Pirlo v King

1. [1]

   HIS HONOUR: By his notice of motion filed on 19 July 2016, Mr Pirlo seeks to have these proceedings expedited and heard in Lismore instead of Sydney. The matter is presently listed for hearing in Sydney with an estimate of 5 days commencing on 6 February 2017. The proceedings were originally commenced in the Lismore District Court but later removed to this Court. The evidence reveals that there are two available blocks of 5 days in either of which the matter could be accommodated in Lismore, respectively commencing 12 September or 12 December 2016. Listing the matter in either of those weeks would expedite the proceedings by default.

2. [2]

   Mr Pirlo’s application is opposed.

Background

1. [3]

   Mr Pirlo was seriously injured on 7 June 2011 during the course of his work as a cable installer when he was struck by the bucket of a mechanical excavator. He allegedly sustained a series of injuries that included a brain injury. He now suffers from headaches, poor memory, confusion and disorientation. He has been diagnosed with a major depressive disorder associated with constant shoulder and back pain and other disabilities including behavioural changes. Mr Pirlo’s claim is based upon the proposition that he has been rendered totally incapable of returning to his pre-injury employment or indeed any employment at all.

2. [4]

   Mr Pirlo lives with his wife in Casino, which is about 33 kilometres from Lismore. Neither of them works. They are in financially straitened circumstances. They will suffer hardship if they are required to be away from Casino if the proceedings are heard in Sydney for a week, with associated attendances on legal representatives, and family support is more available close to where they reside.

3. [5]

   A recent report from a psychiatrist, Dr Stephen Huntsman, dated 29 June 2016 outlined Mr Pirlo’s condition at the time. It is relevant to this application, as the following extracts reveal:

4. [6]

   It does not appear to be in issue that a change of venue from Sydney to Lismore on either of the proposed dates would not operate to displace some other case or cases in this Court that are scheduled to commence there at either of those times. It is also not in issue that it would suit Mr Pirlo and his wife to have the matter transferred to Lismore. He concedes, however, that there are no significant issues of delay or hardship that are not specifically related to him and his wife. For example, there are no difficulties associated with a hearing in Sydney such as the convenience of lay witnesses or experts retained by Mr Pirlo.

5. [7]

   The opposition to the application proceeds upon the following bases. First, the first defendant has retained eight expert medical witnesses. All of them are based in Sydney. With two exceptions, being Dr Huntsman who is based in Bangalow and Dr Jacqueline Boon, a neuropsychologist, who is based in Brisbane, all of Mr Pirlo’s medical experts are based in Sydney.

6. [8]

   Secondly, conclaves of experts in related medical specialties are yet to take place. None of the conclaves is scheduled to occur before 12 September 2016 although all are due to be completed well before 12 December 2016. Directions that have been made by the Court include directions that the medical and quantum conclaves take place by 23 September 2016 and that reports from the conclaves setting out matters of agreement and disagreement be provided by 31 October 2016.

7. [9]

   Thirdly, the first defendant is presently unable to ascertain the availability of his witnesses for a hearing commencing on 12 September 2016. I am unaware of their availabilities in December.

8. [10]

   Fourthly, a mediation in the matter is likely to occur on either 19 or 26 September 2016 in Lismore. It would be premature to schedule a hearing before the mediation had taken place.

9. [11]

   Fifthly, Ms Berberian of counsel, retained by the first defendant, is unavailable in either September or December. Ms Berberian has only been briefed to appear on behalf of the first defendant for approximately one week.

10. [12]

    Sixthly, the parties are not due to file a joint memorandum of agreed facts and issues in dispute until 9 December 2016. Certificates of readiness are not due to be filed until 23 December 2016.

11. [13]

    Finally, having regard to the latest report from Dr Huntsman, the first defendant has foreshadowed the need to have Mr Pirlo reassessed by Dr Revai, whose first available appointment is 29 September 2016.

Consideration

1. [14]

   The present application would appear to have been generated by the circumstances in which a settlement conference scheduled for 9 June 2016 came to be cancelled. There are, however, competing versions of what occurred. Mr Pirlo’s solicitor made his position clear in a letter he wrote to his opponent on 6 June 2016 in these terms:

2. [15]

   Part of the evidence relied upon by the first defendant included an earlier report from Dr Huntsman dated 19 March 2015. That was the report that preceded his latest report, upon which Mr Pirlo specifically relied on this application. It is instructive to record some of what that report contains:

3. [16]

   It is clear that, for whatever reason, Mr Pirlo suffers from a serious psychiatric condition. As the evidence makes clear, this has existed for some time and appears to be getting worse. I do not fully understand Dr Huntsman’s opinion in his latest report that Mr Pirlo “no longer has an interest in the outcome of litigation and has repeatedly experienced suicidal ideation”, as the delays in finalisation of the proceedings are otherwise promoted as at least one cause of such thoughts and the significant reason why further delay should be avoided if at all possible. Dr Huntsman also emphasises the relationship between the emergence or deterioration of psychiatric complaints and the efficient disposition of litigation such as the present.

4. [17]

   Mr Pirlo’s case would appear thus far to have been handled efficiently. It came to this Court from the District Court as recently as 12 August 2015. The allocation of a hearing date for a matter of its type within 18 months is well within a range that is reasonable in all of the circumstances. Mr Pirlo’s only significant complaint is that the delay between now and February 2017 is unacceptable having regard to his parlous medical condition.

5. [18]

   The interests of justice require a consideration of more than simply the interests of Mr Pirlo. The directions made by the Court so far in anticipation of a February 2017 hearing anticipate significant steps being taken towards the ultimate resolution of the proceedings. These include the organisation and implementation of the various expert conclaves, as well as the anterior work in preparation for them. The upcoming mediation falls into the same category. That mediation will occur in Lismore to suit Mr Pirlo’s convenience and in my experience will operate as a significant step in ameliorating the commonly seen anxieties about litigation of the type identified by Dr Huntsman. I endorse Dr Huntsman’s recognition of the importance of the litigious process as in effect having cathartic benefits. That is particularly so in this case having regard to the fact that the matter has proceeded so far without unsatisfactory or otherwise avoidable delays. Mr Pirlo’s psychiatric condition is not one of recent development and I do not get the impression that the period between now and 6 February 2017 is likely to make his condition worse, particularly having regard to the fact that so much needs to be done by the parties in that time. In short, the matter is progressing at a satisfactory pace and Mr Pirlo will no doubt appreciate that fact with some careful advice from his solicitor.

6. [19]

   Furthermore, the medical experts and most other witnesses are generally located in or near Sydney. The organisation of concurrent evidence in a series of sessions in Lismore appears to me to wholly disproportionate to the level of concerns expressed by Mr Pirlo. The relocation of the whole of the proceedings would in my view create unnecessary expense and occasion undue inconvenience.

7. [20]

   On balance it seems to me that the interests of justice favour the retention of the current hearing and the implementation of the remaining directions that are in place. The application was not hopeless or entirely without merit, so that the costs of the application should be the costs in the proceedings.