time work. It remains open to CSR to carry out investigations of this employment prior to trial. I was told by senior counsel that he had recommended the engagement of an investigator last month, and presumably those inquiries are currently underway.
Seventh, I reject CSR’s contention that, until it is able to obtain the subpoenaed material (if it ever eventuates), it is prejudiced in terms of making an offer of compromise. For the reasons I have indicated in relation to the delay in issuing the subpoenas, this argument cannot be sustained. If CSR had prepared the defence of the case in a timely fashion then it would have been ready to put an appropriate offer of compromise, if it so wished. I repeat that it has at all times been open to CSR to conduct its investigations (be it by way of subpoena or investigation) well in advance of the trial. This is particularly so, in this case, when it has been known to CSR for many years that the primary source of evidence supporting Mrs Tamaresis’ case on quantum will come from residents of a foreign country.
Finally, there is the question of Mrs Tamaresis psychological condition. The reports of Dr Jungfer and Dr Isaacs demonstrate that Mrs Tamaresis is in a vulnerable psychological position (whatever the cause). The case, in its various iterations, has been around in one form or other since 2009. In December 2014, after hearing argument from the parties as to readiness for trial, Daly AsJ was prepared to fix the case for early March 2015. Her Honour was specifically concerned about the anxiety and inconvenience occasioned to Mrs Tamaresis.[8] One can be confident that Mrs Tamaresis has a real expectation that her case will now get a hearing. Although no expert evidence was adduced on this point, I think that there is a risk that her mental health will be adversely affected if the trial is delayed by another two months. While it is necessary to form an opinion about the likely effect of this procedural step on Mrs Tamaresis’ wellbeing, I, of course, have no concluded view of her actual psychological or psychiatric condition.
[8]See above paragraph [21].
I accept that the opinions of Dr Jungfer and Dr Isaacs (the two consultant psychiatrists) were primarily directed to the question of whether Mrs Tamaresis was capable of travelling to Australia for the trial. However, each noted the fragility of Mrs Tamaresis’ psychological state, which was confirmed by the Medical Panel convened to determine whether Mrs Tamaresis had suffered a significant injury within the meaning of Part VBA of the Wrongs Act.
The reasons of 10 November 2014 of the Medical Panel (Drs Hacker and Millington), include the following history:[9]
The claimant said that she was chronically depressed and said that if it was not for her children, her husband and her mother she would be dead and that she constantly felt she wished to join her father. She said that she had suicidal plans and had cut her thigh in 2008 and attempted to kill herself on one occasion when she returned to Australia by cutting her wrist and was hospitalised in Queensland in February and March 2009 and subsequently in Athens later that year. She said that she hoped she would not attempt suicide again because if she did “it will be the last time”. She said that she was tearful daily but “in my soul I cry all day.”
[9]Medical Panel Reasons, 4.
The Medical Panel concluded that Mrs Tamaresis was suffering from a ‘chronic major depressive disorder with panic, anxiety and traumatisation features’[10] and that she had suffered a significant injury.
[10]Medical Panel Reasons, 6.
Conclusion
Applying the relevant considerations set out in the Civil Procedure Act there is no sound basis to grant the application for an adjournment. The delay in obtaining a response to the subpoenas is the product of CSR’s own making. In any event, it is entirely speculative as to whether anything will be obtained as part of that process. On balance, it is overwhelmingly apparent that the interests of justice lie in maintaining the March trial date as fixed by Zammit AsJ in February 2014 and affirmed, after argument, by Daly AsJ in December 2014. Given Mrs Tamaresis’ psychological state, any further delay should not be countenanced unless reasonably necessary. Importantly, I am far from satisfied that there is any real risk that CSR’s preparation of the trial is compromised.
Other trial processes
I have made a series of orders about the conduct of the trial, which are set out below. I should explain my conclusion in relation to two aspects of those orders.
I do not accept the suggestion of Mrs Tamaresis’ solicitors that the case should be opened only on the question of damages at the commencement of taking evidence in Greece. I prefer CSR’s position that opening statements from counsel on all issues take place in Melbourne prior to evidence being adduced and that the evidence in Greece be confined to just that: evidence.
I accept the submissions of Mrs Tamaresis’ counsel that the evidence in Greece should be split. The seven witnesses from Zakynthos should not be required to travel to Athens, as CSR suggested. Rather, their evidence should be taken in Zakynthos in accordance with the schedule submitted by Mrs Tamaresis’ solicitors. I am satisfied that as a matter of practicality that this can be achieved without any undue disruption of the parties’ time or schedule.
Orders
Subject to hearing from counsel, I will make the following orders:
(a) The trial commence in Melbourne on 6 March 2015.
(b) Evidence be taken pursuant to section 7(1)(a) of the Foreign Evidence Act 1994 (Cth) and Part 2 of Order 41 of the Supreme Court (General Civil Procedure) Rules 2005 from the persons listed in the Schedule attached to these orders at the locations identified in the Schedule.
(c) The plaintiff file and serve a list of special damages and particulars of loss and loss of earning capacity by 25 February 2015.
(d) Leave be given to the defendant to file and serve an amended defence by 25 February 2015.
(e) The plaintiff file and serve a folder of medical reports provided under Order 33 of the Supreme Court (General Civil Procedure) Rules 2005 by 25 February 2015.
(f) The plaintiff and defendant file and exchange a list of documents upon which they propose to rely by 25 February 2015.
(g) Each party have leave to file and serve any further reports pursuant to Order 33 or Order 44 of Supreme Court (General Civil Procedure) Rules 2005 by 27 February 2015.
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