Waller & Waller v Fmc & Burns (No 3) No. DCCIV-98-1796

[2004] SADC 68

WALLER v FLINDERS MEDICAL CENTRE and BURNS (NO 3)
[2004] SADC 68

Judge Lunn
Civil

REASONS ON REFUSAL OF DEFENDANTS’ APPLICATION TO ADJOURN THE TRIAL

1. On 24 March 2004 I refused the defendants’ application to adjourn the trial.  These are my reasons for that ruling.  They need to be read in conjunction with my reasons (No 1)[1] and (No 2)[2]

   [1] Jud No [2004] SADC 45, 10/3/04, 232 LSJS 342.

   [2] Jud No [2004] SADC 67, 5/5/04.

2. On 22 March, being the 15^th day of the trial, the defendants’ counsel foreshadowed an application to adjourn the trial so that the defendants could retain, consult and call an expert in rehabilitation medicine.[3]  The application could not be pursued on that day as the defendants could not then say for how long they wanted such an adjournment.  When the defendants’ counsel pursued his oral application for the adjournment of the trial on 24 March he informed me that the defendants had then just retained a Dr Burke from Melbourne who was able to examine the plaintiff on 31 March and would be available to give evidence on 7 May 2004.  The application was opposed by the plaintiffs.

   [3] The foreshadowed adjournment was also to allow the defendants to call Ms Anne Morgan, an occupational therapist, but as it transpired the defendants were able to do this without any significant adjournment of the trial.

3. At that point the trial still had three days to run.  It was to finish on 31 March 2004.  If the trial was to be adjourned to 7 May, it would then have needed at least two more days of hearing after that to deal with the evidence of Dr Burke, possibly to recall Dr Marshall and other witnesses and to take all addresses.  I could only have been available on 7 May and onwards if the Chief Judge had altered the Judges’ roster as I was not rostered to be in the Civil Division in May.  Within the existing Judges’ roster I could not have been available for an adjourned hearing of this trial until mid July, and, if that was not possible for counsel or witnesses, not until November 2004.

4. Rule 2.04 dealing with caseflow management provides as follows:

   “To these ends:

   (a)Parties to proceedings are required to be ready to proceed to trial by the date of reference for trial under Rule 74A.02;

   …

   (d)A trial will proceed on the date fixed, to conclusion, so far as practicable without interruption, unless the justice of the case, assessed having regard to the parties’ obligation pursuant to paragraph (a) hereof, requires such interruption.”  (underlining added)

   Rule 74A.02 provides:

   “No action may proceed to trial unless it has been ordered to proceed to trial in accordance with this rule.”

   Rule 74A.04 provides:

   “Subject to Rule 74A.05, no order that an action proceed to trial may be made unless:

   (a)the Judge or Master hearing the application for an order that the action proceed to trial is satisfied that the action is ready to proceed to trial;

   (b)before the hearing of an application that the action proceed to trial, a Certificate of Readiness (Form 40) has been filed by the file principal for one of the parties.”

   Rule 74A.05 provides:

   “Rule 75A.04 does not apply if a Judge or a Master is satisfied that, by reason of neglect or dilatoriness of the parties or one or more of them, the action should proceed to trial notwithstanding that such party or parties may not be ready and notwithstanding the fact that a certificate of readiness in accordance with this rule has not been filed.”

5. I dealt with related issues in Waller v Flinders Medical Centre and Burns (No 1), (above), and I will not repeat here much of what I said there.  No order was ever made prior to the commencement of this trial that the action proceed to trial under Rule 74A.02.  I made such an order on 8 March 2004 during the course of the trial.  As a trial Judge does not usually have recourse to the court file I did not know that a reference for trial had not been made under Rule 74A.02 until shortly after 3 March when I was researching the file to prepare my reasons on interlocutory applications.

6. The clear intent of the Rules quoted above is that the fragmentation of trials is to be avoided wherever possible.  To this end parties are meant to be fully prepared before the trial date is set.  If parties are not in a position to adduce their whole case, there is an implied obligation on them under Rule 74A to disclose that to a Master before the listing for trial is finalised.  No order was sought or made under Rule 74A.05 that the action proceed to trial notwithstanding that some party was not ready for trial.

7. On 24 February 2003 the plaintiff filed a Certificate for Readiness for Trial pursuant to Rule 74A.04.[4]  That certificate stated (inter alia):

“…

11.All medical and other expert’s reports to be used by the parties have been obtained and made available to all parties …

14.All interlocutory processes are completed and the action is in all respects ready for trial.  …”

Those statements were not correct.  On 26 February 2003 the plaintiffs’ solicitors issued an application seeking an order “That the requirements of Rule 74A.04 in relation to the filing of a Certificate of Readiness for Trial be dispensed with.”  An affidavit of the plaintiffs’ solicitor sworn on 25 February 2003 filed in support referred to a letter dated 24 February 2003 from the defendants’ solicitors raising an issue about a further report from Dr Hallpike dated 17 February 2003.  That letter stated that they were unable “to certify the Certificate of Readiness and therefore unable to agree this matter be listed for trial”.  The affidavit also said that the plaintiffs were ready for the matter to be listed for trial, but with hindsight that also was clearly not correct.  It is unclear from the application and the supporting affidavit exactly what dispensations from Rule 74A.04 were then being sought by the plaintiffs.  The application came before a Master on 3 March 2003.  He granted some extensions of time for serving supplementary medical reports.  He did not make, or expressly refuse, any orders for dispensation from any part of Rule 74A.04.

[4] Under the Rules as they then stood it was not necessary for this form to be signed by the plaintiffs’ solicitor.  Also it was not necessary that the defendants’ solicitors should have agreed to its contents.

1. On 26 February 2003 the defendants’ solicitors took out an application seeking, inter alia, extensions of time within which “to obtain further medical opinion” and to seek “addendum expert reports”.  This application was supported by an affidavit from the defendants’ solicitor sworn on 25 February 2003.  It only referred to the recent report from Dr Hallpike which dealt solely with the issue of liability.  Nothing was said in the applications or the affidavits of the plaintiffs’ or the defendants’ solicitors about obtaining any reports from specialists in rehabilitation medicine or any reports from new experts on quantum.  The defendants’ solicitor in her affidavit also said:

   “My assessment of the matter on behalf of the defendants is that it is not ready for trial.  However, I am instructed not to oppose the listing of the matter for trial on the basis the defendants are not precluded from properly preparing themselves for trial.”

2. If at the commencement of a trial, a party is not ready for trial, or is not in a position to complete the trial, that should be disclosed to the trial Judge before he or she embarks on the trial.  If I had known on 2 March 2004 that there had been no reference for trial, and that the parties were not then ready for trial, I probably would not have embarked on this trial.  If I had been informed on 2 February that the defendants might have wanted to obtain further medical reports I would, at the very least, have given directions limiting the time for the obtaining and supply of those reports to before the scheduled commencement of the trial proper on 2 March 2004.  If either party at or prior to the commencement of the trial had applied for a dispensation from Rule 38.01 so as to enable further medical reports to be supplied during the course of the trial, it is highly likely I would have refused that dispensation, particularly where it related to reports on issues which were quite plain on both the pleadings and the other medical reports supplied, and where such reports could have been obtained long before.

3. From what I have been told from the bar table during the course of the trial it is clear that there was some arrangement between the parties for the ongoing supply of medical reports while the trial was continuing without regard to the time limitations in the Rules[5].  I am aware that the three reports of Dr Marshall were dated 2 February, 27 February and 2 March 2004.  It is the evidence of Dr Marshall which the defendants primarily wished to challenge through any evidence of Dr Burke.  Although the defendants’ counsel objected to Dr Marshall’s reports being put before the plaintiff in her evidence-in-chief, he did not object under Rule 38.01(7) to the reports being tendered through Dr Marshall when the plaintiffs called her to give evidence on 18 March 2004.  Presumably, if any evidence from Dr Burke was to be contrary to that of Dr Marshall on a material topic, it would have necessitated Dr Marshall being recalled on an adjourned trial.

   [5] Later there was some dispute between counsel about whether this arrangement was limited to reports on quantum but I refused to enter into that issue.

4. There is considerable uncertainty in the history of this matter as to what was the date under Rule 38 by which the parties were obliged to have served their medical reports on the other parties.  Rule 38.01(3) provides:

   “A party shall obtain all expert reports which the party wishes to obtain for the purpose of the action and comply with sub-rules (1) and (2) above in respect of all such reports no later than twenty one days before the date fixed by the Court or by the Rules for the first hearing of any application to refer the action for trial, provided that the party may obtain supplementary reports from experts from whom previously reports have been obtained which are confined to matters upon which a report could not reasonably have been obtained within that time.”

   While it is usually feasible retrospectively to ascertain any date fixed by the Court for the first hearing of an application to refer the action for trial, it is often difficult to do so prospectively or where no order has been made for reference for trial.  On the documents from the Court file which I have seen, but which may not necessarily give me a complete picture of what occurred, there was no date fixed by the Court “for the first hearing of any application to refer the action for trial”.  No party seems to have explicitly sought that order or to have set the general application for directions down for hearing for the purpose of obtaining such an order.  Furthermore, while a Master gave directions on 3 March 2003 limiting the time for supplementary medical reports no direction was given about the time for obtaining reports from doctors who had not previous given reports, such as Drs Marshall and Burke.

5. Rule 38.01(3) also refers to “the date fixed … by the Rules for the first hearing of any application to refer the action for trial”.  Rule 74A.05A applies here as this action is deemed to have been commenced after 3 June 2000.  Rule 74A.05A(3) provides:

   “(3)  Unless an ordinary action is already referred for trial or the Court has otherwise directed:

   (a)     Any party to it who is ready for trial may apply on the application for directions to refer it for trial; or

   (b)    The Registrar will list the application for directions for hearing to consider referring the action for trial:

   (i)14 weeks after the close of the first Settlement Conference; or

   (ii)where there has been no Settlement Conference 18 weeks after the close of pleading or affidavits.”

   Subrule (3)(b) provides a “date fixed by … the Rules for the first hearing of any application to refer the action for trial”.  It means that unless the Court otherwise directed (which was not the case here) the time under Rule 38.01(3) for the service of medical reports was fourteen weeks after the close of the first Settlement Conference.  A Judge closed the equivalent of a Settlement Conference on 19 April 2002.  (Strictly speaking that may not have been a Settlement Conference under Rule 56B as at that time the action was being treated as if it had been commenced before 3 June 2000, but it is of no consequence whether the operative date is under Rule 74A.05(3)(b)(i) or (ii)).  Hence the time for the service of any medical reports under Rule 38.01(3) had expired long before the trial date was set.  This view of the matter is reinforced by a Master on 3 March 2003 having given directions on the basis that extensions of time were then required for supplying supplementary medical reports.

6. The uncontested nature of the plaintiff’s disabilities has always made it obvious that any award of damages to her would include a very substantial component for her future treatment, care and accommodation.  It was an admitted fact that in August 2002 the defendants’ solicitors had communicated with Dr Marshall about this case, but after speaking to her they elected not to obtain a report from her.  Even though the plaintiffs had not served any report from a rehabilitation physician or the like on the defendants, except a report from Ms Morgan, the occupational therapist, it was always open to the defendants before the cut off date to have obtained a report from such an expert.  There is nothing in the Rules which says that defendants have to wait until the plaintiffs obtain a report from an expert in a particular field before they obtain their own report from an expert in that field.  No explanation was put forward by the defendants as to why they did not obtain a report from Dr Burke or a similar expert at an earlier time.  I know that they had the plaintiff examined by a Dr Kneebone on 11 February 2004, but apparently it was not related directly to this issue[6].  Even if the defendants had retained Dr Burke shortly after they received the first report from Dr Marshall in early February 2004, it is likely that Dr Burke could have been available to give his evidence before the scheduled completion of this trial.

[6] He was not called and no report from him was tendered.

1. It was very much in the plaintiff’s best interests to have this trial completed as soon as practicable.  The litigation, and particularly the trial, has placed a considerable strain upon her.  She is at a crossroads of her life and cannot move on until she has this judgment.

2. The topic of any proposed evidence of Dr Burke was of considerable significance in the assessment of the plaintiff’s damages.  However, its potential importance cuts two ways.  It means it is something that the defendants would not be expected to have overlooked in their preparation for trial.  It also means that the defendants have become liable for a very substantial amount of damages on the head of future loss through my acceptance of the opinions of Dr Marshall which have not been contradicted by any other expert of comparable status.  Nevertheless, there is no certainty that any evidence from Dr Burke would have contradicted any opinion of Dr Marshall on important issues.  It was possible that after examining the plaintiff Dr Burke would have substantially agreed with Dr Marshall, and thus the trial would have been adjourned for no good purpose.

3. Rule 2.04(d) requires that a trial should only be adjourned where the justice of the case requires it, but by the terms of (d) that is to be assessed in the light of the requirements of R72A.02.  That fetters my general discretion on the point.  The intent of Rules 74A.02-74A.05 is that unless the Court otherwise thinks fit cases should only proceed to trial where, as far as practicable, they are properly prepared and ready to proceed to completion.  It is in the interests of caseflow management and the proper management of the resources of this Court to avoid unnecessary adjournments which are disruptive of trial lists and the efficient utilisation of judicial resources.  Here the parties agreed to run this trial outside of the Rules and to ignore some of the requirements of Rule 38.01 and Rule 74A.  I cannot stop them doing that, but, if a party gets itself into difficulties through deliberately not having complied with the Rules, I need not grant it any indulgence to rescue it from its predicament.  That is part of the effect of Rule 2.04(d).

4. Counsel for the defendants referred to the decision of the Full Court in Cirillo v Citicorp (2001) 216 LSJS 259. That case did not refer to Rule 2.04(d). It followed a High Court decision of State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 which dealt with a Federal Court Rule which apparently merely said that the trial list should be governed in accordance with principles of caseflow management. That was very different from the terms of Rule 2.04(d). I do not consider that decision of the Full Court obliged me to grant an adjournment merely because a party asked for it and was prepared to pay the costs thrown away by it. Here the justice of the case, as viewed in the light of the requirements of Rules 2.04 and 74A, was in favour of the plaintiffs, and of the trial being completed expeditiously, even though there might well have been some major potential prejudice to the defendants. Accordingly, I refused the adjournment.

1. After I refused the adjournment I invited the defendants’ counsel to consider applying for me to make only an interim assessment under s38 of the District Court Act 1991 on the head of damages of future expenses.  However, he subsequently informed me that his instructions were to seek a final assessment.  The plaintiffs’ counsel also opposed any interim assessment.  Accordingly, I have proceeded to make a final assessment of damages.

JUDGMENT CITATIONS

LIST IN ORDER OF APPEARANCE IN JUDGMENT

1 Jud No [2004] SADC 45, 10/3/04, 232 LSJS 342.

2 Jud No [2004] SADC 67, 5/5/04.

3 The foreshadowed adjournment was also to allow the defendants to call Ms Anne Morgan, an occupational therapist, but as it transpired the defendants were able to do this without any significant adjournment of the trial.

4 Under the Rules as they then stood it was not necessary for this form to be signed by the plaintiffs’ solicitor.  Also it was not necessary that the defendants’ solicitors should have agreed to its contents.

5 Later there was some dispute between counsel about whether this arrangement was limited to reports on quantum but I refused to enter into that issue.

6 He was not called and no report from him was tendered.