IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
SERIOUS INJURY List		

Case No. CI-19-06104

DONNA WARLOCK	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	JUDICIAL REGISTRAR J B GURRY	
WHERE HELD:	Melbourne (via Zoom hearing)	
DATE OF HEARING:	25 June 2021	
DATE OF RULING:	25 June 2021 and 6 July 2021 (written reasons)	
CASE MAY BE CITED AS:	Warlock v Victorian WorkCover Authority (Ruling)	
MEDIUM NEUTRAL CITATION:	[2021] VCC 889		

RULING
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Subject:	PRACTICE AND PROCEDURE
Catchwords: 	application by plaintiff to vacate trial date
Legislation Cited:	Civil Procedure Act 2010
Cases Cited:	Northern Health v Kuipers [2015] VSCA 172; Grace v El Masri [2013] VSC 432
Ruling:	Application granted.  Trial date of 28 June 2021 vacated.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr P Haddad	Slater and Gordon Ltd	
			
For the Defendant	Ms K Manning	Russell Kennedy	

HIS HONOUR:

Summary
1	On the day of hearing, I made Orders that the trial date be vacated and that written reasons would be given at a later date.  I now give those reasons.
2	This is an application by way of Summons by the plaintiff dated 25 June 2021 to vacate a trial date which is listed on 28 June 2021 as a serious injury application.  
3	The plaintiff seeks certification under paragraph (c) for both heads.  
4	The Originating Motion was issued on 17 December 2019.  I made timetabling Orders on 26 November 2020, setting the matter down for trial.
5	There have been no other timetabling orders made and this is the first trial date.
6	I have for my benefit the following affidavits:
(a)	from the plaintiff’s solicitor, Ms Fleur Jackson, dated 18 and 24 June 2021
(b)	from the defendant’s solicitor, Mr Matthew Stockdale, dated 24 June 2021. 
7	I note the Common Law Division Practice Note PLNCLD-2021 sets out that for a serious injury application, a summons is required to vacate a trial date where the trial date is within twenty-eight days of the application and the application is opposed.  
8	The plaintiff’s solicitor sent to the Court, on 21 June 2021, a request for a directions hearing form with an affidavit in support seeking to adjourn the trial date.
9	The Court informed the plaintiff’s solicitor the correct procedure was that a Summons was required.  A Summons date application form was subsequently sent to the Court on 21 June 2021.  
10	Upon coming to the Bench to hear this matter, I explained that an examination of the Court file suggested that a Summons had not been filed.  I enquired of counsel for the plaintiff and was informed that it had been filed this morning.  I was then informed there was an error, in that the plaintiff’s solicitor had attempted to file the Summons date application form, rather than the Summons.  By agreement of the defendant, the matter proceeded on the basis that the plaintiff’s solicitor would file a Summons as required.  
Applicant submissions
11	In the Summons date application form, the plaintiff’s solicitor stated she wished to vacate the trial date with little other information provided.
12	From the plaintiff’s solicitor’s affidavit of 18 June 2021, I note:
(a)	at paragraph 5, the plaintiff’s solicitor deposed that the plaintiff’s solicitor had requested a report from Dr Cesar Tan, the plaintiff’s treating general practitioner.  She did not say when this was requested, but noted it was received on 20 April 2021.  Reference was made to Dr Tan, indicating that the plaintiff needed to continue to see, on a regular basis, a psychologist.  That report was exhibit FLJ1;
(b)	At paragraph 6 of the affidavit, the plaintiff’s solicitor deposed that the plaintiff had consulted Dr Tan regarding the psychiatric injury and had been referred to a psychologist and psychiatrist, and the plaintiff’s solicitor stated she was awaiting a further report;
(c)	At paragraph 7 of the affidavit, the plaintiff’s solicitor deposed that she had received a further report from Dr Tan on 18 June 2021, which was exhibit FLJ2;
(d)	At paragraph 8, the plaintiff’s solicitor deposed that these recent referrals raised concerns regarding the plaintiff’s stability, and the plaintiff’s solicitor deposed “[t]he Plaintiff must have treatment with a psychologist and psychiatrist and the referral has only just been made”.
13	However, I note from the report of Dr Tan, which is dated 26 March 2021, exhibit FLJ1, that the report states it was prepared at the request of the plaintiff’s solicitor and that the plaintiff said she continued to need to see a psychologist.  
14	I also note in the report of Dr Tan dated 10 June 2021, exhibit FLJ2, that whilst Dr Tan stated the report was prepared again at the request of the plaintiff’s solicitors, it said nothing on treatment or referrals for any treatment, and nothing was said on the issue of stability.
15	In the plaintiff’s solicitor’s second affidavit of 24 June 2021, she deposed, at paragraph 2, that they had received Dr Tan’s report of 18 June 2021, exhibit FLJ3. I note:  
(a)	At paragraph 3, it stated that on 23 June 2021, the plaintiff’s solicitor had received Dr Tan’s referral letter to Ms Lisa Costa, psychologist, dated 21 June 2021, together with a GP Mental Health Treatment Plan, dated 21 June 2021;
(b)	At paragraph 4, reference is made to the obtaining of a medico-legal report of Dr Justin Lewis, consultant psychiatrist, dated 7 December 2020, wherein it was stated the plaintiff would benefit from psychological therapy.  No reference is made as to when this report was obtained or served;
(c)	At paragraph 5, it stated she was told by the plaintiff on 18 June 2021 that the plaintiff intended to undergo treatment recommended by her general practitioner.
16	In respect to the report of Dr Tan of 18 June 2021, I note that at paragraph 3, reference is made to the need for the plaintiff to undergo psychotherapy with a psychologist and the need to see a psychiatrist for further management.  I also note that the GP Mental Health Treatment Plan dated 21 June 2021 referred to Ms Costa and noted thanks to Ms Costa for seeing the plaintiff and agreeing to be involved in the Mental Health Treatment Plan.  That Mental Health Treatment Plan also referred to the plaintiff having previously had a plan, and as to the question of whether the plaintiff was seeing a psychiatrist, the answer was “YES[WHO]/NO/planned in future”.  
17	I wish to make several observations in regard to Dr Justin Lewis’ report.  These are:
(a)	Dr Lewis had the benefit of reports which had been prepared by the insurance agent for the WorkCover claim, which were not before me, but a summary was provided in his report;
(b)	reference was made to the plaintiff seeing Ms Kim Carli, the clinical psychologist, but it was unclear if this was from a treatment perspective;
(c)	reference was made to the plaintiff seeing a clinical psychologist in December 2014, which ceased twelve months earlier;
(d)	reference was made to the plaintiff being cared for under a care plan through the general practitioner and seeing the general practitioner on a fortnightly basis, and that the plaintiff’s Post-Traumatic Stress Disorder condition was partially remitted and her condition had stabilised;
(e)	Dr Lewis considered the plaintiff would benefit from trauma-focused psychological therapy and noted that the plaintiff expressed no desire to engage in that treatment.  He also noted that the condition was entrenched and noted avoidance behaviour and a desire for the plaintiff to avoid references to the incident.
Counsels’ submissions
18	The plaintiff’s counsel’s submissions explained more clearly the basis for the application.  In summary, it was that the issues of permanency and stability had not been properly determined and could not be determined without more material. Further investigations were required given the material recommending the plaintiff required further and ongoing treatment.  
19	The defendant’s counsel also provided useful submissions to me.  The defendant opposed the application as, in essence, the plaintiff’s condition had been consistent if one examined the material provided over the years, and nothing had really changed from the plaintiff’s presentation.  Further, there was an absence of affidavit material from the plaintiff detailing what had changed, or the plaintiff’s intention with respect to treatment and the need for it.
Considerations
20	The Court of Appeal in Northern Health v Kuipers said:
“The Civil Procedure Act 2010 … is pivotal to the resolution of disputes about case management issues in civil proceedings to which the Act applies.  … .”
21	In addition, the Court said: 
“… it is important that, in resolving such disputes, trial judges engage with the Act’s provisions in balancing the competing interests of the parties and those of the administration of justice more generally.  As procedural rulings must often be made promptly with succinct reasons, that does not mean that trial judges must set out each applicable provision of the Act and state reasons in relation to it.  However, it must be apparent from the reasons for the ruling — either expressly or inferentially — that the judge took into account the applicable provisions.”
22	In Grace v El Masri, a decision regarding an adjournment application, J Forrest J said:
“The relevant considerations in an application such as this involve balancing the fundamental requirement that a trial must be conducted fairly and in accordance with the principles of natural justice and procedural fairness with the necessity for case management in a busy court: See ss 9(1) and (2) of the Civil Procedure Act 2010 (Vic).”
23	I will not restate the relevant provision of the Civil Procedure Act 2010 here as they will be known to the parties.
24	However, I note that in Northern Health v Kuipers, there was a warning from the Court of Appeal to practitioners who fail to comply with court timetabling orders.   The Court said:
“Parties conducting proceedings in a managed list, such as the List, must do all they can to comply with the court’s timetabling orders.  If they do not, they face the risk that orders will be made which may affect the manner in which, and the extent to which, they can conduct their case … .”
Reasons
25	Several times a week I am required to hear urgent applications by parties seeking to vacate trial dates.  They often sadly have a consistent theme.
26	Usually there is an affidavit in support which gives only a partial explanation of why the vacation of the trial date is required.  Often, a party will seek to blame the other party for the problem which has arisen.
27	The real reason for this application as identified by counsel for the plaintiff in his submissions is that the issue of permanence and stability are very much alive as issues and cannot be determined at this time on the material available.  Simply put, this case is not ready to proceed.  Further, the reason it is not ready, I consider from an examination of the material before me, is due to a lack of preparation on the part of the plaintiff’s solicitors.
28	However, as has been said in the authorities I have referred to, and ensuring that I comply with my obligations under the Civil Procedure Act, I must ensure there is a fair trial.  This will often involve an exercise in balancing the respective parties’ interests and considering the prejudice to the parties.  
29	A very important consideration for me here is the plaintiff herself.  As is often said at these applications to adjourn serious injury hearings, the plaintiff only gets one go at this.  
30	Plaintiffs are usually not legally qualified or trained and often are involved in their first litigation.  What is required from them and the way proceedings are conducted must be carefully explained to them.  They may also be dealing with the consequences of any injury and the pressures of daily life.
31	The defendant in serious injury applications is a statutory insurer.  They deal with serious injury matters daily and the processes are known to them.  They will adhere to the model litigant principles and like a plaintiff, must be provided with procedural fairness. 
32	The defendant solicitor’s affidavit provided for me a summary of this matter and at paragraph 3, explains the reasons why he is instructed to oppose the adjournment.  There is, however, no material provided by the defendant on the issues of permanence, stability, or treatment.
33	There are a number of issues which raise concern to me.  There is no affidavit from the plaintiff herself and there is no explanation for delays that have occurred, particularly in regard to obtaining instructions or material in support of the plaintiff’s case. 
34	So much is unanswered.  For example:
(i)	when and how often had the plaintiff been treated?  
(ii)	why has this issue arisen so late?  
(iii)	what other material is there that could assist the Court?
35	From the material that I have read, it appears that the plaintiff was involved in a traumatic incident on 23 August 2013.  An armed robbery took place by three men, one brandishing a gun.
36	There are two significant issues which are pivotal to my ruling.  
37	First, the plaintiff appears, from what I have read in Dr Lewis’ material, to have had difficulty regarding treatment or attending treatment brought about by having to recount and revisit the events of 23 August 2013.  It may be that this is a significant reason why the treatment history is inconsistent.  It may also explain why there has been a reluctance on the plaintiff’s part to attend treatment.  But this issue may also be relevant to the questions of stability and permanence. 
38	The second is what other evidence is available on stability and permanence?  This is not properly addressed in the material before me.
39	I am not prepared to allow this matter to proceed before a trial judge on 28 June 2021 with the prospect these issues will be revisited.  I have considerations of the efficient conduct of the business of the Court and the efficient use of judicial and administrative resources.  Further, there are issues of further costs being incurred if the trial date is maintained and then subsequently adjourned.  
40	The plaintiff has only one go at this and it would not be in the interests of justice if this case was forced on for hearing on 28 June 2021.
41	I have considered whether there is any prejudice to the defendant.  No issues of prejudice have been identified which could not be corrected by an appropriate order for costs.
42	This matter must be adjourned for the reasons I have outlined.
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