3 Rivers Estate Pty Ltd v Consult Survey GRA Pty Ltd

[2023] NSWSC 1217

Supreme Court

New South Wales

Medium Neutral Citation:

3 Rivers Estate Pty Ltd v Consult Survey GRA Pty Ltd [2023] NSWSC 1217

Hearing dates:

6 October 2023

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Common Law

Before:

Mitchelmore J

Decision:

(1)   The Amended Summons is dismissed with costs.

Catchwords:

APPEALS – Leave to appeal – Exercise of discretion – where expert report served by defendant in Local Court – where non-compliance with Uniform Civil Procedure Rules 2005 (NSW), r 39.19 and Local Court Practice Note Civ 1 – where Magistrate dismissed application in Local Court to adduce expert report made some 22 after service of report and during hearing of case – whether leave to appeal should be granted – whether reasonably clear injustice

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56-58

Local Court Act 2007 (NSW), s 40

Uniform Civil Procedure Rules 2005 (NSW), r 39.19

Cases Cited:

Ainsworth v Burden [2005] NSWCA 174

Chapman v Chapman [2007] NSWSC 1109

DJ & LJ Norman Pty Ltd v Sheather [2022] NSWSC 1299

Darlington v Director of Public Prosecutions (NSW) [2023] NSWSC 1139

House v The King (1936) 55 CLR 499; [1936] HCA 40

In re The Will of FB Gilbert (1946) 46 SR (NSW) 318

Lahoud v Willoughby City Council [2022] NSWCA 214

Namoi Sustainable Energy Pty Ltd v Buhren [2022] NSWSC 175

Shellharbour City Council v Minister for Planning [2011] NSWCA 195

Category:

Principal judgment

Parties:

3 Rivers Estate Pty Ltd (Applicant)
Consult Survey GRA Pty Ltd (Respondent)

Representation:

Counsel:
Mr J Masters (Applicant)
Mr T To (Respondent)

Solicitors:
O’Connor Harris & Co Solicitors (Applicant)
North Herring Lawyers (Respondent)

File Number(s):

2023/93358

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Civil

Citation:

N/A

Date of Decision:

23 February 2023

Before:

Magistrate Clisdell

File Number(s):

2020/262008

JUDGMENT

1. The plaintiff, 3 Rivers Estate Pty Ltd (3 Rivers Estate), is the defendant in proceedings in the Local Court. The plaintiff in those proceedings, Consult Survey GRA Pty Ltd (Consult Survey), alleges that it had contracted to supply professional surveying, town planning and other services to 3 Rivers Estate, and that 3 Rivers Estate had failed to pay certain invoices that Consult Survey had issued pursuant to that contract, to the value of $100,000. In the alternative to its contract claim, Consult Survey seeks the same amount pursuant to a quantum meruit claim.

2. The matter was listed for hearing in the Local Court on 22 and 23 February 2023. On 22 February 2023, after Consult Survey closed its case, counsel for 3 Rivers Estate sought to read an expert report of a surveyor, Mr Barnsley of MMB Surveyors (the expert report). The expert report had been served on the solicitors for Consult Survey some 22 months before the hearing. In serving the expert report, 3 Rivers Estate had not complied with r 31.19(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), or with the Local Court Practice Note Civ 1 (PN Civ 1). Consult Survey objected to the expert report on that basis.

3. On 23 February 2023, 3 Rivers Estate formally applied for leave to adduce the expert report. The Magistrate’s dismissal of that application is the subject of the current application for leave to appeal, which is brought pursuant to s 40(2)(a) of the Local Court Act 2007 (NSW).

4. Rule 31.19(3) of the UCPR confers a discretion on a court to permit a party to adduce expert evidence notwithstanding that, relevantly for present purposes, directions have not been sought in accordance with r 31.19(1). By its Amended Summons, 3 Rivers Estate contended that the Magistrate made a number of errors in declining to exercise that discretion. It submitted that leave should be granted because the rejection of its expert evidence means that it will not be able to run an effective defence, as it cannot fully answer Consult Survey’s claim in contract or its quantum meruit claim.

5. The application for leave does not raise any point of principle or question of public importance. 3 Rivers Estate takes issue with the exercise of a discretion in the particular circumstances of the case. However, the grounds it advances do not raise an injustice which is reasonably clear in the sense of going beyond what is merely arguable. Accordingly, I would refuse leave to appeal.

Evidence on the application

6. 3 Rivers Estate relied on an affidavit of its instructing solicitor, John Patrick Harris, affirmed on 31 May 2023, to which a number of documents were annexed, including the expert report and the transcript of the hearing in the Local Court. Consult Survey read two affidavits of its instructing solicitor, Andrew Heath Macgregor Herring, sworn on 14 June 2023 and 22 August 2023. The first affidavit of Mr Herring annexed a copy of PN Civ 1, while the second affidavit annexed a chronology of the procedural history of the proceedings, to which no objection was made.

Background to the application for leave to adduce expert evidence

7. On 9 September 2020, Consult Survey commenced the proceedings in the General Division of the Local Court in Queanbeyan. In its Statement of Claim (SOC), Consult Survey alleges that it entered into an agreement with Michael Dean, the sole director and company secretary of 3 Rivers Estate and the second defendant, for the supply of professional surveying, town planning and other services (SOC [4]). Consult Survey alleges that between September 2013 and May 2018, it performed services in accordance with the contract (SOC [5]), for which it issued a series of invoices (SOC [6]). Although 3 Rivers Estate and Mr Dean paid the first two invoices and most of the third, it failed to pay the balance owing on the third invoice and failed to pay any part of the fourth, fifth and sixth invoices (SOC [9]-[10]).

8. Consult Survey claims $112,606.13, comprising $100,000 in unpaid invoices plus interest and related fees (SOC [12]). In the alternative, Consult Survey seeks the same amount on the basis that: it had agreed to perform the pleaded services; it performed the services pursuant to this agreement; and the amount it invoiced was reasonable for the work it had performed (SOC [12]-[15]).

9. Mr Dean and 3 Rivers Estate filed a defence on 29 March 2022. They admit that there was a contract between 3 Rivers Estate and Consult Survey for the provision of services, but plead that the services were limited to preliminary survey works, and otherwise do not admit the pleaded contract (Defence [3]). They also admit that Consult Survey provided some surveying services to 3 Rivers Estate and plead that Consult Survey was paid for those services (Defence [4]). The defendants otherwise deny that the services the subject of the unpaid invoices were performed, or were performed pursuant to any contract, or were of any value (or any value greater than the amount already paid) (Defence [5]).

10. The defendants admit that 3 Rivers Estate had not paid the invoices that Consult Survey alleged it had not paid, but deny that it was obliged to pay them (Defence [8]); and deny that Consult Survey was entitled to the relief that it claimed (Defence [10]). In answer to the quantum meruit claim, the defendants deny that there was an agreement as alleged; and plead that the allegations do not disclose a basis for a claim in restitution, on a quantum meruit basis or otherwise (Defence [13]).

11. According to the chronology prepared by the solicitor for Consult Survey, between 9 September 2020 and 10 February 2021, various interlocutory matters took place, including Consult Survey obtaining default judgment against Mr Dean and 3 Rivers Estate, and Mr Dean having the default judgment against him set aside (default judgment against 3 Rivers Estate was also set aside, but not until 14 March 2022, the application to set it aside having been made on 18 February 2022). On 10 February 2021, the matter was listed for hearing on 16 June 2021 and directions were made for the filing of evidence. 3 Rivers Estate did not, at that time, seek any directions in relation to expert evidence.

12. Rule 31.19 of the UCPR relevantly provides:

31.19 Parties to seek directions before calling expert witnesses

(1)    Any party—

(a) intending to adduce expert evidence at trial, or

(b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,

must promptly seek directions from the court in that regard.

(2)    Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.

(3)    Unless the court otherwise orders, expert evidence may not be adduced at trial—

(a) unless directions have been sought in accordance with this rule, and

(b) if any such directions have been given by the court, otherwise than in accordance with those directions.

13. The rule is reflected in PN Civ 1, which applies to civil proceedings in the Local Court. Part E of PN Civ 1 deals with expert evidence and provides a procedure for leave to adduce expert evidence. In summary, before seeking leave the parties must discuss the areas in which expert evidence is required and whether they can agree on a single expert (with a single expert to be used wherever possible). If a single expert can be agreed, and leave is granted, PN Civ 1 prescribes a procedure for the expert to be engaged and to provide a report. If a single expert cannot be agreed, the Court may give leave for each party to call their own expert witness, in which event the experts are to prepare a joint report outlining the issues in dispute and not in dispute.

14. Without complying with either r 31.19 of the UCPR or the procedure in PN Civ 1, 3 Rivers Estate retained the services of Mr Barnsley, who produced the expert report dated 19 April 2021. The defendants filed and served their evidence, including the expert report, on 22 April 2021.

15. The matter did not proceed to hearing on 16 June 2021. Instead, the parties went to mediation, but the matter did not resolve. On 14 March 2022, the matter was listed for hearing on 14 September 2022, but the hearing was again vacated, this time due to the unavailability of the witnesses for 3 Rivers Estate. The matter was adjourned for hearing on two days commencing on 22 February 2023. At no stage during this time did either 3 Rivers Estate or Consult Survey raise with the Local Court that an expert report had been served or seek any directions with respect to it.

The application for leave to adduce the expert evidence

16. The hearing commenced on 22 February 2023. Consult Survey’s case relied on an affidavit and oral evidence of Robert Griffiths, a registered surveyor and director of Consult Survey, along with documents that it tendered through Mr Griffiths such as the invoices the subject of the claim and his diary entries. Mr Griffiths was cross-examined at some length by counsel for 3 Rivers Estate. At the conclusion of that evidence, Consult Survey closed its case.

17. Counsel for 3 Rivers Estate then commenced its case, reading two affidavits of Mr Dean and an affidavit of Jamie Bush. Counsel for 3 Rivers Estate then sought to read the expert report. At that point, the Magistrate asked: “Where was the motion for expert evidence? Anyone?” The solicitor for Consult Survey noted in response that there was no motion, and that this formed part of his objection to the report being admitted (Tcpt 22/02/23 p84). The response of counsel for 3 Rivers Estate suggests that this issue took him by surprise: “Your Honour, on certain counts in the matter, I just made certain assumptions that perhaps I shouldn’t have made.”

18. Counsel for 3 Rivers Estate foreshadowed making an application that the Magistrate exercise his discretion to admit the evidence, which his Honour said he would hear the following morning. In anticipation of what 3 Rivers Estate would submit, counsel stated that the primary consideration would be any unfairness to the plaintiff. He noted that the conduct of the parties was relevant to discretion and Consult Survey had considerable time and multiple occasions to raise the expert report as an issue, given it had been served on 22 April 2021.

19. On 23 February 2023, 3 Rivers Estate and Mr Dean made a formal application for leave to adduce expert evidence, which Consult Survey opposed. The only evidence led on the application was two emails between the parties’ respective solicitors, which included the email by which the solicitors for 3 Rivers Estate served the expert report on Consult Survey’s solicitors.

20. Counsel for 3 Rivers Estate submitted that PN Civ 1 needed to be read in conjunction with the UCPR. Referring to r 31.19(1)(b), counsel submitted that both parties had an obligation to seek directions from the Court, and that in circumstances where Consult Survey had been on notice of 3 Rivers Estate’s intention to call expert evidence since April 2021, the nature of its objection was tactical and technical. In relation to PN Civ 1 and the requirement for the parties to discuss expert evidence, counsel for 3 Rivers Estate sought to characterise its service of the expert report as a one-sided discussion, with the expert report setting out the areas of expert evidence, and with Mr Barnsley being a single expert. Counsel submitted that Consult Survey’s silence in those circumstances could be construed as indicating that it did not wish to adduce expert evidence.

21. In response to a question from the Magistrate about the matter involving a contract claim and how the expert report would assist on the “issue of whether this is a contract or not”, counsel for 3 Rivers Estate submitted that the evidence was relevant to both the contract claim and the quantum meruit claim. The evidence went, in his submission, to why the amount of time that was charged was excessive and not reasonable. Counsel submitted that there was a lack of prejudice, as if the Court had been invited to make orders for expert evidence, the expert report would not have changed.

22. The solicitor for Consult Survey submitted that r 31.19 of the UCPR did not require Consult Survey, as the plaintiff, to write or apply to the Court to seek directions in relation to a single expert relied upon by another party. He also took issue with the submission that service of an expert report was an invitation to engage a single expert within the meaning of PN Civ 1, as at that point Mr Barnsley had already been engaged by 3 Rivers Estate. The email of 22 April 2020 by which 3 Rivers Estate served the expert report did not itself start a “conversation” between the parties, nor was there any evidence before the Court to suggest that any such conversation was continued by either party.

23. Consult Survey’s solicitor submitted that the solicitors for 3 Rivers Estate were not inexperienced, and PN Civ 1 was clear. The purpose of the latter was to see if the parties could reach agreement on a single expert; and where there was disagreement there would be hot tubbing of experts. Consult Survey’s objection was not one of form, it was one of substance that it was entitled to take. Finally, Consult Survey’s solicitor advanced the following submission:

“Your Honour, I ask you to reject the application for leave. It’s brought far too late in the day. Even if you granted leave, the next step in the process cannot be followed with Mr Barnsley. Even if your Honour accepted that we’d had the discussion through submissions in front of your Honour, right now, the next step can’t be engagement of Mr Barnesly, because he’s already been engaged. And so there’s no work for your Honour to do and I ask you to reject the application.”

24. In reply, counsel for 3 Rivers Estate submitted that he was not criticising Consult Survey for taking a tactical objection, but was making the point that “it wasn’t beyond that tactical decision (scil objection) that they’re rightly entitled to make, that they were affected. They knew of everything else.”

The decision of the Magistrate

25. The Magistrate commenced by referring to the general purpose of the UCPR as facilitating the just, quick and equitable resolution of civil matters. His Honour noted that the case before him commenced in September 2020 and that a number of procedural steps had been taken over the intervening period, including the filing of a cross-claim that was withdrawn in May 2021. His Honour then turned to the requirement in r 31.19(1) promptly to seek directions about expert evidence. As to on whom that obligation fell, his Honour stated that “even if I accept that both parties have an obligation to do something about it, generally you would expect the party who wants to rely on the report is going to be the moving party” (Tcpt 23/02/23 p 8).

26. The Magistrate described the case as “just a contractual case”. His Honour noted that there was also a quantum meruit claim, but stated that it was “an alternative”, and, further, that “[y]ou do not really have to deal with the quantum meruit until we deal with the issue of contract” (Tcpt 23/02/23 p 8).

27. His Honour observed that the purpose of r 31.19 of the UCPR was to enable the Court to exercise its case management powers at an appropriately early stage of proceedings. His Honour noted in that context that if he gave leave, he was “going to have to invite Mr Herring to whether he wants to get a contrary report”, and that while he could give directions about receipt of Mr Barnsley’s report under r 31.20, this would not achieve the aim of PN Civ 1, which was for there to be a report from a single expert (Tcpt 23/02/23 p 8).

28. Another aspect of the scheme for directions for expert evidence was that it facilitated knowing what an expert is to report on, and how it would assist the hearing. On the latter issue, his Honour expressed the view that the expert report had little to do with the pleadings as they currently stand, and it was “hard to see it has particular relevance today” (Tcpt 23/02/23 p  9). In response to 3 Rivers Estate’s submission that the expert report was relevant to surveying practice, his Honour subsequently described the case as “first and foremost, a contract case”, noting that he had made this point at the outset of the hearing (Tcpt 23/02/23 p 9).

29. The Magistrate accepted that he had a discretion to allow the late application for expert evidence. His Honour canvassed aspects of what he described as the “unfortunate” procedural history “in terms of prompt, quick, cheap and just resolution” of the matter, which included timetables being set after the service of the expert evidence. Referring to one of those timetables, which was set in December 2021, his Honour noted that this provided “another opportunity for the parties to do something in relation to an expert’s report”; and that nothing had happened. The progress of the proceedings was not, in his Honour’s opinion, consistent with s 56 of the Civil Procedure Act 2005 (NSW) (Tcpt 23/02/23 p 9).

30. After referring to the absence of court supervision, or input as to whether expert evidence was required, or what its limitations should be, his Honour noted 3 Rivers Estate’s submission that he should admit the evidence because there was no prejudice to the plaintiff. His Honour stated that he did not know if that was the case “and one of the reasons we have to have directions about experts’ reports is so that the Court controls what the expert’s report is going to adduce” (Tcpt 23/02/23 p 9).

The application for leave to appeal

31. It is common ground between the parties that the applicant requires leave to appeal the interlocutory judgment of the Magistrate on 23 February 2023. The principles concerning the grant of leave to appeal under s 40 of the Local Court Act have been described as the same as those in respect of leave pursuant to s 101(2) of Supreme Court Act 1970 (NSW): DJ & LJ Norman Pty Ltd v Sheather [2022] NSWSC 1299 at [107]. In Namoi Sustainable Energy Pty Ltd v Buhren [2022] NSWSC 175, Bellew J helpfully summarised the applicable principles as follows at [35]-[39] (citations omitted):

“[35] First, the jurisdiction which the Court exercises in determining an application for leave to appeal is not a proceeding in the ordinary course of litigation. It is a preliminary procedure which is recognised by the legislature as a means of enabling a Court to control, in some measure, the volume of appellate work requiring its attention.

[36] Secondly, it is appropriate to grant leave only in those matters that involve issues of principle, questions of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable.

[37] Thirdly, it is necessary for the Court to examine the merits of the arguments advanced in support of the appeal, and pay attention to whether any injustice had been occasioned to either party, such that the intervention of the Court is required.

[38] Fourthly, the intention of the Local Court Act 2007 (NSW) is that this Court should have supervision over Local Courts in matters of law. Where small claims are involved, it is important that there be early finality in the determination of litigation.

[39] Fifthly, there is a need for legal costs to be proportionate to the amount in issue. The Local Court has a limited monetary jurisdiction in civil cases. Left unchecked, appeals from its decisions, especially interlocutory decisions, could lead to there being a significant risk that the overall costs of proceedings would be completely disproportionate to the matters in dispute. Accordingly, a relevant consideration in the exercise of the discretion to grant leave is the proportionality between the amount in issue and the legal costs which have been expended. Disproportion between the two may be a further reason for refusing leave, particularly having regard to case management principles and the appropriate allocation of court resources.”

32. Consult Survey sought to characterise the decision being appealed from as involving the exercise of discretion on a point of practice and procedure, as to which there is, generally, greater reluctance to grant leave to appeal: In re The Will of FB Gilbert (1946) 46 SR (NSW) 318 at 323 per Jordan CJ (with whom Maxwell J and Nicholas CJ in Eq agreed); Lahoud v Willoughby City Council [2022] NSWCA 214 at [29]. Given the point at which the issue that is the subject of appeal arose, part way through the proceedings, when no further consideration to the possibility of expert evidence could be given, it is questionable that the decision was one purely of practice and procedure. In any event, even in cases involving applications for leave to appeal from procedural orders and directions, leave has been granted where the courts have found, for example, that the decision may have substantial adverse consequences for the trial of the proceedings: Ainsworth v Burden [2005] NSWCA 174.

33. In the Amended Summons, in support of why leave should be given 3 Rivers Estate stated that it “will not be able to properly defend the claim without the expert evidence”; that its non-compliance was technical; and that it served the report in a timely fashion. Further, if Consult Survey had complied with its requirements under r 31.19 and PN Civ 1 then 3 Rivers Estate would have been alerted to its error, from which it is said to follow that Consult Survey will, if leave is refused, “effectively be rewarded for its noncompliance”, when there was no prejudice to Consult Survey.

34. It is apparent from the identified reasons said to support leave that the application does not raise any point of principle, or any question of general public importance. Rather, the application is specific to the Magistrate’s consideration of r 31.19 and PN Civ 1 in the particular circumstances of this case.

35. It is well-settled that the scope of an appeal from a discretionary decision is limited by reference to the principles in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40. The discretion in issue in the present case is that conferred by r 31.19(3) of the UCPR. In Shellharbour City Council v Minister for Planning [2011] NSWCA 195 at [35], Giles JA stated that the primary purpose of r 31.19 is “to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap”. His Honour further observed: “[t]hat evidence may be relevant and admissible is not enough, let alone that it is possible to argue that it is relevant and admissible.”

36. Consult Survey referred the Court to Chapman v Chapman [2007] NSWSC 1109, in which Brereton J dealt with a case in which the plaintiff retained an expert and obtained an expert report before moving the Court for directions under r 31.19. His Honour described the obligation in r 31.19, to move the court for directions “promptly” as soon as it becomes apparent to a party that he or she may adduce expert evidence, as one that “arises before an expert is retained, let alone before the expert provides a report”: at [6]. His Honour went on to explain:

“One important reason for that is to facilitate in an appropriate case the use of parties’ single experts, a course which is compromised where one party has already obtained its own expert: ordinarily, fairness will dictate where one party has retained its own expert that the other must be permitted to adduce its own expert evidence, so that if a requirement for a single expert is imposed after a party has already obtained an expert then the parties will incur not only the costs of the single expert but also those of their respective ‘shadow’ experts. If I had thought that the proposed expert evidence would be of utility in the proceedings, it would have been necessary to adduce evidence from its own separate expert, with defendants permitted to adduce their own responsive expert evidence, or whether a court expert, or a party’s single expert, should have been appointed.”

37. The submission of 3 Rivers Estate, that its non-compliance with r 31.19 and the procedure contemplated in PN Civ 1 was “technical”, does not reflect a proper appreciation of the terms of the rule, its purpose, or the manner in which its non-compliance affected the court’s control over expert evidence in the case. Insofar as 3 Rivers Estate reagitated in this Court that it had complied with PN Civ 1 when it served the expert report on 22 April 2021, and Consult Survey, in deciding to ignore the correspondence, made it clear it did not wish to engage on the issue, I reject that submission. The discussion that PN Civ 1 contemplates the parties having is to take place before experts are retained. So much is apparent from the requirement that the discussion is to include whether the parties can agree on a single expert or whether they wish to retain their own expert.

38. The further submission of 3 Rivers Estate, that Consult Survey was equally culpable in light of the obligation in r 31.19(1)(b), is also indicative of a misunderstanding of the rule on its part. In circumstances where 3 Rivers Estate did not seek any directions regarding expert evidence before it served the expert report, the first Consult Survey could have known of 3 Rivers Estate’s intention to rely on expert evidence was the email by which it served the expert report as part of its evidence. By that point, as Brereton J observed in Chapman v Chapman, the purpose of r 31.19 of the UCPR had already been subverted; as had the operation of PN Civ 1.

39. At a number of points in its submissions in this Court, as before the Magistrate, 3 Rivers Estate asserted a lack of awareness on the part of its solicitors of r 31.19 of the UCPR and PN Civ 1. There was no evidence before the Magistrate to support the level of the solicitors’ knowledge or otherwise of the rule or the practice note. Nor was there evidence before the Magistrate as to the point at which the solicitor for Consult Survey appreciated that 3 Rivers Estate had served expert evidence in non-compliance with the rule and PN Civ 1. The making of an objection to the report on that basis on 22 February 2023 indicates his awareness by at least that point, but there was otherwise little before the Magistrate (or this Court) to support the submission of 3 Rivers Estate that in omitting to move the court for directions about service of the expert report, Consult Survey was engaging in “an orchestrated ambush”.

Alleged errors of the Magistrate

40. 3 Rivers Estate advanced a series of errors in its Amended Summons. It filed written submissions in chief, and a detailed reply to the submissions served by Consult Survey. In the hearing before me, counsel for 3 Rivers Estate confirmed that the reply submissions encapsulated the errors of the Magistrate which were said to justify the grant of leave.

41. 3 Rivers Estate first relied upon the Magistrate’s description of the case, in his reasons, as: “just a contractual case”; and “this is a contract case – first and foremost, a contract case”. It described what his Honour said about the quantum meruit claim, to which I have referred in [26] above, as “what appears to be an afterthought”. Accepting that his Honour did refer to the alternative quantum meruit claim, 3 Rivers Estate submitted that, in stating that it was not necessary to deal with that claim until the issue of contract was dealt with, his Honour did not “seriously turn his mind” to the quantum meruit claim and the relevance of the expert report to that claim.

42. I do not consider this error to be more than merely arguable. The caution that needs to attend close examination of ex tempore reasons has long been recognised. Recently, in Darlington v Director of Public Prosecutions (NSW) [2023] NSWSC 1139, Dhanji J stated that “[t]he enormous pressure under which magistrates operate when making decisions of importance to the parties and the community must be acknowledged”, and that “there is a need to avoid ex tempore reasons from a busy Local Court being ‘picked over’”: at [58] citing Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]-[18]; Acuthan v Coates (1986) 6 NSWLR 472 at 478-479.

43. In examining the Magistrate’s reasons, it is necessary to bear in mind that his Honour gave his reasons on the application ex tempore immediately following the submissions, and on the morning of the second of the two days for which the matter was listed for hearing (after a number of vacations of previous hearing dates). Read fairly and as a whole, his Honour undertook the task of assessing whether the report would assist him in determining the issues in the case, at the close of Consult Survey’s case and by reference to “the pleadings as they currently stand”, which included the quantum meruit claim. The conclusion that it would not assist him is one with which 3 Rivers Estate disagrees, but such disagreement does not give rise to House v The King error.

44. 3 Rivers Estate also contended that the Magistrate erred in not achieving justice in the case but rather in relying on case management as an end in itself. It submitted that the Magistrate had relied on its non-compliance with r 31.19(1) and PN Civ 1 as fatal to its application to rely on expert evidence. However, his Honour accepted that he had a discretion to permit 3 Rivers Estate to adduce the evidence notwithstanding its non-compliance. In considering whether to exercise that discretion, his Honour considered the principles enshrined in s 56 of the Civil Procedure Act, and the purpose of r 31.19. The procedural history of the matter, and the point at which his Honour was being asked to permit adducing this evidence, were plainly relevant to the exercise of the discretion as was the conduct of the parties, the extent to which the expert evidence would assist him, and the prospect, on the second day of a two-day hearing, that granting leave would be but the first step in a process to regularise the expert evidence. It is apparent from his Honour’s canvassing of these various topics in his reasons that his refusal to grant leave was not based exclusively on case management or non-compliance with r 31.19 and PN Civ 1.

45. 3 Rivers Estate made the related submission that the procedural history had no nexus with the current issue. The procedural history was relevant to his Honour’s consideration of whether to grant leave to permit it to rely on expert evidence. The protracted nature of the proceedings, marked by adjournments (which included multiple missed opportunities for “the parties” to raise the issue), was relevant to the exercise of the Magistrate’s discretion.

46. Relatedly, 3 Rivers Estate submitted that his Honour erred in finding a causal connection between the procedural history and the application before him. The argument appeared to be that once the non-compliance occurred, the correction of that error would have been the same regardless of the point in time at which it was corrected. The correction in this respect was said to be that 3 Rivers Estate would have provided the same expert report. Again, that submission indicates a lack of understanding of the intended operation of the rule and PN Civ 1. It may be, for example, that if 3 Rivers Estate had applied at an earlier point time (noting that such application should have been made before an expert was even briefed), and the court considered that expert evidence would assist it, it may have directed that the parties agree on a single expert. The point in the proceedings at which the application was made limited the options that were available to the court, in circumstances where Consult Survey was objecting to the selection of Mr Barnsley as a single expert.

47. In relation to the conduct of the parties, 3 Rivers Estate contended that his Honour did not hold that both parties had an obligation under r 31.19, and ignored that Consult Survey made a “conscious decision” not to comply with the rule, whereas there was no evidence to support that 3 Rivers Estate had made a similarly conscious decision. As I have noted above at [39], his Honour did not have sufficient evidence before him as to the state of knowledge or state of mind of the legal representatives of either party to support a finding to the effect for which 3 Rivers Estate contended below, and contended on this application. His Honour did not err in a House v The King respect in not accepting 3 Rivers Estate’s submissions in this regard.

48. 3 Rivers Estate also complained about his Honour’s statement to the effect that one would expect the party seeking to rely on expert evidence to be the moving party, submitting that it indicated that his Honour had imposed a greater burden on it. The Magistrate noted that r 31.19 imposed an obligation on both parties, in the two places in the reasons to which I have referred at [25] and [29] above. It does not follow from the statement of which 3 Rivers Estate is critical, which is consistent with a general expectation that a party seeking to rely on expert evidence would apply under the rules for directions in respect of it, that his Honour’s discretion miscarried.

49. 3 Rivers Estate also submitted that the Magistrate erred in his approach to the issue of prejudice to Consult Survey, focusing on his Honour’s comment that he did not know whether there was any prejudice to the plaintiff. Counsel for 3 Rivers Estate submitted that in circumstances where the expert report had been served on Consult Survey some 22 months before the hearing, there was no prejudice; and in making submissions on the application before the Magistrate the solicitor for Consult Survey did not identify any prejudice. In stating that he did not know if there was prejudice, 3 Rivers Estate submitted that the Magistrate had proceeded on an erroneous premise.

50. This contention was a focus of submissions from both parties during the hearing. On further consideration of what occurred at the hearing, his Honour’s comment needs to be read against the background of the submissions that the solicitor for Consult Survey made. I have set out the submission at [23] above. Consult Survey was there foreshadowing that if leave were granted to adduce expert evidence, having regard to the preference in PN Civ 1 for a single expert where possible, Consult Survey would not accept the engagement of Mr Barnsley as that expert, or his report as the single expert report. Against the background of that submission, his Honour’s reference to knowledge of prejudice should be read fairly as pertaining to the full extent of the prejudice, in terms of the nature of the expert evidence and any associated delay. That his Honour continued the sentence by referring to the importance of the court’s control over what an expert’s report is going to adduce supports that construction. Having regard to his Honour’s discussion of the point reached in the proceedings, and in the context of the procedural delays more generally, the error that 3 Rivers Estate contended arises from this particular observation is not more than merely arguable.

51. Finally, 3 Rivers Estate relied on the concluding comments of his Honour, along with his Honour’s question to its counsel, immediately after ruling, as to whether it wanted an adjournment to take his decision on appeal, as indicating that his Honour was “offended” by the non-compliance and that his attitude to the non-compliance distracted him from considering issues that were relevant to his discretion. For the reasons I have addressed above, I do not accept the contentions that his Honour failed to consider the matters that 3 Rivers Estate complains he overlooked.

Conclusion

52. In large part, 3 Rivers Estate’s application for leave to appeal the Magistrate’s interlocutory judgment sought to engage this Court in the merits of the Magistrate’s exercise of discretion, with a view to this Court exercising its discretion to a different outcome in circumstances where, in its submission, it will not be able to run an effective defence of the claim in the Local Court. However, as I have set out above, review of a court’s exercise of discretion is limited. In the particular circumstances of this case, 3 Rivers Estate has not identified an injustice which is reasonably clear, in the sense of going beyond what is merely arguable.

53. I refuse leave to appeal. The Amended Summons should be dismissed. Costs should follow the event.

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Decision last updated: 13 October 2023