Werner v Commonwealth

[2022] NSWSC 1388

Supreme Court

New South Wales

Medium Neutral Citation:

Werner v Commonwealth [2022] NSWSC 1388

Hearing dates:

10 and 13 October 2022

Date of orders:

13 October 2022

Decision date:

13 October 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Grant access to both parties to the material produced on subpoena by Dr M Hopwood.

(2) List the matter for hearing on 6 and 7 December 2022 for argument as to:

(i) Whether the Limitation Act issue should be determined as a separate issue from the plaintiff’s substantive claim.

(ii) If so, whether the plaintiff’s suit should be allowed to be brought outside of the limitation period.

(3) Make the following case management directions for the purpose of the hearing on 6 and 7 December:

(i) The plaintiff is to file and serve its evidence on those issues on or before 5:00pm on Friday 5 November 2022.

(ii) The defendant to file and serve its evidence on or before 5:00pm on Friday 19 November 2022.

(iii) The plaintiff to file and serve any evidence in reply on or before 5:00pm Friday 26 November 2022.

(iv) The plaintiff to file and serve written submissions (limited to 15 pages) on or before 5:00pm Friday 26 November 2022.

(v) The defendant is to file and serve written submissions (limited to 15 pages) on or before Friday 3 December 2022.

(vi) Each party to notify the other which witnesses (if any) are required for cross-examination on or before Friday 26 November 2022.

(4) Confirm that the matter is listed before the Registrar for further directions on 28 October 2022.

(5) Costs of and incidental to the notice of motion, up to and including Monday 10 October 2022, are reserved to the trial Judge.

(6) The plaintiff is to pay the defendant’s costs of and incidental to the second day of the hearing of the notice of motion (Thursday 13 October 2022).

Catchwords:

COSTS – application for expedited hearing of limitation issue – where notice of motion resolved without determining issue in dispute – application adjourned for plaintiff to determine if it maintained an assertion that certain document privileged – reasonably clear privilege had been waived – hearing delayed as a result – intransigence – plaintiff to pay defendant’s costs of second day – costs otherwise reserved to trial judge

Legislation Cited:

Limitation Act 1969 (NSW)

Category:

Procedural rulings

Parties:

John Lorrence Werner (Plaintiff)
Commonwealth (Defendant)

Representation:

Counsel:
G Thomson (Plaintiff)
M Kelly (Defendant)

Solicitors:
James Taylor & Co (Plaintiff)
Australian Government Solicitor (Defendant)

File Number(s):

2021/346441

Judgment

1. On Monday 10 October 2022, an application for expedited hearing was referred to me as the duty Judge. For reasons I will explain, the matter was adjourned until today, Thursday 13 October 2022, for final resolution of the orders. Once I made the orders, the defendant sought costs on the notion of motion.

2. The plaintiff’s case concerns a claim for nervous shock arising out of a naval accident that occurred in 1964 when the plaintiff was a serviceman aboard the HMAS Melbourne when it collided with the HMAS Voyager. Many servicemen were killed and injured.

3. There is (what may be) an anterior dispute between the parties as to whether the plaintiff’s cause of action is defeated by the fact that, on its face, it was brought well outside the limitation period provided by the Limitation Act 1969 (NSW). The notice of motion that came to me on Monday sought an expedited hearing to resolve that issue. Up to this point, while the parties agree the limitation issue should be determined as a separate issue, no order or direction had been made for that occur. The merit in the issue being heard separately is that the defendant says, quite candidly, that if the limitation issue is resolved favourably to the plaintiff it will do its best to settle the case.

4. The parties filed evidence and commenced to read affidavits on the issue of expedition. However, before the matter got very far, I intervened to suggest a possible resolution. In the result, it became unnecessary to decide the question of expedition because inquiries with the Registrar indicated that dates were available in December 2022 that were suitable to both parties. But for one issue, the matter would have been resolved on Monday with orders and directions, more or less by consent.

5. Because the issue that arose out of the notice of motion did not need to be, and was not, resolved, I am not inclined to make any orders as to the costs of and incidental to the notice of motion up to, an including, the brief hearing on Monday. I do not accept the defendant’s submission that the application was without merit. The plaintiff is an elderly man with a number of health conditions. I do not accept that his counsel’s candid concession that the plaintiff is “not in extremis” [1] means that the application for an expedited hearing of the limitation issue was doomed to failure. On the other hand, there was some delay – around 2 months – in bringing the notice of motion after the main evidence upon which it was based was obtained. This would militate against making an order for expedition if such an order would otherwise have been necessary and/or appropriate.

   1. Tcpt, 10 October 2022, p 1(35).

6. I propose to reserve the issue of the costs of and incidental to the notice of motion heard on Monday 10 October 2022 to the trial Judge.

7. However, the question of the costs of today, that is Thursday 13 October 2022, raises a different issue.

8. There is evidence that the plaintiff consulted a psychiatrist, a Dr Hopwood, in the year 2000. The background to this consultation, its relevance to the proceedings and how it became known to the defendant is set out with clarity in the affidavit evidence. As result, the defendant’s solicitors issued a subpoena seeking Dr Hopwood’s records (along with those of other practitioners from the same practice). Certain documents were produced, but the plaintiff claimed privilege over the documents and objected to the defendant gaining access to them.

9. Without descending into the facts, evidence or legal niceties, it seemed reasonably clear that any privilege attaching to the documents was, or had been, waived. Further, the material is likely to bear upon the limitation issue because it may be, directly or indirectly, relevant to the question of when the cause of action arose (in the sense of when the condition was manifest in the plaintiff).

10. The defendant took the not unreasonable position that it could not assure the Court that it was ready to take a hearing date, or to proceed with the hearing of the limitation issue, until the claim of privilege was resolved and a decision was made as to whether the defendant could have access to the documents produced on subpoena.

11. The result was that the matter was adjourned until today. The parties were advised by email at 11:04am on Monday that the Court could accommodate the December dates that suited the lawyers on both sides. Had it not been for the outstanding issue of privilege over Dr Hopwood’s material, the matter would have been resolved by lunchtime. As I said during argument “the privilege matter, given the nature of the claim [and] the evidence upon which you rely, might not be a very complicated one, once you turn your mind to it and obtain instructions.” [2]

    2. Ibid, p 6(32-34).

12. The issue of privilege, and its waiver, was a matter to which the plaintiff and his lawyers ought to have “turn[ed] their minds” before making the claim of privilege, resisting access to the documents, and prosecuting the notice of motion for an expedited hearing.

13. But for the intransigence of the plaintiff’s lawyer(s), this application would have been resolved by lunchtime on Monday. The defendant would not have needed to appear today. It is just and reasonable that the plaintiff pay the defendant’s costs of and incidental to today’s appearance.

14. For the sake of clarity, I will repeat the orders I made earlier today (which are italicised below) and add the two costs orders I have explained in this judgment.

15. The orders of the Court are as follows:

1. Grant access to both parties to the material produced on subpoena by Dr M Hopwood.

2. List the matter for hearing on 6 and 7 December 2022 for argument as to:

1. Whether the Limitation Act issue should be determined as a separate issue from the plaintiff’s substantive claim.

2. If so, whether the plaintiff’s suit should be allowed to be brought outside of the limitation period.

3. Make the following case management directions for the purpose of the hearing on 6 and 7 December:

1. The plaintiff is to file and serve its evidence on those issues on or before 5:00pm on Friday 5 November 2022.

2. The defendant to file and serve its evidence on or before 5:00pm on Friday 19 November 2022.

3. The plaintiff to file and serve any evidence in reply on or before 5:00pm Friday 26 November 2022.

4. The plaintiff to file and serve written submissions (limited to 15 pages) on or before 5:00pm Friday 26 November 2022.

5. The defendant is to file and serve written submissions (limited to 15 pages) on or before Friday 3 December 2022.

6. Each party to notify the other which witnesses (if any) are required for cross-examination on or before Friday 26 November 2022.

4. Confirm that the matter is listed before the Registrar for further directions on 28 October 2022.

5. Costs of and incidental to the notice of motion, up to and including Monday 10 October 2022, are reserved to the trial Judge.

6. The plaintiff is to pay the defendant’s costs of and incidental to the second day of the hearing of the notice of motion (Thursday 13 October 2022).

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Endnotes

Decision last updated: 13 October 2022