Burge v Lake Macquarie City Council

[2023] NSWDC 191

District Court

New South Wales

Medium Neutral Citation:

Burge v Lake Macquarie City Council [2023] NSWDC 191

Hearing dates:

07 June 2023

Date of orders:

09 June 2023

Decision date:

09 June 2023

Jurisdiction:

Civil

Before:

Gibson DCJ at Newcastle

Decision:

(1)   Second defendant’s Notice of Motion dismissed; hearing date of 31 July 2023 confirmed.

(2)   Second defendant pay the costs of the plaintiff of this Notice of Motion and the hearings before Gibson DCJ and the Registrar on 7 June, 30 May and 23 May 2023.

Catchwords:

Application for extension of time to file expert report made 7 weeks before trial by defendant in breach of two prior expert evidence orders – conflict of authority as to whether application to amend governed by UCPR r 1.12 or r 31.28 – whether exceptional circumstances required – whether exceptional circumstances made out – whether leave would be granted if UCPR r 1.12 applied – applicant fails under both UCPR regimes – notice of motion dismissed with costs

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 31.28

Cases Cited:

Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; [2009] HCA 27

Commonwealth Bank v Iinvest (No 7) [2017] NSWSC 440

Dolores Correa and the Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham [2012] NSWSC 266

Gershowitz v Kaye [2021] NSWDC 128

In the matter of Graziers Pastoral Pty Limited; In the matter of Windsor Livestock Holdings Pty Limited; In the matter of Windsor Livestock Pty Limited [2021] NSWSC 1680

Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265

San v Rumble (No 2) [2007] NSWCA 259

Yacoub v Pilkington (Australia) Pty Ltd [2007] NSWCA 290

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Cheryl Burge (Plaintiff)
Lake Macquarie City Council (1st Defendant)
Rennej Pty Limited (2nd Defendant)
Matt Ferry Carpentry Pty Ltd (3rd Defendant)

Representation:

Counsel:
Mr T Hickey (Plaintiff)
Mr B Smith (2nd Defendant)

Solicitors:
HLD Lawyers (Plaintiff)
Moray & Agnew (1st Defendant)
RGSLAW (2nd Defendant)
Holman Webb (3rd Defendant)

File Number(s):

2022/00138688

Publication restriction:

Nil

Judgment

The application before the court

1. The plaintiff, by statement of claim filed on 13 May 2022, brings proceedings for negligence against three defendants arising out of the circumstances in which she suffered an injury while walking over a deck area at the front of a holiday cabin. The 2-step staircase she had to walk up protruded above the level of the deck by about 27 – 29 millimetres. The plaintiff caught her foot on this protrusion and fell.

2. The proceedings were case-managed from the first return date, 26 July 2022, and, on 15 November 2022, allocated a hearing date of 31 July 2023. A timetable for the service of expert reports was made, but complied with only by the plaintiff. The second defendant, who now seeks a third extension of the expert evidence timetable, failed to comply with this order and a further extension of it.

3. The second defendant’s notice of motion filed on 29 May 2023 sought the following orders:

1. Pursuant to rule 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the time for the Second Defendant to serve expert liability evidence be extended until 16 June 2023;

Or, in the alternative that,

Pursuant to rule 31.28 of the UCPR the Second Defendant be granted leave to serve expert liability evidence by 16 June 2023;

2. Any Intra-Party Cross-Claims to be filed and served by 23 June 2023;

3. The Plaintiff to pay the Second Defendant’s costs of this application.

4. Such further or other orders as the Court deems fit.

4. The affidavit in support attaches correspondence and sets out court dates and orders, but provides little more, in terms of the explanation for the delay.

The procedural history of the claim

5. On the first return date before the Registrar, 26 July 2022, the plaintiff was ordered to serve expert liability evidence by 30 September 2022 and the defendants by 11 November 2022. A view of the site was arranged on 7 September 2022 for the plaintiff’s expert and, on 7 October 2022, the plaintiff served the report of her expert, Mr Dennis Cauduro. This was a week after the due date for this report, but nothing turns on this.

6. The onus was then on the defendants to comply with the timetable for their expert reports. Two of the defendants elected not to serve any expert evidence but the second defendant did, and put the plaintiff on notice of this intention by requesting, on 18 October 2022, the letter of instruction and other documents provided to Mr Cauduro, as well as any photographs he took.

7. It must be borne in mind, however, that the defendants, and in particular the second defendant, did not have the access or documentary records problems that the plaintiff would have had. The second defendant did not need permission to go to the site; its legal representatives and experts would have had ready access, both to the site and to records of the work one or another of the defendants had carried out which was asserted to have given rise to the plaintiff’s accident. This is no doubt why the second defendant, despite not having the documents given to Mr Cauduro, or the photographs he had taken which were not in his report, still had enough information to locate the correct expert, Dr Cooke and, on 9 November 2022, to retain him.

8. However, after Dr Cooke was retained, the second defendant did not set about the task of preparing a report. Instead, the second defendant and Dr Cooke “liaised” (to quote the second defendant’s submissions) for the period 16 November 2022 to 19 January 2023, in that they were having an argument about Dr Cooke’s request that he be paid his fee in full beforehand. On 25 January 2023, this argument was resolved and the second defendant engaged Dr Cooke. It was not until 20 February 2023 Dr Cooke (through Unisearch) confirmed that his fee had been paid and it is to be assumed, given his up-front demand for this fee, that he began working on his report.

9. However, back on 15 November 2022, a hearing date of 31 July 2023 had already been allocated by the court. The hearing date orders included an 18 April 2023 court review date to ensure that the timetable was progressing. It must have been in both parties’ minds that any expert report to be obtained by the second defendant would need to be obtained relatively quickly and, if possible, prior to 18 April 2023.

10. By oversight, the plaintiff’s solicitors did not answer the request of 18 October 2022 and send the letter of instruction and photographs that had been requested. The second defendant’s solicitors did not refer to this oversight in their email of 14 November 2022 (the day before the proceedings were listed to obtain a hearing date), and in fact proposed a timetable for the “defendants” (in the plural) to file their expert liability evidence by 28 February 2023, together with interparty cross-claims by 7 March 2023. Nor was it raised the following day, 15 November 2022, when the matter was set down for hearing by the Registrar.

11. There does not appear to have been a follow-up letter of any kind about experts until 7 March 2023, when the solicitor for the second defendant wrote as follows:

“Dear Parties

As you are aware, various orders were made to progress this matter on 15 November 2022 including orders for the defendants to serve expert liability evidence and orders for the defendants to file and serve any cross-claims. Since that time, the second defendant has made efforts to locate an available expert with a view to preparing a report in support of the second defendant’s liability position. Unfortunately, we experienced delays due to the general unavailability of experts in late 2022/early 2023 and we are not in a position to serve our liability evidence or file any cross-claims in accordance with the orders made on 15 November 2022.

We have now engaged an expert with a view to preparing an expert liability report. Once that report is received, it may justify the filing of cross-claims against existing parties to the proceedings.

We will endeavour to serve any liability report and file any necessary cross-claims as soon as possible.”

12. The letter does not refer to the fact that Dr Cooke had in fact been approached on or about 9 November 2022. Nor was there any reminder in this letter about the outstanding request for the letter of instructions and photographs.

13. The second defendant had a preliminary discussion with Dr Cooke on 8 March 2023. He indicated that lighting tests would be required. The preparation of his report continued on the basis that these tests would be carried out. It does not appear that the absence of the documentation sought by the second defendant from the plaintiff’s expert was in any way holding up the preparation of this report.

14. It was not until 12 April 2023 that a reminder was sent by the solicitors for the second defendant to the plaintiff. The matter was coming up for its review date of 18 April 2023. Even though the request for documentation made on 12 April 2023 had not yet been answered, the second defendant wrote to the parties the day before the Registrar’s conference, confirming readiness for hearing and, most relevantly, with proposed orders for extension of time in respect of interparty cross-claims and other orders, including expert evidence.

15. The orders the Registrar made on 18 April 2023 were as follows:

1. Parties to participate in an Informal Settlement Conference by 5 May 2023.

2. Any intra-party cross-claims to be filed and served by 31 May 2023.

3. Confirm readiness for Hearing in the sittings commencing 31 July 2023.

4. Third Defendant to file a Defence within 7 days.

5. Plaintiff given leave to file further medicals 4 weeks prior to Hearing.

16. Two events occurred after the review date. First, the plaintiff sent the documents the second defendant had asked for on 27 and 28 April (the photographs were sent on 22 May 2023). Second, the second defendant was reminded by Dr Cooke that information about lighting was required. The second defendant asked the Registrar to relist the matter so that they could interrogate on this topic. This was able to be resolved quite quickly as, on that same day, the plaintiff gave informal answers to the interrogatories in question and on 1 May 2023 the second defendant advised that these answers would be sent to their expert.

17. On the following day, 2 May 2023, the defendant sought a report on lighting from Electric Projects Australia and, on 9 May 2023, the second defendant advised Dr Cooke that this step had been taken. Electrical Projects Australia advised that to prepare a report, they needed access to the site, which eventually happened on 20 May 2023, resulting in a report dated 22 May 2023.

18. At about this time, Dr Cooke appears to have indicated his report would not be ready for some weeks. These proceedings were listed before the Registrar of the Newcastle District Court on 23 May 2023 at the request of the second defendant, a date outside the court sittings which commenced on 29 May 2023. As is set out in the affidavit of Mr Scroope at paragraph 35, the plaintiff’s counsel pointed out to the Registrar that the second defendant had not filed a notice of motion or provided an affidavit in support and the Registrar determined that the application should go to the circuit judge. This led the Registrar to stand the matter over to 30 May 2023, which is how this application came to be placed in the sittings list.

19. By now, it should have been obvious to the parties that the lateness of the second defendant’s application for an extension of time for service of reports and cross-claims was a significant problem, given the approaching hearing date. The second defendant sought a hearing of the application in the sittings as otherwise the report could not be served in time.

20. Before I deal with the second defendant’s application, there are several issues about which clarification is needed.

21. The first problem is how many expert reports are to be served late. The plaintiff complains that there are two expert reports outstanding, in that the report of the electrical expert, Electrical Projects Australia, although apparently complete and made available to Dr Cooke, has not been served. Why would such a report not have been served before now, if it answers findings made by Mr Cauduro? Although it is asserted that this report forms part of Dr Cooke’s report (and answers similar tests made by Mr Cauduro), this is a stand-alone report. Has Electrical Projects Australia acknowledged the Code of Conduct? If the opinions of Mr Cauduro on lighting are made by an expert who has carried out the necessary tests as an expert, is that not a separate expert’s report?

22. The second problem is when the report of Dr Cooke will be served. There is no letter from Dr Cooke assuring everyone that his report can be prepared in time. What happens if there is delay? Will there be time for a conclave? What is the position of Electrical Projects Australia? Mr Smith says his client will consent to a guillotine order, but that is of little comfort to the plaintiff so close to the hearing.

23. The third problem is the situation of the other defendants. As presently advised, they do not propose to call expert evidence, but there will be inter-parties cross-claims exchanged after Dr Cooke’s report is received. I am prepared to accept Mr Smith’s assurance that they have no difficulties with this, but the contents of these pleadings may also give rise to issues that must be addressed by the plaintiff.

24. The fourth problem is the readiness for trial generally. With so many outstanding steps, how can it be said that these proceedings are ready for hearing?

The relevant principles of law

25. Counsel for the second defendant submits that this is an application under UCPR r 1.12, and not r 31.28, in which case “exceptional circumstances” need not apply: Yacoub v Pilkington (Australia) Pty Ltd [2007] NSWCA 290 at [66]. However, if r 1.12 does not apply, the “exceptional circumstances” are identified as being the plaintiff’s asserted failure to answer the letter of 18 October 2022 requesting the provision of documentation concerning Mr Cauduro’s report for a period of seven months (namely by 28 April and 22 May 2023).

26. Rule 1.12 provides:

“1.12 Extension and abridgment of time (cf SCR Part 2, rule 3; DCR Part 3, rule 2; LCR Part 4, rule 2)

(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.”

27. Rule 31.28 provides:

“31.28 Disclosure of experts’ reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3)

(1) Each party must serve experts’ reports and hospital reports on each other active party—

(a) in accordance with any order of the court, or

(b) if no such order is in force, in accordance with any relevant practice note, or

(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.”

28. Both counsel agree that there are conflicting decisions as to whether exceptional circumstances must be established and as to which regime in the UCPR should apply; many of these are set out by Cavanagh J in Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433.

29. I have considered the issue under both tests, in view of the conflict of authority on this issue (although I consider the approach of Wilson SC DCJ in Gershowitz v Kaye [2021] NSWDC 128, set out below, to be the correct one), and by reason of the exigencies of time, this being a motion which had to be added urgently to a very busy circuit list.

The requirement for exceptional circumstances

30. In Gershowitz v Kaye, Wilson SC DCJ explains the difference between the two regimes (namely requiring exceptional circumstances or under the general leave to amend) at paragraphs [28] to [38] as follows:

“[28] In Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433, Cavanagh J was asked to determine whether leave should be granted to rely upon a report from an expert served out of time. In the present case, counsel for the Plaintiff relied upon Addison in submitting that the question of leave ought to be dealt with under UCPR 1.12.

[29] In paragraph 13 of his judgment, Cavanagh J set out the matters submitted on behalf of the plaintiff as relevant to the exercise of the Court’s discretion. The first matter referred to was that the matter had not yet been listed for hearing. This figured in his Honour’s reasoning, where he stated at [19] that:

There being no hearing date which is to be vacated or any other timing issue, it does not seem to me that any of those cases dealing with the risk of a hearing date being vacated are relevant.

[30] Cavanagh J rejected the defendant’s submission that UCPR 31.28 had application in circumstances where the question to be determined was whether the plaintiff ought to be given leave under UCPR 1.12 to rely upon a late served report. In the course of rejecting the defendant’s argument, his Honour stated “it may be surprising if a party was required to demonstrate exceptional circumstances to obtain leave to serve an expert’s report when the case has not even been listed for hearing” (at [29]).

[31] In those circumstances, the question of leave was determined by Cavanagh J under UCPR 1.12.

[32] The difference of significance in the present case is that this application is made in the following circumstances:

1. the matter has been fixed for hearing;

2. the Plaintiff had previously been granted leave to file and serve a notice of motion seeking an extension of time to rely upon an additional expert report on or before 4 December 2020 but did not do so; and

3. the hearing is fixed to commence in about 6 weeks’ time.

[33] In the matter of Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 Barrett J determined a notice of motion filed by the plaintiff on 13 May 2008 in circumstances where a hearing was scheduled to commence on 16 June 2008. The motion was heard on 22 May 2008 and judgment delivered 26 May 2008. The question was determined by the application of UCPR 31.28. His Honour had regard to the fact that the date was close and the parties had years to develop their cases and assemble evidence. The expert’s opinion could have been obtained “years ago”. His Honour found that the plaintiff had failed to demonstrate exceptional circumstances and the evidence was excluded.

[34] In para 17 of the judgment, his Honour referred to the fact that the plaintiff sought, in the alternative, an extension of time for the service of the expert’s reports. His Honour commented:

“That, however, would be to approach through the back door of Rule 1.12 something that should be approached through the front door of Rule 31.28.”

[35] I agree with the approach adopted Barrett J and proceed by distinguishing the decision of Cavanagh J in Addison on the basis that in that case, a hearing date had not been fixed.

[36] In my opinion, to determine this question by reference to the broad discretion in UCPR 1.12 would render obsolete the specific rules prescribed by UCPR 31.28 which would require that exceptional circumstance be demonstrated in order for a party to rely upon a report not served in accordance with the Court’s orders.

[37] I also pause to observe that this Court engages in case management directed to meeting the overriding purpose in s 56. To grant leave, by reference to the dictates of justice under UCPR 1.12, would be to render obsolete the case management principles of this Court.

[38] Given the nature of the claim brought by the Plaintiff against the Third Defendant, it ought to have been apparent to those who represent the Plaintiff that it was necessary to retain an expert to express an opinion on the content of the duty of care owed by the Third Defendant and whether it was, in the circumstances, breached. If that required an expert obstetrician with a sub-specialty in ultrasound then such an expert ought to have been retained well before the date for hearing was fixed. On one view, compliance with UCPR 31.36 mandated the filing and service of a report from such an expert with the statement of claim commencing the proceedings. It may be, consistent with the preliminary view I expressed, that Dr Wein has sufficient specialised knowledge to express the opinions which he does, so as to satisfy the requirements of UCPR 31.36.”

31. Wilson SC DCJ concludes that the case management implications of s 56 mean that "[t]o grant leave, by reference to the dictates of justice under UCPR r 1.12, would be to render obsolete the careful case management principles set out" in this Court when considering what amounts to an exceptional reason warranting the dispensing of the rules.

32. The present situation is factually identical, in that the hearing date has not only been allocated but is very close (in the present case, seven weeks away), and there has been a failure to comply with previous timetables. In addition, I note that the explanation proffered for the failure to comply with the previous expert evidence orders, set out in the second defendant’s solicitor’s letter of 7 March 2023, is somewhat less than frank, in that Dr Cooke had long been retained as an expert, namely in November 2022.

33. Conformably with the approach taken by Wilson SC DCJ, I first consider what amounts to “exceptional circumstances”, and whether “exceptional circumstances” have been made out in the application before me.

34. The term “exceptional circumstances” is common to many statutory provisions, particularly in relation to personal injury. The nature of “exceptional circumstances” is set out in San v Rumble (No 2) [2007] NSWCA 259 by Campbell JA at [59]-[69] (cited by Black J in Dolores Correa and the Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham [2012] NSWSC 266 at [11], and by many other first instance decisions) is described as follows:

“59 There are numerous examples of legislative provisions that provide that a court is to cause a particular consequence to arise in a particular type of situation, but that the court can proceed differently if there are "exceptional circumstances". Concerning an English statute that required a judge to impose a life sentence on a person convicted of a second "serious offence", "unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so", the English Court of Appeal (per Lord Bingham of Cornhill CJ) said in R v Kelly (Edward) [2000] 1 QB 198 (at 208):

“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”

60 That passage has been cited by Callinan J in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 (at [173]; 573), by Malcolm CJ (with whom Wallwork and Einfeld AJ agreed) in Mastrangelo v Reynolds [2001] WASC 347; (2001) 25 WAR 133; (2001) 127 A Crim R 469 (at [55]; 146; 481), and by Giles JA (with whom Mason P and M W Campbell AJA agreed) in Director General, Department of Community Services v Adoptive Parents [2005] NSWCA 385; (2005) 64 NSWLR 268 (at [45]; 279).

61 The test for "exceptional circumstances" stated in Kelly was expanded upon by the English Court of Appeal (per Lord Bingham of Cornhill CJ) in R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913): "But the judgment whether exceptional circumstances exist is not quantitative only, but maybe qualitative also. It may, to take an example from quite another field, be far from exceptional for a candidate to obtain 5 A grades at A level, but highly exceptional for this to be achieved by a candidate who is deaf and dumb or who has only spoken English for a year. In judging whether, if exceptional circumstances are found to exist, they justify the court in not imposing a life sentence, the court must bear in mind the rationale of the section. This section is founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration and, if released, should be liable indefinitely to recall to prison. In any case where, on all the evidence, it appears that such a danger does or may exist, it is hard to see how the court can consider itself justified in not imposing the statutory penalty, even if exceptional circumstances are found to exist. But if exceptional circumstances are found, and the evidence suggests that an offender does not present a serious and continuing danger to the safety of the public, the court may be justified in imposing a lesser penalty."

62 Section 106KA Health Insurance Act 1973 (Cth), and regulations made to give effect to, it aim to identify and control overservicing in the Medicare system. They enable a doctor's conduct to be the subject of disciplinary action if 80 or more services are rendered on each of 20 or more days in a 12 month period, but the days on which "exceptional circumstances existed that affected the rendering or initiating of services by the person" are not to count for certain purposes. In Oreb v Willcock [2005] FCAFC 196; (2005) 146 FCR 237 Lander J (at [66]; 249) (with whom Black CJ and Wilcox J agreed concerning this matter) in the ordinary meaning of the word “exceptional” circumstances "must be unusual or out of the ordinary". In Cohn v Hatcher [2005] FCAFC 199; (2005) 146 FCR 275 Lander J (at [68]; 288) (with whom Black CJ and Wilcox J agreed concerning this matter) in substance repeated that construction. In Ho v Professional Services Review CommitteeNo 295 [2007] FCA 388 Rares J (at [26]) said of this provision that exceptional circumstances "… can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional."

63 Awa v Independent News Auckland Ltd [1996] 2 NZLR 184 concerned a statutory provision that excused a legally aided litigant from paying costs unless there were "exceptional circumstances". The plaintiff in that case had been legally aided, and his action had been dismissed. Hammond J said (at 186): "… the term "exceptional circumstances" when used in a statute is never free from difficulty. As a matter of general approach, it is usually construed as meaning something like "quite out of the ordinary". And obviously the onus must be on an applicant to establish entitlement in the face of the statutory language. Those general considerations apart, it is apparent from the decisions to date under this provision that no intrinsic tests for "exceptional circumstances" has been evolved by our Courts. Indeed it is hard to see how there could be such a test. The facts of each case are so diverse that both this Court, and the Court of Appeal, have approached each application in a quite fact specific way."

64 One of the factors that Hammond J took into account, in holding that in the instant case there were exceptional circumstances, was that a Calderbank offer had been made by the defendant, offering to pay $20,000. Hammond J (at 187) rejected a submission that the making of that offer should not be taken into account. Rather, he said it was "a factor to be accorded a respectable measure of weight".

65 The particular costs order that Hammond J made is instructive. The plaintiff's claim was "quite without merit" (at 187) and the plaintiff had conducted the litigation in a high-handed and wasteful way, such that Hammond J found that "exceptional circumstances" existed. However, Hammond J did not simply make an order for costs, or an order for indemnity costs, against the plaintiff. He said (at 188): "The legislation obviously comprehends that the purpose of legal aid should not be subverted by awarding costs against somebody who is plainly not in a position to meet same."

66 He went on to consider the assets and liabilities, income and expenditure of the plaintiff, and ordered the plaintiff to pay costs in a specific amount "moderated to his particular circumstances" (189), being an amount that would not necessarily lead to a forced sale of the plaintiff’s family home.

67 The guidance derived from these cases can be applied, in my view, to the construction of section 153(1). A litigant who seeks to have a court displace, under section 153(1), the costs regime that section 151 creates bears the onus of proving facts and presenting argument that persuades the court that it is appropriate to make such an order. In deciding whether it is an “exceptional case” within the meaning of section 153(1), the court needs to find that the circumstances of the instant case are unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors. But, to adapt Kelly, the case need not be one that is unique, unprecedented, or very rare. The conclusion that the case is exceptional can arise in any of the ways identified by Rares J in Ho. Beyond that, it seems to me it is not possible to provide general guidance. As the New Zealand courts have found concerning the discretion that was the subject of Awa, it will be necessary to approach each application by careful consideration of the facts of the individual case.

68 Before it can make an order under section 153(1), the court must be satisfied not only that the case is an exceptional one, but also that if an order is not made there will be substantial injustice.

69 Even if the court finds that a case is an exceptional case and that departure from section 151 is needed to avoid a substantial injustice, the particular order that the court makes must be one that will have the effect (or at least tend to have the effect) of avoiding the particular substantial injustice that has been identified in the instant case. Also, the particular order that is made should be one that bears in mind the objectives of the MAC Act.”

35. Case management principles are the key, as was noted in Commonwealth Bank v Iinvest (No 7) [2017] NSWSC 440 at [11] and [17]:

"[11] It should be borne in mind that the rationale of r 31.28(4) is to further the overriding purpose of civil litigation in New South Wales as established by Civil Procedure Act 2005 (NSW) s 56. Mr King relies upon a confluence of circumstances to establish the requisite exceptional circumstances. This is not an unusual approach. Seldom will one particular circumstance standing alone amount to exceptional circumstances. It is for this reason that Black J emphasised that the decision is sensitive to the particular facts of the given case.

…

[17] I accept that the evidence could have some importance in the cross‑claimants’ case and that given what is now an inevitable adjournment, the defendant would have the opportunity to meet it if it so chose; so, although there is presumptive prejudice at this time, there is, it seems to me, no real prejudice to the plaintiff. It is understandable that the plaintiff has not gone to the expense of obtaining a report in response given the circumstances of this case and the circumstances in which this later report has come into existence."

36. The principles enunciated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; [2009] HCA 27 must be taken into account, as was noted in In the matter of Graziers Pastoral Pty Limited; In the matter of Windsor Livestock Holdings Pty Limited; In the matter of Windsor Livestock Pty Limited [2021] NSWSC 1680 at [8]-[11]:

“[8] I first address the applicable principles. I must exercise my discretion whether to allow the amendments having regard to ss 56-58, 60 and 64 of the Civil Procedure Act 2005 (NSW). In particular, s 58 of the Civil Procedure Act requires the Court to have regard to the dictates of justice when considering an order for, inter alia, the amendment of a document, and requires the Court to have regard to the provisions of ss 56 and 57 of the Act. Section 56 identifies the overriding purpose of the just, quick and cheap resolution of the real issues in dispute, and s 57 requires proceedings to be managed having regard, inter alia, to their just determination. Section 64 relevantly provides that, at any stage of the proceedings, the Court may order that leave be granted to a party to amend any document in them and, subject to s 58, all necessary amendments are to be made for the purpose of determining the real issues raised by the proceedings and avoiding multiplicity of proceedings.

[9] I also have regard to the case law including Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; [2009] HCA 27 which emphasised the significance of delay not only for particular proceedings, but for the Court system generally. The High Court there recognised, in the context of an amendment application, that a costs order cannot be treated as an automatic solution for failures to comply with case management requirements and also pointed to the strain imposed on litigants and the cost to the community of late amendment applications. In their joint judgment, five members of the Court observed (at [98]) that:

“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.”

[10] The joint judgment also observed (at [113]) that: “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.”

[11] Similar views were expressed by the Chief Justice (at [35]) and by Heydon J (at [154]-[156]). I also have regard to the Court of Appeal’s observations in Bi v Mourad [2010] NSWCA 17 and in Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [36], which emphasise the significance of case management requirements for the community and the Court system generally.”

37. The “exceptional circumstances” relied upon here consist of the failure to answer the request for documents and photographs made by the second defendant on 18 October 2022. The importance of those documents – or, rather, the lack thereof – is readily demonstrated by the second defendant’s failure to follow up this request and to retain and consult Dr Cooke for the whole of this period of time without the absence of these documents being a problem. If there had been even one reminder letter over this period, or if the matter had been raised before the Registrar, that might be a different story. Instead, the second defendant retained its experts, consulted them and additionally assured the Court on 18 April 2023 that the matter was ready for hearing. I also note that the second defendant does not explain why these documents are so important, given that Mr Cauduro’s report had been provided to them so long ago.

38. The explanation offered by the second defendant is implausible, not exceptional. “Exceptional circumstances” cannot be made out in circumstances such as the present.

Where exceptional circumstances are not required

39. If exceptional circumstances are not required, what are the relevant factors for the court to take into account?

40. Mr Smith’s submissions (at paragraph 1) state that, if the second defendant does not need to establish “exceptional circumstances”, the applicable principles are as set out in Yacoub v Pilkington (Australia) Ltd at [66].

41. Rule 1.12 is a general rule for the extension and abridgement of time. It is a much more generous rule, but there is no unqualified right, and an applicant must generally establish a sufficient reason. The absence of a sufficient explanation may be an important factor.

42. In the present case, the second defendant submits that there is no evidence of actual prejudice, the period of delay is short and the other defendants do not oppose the orders.

43. The plaintiff has set out a series of challenges to the second defendant’s submissions, which I set out in full, although some are repetitious:

1. Paragraph 25(i) of the statement of claim specifically pleaded that the lighting of the premises was an issue in the proceedings. This was not something suddenly discovered by Dr Cooke in his meeting with the solicitors for the second defendant in March 2023, and should have been a matter for investigation by them from the outset. There is no explanation for this delay.

2. The retainer of Dr Cooke was in no way contingent upon, or required, the documentation used by Mr Cauduro. Dr Cooke was retained by a letter of instruction and annexures dated 9 November 2022, six months beforehand. The letter to Dr Cooke and its enclosures are not in evidence. The explanation for retaining Dr Cooke late because of fee disputes must end on 25 January 2023, when the second defendant agreed to pay his fees in advance. What is more, there is no satisfactory explanation as to why it was necessary to have a long argument with him about his fees up to that date in January 2023 and, thereafter, as to why his report is still outstanding.

3. On no prior occasion when the matter has been before the court has the second defendant raised the issue of the documentation for Mr Cauduro as requiring orders, or is an issue, or a problem at all. This includes the appearance before the Registrar on 15 November 2022 (see annexures C and D to the affidavit of Mr Scroope) to fix a hearing date, and the subsequent date before the Registrar on 18 April 2023, when the court was reviewing readiness for hearing.

4. The second defendant has not provided the court with the further letter of instructions to Dr Cooke of 25 January 2023, or why it took until 20 February 2023 to pay Dr Cooke. The contents of the second defendant’s letter of 7 March 2023 claiming the delay in compliance with the expert report orders was due to their inability to “locate” an expert and “unavailability” of experts is frankly misleading. They had already located Dr Cooke and agreed to pay him in full. They in fact had a meeting with him on the day after sending this missive.

5. Even after seeing Dr Cooke and receiving instructions from him about the lighting, the second defendant’s solicitors took their time. It was not until 12 April 2023, five weeks after their 8 March 2023 conference with Dr Cooke, that the second defendant’s solicitors wrote to the plaintiff’s solicitors seeking the information that Dr Cooke had requested (see the affidavit of Ms Lumsden Exhibit SAL 54). This information was provided promptly by the plaintiff.

1. There was a final opportunity for the second defendant to solve these problems by seeking appropriate orders from the Registrar on 18 April 2023 but the second defendant did not do so. Instead, the second defendant’s solicitors confirmed that the matter was ready for hearing. No reference was made to a lighting report or any further orders for expert evidence.

2. When the second defendant’s solicitors did seek information about the lighting, instead of seeking particulars in the usual way, they made an application to the court for leave to interrogate, creating the impression, to the court, that the plaintiff was withholding information. This application never went ahead because the plaintiff’s solicitors immediately provided the information sought. Even so, Electrical Projects Australia were not retained to provide a report until eight weeks after Dr Cooke recommended lighting tests and their report remains unserved. Even Dr Cooke only received the report (which he needed in order to prepare his own report) on 29 May 2023.

3. There has been a total lack of compliance by the second defendant to comply with two previous orders for expert evidence (26 July and 15 November 2022).

4. Dr Cooke’s report, upon which the cross-claims will depend, is not before the court, and there is no information from Dr Cooke to confirm when this is likely. How can the court be sure that Dr Cooke’s report can be dealt with in time before the hearing, including arrangements for conclaves, reports in reply and the like?

5. The plaintiff points to presumptive prejudice but submits that the nature and degree of actual prejudice cannot be measured at the moment, as the plaintiff does not know what expert evidence case she has to answer.

44. Individually, each of the above matters would be a difficulty for the second defendant. The combined impact paints a compelling picture of an unacceptable history of delay and disorganisation in circumstances where prejudice to the fair conduct of the hearing seems unavoidable.

Conclusions

45. These proceedings are listed for hearing for three days commencing on 31 July 2023. The next available sittings are in November 2023. The plaintiff is entitled to have her matter heard, given that she was allocated her hearing date more than seven months ago. Under either test, there is a history of non-compliance by the second defendant which makes the seeking of yet another indulgence so close to that hearing unacceptably dangerous. The explanation of waiting for documents from the plaintiff is implausible.

46. For the above reasons, this is a very clear case for refusal of the application to extend time for the service of the report of Dr Cooke. The fact that there is potentially at least one other report which may require to be served, that there would need to be a conclave and that inter partes cross-claims yet to be served and responded to only adds to the likelihood of unfairness and prejudice if the second defendant’s application were to be granted.

47. The Notice of Motion is dismissed with costs and the hearing date of 31 July 2023 is confirmed.

Orders:

1. Second defendant’s Notice of Motion dismissed; hearing date of 31 July 2023 confirmed.

2. Second defendant pay the costs of the plaintiff of this Notice of Motion and the hearings before Gibson DCJ and the Registrar on 7 June, 30 May and 23 May 2023.

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Decision last updated: 09 June 2023