AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 25 November 2022

Corner bht M Corner v Gall

[2022] NSWDC 589

Other
CIVIL PROCEDURE TORTS MOTOR ACCIDENTS PLAINTIFF REPRESENTED BY TUTOR

Citation: Corner bht M Corner v Gall [2022] NSWDC 589
Court: District Court of New South Wales
Date: 25 November 2022
Judge: Abadee DCJ

Background

The plaintiff, acting through her husband as tutor (a "tutor" is a person appointed to conduct litigation on behalf of someone who lacks legal capacity), sued the defendant for damages arising from a motor vehicle accident on 16 October 2015. She alleged she was a rear-seat passenger when the defendant swerved to avoid a kangaroo, lost control, and collided with a tree. Her particulars of injury included brain injury, psychological injury, total and permanent incapacity for employment, and a claim that her husband had given up work to become her full-time carer.

The defendant admitted negligence but denied causation of psychiatric and psychological harm. More significantly, the defendant alleged that both the plaintiff and her tutor had engaged in fraudulent or misleading conduct under the Motor Accidents Compensation Act 1999 (NSW), asserting that the claimed injuries were fabricated for financial gain. Documents produced by NSW Police and Tenterfield Community Hospital contained material supporting those fraud allegations, including a reported confession by the plaintiff that she had pretended to be more impaired than she was to obtain a larger payout.

Medical assessors appointed under the Motor Accidents Compensation Act 1999 (NSW) found no permanent impairment from the head injury, and no psychological injury caused by the accident. The proceeding had been on foot since October 2018 and had progressed slowly.

  • Whether the proceeding should be dismissed under r 12.7 of the Uniform Civil Procedure Rules 2005 (UCPR) for want of due despatch in prosecution.
  • Whether the proceeding should be dismissed under r 23.9 of the UCPR for the plaintiff's default in complying with court orders requiring her to attend medical examinations.
  • Whether the power to dismiss under either rule should be exercised in circumstances where dismissal would not permanently extinguish the plaintiff's right to bring a fresh action.
  • Whether the conduct of the tutor was relevant to the Court's assessment of future compliance and prospects of progress.

Decision

Judge Gibson had previously ordered, on 27 May 2022, that the plaintiff attend medico-legal examinations in Adelaide with a neuropsychologist, a psychiatrist, and a neurologist on specific dates in August 2022. The applicant (defendant) arranged and funded the travel and accommodation. Shortly before the first appointment, the tutor communicated to the plaintiff's then-solicitors that the plaintiff was not in a fit state to attend, and the examinations did not proceed. The plaintiff's solicitors subsequently ceased to act. Cancellation fees totalling $16,102.08 were incurred. No explanation for the non-attendance was ever provided to the Court.

Abadee DCJ noted that the motion had initially been adjourned to allow the unrepresented plaintiff further notice of the amended grounds. Despite this, no appearance was made for the plaintiff on either occasion. His Honour observed that the defendant's Senior Counsel accepted that dismissal under r 23.9 would not permanently bar the plaintiff from commencing a fresh action, and this was a significant consideration in the Court's analysis. That point was reflected in the relevant balancing factors under the Civil Procedure Act 2005 (NSW).

His Honour found that the plaintiff had fallen well short of the obligation under s 56(2) of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick, and cheap resolution of proceedings. The resistance to medical examinations, the unexplained non-compliance with court orders, and the absence of any steps by the tutor to advance the proceeding since August 2022 led the Court to conclude that the plaintiff would continue to resist examinations that were necessary for the proceeding to progress. That conclusion was assessed as inconsistent with a plaintiff's duty to prosecute with due despatch and as likely to prejudice the defendant.

Abadee DCJ was satisfied that the proceeding should be dismissed pursuant to r 23.9 and/or r 12.7 of the UCPR, individually or in combination. On costs, the Court ordered the plaintiff and tutor to pay specified costs but excluded the cross-defendants from liability for the costs of the cross-claims.

Orders Made

  • The proceeding was dismissed in accordance with orders 1 to 3 of the defendant's Notice of Motion filed 21 September 2022.
  • Order 4 of the Notice of Motion (costs) was made, subject to the exclusion that the cross-defendants are not liable for the cross-claimant's costs of the cross-claims.
  • Any application to vary the costs order to be made within 14 days.
  • The requirement to file a Notice of Discontinuance of the cross-claims was dispensed with.

Key Takeaways

  • A plaintiff's unexplained failure to comply with court orders requiring attendance at medico-legal examinations can justify dismissal of proceedings under both r 23.9 (default in compliance with orders) and r 12.7 (want of prosecution) of the UCPR, either individually or in combination.
  • The District Court treated dismissal as appropriate even where the plaintiff was unrepresented, where the non-compliance was unexplained and the Court was satisfied future compliance was unlikely.
  • Under the Civil Procedure Act 2005 (NSW), the fact that dismissal would not permanently extinguish a plaintiff's right to commence a fresh action is a relevant consideration in the exercise of the discretion to dismiss, but it did not prevent dismissal on the facts here.
  • Where a tutor conducts litigation on a plaintiff's behalf, the tutor's conduct and apparent willingness (or unwillingness) to advance the proceeding is relevant to the Court's assessment of whether the case will be prosecuted with due despatch.
  • Obligations under s 56(2) of the Civil Procedure Act 2005 (NSW) require active participation in the progress of proceedings, including compliance with examination orders; persistent resistance to such orders is inconsistent with those obligations.

Legislation and Cases Referenced

Legislation:
- Civil Procedure Act 2005 (NSW), ss 56, 57, 58
- Motor Accidents Compensation Act 1999 (NSW), ss 86, 117, 118
- Uniform Civil Procedure Rules 2005, rr 12.7, 23.4, 23.9

Cases: No cases were cited in the decision.