DISTRICT COURT OF QUEENSLAND
CITATION:
Hartney v Anzbrook Pty Ltd [2017] QDC 222
PARTIES:
ANTHONY MORGAN HARTNEY
(Plaintiff)v
ANZBROOK PTY LTD
(Defendant)FILE NO/S:
195 of 2016
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Cairns
DELIVERED ON:
14 July 2017
DELIVERED AT EX TEMPORE:
Cairns
HEARING DATE:
14 July 2017
JUDGE:
Morzone QC DCJ
ORDER:
1. Orders made in terms of the amended draft order dated 14 July 2017.
CATCHWORDS:
CIVIL PROCEDURE – PERSONAL INJURIES – WORKERS COMPENSATION AND REHABILIATION –- application for the plaintiff to undergo vocational assessment – application for mediation - application to dispense with the defendant’s signature on the request for trial date – costs
Legislation
Uniform Civil Procedure Rules 1999 (Qld), rr 5, 444.
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 282.
COUNSEL:
R Armstong for the Plaintiff
AW Collins for the Defendant
SOLICITORS:
Littles Lawyers for the Plaintiff
BT Lawyers for the Defendant
The defendant applies for further disclosure of documents in relation to the plaintiff’s ongoing study of a certificate III in business, as well as orders requiring the plaintiff to attend an examination by an occupational physician and an occupational therapist for vocational assessment and, subsequent to that, a mediation of the dispute.
That application has partly been resolved in that the orders for disclosure are rendered unnecessary as a consequence of documents having been provided by the plaintiff to the defendant in the class identified. Further, the defendant is content to rely upon a further assessment of an occupational therapist or psychologist in the form of a vocational assessment of the plaintiff, rather than two or more assessments, including one of an occupational physician.
The plaintiff has cross-applied for an order dispensing with the defendant’s signature on the request for trial date. The defendant contends that the proceeding is not ready for trial for the reasons comprising the basis of its application.
Background
The proceedings commenced on 16 November 2016 by a claim and statement of claim. In it, the plaintiff alleges he was injured on 12 May 2013 near Arlington Reef while working as a commercial diver for the defendant. It is alleged that his injuries were sustained as a consequence of the defendant’s operation of the vessel FV Clear Water. In particular, he alleges that he was injured in attempting to transfer from a dory to the vessel in open swell.
The defendant answered the claim and statement of claim by filing a notice of intention to defend on 16 December 2016. An amended defence was filed on 16 of January 2017. The amended defence was later struck out by order of Reid DCJ. The defendant denies liability and says that any injury sustained was caused solely by the plaintiff’s voluntary and deliberate action of diving into the water from the dory to retrieve a bucket. Further, the defendant pleads that the plaintiff was contributory negligent to the extent of 100 per cent.
In the defence, the defendant develops its position asserting that the only injury that the plaintiff sustained was a fractured nose and some facial lacerations and bruising, which resolved within four weeks. The defendant rejects the assertion that the plaintiff suffered and continues to suffer post-traumatic stress disorder. Ultimately, the defendant asserts that the plaintiff has not suffered any loss or damage or, if he has done so, he has failed to mitigate that loss.
So as is obvious from the pleadings, both liability and quantum are in issue in the case. As to the quantum, the plaintiff alleges in the statement of claim that he has not earned income from personal exertion since the year ended 30 June 2014. Economic loss for past and future is calculated using a rate of $923.55 per week net after tax. Therefore, for the future, an amount of $490,000 is claimed after a discount and having regard to his life expectancy and other contingencies.
Shortly after the amended defence was struck out when the matter was last dealt with by Reid DCJ, the plaintiff served a request for trial date on 8 June 2017. That was met with a reply from the defendant’s solicitors asserting a requirement that the plaintiff attend an independent examination by an occupational physician and, further, an examination or an assessment by a vocational assessor. The letter nominated a panel of three for each of those disciplines. As I said, in the course of this application, the defendant is content with the letter class of expert.
After that request was made, the parties engaged in extensive debate in correspondence as to the basis and merit of the request, seemingly in stark contrast to the position gleaned from the defendant’s pleading. The basis of the request asserted in the letter was to answer a report obtained by the plaintiff from an occupational therapist being the reporter Vanessa Aitken, dated 2 October 2015. As it happens, that report was disclosed before the parties engaged in a compulsory conference and before the plaintiff had advanced his further education in the certificate III in business. That education has evolved. The plaintiff continues to undertake his coursework and the documents going to his academic performance have been the subject of the recent disclosure.
Vocational Assessment
The defendant persists in its request through this application for the plaintiff to undergo vocational assessment by one of the three panellists, two being occupational therapists and another being a psychologist as identified in the letter of 20 June 2017.
The pursuit of that course is pursuant to s 282 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) which provides as follows: –
“Section 282 Worker to undergo medical examination
(1) An insurer or a contributor may at any time ask the worker to undergo either or both of the following, whether at 1 time or at different times, at the expense of the insurer or contributor—
(a) a medical examination by a doctor to be selected by the worker from a panel of at least 3 doctors nominated in the request;
(b) an assessment of cognitive, functional or vocational capacity by a registered person to be selected by the worker from a panel of at least 3 persons with appropriate qualifications and experience nominated in the request.
(2) The worker must comply with the request unless it would be unreasonable or unnecessarily repetitious.
(3) If 3 doctors or persons with appropriate qualifications and experience are not available for inclusion on a panel, the number on the panel may be reduced to 2.”
The question here is whether the vocational assessments would be unreasonable or unnecessarily repetitious.
The defendant contrasts the report of the consulting occupational therapist, provided by the plaintiff, namely the report of Vanessa Aitken of 2 October 2015, with the report obtained by the defendant from Dr Relan, a psychiatrist, dated 28 February 2017. Ms Aitken’s conclusions, in relation to future employability, are given detailed consideration by Ms Atkin in the usual way, having regard to his physical and mental capacity, and the relevant expert opinion supporting her assessment, but the report predates the plaintiff’s furtherance of his education, in undertaking the certificate III in business. He is yet to complete that coursework.
On the other hand, Dr Relan said, in his report of 28 February 2017, that:
“Currently [the plaintiff] has been doing certificate III in business, although at a slower pace. However I consider that there is a reasonable scope of gradual progress in completion of the course, and he would be able to seek employment in future.”
The defendant’s counsel relies upon the contrast of those opinions, and the passage of time, to argue that a material change has occurred in the plaintiff’s condition, which makes the further assessment sought appropriate. It is acknowledged that the delay before requesting the assessment is relevant, but ought not be fatal to the application in the circumstances of this case. In contrast, the plaintiff’s counsel argues that the orders sought by the defendant for a further assessment are that the further assessment is irrelevant, and would result in a further medical examination or assessment, which is unreasonable and/or unnecessarily repetitious. It is argued that, upon proper analysis of the reports relied upon, there has been no material change with respect to the plaintiff’s injuries and employment status, to warrant further examinations.
Further, as is apparent from the chronology, the defendant was aware that the plaintiff was attending a TAFE course of this nature prior to the compulsory conference, and has had significant time to obtain the relevant particulars and subsequent reports. Further, it is argued that the analysis of the pleadings are such that the defendant does not rely upon matters which would be a prerequisite to the court needing to assess the plaintiff’s employability, except the pleading in relation to mitigation. By this, I mean having regard to the defendant’s position relating to the denial of liability, the denial of any injury being caused as a result of any negligence, and the denial of any ongoing incapacity including post-traumatic stress disorder, the defendant at no time would need to rely upon the report sought in order to conduct its case.
In its stark factual context, the plaintiff’s TAFE course is not, in my view, an indicator of improvement in his condition, which has been the subject of detailed and careful medical assessment and reports. It is, though, a relevant factor to consider in the disposal of the case. It is relevant to the question of mitigation, and more pertinently, to the assessment of future prospects of obtaining employment, despite the plaintiff’s incapacity, to the extent which might ultimately be found by the trial judge, including his level of education, qualifications and skills. As the matter stands, only the report of the psychiatrist, Dr Relan, has paid some heed to the plaintiff’s further education. In order to provide the most contemporary state of medical opinion, it is likely that all relevant experts would need to consider this development, and whether it alters the plaintiff’s prospects of employment, despite their findings of his physical and mental incapacity, and therefore his residual capacity of employment.
In that context, having regard to the issues required for determination by the trial judge, it cannot be said that the assessment of the nature sought by the defendant, and a further adjunct to the reports of the plaintiff, would be irrelevant or unreasonable or unnecessarily repetitious. On the contrary, it is a matter that ought be properly considered by the relevant experts, in a timely way, lest the trial be disrupted by a gap in the evidence.
Having said that, I am not persuaded that there is material change in the plaintiff’s condition as such, as argued by the defendant’s counsel. Rather, it seems to me that the gap in the evidence was belatedly realised, when the defendant’s representatives gave proper consideration to the defendant’s readiness for trial, in response to the service of the request for trial date. Whilst that delay may be the subject of criticism, ultimately, it is remediable and at least timely, before a trial is due to commence.
Therefore, it seems to me that in the proper administration of the case, pursuant to s282(1)(b) and (2) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), a further assessment, a vocational assessment, is warranted, as sought by the defendant, as well as an updated assessment by the plaintiff’s occupational therapist. Indeed, it may impact on updating other reports, although without the necessity for any further consultation and inconvenience to the plaintiff.
Mediation
The defendant has also sought a mediation in the proceeding, which is resisted by the plaintiff, on the grounds that there is no prospect for compromise, and in a no-cost jurisdiction, it places an unnecessary burden on the plaintiff.
The plaintiff may well be justified in that perception, given the strident opposition demonstrated by the defendant in the pleadings, and in the conduct of the case. At least by virtue of this application, the defendant seems to appreciate the relevant risks associated with litigation, and the need to attend to an assessment of those, in the proper administration of justice.
ADR processes have now been part of the Court’s procedural requirements for a significant time, most particularly since the advent of the Uniform Civil Procedure Rules 1999. It is well recognised that matters prior to that time were frequently being resolved at the door of the Court, being a time when all the parties were possessed of all the relevant information likely to be adduced by way of evidence during the course of a trial. Granted, some matters fail to resolve at mediation because of stringent opposition and perceptions of parties’ respective strengths and weaknesses.
Having regard to the matters subject of this application, I am not persuaded that there is no realistic prospect of the matter being settled or the issues being narrowed by referral to mediation. Indeed, if I was so persuaded, I would have ordered that the matter be referred for case appraisal before the trial. There are many things that parties can learn and appreciate about the strengths and weaknesses of their case, well beyond the state of their current investigations before hearing. For example, with participation of the appropriate parties, including any relevant expert or, more particularly, counsel and the solicitor having the conduct of the matter and likely to continue that conduct through to the course of trial, they may better appreciate the risks faced by having the matter determined by a trial. And, of course, the participation of a plaintiff in a way which enables an assessment of matters going to credit without infringing upon appropriate information being conveyed without improper questioning or cross-examination during a mediation process, go a long way to informing the parties of their respective strengths and weaknesses and attendant risks in trial. A skilled mediator can conduct a mediation, having regard to all such matters, giving parties the greatest opportunity, even in the most difficult of disputes, for a chance of resolution.
But in any event, it provides an opportunity for the parties to attend and, in the event of the dispute remaining, they ought to apply a positive effort to reduce other issues which go to the conduct of the trial, including the modes of evidence, any relevant admissions which would save the Court’s time and subsequent costs of the parties, and the like.
It seems to me that this is an appropriate case, where the parties ought to bring some common sense to bear, at least to reduce issues and consider the proper conduct of the case so it can proceed in the most efficient and cost-effective way. Such is the parties’ duty, pursuant to rule 5 of the Uniform Civil Procedure Rules 1999 (“UCPR”), in any event. Of course, in saying that, I do not discount the real likelihood that a resolution can be found at mediation.
Application to dispense with defendant’s signature on request for trial date.
It was, it seems to me, a proper step to be taken by the plaintiff, having regard to the history of the matter, to serve the request for trial date on the defendant. The plaintiff is otherwise ready for trial, save for the matters requiring some short attention by the relevant experts, including Ms Aitkin, to the plaintiff’s efforts to continue his education. Those matters would and could be attended to in the usual course of preparation, to ensure that the expert evidence is the most contemporary available for the judge hearing the matter.
It seems to me that the matters to which I have referred are the only matters which require attention before each party is ready for trial.
So for these reasons, I propose to order, in effect, that the matter be listed for trial for the sittings commencing 23 October 2017, subject to the plaintiff undergoing a timely vocational assessment and a timely delivery of the report subsequent to that assessment. And further, subsequent to the delivery of any further reports from the vocational assessment and any updated reports, the parties ought to be able to engage in mediation by 1 October 2017, prior to trial.
Costs
Having regard to the reasons delivered ex tempore, the defendant applies for costs of the applications disposed of by the proposed orders, as well as an order that the defendant pay the costs of the mediation of the parties. The order sought is opposed by the defendant, who argues that the appropriate order for costs is each party ought bear their own costs of the proceedings, including the mediation.
The plaintiff relies upon the defendant’s conduct of the proceeding and in particular points to delay which it characterises – he characterises as unreasonable delay by the defendant, and therefore, pursuant to s 318C of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), costs ought to favour the plaintiff. Section 318C provides:
“318C Costs order under div 2 for an interlocutory application
An order about costs for an interlocutory application may be made under division 2 only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties.”
The plaintiff asserts, as is demonstrably true, that it prepared and attended this application answering the assertions made by the defendant pursuant to rule 444 and related rules relating to pre-application correspondence. The intent, of course, of those rules is to lay bare a party’s position in relation to an intended application as relief sought for a complaint. Here, the position relied upon in the correspondence was diverted from, with a more palpable argument by the defendant’s counsel, but as my reasons disclose, even that different approach failed in respect of the application insofar as it related to the vocational assessment. Instead, it seems to me that it was the defendant’s belated consideration given to the adequacy of the evidence in the preparation for the trial, and having been forced to properly consider those matters before signing a request for trial date, which resulted in that part of the application being made.
But of course, the application involved other matters. It involved an application for disclosure, which was subsequently complied with before the hearing of the application, as contained in affidavit material filed by leave. And the application also involved an order for mediation, which I found in favour of the defendant, against the plaintiff’s submissions. Overall, though, it was recognised in the course of the reasons that the plaintiff has waited for the defendant to deal with these issues from the perception gleaned from the pleadings, its conduct of the hearing and its otherwise readiness for trial by tender of the request for trial date. It is in that sense that, the defendant’s orders being successful as explained. So too has the plaintiff’s application, to the extent that I have set the matter down for trial subject to compliance with other steps subject of the defendant’s application.
It seems to me that both parties are blameworthy. The plaintiff had a continuing duty to disclose, which included the TAFE academic records and related documents, which were in his possession or power to disclose in due course. In the ordinary course of such undertaking, the plaintiff would have been in possession of the documents from time to time. Proper disclosure of those things may have also triggered a consideration by the defendant of matters gaining importance rather than some broad consideration. Further, the plaintiff has made no attempt to update its own medical records so as to demonstrate reliance upon the plaintiff’s further education as somehow bolstering his prospects of employment or otherwise.
However, litigation is not meant to be reactionary. Each party has positive duties under the rules, including disclosure and to prepare their case as required by rule 5 of the UCPR. However, it seems to me that the defendant has only been successful on the basis that despite the arguments made out in the rule 444 letter and by counsel here today, I have decided that it is a proper course that the plaintiff undertake further assessment lest the trial be thwarted or disrupted by a lack of proper preparation by both parties. The plaintiff’s preparation would have happened, in the usual course of matters, to update experts on contemporary matters, but the defendant would have been left with no report at all, in the circumstances, and that state has come about because of the defendant’s delay in having to address that aspect of the case. However, that ought not account for the whole of the costs of the application.
In relation to the mediation, it seems to me that both parties had a positive obligation to take every step with a view to attempting to resolve the matter completely or partially with due attention to the reduction of issues and any procedural matters to reduce the time, expense and inconvenience of a trial. If the plaintiff took that the matter was irreconcilable based upon the pleadings, that is a matter for the plaintiff. It did not, in my view, absolve the plaintiff from a consideration of that step, including, if it was of that view, as I have indicated earlier, considering a case appraisal, which would have met any concern and otherwise been in the spirit of the rules.
So for those further reasons, I propose to order that each party will pay one-half of the mediator’s costs, but those costs will be each party’s costs in the proceeding, that is, they may be recoverable should that party be successful in the proceeding ultimately. Insofar as these applications are concerned, I propose to order that the defendant pay the plaintiff’s costs of the applications to the extent of one-third, assessed on the standard basis. Otherwise, each party bear their own costs of the applications.
Orders
I will make orders in terms of the amended draft order as follows:
1. The proceeding is provisionally listed for trial for the sittings commencing 23 October 2017 subject to the following orders.
2. Pursuant to s 282 of the Workers Compensation and Rehabilitation Act 2003 the Plaintiff comply with the Applicant’s request to undergo a vocational assessment by an occupational therapist from the following panel:
(a) Erin Hitzke;
(b) David Morris;
(c) Jade Evans.
3. That the defendant disclose the reports from the vocational assessment within 2 weeks of the respective examinations.
4. That the Plaintiff and the Defendant are directed to attend, participate in, and act reasonably and genuinely in, a mediation to be conducted at a time and place that is mutually convenient to the parties by 1 October 2017.
5. The mediator is Peter Munro. If he is not available, then an alternative mediator will be nominated by the court unless otherwise agreed by the parties.
6. The estimated maximum period of mediation is 1 day.
7. The parties will negotiate a fee with the mediator.
8. The parties are to pay the costs of the mediator in the following proportions:
(a) The Plaintiff, Anthony Morgan Hartney – one half;
(b) The Defendant, Anzbrook Pty Ltd – one half.
9. The parties must pay their respective proportions of the costs of the mediator in accordance with the mediator’s requirements, and will be the parties’ costs in the proceedings.
10. The mediator is to be informed of the appointment by the Defendant’s lawyers.
11. If the mediation has not been completed within the time of the referring order the parties must provide a report to the registrar setting out the circumstances of the matter.
12. Each party have liberty to apply upon giving the other party at least 3 business days’ notice.
13. The Application by the Plaintiff filed 7 July 2017 be allowed as provided in this order.
14. The Defendant will pay the Plaintiff’s cost of the applications to the extent of one third assessed on the standard basis. Each party will bear their own costs of the application.
Judge DP Morzone QC