Tragas v Bob Jane Corporation Pty Ltd
[2017] VSC 74
•24 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 06073
| KONSTANTINOS TRAGAS | Plaintiff |
| v | |
| BOB JANE CORPORATION PTY LTD | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23-24 February 2017 |
DATE OF RULING: | 24 February 2017 |
CASE MAY BE CITED AS: | Tragas v Bob Jane Corporation Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2017] VSC 74 |
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PRACTICE AND PROCEDURE – Application for adjournment on first day of trial – Counsel for plaintiff had submitted at final directions hearing without proper foundation that trial was ready to proceed – Plaintiff seeking further discovery immediately prior to commencement of trial – Plaintiff seeking to rely upon further expert reports filed immediately prior to trial – Prejudice to plaintiff if precluded from relying upon additional expert reports.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Mr D O’Brien | Zaparas Lawyers |
| For the Defendant | Mr D Curtain QC with Mr R Kumar | Wisewould Mahony |
HIS HONOUR:
On 19 February 2016, Daly AsJ fixed this proceeding for trial on 20 February 2017. Her Honour made orders, including the following:
12.No later than two months before the trial date:
(a) the parties exchange any further medical and expert reports concerning damages and liability, along with supporting documentation;
…
13.The parties attend a final directions hearing at 9.30 am on 3 February 2017 in the Associate Judges’ Court 4. At the final directions hearing each party should be in a position to:
(a) confirm that the proceeding is ready for trial;
…
(f) provide a list of proposed expert and lay witnesses to be called at trial;
(g) identify any outstanding interlocutory issues or proposed amendments to the pleadings…[1]
[1]Affidavit of Stephanie Koochew sworn 23 February 2017, “SVK-1”.
On 31 January 2017, the defendant's solicitors received a letter from the plaintiff's solicitors, Zaparas Lawyers, enclosing a notice of trial. The notice relevantly stated that:
4.discovery has been obtained and inspection had and it is not proposed to seek further discovery or further inspection of documents.
…
6.the Plaintiff is ready to proceed to trial upon not less than 14 days' notice.[2]
[2]Ibid “SVK-2”.
On 3 February 2017, the proceeding was subject to a final directions hearing before Keogh J. Ms Koochew appeared for the defendant and the plaintiff was represented by Mr David O'Brien of counsel. At the directions hearing, Mr O'Brien advised the Court that there were no outstanding interlocutory matters. His Honour made orders, including to confirm the trial date of 20 February 2017.[3]
[3]Ibid “SVK-3”.
On 17 February 2017, that is the last business day prior to the date the trial had been fixed for hearing, the defendant's solicitors received correspondence from the plaintiff's solicitors advising of their belief that the defendant had not made proper discovery. The defendant was asked to make discovery of certain categories of documents:
(a) documents passing between the defendant and Work Safety Hub in the period from 2011 to date relating to the defendant's occupational health and safety systems and processes concerning manual handling;
(b) invoices relating to the purchase of three tyre lifting machines and one ladder in 2011 at the defendant's Doncaster store and directions given to staff concerning their use;
(c) Work Safe improvement notices, prohibition notices or entry reports in the period from 1996 to September 2012 relating to manual handling procedures or processes at the Doncaster store; and
(d) incident reports or WorkCover claims arising from manual handling incidents in the period from 1996 to September 2012 at the Doncaster store.[4]
[4]Ibid “SVK-5”.
Also on 17 February 2017, the defendant's solicitors received a further letter from the plaintiff's lawyers requesting the provision of documents identified as ‘a complete copy of any claims for compensation or any investigation conducted by the Victorian WorkCover Authority against Mr Angelo Bootlis’.[5] The letter stated that the documents sought were relevant to credit and enclosed a notice to produce.[6]
[5]Ibid “SVK-6”.
[6]Ibid.
On 20 February 2017, the defendant's solicitors received a further letter from the plaintiff's solicitors, again asserting that the defendant had failed to make proper discovery. The defendant was asked to make discovery of four further categories of documents, namely:
(a) documents indicating to whom a memo of Mr Angelo Bootlis dated 2 December 2011 had been distributed;
(b) documents in relation to Mr Bootlis' monitoring compliance of the direction of the memo;
(c) copies of online inductions completed by the plaintiff; and
(d) documents evidencing dates when manual handling hazard identification and risk control measures were first implemented.[7]
[7]Ibid “SVK-8”.
On 21 February 2017, the defendant's solicitors received a further letter from the plaintiff's solicitors requesting discovery of the plaintiff's training records and instructions to which reference had been made in the plaintiff's interrogatories and the defendant's answers.[8] On the same day, at 7.32 pm, Ms Koochew received from the plaintiff's solicitors an email which attached an amended court book index, together with a report of Professor Richard Bittar, dated 21 February 2017.[9] The service of that report was two months outside the period prescribed by the orders of Daly AsJ on 19 February 2016.
[8]Ibid “SVK-10”.
[9]Ibid “SVK-13”.
On 22 February 2017, the defendant's solicitors received a further email from Zaparas Lawyers which sent to the Court an updated witness list.[10] That witness list identified Mr Richard Lightfoot, an engineer, as an expert witness. As at that date, no expert report had been filed by Mr Lightfoot.
[10]Ibid “SVK-15”.
The matters which I have set out above support a finding that it is only in the period of the last two weeks that the plaintiff's legal representatives have undertaken work necessary to have this proceeding ready for trial. This work has manifested itself in numerous requests for additional discovery, together with the filing of two additional expert reports of Professor Bittar and Mr Lightfoot, well outside the timeframe prescribed by the orders of Daly AsJ on 19 February 2016.
I have already made reference to the orders of Keogh J on 3 February 2017, and the submissions made by junior counsel for the plaintiff on that day, to the effect that the trial was ready to proceed and there being no outstanding interlocutory steps. One of the purposes of convening a final directions hearing is to avoid the waste of scarce judicial resources which is an inevitable consequence of trials having to be abandoned. Linked to this purpose is the objective of ensuring that the interests of other litigants waiting to have their cases heard are not adversely affected. No meaningful explanation has been provided by the plaintiff as to why the wide‑ranging requests for discovery have only been made since 17 February 2017. No meaningful explanation has been provided as to why the plaintiff now seeks to rely upon additional expert reports of Professor Bittar and Mr Lightfoot. In the absence of any explanation, the inference is compelling that it is only in the past fortnight that the plaintiff's legal representatives have undertaken the necessary work which should have been completed prior to the final directions hearing on 3 February 2017. As a consequence, there was in fact no proper foundation for the assurances given to Keogh J on that day by counsel for the plaintiff that the matter was ready to be fixed for trial. I am not recording a finding that the Court was deliberately misled; rather, the amount of preparation for trial which had been done by the plaintiff's legal representatives prior to 3 February 2017 did not allow for a meaningful assessment as to whether the trial was in fact ready to proceed.
Thus far I have focused exclusively on the conduct of the plaintiff's legal representatives. What of the plaintiff's interests? He is entitled to a just determination of the real issues in dispute. His claim as pleaded puts squarely in issue the process of work as a tyre fitter working for Bob Jane Corporation Pty Ltd as a contributing factor to the injury which he sustained on 21 September 2012. Both of the further reports of Professor Bittar and Mr Lightfoot are directed to this issue. The plaintiff's interests would be prejudiced if he was not permitted to rely upon this material. Equally, the defendant would be prejudiced if not given a proper opportunity to consider that material and file material in reply.
Absent any finding, and I express no view as to whether or not there is any basis for doing so, that the defendant has failed to meet its discovery obligations, I would grant an adjournment of the trial on the condition that the plaintiff pay the defendant's costs thrown away by reason of the adjournment. It is premature to make any determination of whether or not the defendant has failed to meet its discovery obligations. No conclusion on that issue is possible at this stage. However, I am satisfied, on the basis of the material which is before the Court and which was annexed to an affidavit from the plaintiff's solicitor, Daniel Vissenjoux, of 22 February 2017,[11] that there is a basis for the plaintiff to contend that the defendant may have in its possession further categories of documents which are relevant to the plaintiff's claim as pleaded and which may be discoverable.
[11]See affidavit of Daniel Vissenjoux sworn 22 February 2017.
At this morning's hearing, counsel for the plaintiff has provided to the Court a document which sets out 15 categories of documents which the plaintiff contends are relevant and which are discoverable. I accept that prima facie if there are documents existing within at least a number of the categories set out in that document, then such documents would be discoverable and, if they exist, should have been discovered prior to this matter being listed for hearing. However, as the defendant's legal representatives have only had this list, which has been prepared by the plaintiffs, for a short period of time, I consider it would be unfair if I was to rule upon any dispute regarding the categories of documents in this list without the defendant having an opportunity to properly consider its position. In those circumstances, I consider that the appropriate course is to refer to an Associate Justice any dispute between the parties as to the question of discovery.
An issue has also arisen over the course of yesterday's hearing and today's hearing as to the extent to which the plaintiff has been put squarely on notice of the defendant's contention that prior to 21 September 2012 he received instructions that he was not to be undertaking the work he was performing, or he alleges he was performing, at the time he sustained injury on 21 September 2012. Given it is an inevitable consequence of the adjournment of today's proceedings that there will be further delay before this matter comes on for hearing, and given that a period of some four and a half years has already elapsed since September 2012, I consider it essential that the pleadings between the parties clearly articulate the terms of any direction which was given to the plaintiff – whether it was oral, whether it was in writing, the individual who provided that direction, whether there were any witnesses to the direction being given, and whether there was any follow‑up communication between the parties as to the direction. It would seem, on the basis of the submissions made by Mr Curtain QC, who appears with Mr Kumar for the defendant, that the content and circumstances in which any such direction was given may be critical to the outcome of this case. That is an issue which the parties should give further consideration to prior to this matter coming on for hearing before an Associate Justice and, if necessary, any dispute regarding that matter should be ventilated before the Associate Justice.
In the circumstances, the Court proposes to make two orders:
1. The proceeding is adjourned to a directions hearing before an Associate Justice.
2. Costs reserved.
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