Geju Pty Ltd v Central Highlands Regional Council

Geju Pty Ltd commenced proceedings against Central Highlands Regional Council in relation to a land transaction where Geju claims it relied on a defective town planning certificate issued by the Council. The Council denies liability, but if it is found liable, argues that the liability should be apportioned between itself and the solicitors who acted for Geju. Geju now applies to have certain amendments to the Defence disallowed and to obtain orders precluding the Council from relying on two expert reports. The Council has not complied with the rules and practice direction for experts, leading to the application. The court must consider whether Geju will suffer prejudice and whether the amendments are embarrassing or have a tendency to prejudice or delay the fair trial of the proceeding.

The legal issues before the court are whether certain amendments to the Defence should be disallowed and whether the Council should be precluded from relying on two expert reports due to non-compliance with the rules and practice direction for experts. The court must determine whether Geju will suffer prejudice if the amendments are allowed to stand and whether the amendments are embarrassing or have a tendency to prejudice or delay the fair trial of the proceeding. The court also must consider whether the Council’s non-compliance with the rules and practice direction for experts justifies precluding it from relying on the expert reports.

In considering the application, the court found that the Council had not complied with the rules and practice direction for experts, and as such, the report of Mr William Purcell is not admissible. The court also found that certain paragraphs of the Amended Defence that pleaded what a prudent solicitor would have done were embarrassing and had a tendency to prejudice or delay the fair trial of the proceeding. The court ordered that these paragraphs be struck out. The court further ordered that the Council file and serve a Further Amended Defence by a specified date and pay Geju’s costs of and incidental to the application. The parties were granted liberty to apply on matters arising out of these reasons on the giving of two business days’ notice to the other.

The final orders of the court were that the Council is not permitted to adduce in evidence the report of Mr William Purcell dated 27 June 2016. Paragraphs 7(c)(vi)(D), 7(c)(viii) and 11A(c)(ii) of the Amended Defence filed 1 July 2016 be struck out to the extent that the paragraphs plead what a prudent solicitor would have done. Paragraphs 13(bb), 13(f)(iv) and 13(f)(v) of the Amended Defence filed 1 July 2016 be struck out. The Council file and serve a Further Amended Defence conforming with these reasons and orders by 4pm on 22 July 2016. The Council pay Geju’s costs of and incidental to this application. The parties have liberty to apply on matters arising out of these reasons on the giving of two business days’ notice to the other.