Ditchfield v Local Government Engineering Services Pty Ltd

[2022] NSWSC 1107

Supreme Court

New South Wales

Medium Neutral Citation:	Ditchfield v Local Government Engineering Services Pty Ltd [2022] NSWSC 1107
Hearing dates:	10 August 2022
Date of orders:	10 August 2022
Decision date:	10 August 2022
Jurisdiction:	Common Law
Before:	Beech-Jones CJ at CL
Decision:	Plaintiffs to prepare a revised set of questions for the conclave.
Catchwords:	EXPERT CONCLAVES – no question of principle
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Bellgrove v Eldridge (1954) 90 CLR 613
Category:	Procedural rulings
Parties:	Robert Murray Ditchfield (First Plaintiff) Edwina Gwenytth Ditchfield (Second Plaintiff) Local Government Engineering Services Pty Limited (Defendant)
Representation:	Counsel: Mr C Nielsen, solicitor (Plaintiffs) Ms T Pauletto, solicitor (Defendant) Solicitors: McCullough Robertson Lawyers (Plaintiffs) Gilchrist Connell (Defendant)
File Number(s):	2020/240847

EX TEMPORE JUDGMENT

1. Referred to me by the registrar was a dispute between the parties about the proposed questions to be put in a joint conclave of two geotechnical experts.

2. In broad terms, the proceedings involve the plaintiffs suing the defendant firm of structural engineers in relation to alleged negligence in the design and construction of a residential home in a regional area. Their specific complaint is that the piers that were screwed into the ground were not of sufficient depth to deal with movement from moisture and the like which has occasioned damage.

3. There are significant factual issues including the appropriate steps the defendants were obliged to take, causation in terms of the connection between the failure to take those alleged steps and the damage occasioned, and ultimately what the relevant measure of damages is.

4. In relation to that last question, a very significant issue is whether the dwelling will need to be demolished and rebuilt or whether some form of remediation or rectification program can be put in place to address the alleged defective foundations (see Bellgrove v Eldridge (1954) 90 CLR 613 at 619 to 620). In relation to that latter issue, a very large question arises as to the degree of certainty that the problem for the house is addressed by the proposed method of rectification.

5. The reports that have been exchanged to date have raised two possible methods of rectification. As I will explain, it is clear that they have not yet been fully explored by the experts.

6. I am told that the proceedings are listed with an estimate of three days in early 2023. The estimates of the plaintiffs’ damages appear to range somewhere between around $150,000 and somewhere perhaps above $1.5 million.

7. To date, the parties have retained geotechnical experts and structural engineers. What is envisaged over the coming months is two conclaves, first of the geotechnical experts and then of the structural engineers. The plaintiffs in particular are anxious to include in the conclave some specific questions relating to the feasibility of the potential methods of remediation.

8. To this time the plaintiffs have served a report of their geotechnical expert, Mr Baguley. The defendants have served a report from their geotechnical expert, Mr Redman, and a succession of reports from their structural engineer, Mr Appleyard. The most recent reports of Mr Appleyard address a method of rectification proposed in Mr Redman’s report.

9. From the plaintiffs’ perspective, their structural engineer, Mr Hoare, gives some evidence in support of demolition being the appropriate option but he also suggests a possible method of rectification. As Mr Hoare’s report was prepared after Mr Baguley’s report, Mr Baguley has not yet addressed the geotechnical issues that arise in relation to that method of rectification or remediation or that proposed by Mr Redman.

10. In considering the debate about matters such as the conclave questions, the starting point is s 56 of the Civil Procedure Act 2005, specifically what is necessary to identify and resolve the real issues in dispute that have not resolved in a manner which is just, quick and cheap.

11. In that regard two matters should be observed. First, one concern of the defendants is that at present is that no reports in reply have been prepared on behalf of the plaintiffs and specifically no report has been prepared by Mr Baguley addressing the methods of remediation suggested by Mr Hoare. As I will explain, this is said to put Mr Redman at a disadvantage in addressing the questions proposed by the plaintiffs in the experts’ reports.

12. The second related matter to note is even though the parties have arranged the conclaves to occur sequentially, the true relationship between the various categories of experts is, of course, interactive. This is well illustrated by the fact that one method of rectification has its origins in a structural engineer’s report and another method of rectification has its origins in a geotechnical report.

13. To insist on some form of order of the way in which these issues will be addressed, that is issues of remediation and rectification as opposed to demolition, would be, in my view, likely to result in a further blizzard of reports which would seriously undermine the objectives of s 56.

14. To this end, one of the matters raised by the defendants is to relay a concern by Mr Redman that, if he is required to address the variety of the questions proposed by the plaintiffs in a conclave, he will be at some form of disadvantage because he will not know what Mr Baguley’s attitude and approach to the proposed remediation methods is in advance. Mr Redman is concerned that he may not have sufficient time to address those issues, that he has not been properly briefed with Mr Hoare’s report, and that he may have to prepare various calculations.

15. It is to be remembered that the question is not a question of whether procedural fairness has been addressed to the experts but to the parties and to the Court.

16. The question of the method of remediation and rectification has been well and truly opened up by the defendant in the material it has served. There could not be any proper objection to the plaintiffs turning up at the hearing and cross‑examining Mr Redman on those methods. It seems to me wholly inimical to s 56 for everyone to have to wait until that occurs to find out his answer.

17. Moreover, as was submitted by the plaintiff, I see little utility in now putting the parties, specifically the plaintiffs, to the expense of having to put on a report with Mr Baguley’s position on rectification for Mr Redman to then consider in the conclave.

18. If more time is required for the conclave, then the experts can ask for it. The important thing is not so much a question of the use of the time of the experts but mitigation of the time of the Court in an ultimate hearing.

19. Lastly, I note, before addressing specific questions, that Practice Note SC Gen 11 addresses some of the issues in respect of the form of questions which should arise at a conclave.

20. Paragraph 8 provides:

“The questions to be answered should be those specified by the Court or those agreed by the parties as relevant and any other question which any party wishes to submit for consideration.”

21. The fact that they should ordinarily include any question which a party wishes to submit for consideration is perhaps as good an indicator as any that these sorts of disputes should not happen, and parties should not necessarily feel inhibited in putting a question. If the form of the question they submit is accompanied by spin or contentious matters, then the answer will not be of any use.

22. Paragraph 9 provides:

“The questions to be answered should be framed to resolve an issue or issues in the proceedings. If possible, questions should be capable of being answered Yes or No, or (if not) by a very brief response.”

23. That is a good general guide, however it is not necessarily meant to truncate any expert from adding any qualification or explanation if that is considered appropriate.

24. The form of the questions proposed by the plaintiff is set out in annexure A to the affidavit of Christopher Scott Nielsen sworn 3 August 2022. I do not understand that there is any objection to questions 1 to 3 which are either introductory or address questions of breach that arise out of the geotechnical reports.

25. Question 4 of the annexure is effectively directed to causation. Question 4(a) asks whether the use of heavy machinery impacted the effectiveness of a method of dealing with ground moisture adopted by the defendants.

26. Question 4(b) asks the geotechnical experts to make an assumption that the screw piles which affix the house to the land are installed at a particular depth and to assess the impact of that on the stability or movement of the footings for a period of three to five years and the remaining design life of the building. Again, this appears to be a question directed to causation.

27. The defendants have put on an affidavit setting out Mr Redman’s objection to that question. He raises the issues that I referred to earlier. He states that this has not been addressed previously by Mr Baguley and it may necessitate calculations.

28. Given the complexity of the issues in the proceedings, and the amount in dispute, the idea that everything has to be on hold for one expert to participate in a conclave on a question about this until he gets a considered report from the other is untenable. Question 4 will be included.

29. Questions 5 and 6 are also causation questions. They ask questions directed to ascertaining what are the various likely causes of the slab of the dwelling experiencing slope or movement and seeks to have the experts quantify the contribution of differing causes to the overall effect.

30. Question 6 asks the question, effectively as a counterfactual, as to whether if screw piers had been installed to a deeper depth the dwelling would have experienced the slope or movement said to make it non‑compliant with a relevant Australian standard.

31. The questions are prefaced by asking both geotechnical experts to look at two particular paragraphs of Mr Hoare’s report which described movements that exceed particular design standards. As noted by the plaintiffs, they are asked in a context where Mr Redman has already addressed questions of possible causal contributors to movement in his report.

32. The affidavit from the defendant’s solicitors sets out Mr Redman’s difficulty in addressing these questions in a conclave. Subject to one matter, they have already been addressed. The one matter of exception is that he identifies that one of the standards referred to in one of the paragraphs of Mr Hoare’s report is not within his area of expertise. That can be addressed by the removal of that paragraph from the question.

33. For my part I have a difficulty with one part of the question which asks the experts to express their degree of confidence in their answer they have given as a percentage. I do not see that question as particularly useful. To my mind it is more likely to cause greater delay for little advantage.

34. Subject to that, question 5 and 6 will be allowed, save that the words “and 89” will be removed from the opening words to both questions; the words, “or contributed to that movement”, will be added after the reference to AS2870-1996 in 5(a); the words “if possible” will be added to the words “please express the likelihood as a percentage”; and subparagraph 5(b) will be removed.

35. Proposed questions 7 and 8 ask each of the geotechnical experts to address the rectification method proposed by Mr Hoare in his structural engineer’s report.

36. Question 7 directs them to paragraph 153 of the report in which he expresses a view that a rectification method can be deployed if certain geotechnical conditions are met. Question 7 asks the geotechnical experts to address whether they are met, or, if so, what would need to be done for them to be satisfied?

37. Question 8 then asks, assuming those conditions are met, the expert to address the likelihood that the proposed rectification method will address the various difficulties with the property, specifically the slope and differential movement, and prevent future movement of footings and slabs.

38. The objections to this raised on behalf of Mr Redman have already been noted and addressed. In particular, although Mr Redman says he was not briefed with the report, I think it is clear that he has had the report. He has already expressed a limited opinion concerning the measures suggested by Mr Hoare.

39. In those circumstances, question 7 will be permitted to go to the conclave. Question 8 will be permitted to go the conclave save that questions 8(a)(iv) and 8(b)(ii) will not be permitted as they concern the question of the degree of confidence in the view that has been expressed.

40. Question 9 asks similar questions, but they are addressed to geotechnical aspects of Mr Redman’s own proposed method of rectification. Given what I have already said, it follows that those questions will be allowed save that questions 9(a)(iv) and 9(b)(ii) will not be permitted.

41. The defendants have also proposed questions for the conclave. Their questions are expressed in quite general terms. They ask the experts to identify the matters in the geotechnical expert’s reports with which they agree, to identify the matters in the geotechnical expert’s reports with which they disagree, and to identify to what extent they agree or disagree with the proposed rectification methods within the structural expert reports.

42. Given the terms of the Practice Note, the fact that there will be specific questions directed to the geotechnical experts and there have not yet been reports in reply, I think those questions are useful. They will be permitted to go to the conclave.

43. At this stage the only order I will make is to direct the plaintiffs to prepare a revised set of questions for the conclave that reflect these reasons and serve it on the defendants on or before 5pm on 12 August 2022.

[Parties addressed on costs.]

44. I also order that costs be costs in the cause.

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Decision last updated: 18 August 2022