Austin v The Electricity Networks Corporation

[2012] WADC 163

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   AUSTIN -v- THE ELECTRICITY NETWORKS CORPORATION [2012] WADC 163

CORAM:   DERRICK DCJ

HEARD:   16 NOVEMBER 2012

DELIVERED          :   16 NOVEMBER 2012

FILE NO/S:   CIV 1735 of 2008

BETWEEN:   DALE AUSTIN

Plaintiff

AND

THE ELECTRICITY NETWORKS CORPORATION
First Defendant

BORAL RESOURCES (WA)
Second Defendant

Catchwords:

Practice and procedure - Application to extend time for the service of expert report - Principles to be applied in determining application for an extension of time to serve expert report - Whether admissibility of proposed expert evidence relevant to determination of application for extension of time

Legislation:

District Court of Western Australia Act 1969 (WA)
District Court Rules 2005 (WA)
Occupiers' Liability Act 1985 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application allowed

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos SC

First Defendant             :     Mr G R Hancy

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Simon Walters

First Defendant             :     DLA Piper Australia

Second Defendant         :     Not applicable

Case(s) referred to in judgment(s):

Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268

Swindale v Babic [No 2] [2007] WASCA 262

DERRICK DCJ:

[These reasons are an edited version of the reasons delivered extemporaneously on 16 November 2012.]

1. The first defendant applies for an extension of time within which to serve on the plaintiff the report of an expert witness.

Background to the application

1. The second defendant is the owner of a property in Toodyay.  Prior to 1998 the second defendant used the property as a quarry.  The second defendant closed the quarry in 1998.  The property has not been used or occupied since 1998.

2. On 21 or 22 July 2002 the plaintiff entered on the property.  Once on the property he entered a compound which contained electrical equipment.  The compound and the electrical equipment were owned and maintained by the first defendant.

3. While in the compound the plaintiff received an electric shock.  The electric shock caused the plaintiff to suffer severe injuries.

4. The plaintiff subsequently brought the present action against the first defendant and the second defendant alleging negligence and breach of the Occupiers' Liability Act 1985 (WA). He claims damages for the injuries that he suffered.

5. On 25 June 2012 a listing conference was held.  At the listing conference orders were made listing the action for a directions hearing on 6 November 2012 and for a 10 day trial commencing on 4 February 2013.  The following orders were also made at the listing conference:

   1.The parties have leave to adduce expert evidence at the trial of the action; and

   2.Within 28 days each party:

   (1)serve on each other party a copy of the report of any expert witness, the substance of which the party intends to rely on at trial; or

   (2)disclose in writing to each other party the substance of any expert evidence that the party intends to adduce at trial.

6. Accordingly, the orders made at the listing conference required the parties to exchange any expert witness reports by no later than 23 July 2012.

7. On 18 July 2012 the first defendant's solicitors sent a facsimile to the plaintiff's solicitor in which they asked whether the plaintiff would consent to an extension of the time within which the first defendant was required to serve its expert evidence.  On 20 July 2012 the plaintiff's solicitor sent a facsimile to the first defendant's solicitors in which he advised that the first defendant's request for an extension of time would not be considered until he had received the expert report.

8. On 25 October 2012 the first defendant's solicitors served on the plaintiff's solicitor under cover of a letter bearing that date a copy of an expert report prepared by Mr David Allen dated 18 October 2012 (the report).  Mr Allen is a Chartered Professional Engineer in electrical engineering.

9. At the time of serving the report the first defendant's solicitors also provided the plaintiff's solicitor with a minute of consent orders extending the time for the service of the report.  In their letter the first defendant's solicitors asked the plaintiff's solicitor to agree to the consent orders.  The plaintiff's solicitor did not respond to this request.

10. On 6 November 2012 the previously listed directions hearing took place before a registrar.  At the directions hearing counsel for the first defendant made an oral application for an extension of time within which to serve the report on the plaintiff.  The application was opposed by the plaintiff.  The registrar therefore made an order that the application for the extension of time be listed before a judge on an expedited basis on 16 November 2012.

11. It is against this background that the application to extend time comes before me.  The application is supported by two affidavits affirmed on 12 November 2012 and 15 November 2012 by Ms Alexandra Derham.  Ms Derham is a solicitor employed by the first defendant's solicitors.

12. Annexed to the first of Ms Derham's affidavits are copies of the first defendant's solicitors' letter of instruction to Mr Allen dated 9 July 2012 and the report.  Annexed to the second of Ms Derham's affidavits is a copy of a further report prepared by Mr Allen dated 14 November 2012 which purports to summarise Mr Allen's proposed expert evidence (the second report).

Legislative basis for the application

1. The first defendant's application is made under O 3 r 5 of the Rules of the Supreme Court 1971 (the RSC). The first defendant also contends that the court has an inherent power to extend time so as to avoid an injustice.

2. Order 3 r 5 is not excluded by the District Court Rules 2005 (the DCR).  It therefore applies to the District Court: District Court of Western Australia Act 1969 (WA), s 87.

3. Order 3 r 5 provides, so far as is relevant:

   (1)The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules, or by any judgment, order, or direction, to do any act in any proceedings.

   (2)The Court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.

4. Order 3 r 5 confers on the court a broad discretionary power to extend time for compliance with orders made by the court in order to avoid injustice: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268, 283, 286; Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381, 386, 387, 398 ‑ 399. Nonetheless, the power must be exercised with caution with due regard to the overriding purpose of the RSC and the DCR, namely to facilitate the fair and just resolution of real issues in civil proceedings with minimum delay and expense: RSC, O 1 r 4A and r 4B; DCR, r 24(1); FAI General Insurance v Southern Cross Exploration (283); Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [90]. It follows, as the decided cases reveal, that in determining whether to grant the requested extension of time under O 3 r 5 I should take into account the reasons for the first defendant's non‑compliance with the relevant time limit, the prejudice the first defendant will suffer if the time limit is not extended, the prejudice the plaintiff will suffer if the time limit is extended, and the need to facilitate the fair and just resolution of the issues between the parties with minimum delay and expense.

5. It is not suggested by the first defendant that any inherent jurisdiction of the court to grant an extension of time within which to comply with orders made by the court, assuming that such a jurisdiction co-exists with O 3 r 5, is any wider in scope than the discretion given to the court by O 3 r 5.  Therefore my above statements as to the manner in which the discretion given to the court by O 3 r 5 should be exercised apply equally to the exercise of any inherent jurisdiction of the court to extend time limits.

Plaintiff's objection to application

1. It is convenient at this point to refer to the ground on which the plaintiff opposes the first defendant's application.

2. The plaintiff does not oppose the application on the ground that he has been prejudiced by the late disclosure of the report.  Rather the plaintiff opposes the application on the ground that the report, even when read in light of the second report, is so 'fundamentally flawed' that the service of the report on the plaintiff, ignoring the fact that it was served outside of the specified 28 day time limit, does not comply with the order for service of expert witness reports made at the listing conference.  The plaintiff submits that the report and the second report, in order to comply with the order made at the listing conference, must themselves comply with the common law rules relating to expert evidence, that neither the report nor the second report complies with those common law rules, that the service of the report and the second report by the first defendant therefore does not comply with the order for service made at the listing conference, and that consequently the application for the extension of time should not be granted.  The complaints made by the plaintiff about the report and the second report are, in essence, that they do not clearly disclose the extent of Mr Allen's expertise, do not disclose how Mr Allen's expertise is relevant to their subject matter, do not clearly relate to any issue on the pleadings, do not clearly answer the two questions asked by the first defendant's solicitors in their letter of instruction to Mr Allen, and do not clearly expose the process of reasoning which has lead to the opinions expressed in them.  The plaintiff's counsel was not able to point me to any authority in support of the plaintiff's contention that an order of the type made at the listing conference, carries with it a requirement that any expert report served pursuant to the order must comply with the common law rules relating to the admissibility of expert evidence.

3. The first defendant submits that the order made at the listing conference was never intended to, and does not, contemplate a review of the admissibility of the proposed expert evidence prior to trial.  The first defendant submits that the plaintiff is trying to argue at an interlocutory stage a trial admissibility point and that the argument is not supported by any rule or legal principle.  The first defendant further submits that the first report and the second report do, in any event, comply with the common law rules relating to the admissibility of expert evidence.

4. In the absence of any authority on the point, I do not accept the plaintiff's primary submission.  I do not consider that there is anything in the wording of the order made at the listing conference which indicates that the order carries with it a requirement that any served expert report sets out the proposed evidence of the expert in a form that complies with the common law rules relating to the admissibility of expert evidence.  The order by its terms provides only for the service of the report of the expert witness 'the substance of which the party intends to rely on at trial'.  The order, in my view, says nothing about the admissibility of the proposed expert evidence.  That is, the order says nothing about whether the party will ultimately be able to fulfil the intention to adduce the proposed evidence.

5. There is good reason in principle, in my view, for not interpreting the order made at the listing conference in the way contended for by the plaintiff.  I am not the judge allocated to preside over the trial of the action.  Yet if the plaintiff's submission is accepted I will be placed in the position whereby in order to deal with the application for an extension of time I will be required to embark upon a consideration of, and make a ruling as to, the admissibility of all or some of the proposed expert evidence as set out in the report and the second report.

6. While there might be merit in some of the plaintiff's complaints about the report and the second report, an issue in relation to which I express no concluded view, I consider that any objection to the admissibility of the reports and the proposed evidence is something that should be dealt with by the trial judge.  It is the trial judge who will be familiar with the issues in the case.  It is the trial judge who will be able to make a ruling on any objection to the admissibility of the report, the second report and Mr Allen's proposed evidence in the context of the other evidence adduced at trial, specifically the evidence adduced as part of the plaintiff's case.  It is the trial judge who will, if necessary, be able to hold a voir dire for the purpose of determining the admissibility of the report, the second report and Mr Allen's proposed evidence.   In short, it is the trial judge who will be best placed to deal with any objection to the admissibility of the report, the second report and the evidence of Mr Allen generally: Swindale v Babic [No 2] [2007] WASCA 262 [38]. I note in this context that the proposed expert evidence, as set out in the report and the second report, is not to my mind so obviously or blatantly inadmissible that the question of admissibility need not be determined by the trial judge.

7. One of the concerns of the plaintiff, in bringing the issue of the admissibility of the first defendant's proposed expert evidence to the court in the context of the first defendant's application for an extension of time, is to avoid the trial being 'derailed' by reason of the proposed expert evidence ultimately being ruled inadmissible at trial.  While I can understand the plaintiff's concerns in this regard, the first defendant has now been put on clear notice by the plaintiff that he objects to the admissibility of the report and the second report, and consequently Mr Allen's proposed expert evidence.  The grounds of the objection have been articulated.  Therefore if any objection raised at trial by the plaintiff to the proposed evidence of Mr Allen is upheld and the evidence is ruled inadmissible, the first defendant will, I would have thought, have great difficulty in persuading the trial judge to grant any significant adjournment of the trial to enable the first defendant to remedy the deficiencies in the evidence.  In any event, and as has been suggested by the first defendant's counsel, there is plenty of time between now and the trial dates for conferral to occur between the parties in an attempt to deal with the plaintiff's currently stated objections to the admissibility of the proposed evidence of Mr Allen.

Decision

1. I turn then to dealing with the application by reference to the factors that I have identified above as being relevant to the exercise of the discretionary power given to the court by O 3 r 5.

Reasons for delay

1. In her affidavit Ms Derham deposes to the following sequence of events.

2. Between 25 June 2012 and 4 July 2012 Ms Derham spoke to several electrical experts regarding their availability and ability to give evidence at the trial.  As a result of her enquiries she identified Mr Allen.

3. On 9 July 2012 Ms Derham sent a letter to Mr Allen instructing him to prepare an expert report.  In the letter she stated 'we look forward to receiving your report as soon as possible, and note that it is required by no later than 19 July 2012'.

4. In late July Mr Allen requested a site inspection before completing his report.  The site inspection did not take place until 10 August 2012.  This was due to Mr Allen being unavailable for several days during the relevant period and to the representative of the second defendant, who was instructed to give the first defendant access to the site, being out of contact between 1 August 2012 and 6 August 2012.

5. On 18 October 2012 or thereabouts Mr Allen provided the report to the first defendant's solicitors.

6. On 25 October 2012 Ms Derham sent the report to the plaintiff's solicitor.

7. The above outlined sequence of events is not in dispute. The first defendant submits, on the basis of this sequence of events, that the delay in providing the report to the plaintiff's solicitor is adequately explained and was not due to the fault of either the first defendant or its solicitors.

8. I accept the first defendant's submission.  The original time frame for the service of the expert report, 28 days, was on any view of the matter tight.  Nonetheless, it appears to me that the first defendant's solicitors took reasonable steps to do what they could to obtain the report promptly and within the 28 day time limit, or at least within a relatively short time after the expiry of the time limit.  Indeed, by far the most significant portion of the time that elapsed between the making of the orders and the provision of the report occurred after the site visit.  In other words, the delay in the provision of the report was in the main attributable to the time that Mr Allen took to prepare the report.  Therefore, in my opinion the reasons for the delay in the provision of the report to the plaintiff do not militate against me exercising my discretion to grant the requested extension of time.

Prejudice

1. If the application is refused the first defendant will, in effect, be prevented from attempting to adduce at trial expert evidence that is on the face of it, and subject to questions of admissibility, generally supportive of its pleaded denial to the plaintiff's allegations of negligence and breach of the OLA pleaded in pars 11(a) and 11(c) of the amended statement of claim.  Accordingly, if the application is refused the first defendant will suffer prejudice.  This is a factor which points in favour of me exercising my discretion to grant the extension of time.

2. The plaintiff does not submit that he is prejudiced to any significant extent by the late provision of the report or the second report.

Facilitation of fair and just resolution

1. It remains for me to consider the fair and just resolution issue. 

2. It is not suggested on behalf of the plaintiff that to allow the first defendant's application will imperil the trial dates.  Furthermore, and for reasons that I have already stated, I do not think that to allow the application will give rise to the possibility of the trial, once started, being 'derailed'.  In these circumstances I do not consider that to allow the application will prejudice the fair and just resolution of the issues between the parties with minimum delay and expense.  I note in this regard that whatever deficiencies there may or may not be with the report or the second report, I do not consider that their content is such that the plaintiff will not be able to adequately prepare to deal with Mr Allen's proposed evidence in the event that it is ultimately held to be admissible.  

Conclusion

1. In light of what I have said in relation to the factors relevant to the consideration of the first defendant's application, I am of the view that that the application should be allowed.  I will therefore make an order that the period of time within which the first defendant must comply with order 4 made at the listing conference on 25 June 2012 is extended to 14 November 2012.  The extension to this date reflects the recent service of the second report.