Tragas v Bob Jane Corporation Pty Ltd - [2017] VSC 74

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 74
Decision Date: 24 February 2017

CaseChat Overview and Summary

The case of Tragas v Bob Jane Corporation Pty Ltd was heard in the Supreme Court of New South Wales. The plaintiff sought an adjournment on the first day of the trial to allow for additional discovery and to rely on further expert reports that had been filed immediately prior to the trial. The defendant opposed the adjournment, arguing that the plaintiff had not provided proper foundation at the final directions hearing that the trial was ready to proceed. The court had to decide whether the adjournment should be granted, considering the potential prejudice to the plaintiff if precluded from relying on the additional expert reports.

The legal issues before the court were whether the plaintiff had acted reasonably and in good faith in submitting the trial was ready to proceed at the final directions hearing, and whether the adjournment should be granted to allow the plaintiff to rely on the additional expert reports. The court considered the need for the plaintiff to have all necessary evidence and expert opinions before proceeding with the trial, as well as the potential prejudice to the plaintiff if the adjournment was not granted.

The court held that the plaintiff had not acted reasonably and in good faith in submitting that the trial was ready to proceed at the final directions hearing, as they had not disclosed the additional expert reports at that time. However, the court also considered the potential prejudice to the plaintiff if the adjournment was not granted. The court found that the prejudice to the plaintiff outweighed any prejudice to the defendant, and granted the adjournment to allow the plaintiff to rely on the additional expert reports. The court emphasised the importance of all parties providing full disclosure and acting in good faith throughout the litigation process.

The final order of the court was that the trial be adjourned to allow the plaintiff to rely on the additional expert reports. The court emphasised the importance of full disclosure and acting in good faith in litigation proceedings. The court also noted that the defendant had the right to challenge the admissibility of the additional expert reports, and that the adjournment was not a determination on the admissibility of those reports.

Orders