Gatto v NAV Enterprises Pty Ltd

[2019] NSWSC 1334

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Gatto v NAV Enterprises Pty Ltd [2019] NSWSC 1334
Hearing dates:	1 October 2019
Date of orders:	01 October 2019
Decision date:	01 October 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [7]
Catchwords:	CIVIL PROCEDURE – case management – directions – extension to timetable and view sought following recent change of plaintiff’s solicitors – open-ended right to serve further evidence and view not conducive to just, quick and cheap resolution of real issues – orders made to give plaintiff opportunity to serve refresher medical expert evidence and provide for mediation
Legislation Cited:	Civil Procedure Act 2005 (NSW), Part 6A Uniform Civil Procedure Rules 2005 (NSW), r 23.8
Category:	Procedural and other rulings
Parties:	Angela Gatto (Plaintiff) NAV Enterprises Pty Ltd ACN 156 214 943 (Defendant)
Representation:	Counsel: M McAuley (Plaintiff) K Gorgievski, solicitor (Defendant)   Solicitors: C & M Lawyers (Plaintiff) McCabe Curwood (Defendant)
File Number(s):	2017/173365

Judgment – ex tempore

1. By statement of claim filed on 9 June 2017, Angela Gatto (the plaintiff) seeks damages against NAV Enterprises Pty Ltd (the defendant) in relation to a fall she sustained when leaving a wedding reception just after midnight on 21- 22 June 2014. The matter has come before the Court on at least eight occasions in the course of which the Registrar has made directions about the service of evidence between the parties, including expert evidence.

2. Mr McAuley, who appears on behalf of the plaintiff, informed me that the plaintiff changed her solicitors in about August 2018, a notice of change of solicitors having been filed on 9 August 2018. He was briefed some little time before that and has been involved in the matter since then. He frankly conceded that the plaintiff's case was not as well prepared as he would like it to be and has proposed that directions be made which allow for time to be given to the plaintiff to qualify further experts, including a liability expert on lighting, a neurologist, an orthopaedic surgeon and a rehabilitation expert, who would in due course prepare reports which would be served. He also proposed that an order be made pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 23.8 that the plaintiff's new lighting expert be permitted to inspect the subject property at a suitable time before providing an expert report.

3. Ms Gorgievski, who appears on behalf of the defendant, has submitted that the Court should bear in mind the principles of case management in the Civil Procedure Act 2005 (NSW) (the Act). She submitted that to grant the extension sought by the plaintiff would not promote the just, quick and cheap resolution of the real issues in dispute as outlined in Part 6A of the Act. She submitted that the statement of claim includes particulars of negligence relating to the lighting which would tend to indicate that the plaintiff had access to at least someone with lighting qualifications before the statement of claim was filed.

4. Ms Gorgievski has told me that the reports of Mr Beckett, the engineer qualified by the plaintiff, have addressed the lighting issues raised by the pleadings and that Dr Cooke, the expert qualified by the defendant has responded to these reports. She submitted that, in these circumstances, and having regard to the time since the commencement of the proceedings and the directions made by the Court as to service of expert evidence, which have since long expired, I ought not grant leave to the plaintiff to qualify further experts, whether medical or on liability. Further, she submitted that an order for a view is unnecessary as a view has already taken place on 27 March 2015, which was attended by Mr Beckett and which formed the subject of some of the opinions expressed in his report. She also submitted that further indulgence ought not be extended to the plaintiff as mediation has been ordered and various dates have had to be vacated by reason of the plaintiff's lack of preparedness for the proceedings. Ms Gorgievski accepted that the plaintiff ought be permitted to serve any further refresher medical evidence but contended that the leave granted ought not extend to any further expert evidence where the expert reports were not served within the timetable ordered by the Court.

5. Plaintiffs who have been injured as a result of alleged negligence of defendants must be permitted sufficient time to prepare their cases for hearing. This is an important aspect of the rules of natural justice. However, the rules of natural justice ought not be regarded as a licence to give plaintiffs endless opportunities to prepare their cases. I am required, when deciding what directions to make, to take into account the overriding purpose of the Act, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings. I am not satisfied, having regard to the directions made to date by the Registrar, that it is appropriate to grant the plaintiff an open-ended right to serve any further evidence.

6. I have had regard to the draft short minutes of order proposed by Mr McAuley. I do not consider that it is appropriate to make them except to the extent to which they give the plaintiff an opportunity to serve refresher medical expert evidence, give the defendant an opportunity to serve evidence in response and provide for a mediation of the matter. I have no reason to believe that the proceedings do not presently have good prospects of settlement, having regard to the readiness of both parties to engage in a mediation with a reputable mediator and barrister. Any greater latitude would, in my view, be inconsistent with the overriding purpose of the Act and have a tendency to increase the costs of the proceedings.

7. For these reasons I refuse the plaintiff's application for a view which was made by her notice of motion filed on 20 September 2019 and make the following directions and orders.

Orders

1. Plaintiff to serve any further evidence upon which she proposes to rely no later than 31 October 2019, such evidence to be confined to refresher medical evidence and not to extend to the reports of any further experts who have not already been qualified or reports which have otherwise not been served within the timetable directed by the Court.

2. Direct the defendant to serve any evidence in reply by 12 December 2019.

3. Order that a mediation in the proceedings take place no later than 30 March 2020.

4. Grant liberty to restore the matter to the Registrar’s list for further directions.

5. Stand the matter over to the Registrar’s list for the purpose of taking a hearing date, if the matter is not earlier resolved, on 6 April 2020.

6. Order the plaintiff to pay the defendant’s costs of her notice of motion filed on 20 September 2019.

7. Vacate the direction hearing date of 8 October 2019.

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Amendments

03 October 2019 - Order (2) amended

Decision last updated: 03 October 2019