Colmar Engineering Pty Ltd v Avopiling Pty Ltd (No. 1)

CITATION:	Colmar Engineering Pty Ltd v Avopiling Pty Ltd (No. 1) [2010] NSWDC 85
HEARING DATE(S):	17, 18 May 2010
JUDGMENT DATE:	18 May 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. The application by the defendant to rely upon additional evidence served outside the case management timetable fixed for the service of evidence is refused; 2. The application by the defendant for an adjournment is refused; 3. The defendant is to pay the costs of the plaintiff in connection with the refused applications; 4. The trial is to proceed.
CATCHWORDS:	PRACTICE AND PROCEDURE – exclusion of evidence served outside required case management timetable for service – refusal of adjournment – consideration of context and extent of non-compliance with case management orders - consideration of ss 56 - 59 of Civil Procedure Act 2005
LEGISLATION CITED:	Civil Procedure Act 2005, ss 56 - 69 Uniform Civil Procedure Rules 2005, Pts 2.1; 10.2; 31.18; 31.28 & 35.9
CASES CITED:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Bi v Mourad [2010] NSWCA 17 CJD Equipment v A & C Construction [2009] NSWSC 1085 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Hardy Bros (Earthmoving) Pty Ltd (in liq) & Anor v Hardy Bros Civil Constructions Pty Ltd & Ors [2008] NSWSC 1313 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 Sharples v Minister for Local Government [2010] NSWCA 36 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
PARTIES:	Colmar Engineering Pty Ltd (Plaintiff) Avopiling Pty Limited (Defendant)
FILE NUMBER(S):	2007/295131
COUNSEL:	Ms A Seward (Plaintiff) Mr C Mobellan (Defendant)
SOLICITORS:	Bridges (Plaintiff) Gillis Delaney (Defendant)

JUDGMENT

Application for amendment and adjournment

1. At the commencement of the trial, which was scheduled to proceed for 4 days, the defendant filed a notice of motion in court seeking leave to rely upon affidavit evidence obtained by the defendant from 5 additional witnesses who were referred to in paragraphs 4 to 9 of the defendant’s notice of motion. The additional evidence upon which the defendant sought to rely was essentially technical expert evidence in the fields of metallurgy, welding and steel fabrication. The defendant variously sought to invoke UCPR rr 35.9, 31.28, 2.1, and 10.2 as the evidence was served outside the terms of a case management timetable.

2. In the alternative, in the event of refusal of the defendant’s application concerning additional evidence, the defendant’s application was for an adjournment.

3. In the course of opposing the defendant’s applications, counsel for the plaintiff observed that some of the evidence in question was “served” during the course of Sunday 16 May 2010, the day before the trial was due to commence. As a consequence, unsurprisingly, the plaintiff’s legal representatives were not in a position to meet this new material.

4. A reason proffered by the defendant for the late service of evidence…