| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DUNMALL -v- O'SULLIVAN [No 5] [2013] WADC 142 CORAM : REGISTRAR KINGSLEY HEARD : 16 AUGUST 2013 DELIVERED : 4 SEPTEMBER 2013 FILE NO/S : CIV 232 of 2006 BETWEEN : GEOFFREY DUNMALL Plaintiff
AND
MARY O'SULLIVAN
First Defendant
TERRENCE ALLDEN WALSH
Second Defendant
SHIRE OF MURRAY
Third Defendant
Catchwords: Practice - Application for conferral of experts - The process of conferral considered Legislation: Nil
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Result: Application for conferral refused
Representation: Counsel:
Plaintiff : No appearance
First Defendant : Mr M William
Second Defendant : Ms K Levy
Third Defendant : No appearance
Solicitors:
Plaintiff : Mossensons
First Defendant : DLA Piper Australia
Second Defendant : Kitto & Kitto
Third Defendant : J Eller
Case(s) referred to in judgment(s):
McGlinn v Joondalup Hospital Pty Ltd [2013] WADC 105
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1 REGISTRAR KINGSLEY: In 1983 a house was built close to the ocean on the South Yunderup canals on the Peel inlet. No doubt to take advantage of the ocean views the house was constructed with a timber balcony on the first floor.
The plaintiff's case 2 On 31 December 2004 the plaintiff attended a New Year's Eve party at the house. The plaintiff was standing on the timber balcony when without warning the balcony gave way and collapsed. The plaintiff (Dunmall) suffered injuries as a result of falling up to 3 m onto a patio below. 3 There are three defendants in the action. By an amended statement of claim dated 13 February 2013, it is pleaded the first defendant (O'Sullivan) is the owner of the house. It is alleged that O'Sullivan owed a duty of care to exercise reasonable care to prevent foreseeable injury to persons like Dunmall. The amended statement of claim goes on to plead particulars of negligence, which include a failure to inspect or periodically inspect, failed to provide and maintain an adequate system of inspection, and failed periodically to have the balcony inspected by a qualified person. 4 The second defendant (Walsh) is a registered builder. The amended statement of claim alleges Walsh was responsible for the management and supervision of the building of the house, which included the timber balcony. It is pleaded Walsh, amongst other things, selected balcony screws, bolts or other fastening devices which were not galvanised nor the correct size, contrary to contractual specifications and Australian Standards. 5 The third defendant (the Shire) is a local government authority. It is pleaded the Shire approved the plans and specifications to the house including the balcony, issued the building licence, and was responsible for ensuring there was no non-compliance or departure from the approved plans. The amended statement of claims effectively pleads the Shire gave approval for plans that were unsafe or contrary to the Local Government Act 1995 or its by-laws.
The contribution proceedings 6 Walsh has brought issued contribution proceedings against O'Sullivan and the Shire. Walsh alleges that O'Sullivan had a duty to provide a safe balcony, to cause inspection, and maintain the balcony in (Page 4)
a state of repair. In breach of that duty it is pleaded O'Sullivan failed to provide a safe balcony, failed from about 1993 to cause a licensed builder or structural engineer to every three to five years inspect the structural integrity of the balcony, failed to maintain the balcony in a good and safe repair, and in the event of the structural integrity of the balcony had not been confirmed by a licensed builder or structural engineer, failed to prevent access to the balcony or warn persons including Dunmall that the structural integrity of the balcony has not been confirmed. 7 As against the Shire, Walsh alleges the Shire had a duty to satisfy itself beyond doubt that the premises were structurally adequate, the balcony was designed by an engineer experienced in such designs, all requirements of the Code were met, and the balcony was designed so as to be capable of sustaining the most adverse combination of loads to which the balcony (having regard to the location of the premises) would be subjected. Walsh then goes on to plead the various breaches of the Shire. 8 In his prayer for relief Walsh claims an indemnity or alternatively contribution pursuant to the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 as against O'Sullivan and the Shire.
Walsh's application 9 As would be expected in a claim of this nature the parties have engaged experts. In Walsh's draft index of expert's report dated 20 August 2013 there are nine experts mentioned, six for Dunmall, two for O'Sullivan and one for Walsh. 10 At a directions hearing held 19 July 2013 counsel for Walsh foreshadowed that there may need to be conferral of experts to resolve differences between them. The directions hearing was adjourned to 16 August 2013. 11 Walsh now seeks orders that one of the Dunmall's experts, one of the O'Sullivan's experts and Walsh's expert do confer in the presence of the parties' solicitors and a registrar of the court for the purpose of identifying the differences between them and resolving as many of those differences as possible. A memorandum of conferral dated 15 August 2013 was filed by Walsh. The memorandum shows that by letter of 11 July 2013 from Walsh's solicitor to the solicitor for O'Sullivan the process of conferral commenced. By 13 August 2013 the Walsh's solicitor advised the O'Sullivan's solicitors of the orders being sought. On 15 August Walsh's solicitor wrote to all parties suggesting Dunmall's solicitor/counsel attend (Page 5)
the directions hearing of 16 August at which hearing orders would be sought for the conference of the experts. 12 By letter dated 15 August 2013 Dunmall's solicitors advised Walsh's solicitors that they did not consider there was any substantial disagreement between the experts named in the orders to be sought by Walsh's solicitor and did not intend to appear at the directions hearing. I am unaware of the position of the Shire, and their solicitor did not appear at the hearing.
Conferral of experts 13 Rule 24 of the District Court Rules 2005 under the heading 'Case Management Directions' provides at r 24(2)(f) that a case management direction may direct experts whose reports have been exchanged to confer on a without prejudice basis in order to identify the differences between them and to resolve as many of those differences as possible. Rule 24(1) provides that a case management direction is a procedural direction that is just to make in a case to facilitate the case being conducted and concluded efficiently, economically and expeditiously. The principle argument by Walsh's counsel is that the conferral of the named experts is necessary for the efficient, economic, and expeditious conduct of the action. 14 The issue of conferral between experts has been the subject of Circular to Practitioners (Circular). Paragraph 4 of the Circular provides that where the experts' reports have been exchanged, and it is apparent that the experts disagree on some material point, there is often an advantage in having the experts confer to see if those differences can be narrowed. The Circular goes on to provide that where it becomes apparent that there is disagreement between the experts the parties can, on application to the court, (or the court on its own motion can order) seek an order that the parties confer. 15 Counsel for Walsh noted that the Circular has as a threshold the requirement for an apparent difference between experts. Counsel for O'Sullivan rightly points out that the word apparent is not used in r 24(2)(f). 16 A Circular to Practitioners issued by the District Court has no formal status. In order to assist litigants, and practitioners the Circular sets out what is the ordinary or usual practice of the Court (see McGlinn v Joondalup Hospital Pty Ltd [2013] WADC 105 [34]). Accordingly, I am (Page 6)
not approaching the question of conferral based on a requirement for an apparent difference. 17 In this court the conferral of experts is not routinely ordered, unlike perhaps the State Administrative Tribunal. Whilst it is open for the court of its own motion, and the parties to agree, for a conferral of experts that conferral, in my opinion, would not be at large. 18 In my opinion to be properly undertaken, the conferral process between experts would be after the parties, and their solicitors, have agreed the issues to be considered by the experts. Those issues would emerge from consideration of the pleadings and those experts' reports that have been exchanged. In this way the experts have a clear agenda, and parameters for discussion. In this matter, in support of an order for conferral of experts Walsh's solicitors have compiled some observations in relation the expert's reports. Unfortunately the observations are of no assistance because there is no identification of there being a difference between experts. In any event, the expert reports of the experts who are to confer are not before me and I cannot readily identify any differences of opinion. 19 The role of the solicitor for the parties also needs to be stated. Is the solicitor attending to answer questions of a legal nature, or is it intended that the solicitor take an active part in the conferral. If it were the latter then rules of engagement would need to be established to ensure there is no conferral by cross-examination.
What is the difference between the experts 20 As between the plaintiff and the defendants three issues seem to have emerged from the experts' reports in relation to the cause of the balcony collapse; a failure of badly corroded bolts, the effect of wood-rot (be it dry or wet), and finally the splitting of a plate. These issues form the basis of the claim of negligence by the plaintiff against each of the defendants. 21 Walsh's counsel submits that as the experts do not know what the cause of the balcony collapse is then there must be a difference between the experts. 22 As between the plaintiff and the defendants, bearing in mind the plaintiff does not wish to be heard on this application, the plaintiff's solicitor suggests, in a letter dated 15 August 2013 to Walsh's solicitors that there is no substantial disagreement between the named experts to warrant a conferral of experts. (Page 7)
23 Whilst a court can, of its own motion, order a conferral of experts, that step would only be taken after hearing from all the parties, considering the experts reports, and formulating, after hearing submissions from the parties solicitors, a statement of issues and agenda to put to the experts. Further, the role of the solicitor at the conferral, if indeed a solicitor needs to be present, would need to be stated. 24 None of this has been put before me, and I am not persuaded tan order for conferral is warranted in this circumstance. 25 As between Walsh and O'Sullivan, Walsh alleges that O'Sullivan, having a duty to cause inspection of the balcony, failed to inspect or have a licensed builder or structural engineer inspect the balcony. The issue between Walsh and O'Sullivan is the issue of state of knowledge and awareness of the integrity of the balcony by O'Sullivan. 26 On the information before me there does not appear to be any difference in the expert's opinion on this issue. The only expert to comment on the state of knowledge of O'Sullivan is Dunmall's expert. That being the case I am not persuaded that there is disagreement between the experts in relation to the issues as between Walsh and O'Sullivan. 27 In any event, I would not order a conferral at large without there being a settled statement of the issues the experts are to confer. This directs the attention of the experts to those issues upon which there is a difference of opinion. 28 For these reasons I am not persuaded this is a case which will be conducted more efficiently, economically and expeditiously by having the named experts confer in order to identify the differences between them and to resolve as many of those differences as possible. Accordingly I will not make orders in terms of Walsh's minute dated 15 August 2013. 29 In usual circumstances, this being an argued matter and the Walsh having failed in his submissions, the costs of the hearing would ordinarily flow to O'Sullivan in any event. I am prepared to be persuaded otherwise. If the Walsh's solicitors seek to persuade me I invite their submissions within 7 days of delivery of these decisions and the responsive submissions of O'Sullivan's solicitors within 14 days thereafter. I will make a decision on the costs on the papers.
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