Apacia Pty Ltd (ACN 112 571 758) v Versaci
[2021] WADC 23
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: APACIA PTY LTD (ACN 112 571 758) -v- VERSACI [2021] WADC 23
CORAM: REGISTRAR KUBACZ
HEARD: 12 MARCH 2021
DELIVERED : 23 MARCH 2021
FILE NO/S: CIV 4812 of 2018
BETWEEN: APACIA PTY LTD (ACN 112 571 758)
Plaintiff
AND
RENEE MARIE VERSACI
Defendant
RENEE MARIE VERSACI
Plaintiff by counterclaim
APACIA PTY LTD (ACN 112 571 758)
Defendant by counterclaim
Catchwords:
Practice and procedure - Plaintiff's application to extend time in which to serve expert evidence after entry for trial - Plaintiff's application for Scott Schedule
Legislation:
District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application in part successful
Representation:
Counsel:
| Plaintiff | : | Mr G J Pynt |
| Defendant | : | Mr D K Wee |
| Plaintiff by counterclaim | : | Mr D K Wee |
| Defendant by counterclaim | : | Mr G J Pynt |
Solicitors:
| Plaintiff | : | James Chong |
| Defendant | : | Chan Galic |
| Plaintiff by counterclaim | : | Chan Galic |
| Defendant by counterclaim | : | James Chong |
Case(s) referred to in decision(s):
FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Mazzoni v Sorrento Family Practice Pty Ltd [2021] WADC 12
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Ratnam v Cumarasamy [1964] 3 All ER 933
REGISTRAR KUBACZ:
The plaintiff is a company which employed the defendant to provide accounting services to it between 8 January 2013 and 28 June 2018. These services included to prepare and lodge Business Activity Statements (BAS), PAYG returns and superannuation returns.
In its claim, the plaintiff alleges that the defendant performed her job incompetently and alleges 342 instances of such incompetence. The defendant denies the allegations as put against her.
The plaintiff has brought two applications:
1.seeking an extension of time in which to serve expert evidence; and
2.leave to be able to produce and rely on a Scott Schedule.
This matter has had a long and protracted case management history since its commencement in December 2018, which for clarity, needs to be outlined to understand this application. In brief:
1.17 May 2019 - directions hearing which was adjourned;
2.24 May 2019 - directions hearing where orders were given by the principal registrar for filing and service of amended writ, particulars of claim, counter claim, discovery and mediation;
3.8 October 2019 - mediation where no orders were given;
4.1 November 2019 - notice of default issued by court for failure to enter the matter for trial;
5.13 November 2019 - entry for trial papers lodged by the defendant;
6.13 January 2020 - pre-trial conference which was adjourned;
7.12 February 2020 - pre-trial conference where orders were made by Deputy Registrar Hewitt giving the parties leave to adduce expert evidence at the trial of the matter and programing the provision of such expert evidence with the plaintiff's expert evidence to be provided by 31 March 2020 and the defendant's by 30 April 2020;
8.2 June 2020 - directions hearing where an extension of time was sought for expert evidence to be served and I made orders (which were by consent) allowing the plaintiff to serve expert reports by 26 June and the defendant by 31 July 2020;
9.16 September 2020 - directions hearing where Deputy Registrar Harman adjourned the matter to a listing conference;
10.16 November 2020 - listing conference, where the matter was adjourned back to a directions hearing;
11.4 December 2020 - direction hearing where the plaintiff made an application for an extension of time in which to serve expert reports which was opposed and I made orders that the plaintiff was to make any application by 24 December 2020; and
12.7 January 2021 - plaintiff filed chamber summons to extend the time to provide expert evidence and to file a Scott Schedule.
Leave to adduce expert evidence
The action was entered for trial, by the defendant, on 13 November 2019 following the court issuing a notice of default on 1 November 2019.
Rule 47F(4) of the District Court Rules 2005 (WA) (DCR) provides that after a case has been entered for trial, the party who entered the case for trial cannot apply to the court for leave for expert evidence to be adduced at trial and any other party has up to 14 days after the matter is entered for seek such leave after which time they too are precluded.
Registrar Kingsley pointed out in Mazzoni v Sorrento Family Practice Pty Ltd [2021] WADC 12 [14], the effect of the rule '… amounts to a prohibition on adducing expert evidence, unless the other parties consent to the grant of leave'.
It is clear from the orders made by Deputy Registrar Hewitt at the pre‑trial conference on 12 February 2020 that the parties consented to such orders. Therefore, the order was made that 'the parties have leave to adduce expert evidence at the trial of this action'.
I am of the opinion that these orders circumvent the prohibition in r 47F(4) DCR . I do not believe that the subsequent orders I made on 4 December 2020 vary or supersede the orders made by Deputy Registrar Hewitt on 12 February 2020.
Therefore, I am of the opinion that there are valid and current orders in place which allow both parties to adduce expert evidence at the trial of the matter and no further leave is required.
Delay
The issue is therefore not whether leave can or should be granted but whether the continued breaches of the timetable to provide expert evidence should now preclude the parties from bringing such evidence.
Order 3 r 5 Rules of the Supreme Court 1971 (WA) (RSC) allows a court to extend the period of time in which a person is required or authorised to do any act in any proceedings on terms that it thinks just. Any such extensions of time can be made even if the application for extension is not made until after the expiration of that period.
The rule is remedial and confers broad powers upon the court to relieve an injustice: FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. Parties do not have an unqualified right to an extension; Ratnam v Cumarasamy [1964] 3 All ER 933, 935 however, if an extension is sought to enable a genuine issue to be litigated and this can be done with fairness to all concerned then it appropriate to make the order: Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27, 30.
This of course all needs to be balanced against the principles and objects of case flow management and r 24(1) DCR confers a wide power on the court to make any procedural directions that is just to facilitate the case being conducted and concluded efficiently, economically and expeditiously.
As Registrar Kingsley eloquently stated in Mazzoni v Sorrento Family Practice Pty Ltd [2021] WADC 12 [20] - [21] one of the purposes of civil proceedings is to determine respective rights of litigants and an important consideration is giving the parties a proper opportunity to ensure that a court determines the facts on the evidence that is reasonably put to the court by the parties. This is not to say that case management considerations ought be ignored, but they should be placed in the context of the stage the proceedings are at.
The plaintiff has already provided to the defendant two expert reports from Ms Julie Strack from Pitcher Partners, one dated the 16 December 2019 (which was served on the defendant on 28 January 2020) and the second report on 28 January 2021 which was produced to the defendant under the cover of an affidavit on Denning Chong sworn 28 January 2021 in support of this application.
The defendant objects to the reports being relied upon due to the delay in providing the reports in contravention of the court timetabling and given that, in its opinion, the reports contain inadmissible evidence and reliance on other reports which have not been provided to the defendant. Apart from these issues the defendant has not shown that there has been any prejudice by reason of the delay.
This matter has yet to be listed for trial and based on the current court listings it is unlikely that a trial will be listed before 2022. Whilst I am not prepared to give the parties unlimited opportunity to serve their expert evidence, in these circumstances, I am of the opinion that it is appropriate to allow both parties a final opportunity to present their expert evidence.
Expert evidence in this case will assist the court. With respect to the defendant's concerns regarding the admissibility of the evidence, this is ultimately an issue for the presiding judge and it would be remiss of me to attempt to make any determination as to the admissibility of the evidence. With respect to the non‑provision of source documentation referred to in the reports, this can be remedied with an order compelling the plaintiff to provide the defendant with any documents relied upon by the expert.
I therefore allow the extension of time for both parties to provide expert evidence and I will hear from the parties as to the appropriate timeline and make orders accordingly.
Scott Schedule
A Scott Schedule is a statement of the issues of fact and law that the plaintiff contends will need to be determined at trial (r 45D DCR). Rule 45D DCR provides for the use of Scott Schedules in actions involving building and engineering contracts only.
District Court Circular to Practitioners 20, gives guidance as to the use of Scott Schedules and states at 20.2.3 that the court has a general case management power to order the filing of the Scott Schedule pursuant to r 24(1) DCR in cases other than building and engineering contracts.
However, r 45D DCR provides that any application for use of a Scott Schedule must (emphasis added) be made within 75 days after the day the defence is filed. The defence was filed in this matter on 1 May 2019. Therefore, any application should have been made by 15 July 2019. In this case the application was not made until 7 January 2021 when this chamber summons dated 23 December 2020 was filed. This was nearly 18 months after the time limit imposed by the rules.
The basis of the plaintiff's application is that a Scott Schedule is appropriate in this case as it will maximise the prospects of an agreement on facts and that it will allow for the efficient processing at trial of the 342 instances constituting the particulars of breach.
I am of the opinion that this is not a matter which requires the use of a Scott Schedule. Whilst there may be multiple examples of the breach, there is still only one claim against the defendant and that is, that she failed to perform her duty as an accountant competently. These examples can be adequately dealt with as particulars of the claim.
This coupled with the fact that the plaintiff did not bring their application anywhere close to the time prescribed in the rules leads me to disallowing the application for the use of a Scott Schedule.
Conclusion
I will hear from counsel on the form of the orders arising from my reasons, and/or costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MEB
Associate
23 MARCH 2021
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