Tauri by his Tutor Skipper v Janlin Circuses Pty Ltd

[2018] NSWSC 810

Supreme Court

New South Wales

Medium Neutral Citation:

Tauri by his Tutor Skipper v Janlin Circuses Pty Ltd [2018] NSWSC 810

Hearing dates:

22 May 2018

Date of orders:

22 May 2018

Decision date:

22 May 2018

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) I direct that the plaintiff attend Sydney to be medically examined by Dr John Sydney Smith at 12:30 pm on 26 June 2018.

(2) I direct that a tutor's consent to act and a solicitor's certificate in compliance with rule 7.16 Uniform Civil Procedure Rules 2005 (NSW) be filed within fourteen days.

(3) The plaintiff to pay the defendant's costs of the motion, which are to include the non-attendance fees in relation to medical appointment on 25 August 2017, 6 February 2018, and 9 February 2018.

Catchwords:

CIVIL PROCEDURE – procedural matters - non-attendance of plaintiff - fees - proceedings continued by tutor - extended time given to file fresh consent to act as tutor and solicitor’s certificate - partial incapacity - depressed fracture of skull - brain damage - legal incapacity - accepted part of brain damage involves executive functions - unpredictable behaviour - missed various medical assessments - bereavement - satisfied defendant’s needed to bring motion - plaintiff must be made aware of rules

  COSTS - plaintiff ordered to attend appointment - whether plaintiff should pay for the defendant’s cost of the motion - including non-attendance fees - ordered - not payable forthwith – plaintiff will likely recover damages - defendant’s loss can be recouped after

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56;
Uniform Civil Procedure Rules 2005 (NSW), r 7.16

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Siar Tauri by his Tutor Carmelle Skipper (Plaintiff)
Janlin Circuses Pty Ltd t/as Stardust Circus (Defendant)

Representation:

Counsel:
E Graham (Plaintiff)
J C Chapman (Defendant)

  Solicitors:
Brydens Lawyers Pty Ltd (Plaintiff)
Mills Oakley (Defendant)

File Number(s):

2004/192285

EX TEMPORE Judgment

1. I am dealing with the defendant's Notice of Motion filed on 13 April 2018 raising some important procedural matters. The relief sought relates: first, to the non-attendance by the plaintiff at medical appointments in Sydney; secondly, the question of fees in relation to previous non-attendances; thirdly, the question of whether it is appropriate in the circumstances for the proceedings to be continued by a tutor and if so, what other procedural steps should be taken; and finally, questions relating to costs.

2. The defendant was represented by Ms Chapman of Counsel and the plaintiff, by Ms Graham of Counsel. I record in these reasons that counsel have been able to agree upon the substantive matters in dispute and the real issue remaining relates to costs.

3. In a moment, I will direct that the plaintiff attend Sydney for medical examination by Dr John Sydney Smith, as appointed by the defendant on 26 June 2018 at 12:30 pm. I will also direct that within fourteen days, the plaintiff, file in the registry a fresh consent to act as tutor and a solicitor's certificate in accordance with the requirements of r 7.16 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). It was implicit in what Ms Chapman said to me at the opening of the hearing this morning, the defendant while as a substantive matter contesting whether the plaintiff is legally incapacitated within the meaning of the UCPR, accepts that there is some evidence that would, at this stage, support a finding of at least a partial incapacity.

4. I should record that there is evidence here that in the accident sued upon the plaintiff when an infant, received a depressed fracture of the skull resulting in a traumatic brain injury to the frontal lobe area of his brain. Brain damage remains evident in as much as more recent Magnetic Resonance Imaging has demonstrated ongoing scar tissue under the area of the fracture.

5. The accident happened at the circus conducted and occupied by the defendant on 22 April 2000. The plaintiff was then twenty-months old. He has since, obviously, attained his legal majority. Given that the question of legal incapacity was not pressed, it is unnecessary for me to say anything further about the nature of the injury. But I will add that it does seem apparent, and it does seem to be accepted by even the defendant's expert referees, that part of his ongoing brain damage relates to his executive function. In particular, the injury causes a certain impulsivity which makes his behaviour somewhat unpredictable and him argumentative. Such matters could affect the ability to conduct litigation by way of instructing his lawyers sensibly, and perhaps even rationally, even if one can otherwise function well enough in the ordinary activities of life.

6. I will turn now to the question of the non-attendance upon the doctors. Now it may be that some of what has happened relates to that aspect of impulsivity to which I referred. It is also of importance perhaps that the relationship with his mother, who is the tutor, is a little difficult and because of that she perhaps has not been able to direct him in the observance of his obligations in relation to the litigation as she should have as tutor. One can appreciate difficulties do arise in families, especially the difficulties mothers meet from time to time dealing with young adult sons. In any event, the evidence establishes that the plaintiff has failed to keep medical appointments on the following dates: on 25 August 2017 with Dr Fahey; on 6 February 2018 with Dr Smith; and on 9 February 2018 with Ms Zeman an occupational therapist. There has since been compliance with the requirement to submit to an assessment by Ms Zeman.

7. In addition to those matters there were cancellation of appointments with Dr Smith in December 2017 and Ms Zeman on 10 January 2018 but it is accepted that the explanation for those cancellations was entirely understandable. The young man's father died of a heart attack in December 2017 and obviously, those examinations were to take place during what must have been a period of acute grief.

8. Regrettably, notification of his inability to attend the examination of Dr Smith, which was intended to be forwarded to the defendant's solicitor by facsimile transmission, in fact was sent either by DX or by ordinary post and did not show up in time to avoid a cancellation fee.

9. It is obvious to me from the pattern of non-attendance, even against the background of the traumatic brain injury, that the plaintiff needs to be made conscious of the fact that he must comply with the defendant's entitlements under the UCPR to have him medically examined. It seems to me that in the explanations which have been provided for the non-attendances, leaving aside the December cancellations, are not satisfactory. For instance, it was said in respect of the 6 February 2018 appointment, that the plaintiff missed the plane from Melbourne to Sydney. That should not have occurred, especially as the defendant had provided cab-charge vouchers to enable the plaintiff to get a taxi to the airport and, of course, paid for the flight.

10. It does seem to me that the defendant was justified in coming to the Court to seek an order that the plaintiff attend an examination in Sydney with Dr Smith. I should say that there was correspondence passing between the solicitors suggesting that the defendant ought to send Dr Smith to Melbourne to examine the plaintiff. Now the defendant's solicitors not unreasonably said they were happy to arrange that but the plaintiff would have to pay for it. That, of course, was unpalatable to the plaintiff. I am well satisfied that it was necessary for the defendant to bring this motion to secure an order of the Court that the plaintiff attend in Sydney to be examined by Dr Smith on the usual terms, as to payment of travelling expenses by the defendant.

11. That raises another issue that Ms Chapman referred to and, that is to say, when the summons was filed to transfer these proceedings to the Supreme Court, the plaintiff had by then attained his majority and no tutor was nominated. It was only later that an amended summons was filed nominating the plaintiff's mother as tutor, as she had been previously in the District Court during the period of his minority. As no consent to act after that amendment was filed in this Court, notwithstanding indications from the plaintiff’s solicitor that that important procedure be attended to, there is a question about the plaintiff's mother's liability for wasted costs in the absence of consent to act. This may also raise a question about the ability of the plaintiff's mother to discharge the obligations of a tutor. Having said that, it seems to me that the plaintiff's solicitor needs to impress upon her, difficult as her son may be to handle sometimes, that she must impress upon him the importance of him complying with the Court’s requirements.

12. In any event, Ms Graham has submitted that effectively, the parties should bear their own costs of this application. She argued that the main issue was whether the plaintiff required a tutor and as that is no longer pressed, there is no difficulty with the filing of the documents that I have indicated I will direct to be filed or with the plaintiff's attendance on the next occasion with Dr Smith. However, the past history has persuaded me that the defendant was justified in bringing this motion. That past history includes what I have said about the history of non-attendance and the failure of the tutor to regularise the record.

13. In the circumstances, notwithstanding the proper and reasonable approach taken by Ms Graham today, I am satisfied that it was necessary for the defendant to bring this motion. Not only was it necessary in order to achieve its legitimate objectives but it also to ensure the preparation of the matter advances appropriately so the case can be brought on for hearing in accordance with the requirements of s 56 of the Civil Procedure Act 2005 (NSW). In the circumstances I am persuaded to order the plaintiff to pay the defendant's costs of the motion including the non-attendance fees for the missed medical appointments other than those in December and January.

14. I am not prepared to order that those costs are payable forthwith. Such an order would, I think, stultify the plaintiff's claim. As Ms Graham pointed out, there is already a finding made in favour of the plaintiff in the District Court by his Honour Judge Finnane QC in relation to liability. The plaintiff has an injury, it is likely that he will recover damages and the defendant's loss can be recouped at the end of the proceedings.

15. In the circumstances I make the following orders:

1. I direct that the plaintiff attend Sydney to be medically examined by Dr John Sydney Smith at 12.30 pm on 26 June 2018.

2. I direct that a tutor's consent to act and a solicitor's certificate in compliance with rule 7.16 Uniform Civil Procedure Rules 2005 (NSW) be filed within fourteen days.

3. The plaintiff to pay the defendant's costs of the motion, which are to include the non-attendance fees in relation to medical appointment on 25 August 2017, 6 February 2018, and 9 February 2018.

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Decision last updated: 01 June 2018