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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Francis v MSF Sugar Limited  QSC 16
KENNETH CHARLES FRANCIS
MSF SUGAR LIMITED
ACN 009 658 708
BS No 3399 of 2017
Supreme Court at Brisbane
Date of Orders: 19 November 2019
19 November 2019
Date of Orders: 19 November 2019
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – OVERRIDING PURPOSE OF AND OBLIGATIONS UNDER RULES OR ACTS REGULATING CIVIL PROCEEDINGS – where the defendant failed to disclose a directly relevant document until the eve of the trial – where the trial was adjourned for one day to allow the plaintiff to consider the document and amend his statement of claim – where the defendant sought a further adjournment for an unspecified period – where the defendant appeared to have pleaded false matters in a defence formulated without proper forensic inquiry – where the defendant failed to comply with the implied undertaking under r 5 of the Uniform Civil Procedure Rules 1999 (Qld)
D L Atkinson QC, with J M Sorbello, for the plaintiff
Morton & Morton Solicitors for the plaintiff
- This is a decision on an application for an adjournment of a trial made by the defendant on the morning of what was to be the second day of a four-day trial. These reasons were delivered ex tempore on that day. The conduct addressed in these reasons may be of broader significance for the conduct of similar matters in the court. This consideration has led to the decision to publish the reasons that follow in a more formal manner.
- The proceeding was adjourned at about 10.30 am yesterday, the first day of the trial, because of the very late disclosure of a document from the defendant’s records. The document is the defendant’s record of what the defendant was told by the plaintiff on the day he alleges he suffered an injury. It includes a record that the defendant’s general practitioner made a particular diagnosis and recommended modified duties. It indicated that substantial parts of the defendant’s defence were factually untrue. It also indicated the likely existence of other documents, directly relevant to the matters in issue in the case, which had not yet been disclosed by the defendant.
- When yesterday’s adjournment was granted, it was done on the basis that the plaintiff would consider the document (and any further disclosed documents) urgently, and prepare an amended statement of claim for circulation to the defendant’s legal advisers, and that an amended trial plan would be considered so that the trial could proceed today. The amended statement of claim was prepared, and this morning I gave leave for it to be filed. The amended trial plan would allow the trial to proceed with the evidence of the remaining identified witnesses, so that that evidence would conclude by the afternoon of Thursday, 21 November 2019.
- The defendant seeks an adjournment of the trial for an unspecified period. The adjournment is sought to enable the defendant to know with more certainty the evidence the plaintiff intends to call from its medical expert witnesses with respect to two matters which have been inserted in the amended statement of claim.
- The first is in paragraph 5A(d), an allegation that in September 2013:
“In the course of performing the said task, the plaintiff sustained minor injuries to his right arm and informed the defendant of the same by reports dated 1, 6, 18 and 29 September 2013.”
- The second is an allegation in paragraph 5C(b)(i) that on the morning of 8 October 2013 a general practitioner provided the plaintiff with a medical certificate which stipulated that:
“The plaintiff was suffering from a Rotator cuff injury.”
- For the defendant, it is submitted that the plaintiff’s present expert medical evidence is not consistent with these allegations. The defendant apprehends the plaintiff’s expert evidence in these respects will be different at trial, and that the defendant does not wish to be taken by surprise as to the effect of that evidence.
- As noted above, the amendments to the statement of claim arise from the very late disclosure of directly relevant documents by the defendant. However, the pleading in paragraph 5A(d) is a matter which was already the subject of allegations in paragraphs 11(d)(ii) to (v) of the defence.
- From the submissions made, I apprehend that the defendant wishes to know what the plaintiff’s experts would say about minor injuries being suffered by the plaintiff to his right arm during the month of September 2013, being in advance of the date of the relevant injury, which was 8 October 2013. The defence, amongst numerous other grounds, contends in this respect that any injury suffered by the plaintiff was wholly pre-existing, and a consequence of things, including manual handling at work on the days in question in September 2013. It follows that one would ordinarily have expected questions about those matters to be put to the plaintiff’s expert witnesses in cross-examination.
- In any event, the plaintiff’s counsel has informed the court that it is proposed to confer with one of the experts at 1.00 pm today, and with the other at 5.00 pm today, with a view to producing a note of each expert’s additional comments, if any, arising from the newly disclosed documents and about the matters alleged in the amended pleading. The draft trial plan provides for one of those experts to give evidence at 11.15 am tomorrow, and the other at about 3.00 pm tomorrow.
- As these points have been current in the proceedings, at least since the defence was filed on 26 April 2017, and as they are of relatively short compass, I do not consider that an adjournment would be justified at this point in the proceeding in order to allow additional time for the defendant to prepare itself for that evidence. The circumstance in which this occurs is entirely of the defendant’s making. Its failure to properly attend to the task of preparation for a trial such as this, and its failure to properly disclose directly relevant documents, are the causes of this present difficulty. Perhaps, more importantly, I do not consider the difficulty to be such that it cannot be remedied by the application of the usual professional skills available to the defendant between now and the time when the experts will give their evidence.
- The second matter in paragraph 5C(b)(i) is a little different. It indicates that the defendant was on notice that the plaintiff had suffered a relevant injury by the morning of 8 October 2013. The defendant put the plaintiff to work on the afternoon of 8 October 2013, and it is alleged that the plaintiff suffered the relevant injury in the course of working the afternoon/evening shift. That the defendant had prior knowledge of this relevant injury may well have great significance to the defendant’s defence.
- To the extent that the defendant is taken by surprise by this information, the following may be said. Firstly, this information was at all times available to the defendant because it derives from a document within the records of the defendant.
- Secondly, further information about this fact could have been obtained by the defendant at any point in time during the past six years, from the time when the defendant’s relevant officer was first in contact with the defendant’s statutory insurer. That person made the lately disclosed document. He has remained in the defendant’s employ to this time. It appears the defendant failed to take a proper proof of evidence or a full statement from him at any time.
- Thirdly, the notation made by the plaintiff’s general practitioner, and apparently advised to the defendant on the morning of the day the accident is alleged to have occurred, is consistent with the material consciously known to the defendant’s legal advisers about injuries suffered by the defendant in the course of the preceding month.
- I accept that the general practitioner’s notation that the plaintiff was suffering from a right rotator cuff injury may be more significant than the earlier reports of minor injuries to his right arm. However, any inconvenience the defendant might suffer through not knowing until later today what the plaintiff’s medical experts may say about that matter must be balanced against the history of the proceeding.
- The plaintiff is a person with limited intellectual capacity. He has been employed by the defendant in various manual positions for the whole of his long working life. The injury occurred more than six years ago. The proceeding was commenced two and a-half years ago, presumably after the completion of the statutory pre-litigation steps. The matter has been the subject of detailed directions in this court, and, some time ago, it was set down for hearing over four days, which is a substantial allocation of the court’s resources.
- Given the defendant’s nearly complete responsibility for the late emergence of this problem, and the likely resources available to the defendant to deal with it, in the exercise of my discretion I propose to refuse the application for an adjournment of the trial generally. I am concerned about the ability of the proceeding to be heard and determined in the allocated time, given the emergence of these most unfortunate problems. However, I have made arrangements so that the court could sit for an additional day on Friday, 22 November 2019, in order to complete the evidence, should that prove necessary.
- I am conscious that the emergence of these documents so late, and with such impact upon the defendant’s existing defence, means that the defendant’s solicitors need to obtain the appropriate instructions to identify any true basis for a defence open to the defendant. This may require some time and effort on the part of those who advise the defendant. I am certain that the defendant cannot proceed on the basis of its present defence, because much of it appears simply false and agitates matters that no properly considered defence would include. It appears to have been formulated without any proper forensic inquiry or a statement of evidence from a witness able to give evidence to support the facts alleged. No Counsel’s name appears on the defence. It is impossible to recite these matters without being struck by the gravity of the defendant’s defaulting conduct.
- The lengthy, in part false and in the main unnecessary grounds of defence are, frankly, a very disappointing exemplar of the failure of a party to comply with the implied undertaking under r 5 of the Uniform Civil Procedure Rules 1999 (Qld). It is most concerning that this conduct should have been engaged in a proceeding involving a statutory insurer who regularly takes part in litigation in this court, usually with authority to instruct directly the lawyers acting for those it insures.
- When the application for an adjournment was made this morning, no officer from WorkCover bothered to attend the court. There has been no explanation for how it could have conducted a defence without proper instructions, and contrary to facts and documents within its insured’s knowledge and possession. It indicates something fundamental has gone wrong in the process by which the insurer has approached its obligations as the effective entity giving instructions to those who appear and plead in this court.
- I expect that such behaviour will now have ceased, and that appropriate efforts will be put towards the presentation of a defence that accurately states known and provable facts, and withdraws false and unprovable allegations, which can only have had the effect of delaying the progress of this proceeding and extending the time that had to be allocated for it to be heard. In order for the defendant to attend to those matters, I propose to adjourn the proceeding until 2.30 pm this afternoon, when the trial proper will commence with the plaintiff’s first witness. I would expect an amended defence to be available by that time.
- The defendant has conducted itself in this court quite unreasonably – failing to disclose directly relevant documents until the eve of the trial and pleading matters that were false, according to its own records, and which it could not prove by admissible evidence. This unreasonable conduct has caused the plaintiff to incur unnecessary costs, including costs thrown away by yesterday’s adjournment and today’s application and short adjournment. It also likely delayed the determination of the plaintiff’s claim and prevented the matter resolving on an agreed basis without the need for a trial.
- In the circumstances, the defendant’s application for an adjournment is dismissed. The trial is adjourned to 2.30 pm today. The defendant is to pay the plaintiff’s costs of Monday, 18 November 2019, and the costs of today’s application for an adjournment, in each instance to be assessed on the indemnity basis.
- Published Case Name:
Francis v MSF Sugar Limited
- Shortened Case Name:
Francis v MSF Sugar Ltd
 QSC 16
25 Feb 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 16||25 Feb 2020||Defendant's application for an adjournment of trial (on the morning of the second day of the trial) refused: Bradley J.|