Allan Charles Geyer v Resi Corporation - [2012] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
ALLAN CHARLES GEYER v RESI CORPORATION
[2012] SADC 71
Judgment of His Honour Judge Jennings
17 May 2012
PROCEDURE
Interlocutory application - Leave requested to rely upon further reports of Professor Henderson - Directions sought in relation to plaintiff's CH chest scan - Leave granted to rely upon two further reports of Professor Henderson - Plaintiff permitted to tender the film of the CT chest scan and report of Dr Pitman - Hearing dates vacated - Question of costs of interlocutory application reserved.
Dust Diseases Act 2005 s 4, referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, considered.

ALLAN CHARLES GEYER v RESI CORPORATION
[2012] SADC 71

On 17 May 2012 I made the following orders and notation:
1.That the plaintiff be granted leave to rely upon the two reports of Professor Henderson dated 13 May 2012.
2.That the plaintiff be permitted to tender the film of the CT chest scan and the report of Dr Pitman both dated 10 May 2012.
3.That the hearing dates listed for 21 May to 30 May 2012 inclusive be vacated.
4.That a directions hearing be listed before me on Monday 4 June 2012 at 3.30pm.
5.That the question of costs of yesterday’s interlocutory application be reserved.
Note:
The purpose of the directions hearing is to set a program to enable the defendant to file additional expert reports in response to the reports of Professor Henderson, the film of the CT chest scan and Dr Pitman, referred to in paragraphs 1 and 2 of these Orders and to relist the matter for further hearing. I will publish formal reasons for decision in due course.
I now provide reasons explaining why I made those orders.
The orders were made following an application by the plaintiff to introduce into evidence further reports from Professor Henderson that relate to the issue of causation and which represent a change in the Professor’s opinion. There is a dispute between the experts in this case as to whether the plaintiff has a tumour in his lung or in the pleura, which surrounds the lung. The resolution of this issue might be important in identifying whether the plaintiff has mesothelioma. This is the issue about which Professor Henderson has apparently changed his mind.
The plaintiff contends that in accordance with the relevant practice directions the reports of the experts were exchanged and that as he should have been expected to do Professor Henderson reflected upon the other expert reports and has changed his opinion. Hence he says that there is nothing irregular about the change in position.
The defendant contends that this amounts to trial by ambush and that the plaintiff should not be indulged to allow it to belatedly change his case. It points to the fact that the plaintiff’s application is in breach of an agreement between the parties that no further responding expert reports would be obtained by the plaintiff and that the Court has set aside time to hear the evidence and that that time will inevitably be wasted if the plaintiff is allowed this further indulgence. It was ready to proceed on the dates set aside by the Court based on the expert reports that had already been exchanged and on the evidence as it currently stands.
Mr Roberts, for the defendant, took me to the joint judgment in Aon Risk Services Australia Ltd v Australian National University where the High Court was extremely critical of the approach by the courts below in allowing a belated amendment that effectively changed the plaintiff’s case. The joint judgment included the following statement:
Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.[1]
[1] (2009) 239 CLR 175 at 213.
The joint judgment concludes with the following statement that I regard as of particular importance:
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.[2] (footnotes omitted)
[2] Ibid at 217.
I unhesitatingly accept this statement. But a factor that is relatively unique to dust disease cases is that more often than not they have to be prosecuted with great urgency and that the deliberation as to how claims are to be framed must often be carried out with much more haste than could be expected with conventional litigation. This is recognised by the Dust Diseases Act 2005 which contains as its objective the following:
The object of this Act is to ensure that residents of this State who claim rights of action for, or in relation to, dust diseases have access to procedures that are expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind.[3]
[3] Section 4 Dust Diseases Act 2005.
Inevitably, through the urgency of the case, errors as to how the case will be framed will be made and I think that this means that greater indulgence than might ordinarily be the case may need to be extended in such cases.
Not without some hesitation I came to the conclusion that this was such a case. Hence, the orders that I made.
I think it appropriate however to issue the warning to the plaintiff that I think that the point may have been reached where further indulgence will not be extended.