Box v Mater Misericordiae Health Services Brisbane Ltd

[2011] QSC 238

SUPREME COURT OF QUEENSLAND

CITATION:	Box v Mater Misericordiae Health Services Brisbane Ltd  [2011] QSC 238
PARTIES:	EMMA KELIE BOX (applicant) v          MATER MISERICORDIAE HEALTH SERVICES BRISBANE LTD ACN 096 708 922 (respondent)
FILE NO:	BS 2650 of 2011
DIVISION:	Trial
PROCEEDING:	Applications
DELIVERED ON:	3 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2011
JUDGE:	Fryberg J
ORDERS:	Application dismissed; and Leave to appeal costs granted.
CATCHWORDS:	Procedure – Supreme Court procedure – Queensland – Procedure under Uniform Civil Procedure Rules and predecessors – Evidence – Expert evidence – consent order stated expert witnesses that could be called – expressio unius est exclusio alterius – application for a court order for another expert witness – Order unnecessary
COUNSEL:	D Atkinson for the applicant P L Feely for the first respondent
SOLICITORS:	Barry Nilson Lawyers for the applicant McInnes Wilson Lawyers for the first respondent

HIS HONOUR:  The applicant seeks an order pursuant to liberty to apply granted by Justice Lyons that the defendant have leave to call a named expert at the trial of the matter.

The applicant has referred me to a consent order made by her Honour on the 29th of June where the parties were permitted to call expert evidence through a number of expert witnesses who were named.  The applicant seeks to have a similar order made now in respect of another expert witness.

The underlying theory on which the orders are based depends on an interpretation of the Uniform Civil Procedure Rules 1999 and the relevant practice direction which has been canvassed in reasons for judgment in a number of cases, some written by Justice McMeekin, others by me.  I do not know if any other Judges of the trial division have written judgments on the topic.

As is well known, Justice McMeekin's view is different from mine.  My interpretation of the relevant rule and the practice direction is that there is no need for anyone to obtain these orders as of course.  Ordinarily these applications waste money.  There are, of course, some cases where such orders are necessary but it is not an expense which parties ought to be put to as a matter of routine in every case and it is unnecessary to rehearse the reasoning.  The parties have not brought the authorities to court and have not addressed the reasoning, though they were well aware of it.

Mr Atkinson's approach to the problem was to accept the reasoning that I have adopted but to argue that because there has been an order by Justice Lyons in respect of a number of experts the omission of one expert would possibly lead to the application of the maxim "expressio unius est exclusio alterius".  I pointed out to him that it could hardly be said that he should suffer anything from the application of that maxim when he had sought to have the order made and it had been refused as unnecessary.  Moreover, Mr Feely, for the respondent, informed the Court that no objection on that basis would be made to the calling of the further expert.

The application was, therefore, unnecessary and I refuse to make the order sought. 

On behalf of the plaintiff/respondent Mr Feely sought costs.  He submitted that the plaintiff should have decided sooner to call the expert and included the name in the order of 29 June.  That order was a consent order and, no doubt, was handed to her Honour and made without any consideration of whether it was necessary.

The point on which today's application has been decided was not raised by the plaintiff and was one where the plaintiff could have raised it and could have simply said that the plaintiff would consent to the calling of the various witnesses.  It is not suggested that there is anything unusual in the circumstances of the case which would take it into the category where an order is necessary.  That being so it seems to me that the proper order as to costs is to make no order at all - not to reserve them or make them costs in the cause as the defendant initially submitted, nor to make an order in favour of the plaintiff.

I do so on the explicit basis that the application was unnecessary but neither party adverted to that fact.  For that reason I make no order as to costs.

In view of the disagreement among trial judges on the proper interpretation of the rules with the practice direction it seems to me that this is a matter which it would be proper to allow to be decided by the Court of Appeal.  Mr Feely seeks leave to appeal on the question of costs alone.  I think that is an appropriate course and I grant leave to appeal on the question of costs.

The application is dismissed.