Geldart v Hart (No 2) - [2009] SASC 192

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
GELDART v HART & ANOR (No 2)
[2009] SASC 192
Reasons of Judge Lunn a Master of the Supreme Court
1 July 2009
PROCEDURE
Experts' reports - plaintiff served report of valuer whose contents allegedly did not wholly comply with 6R 160(3) and Practice Direction 4.3 - defendants' interlocutory application under 6R 117(1) refused that the plaintiff serve a report from the valuer whose contents complied with 6R 160(3) and Practice Direction 4.3 - reports which do not comply with 6R 160(3) and Practice Direction 4.3 held to be expert reports for the purposes of the Rules - plaintiff not obliged to call that valuer at trial and admissibility of report a matter for the trial Judge.

GELDART v HART & ANOR (No 2)
[2009] SASC 192
Reasons on defendants’ application that the plaintiff file a further expert’s report.

JUDGE LUNN: This is a claim by the plaintiff against the defendants for provision under the Inheritance (Family Provision) Act 1973. There is an issue about the value of some farming land owned by the deceased on Yorke Peninsula (“the land”). On 13 February 2009 I directed, at the request of all parties, that the plaintiff deliver her experts’ reports by 13 March 2009 and that the defendants deliver their reports within 28 days of service. On 30 April 2009 I extended the time for the plaintiff to deliver her experts’ reports to 7 May 2009. Pursuant to those directions the plaintiff has delivered to the defendants’ solicitors a valuation of the land dated 1 September 2008 from Shaun Mercer, a professional valuer, and a letter of 2 May 2009 from Mr Mercer. The defendants complain that this material from Mr Mercer does not satisfy all the requirements of 6R 160(3) and Practice Direction 5.4 concerning experts’ reports. On 21 May 2009 the plaintiff’s solicitors informed the defendants’ solicitors that they were not delivering any further report from Mr Mercer. The defendants have not yet delivered any expert report from a valuer. On 9 June 2009 they took out an application seeking an order:
(2)That within 21 days the plaintiff serve on the defendants an experts’ report of Mr Shaun Mercer which complies with Rule 160 and Practice Direction 5.4.
By 6R 4 an “expert report” is defined as:
Expert report means a report in written or electronic form by a medical or other expert on a question involved in an action (including a report by a medical or other expert on another expert report);
6R 160 provides:
160 – Pre-trial disclosure of expert reports
(1)A party must, before the relevant time limit –
(a)obtain all expert reports that the party intends to obtain for the purposes of the trial of the action; and
(b)serve on every other party to the action a copy of each expert report in the party’s possession relevant to the subject matter of an action (whether the party intends to rely on it at the trial or not).
Exception –
This rule does not apply to reports obtained, or to be obtained from a shadow expert (see rule 161(1)).
(2)The relevant time limit is at the end of a period of 60 days after the time limited for making an initial disclosure of documents.
(3)An expert should –
(a)set out the expert’s qualifications to make the report; and
(b)set out the facts and factual assumptions on which the report is based; and
(c)identify any documentary materials on which the report is based; and
(d)distinguish between objectively verifiable facts and matters of opinion that cannot be (or have not been) objectively verified; and
(e) comply with any requirements imposed by practice direction.
6R214(2) and (3) provide:
(2)A party may only call a witness to give expert evidence at the trial of the action if –
(a)the expert evidence to be adduced from the witness has been disclosed to the other parties in the form of an expert report or an affidavit (or the Court has relieved the party from the obligation of disclosure); or
(b)the Court permits the party to call the witness despite non-disclosure of the evidence.
(3)If the Court grants permission under subrule (2)(b), the Court will, unless there is good reason for not doing so, make an order that the party in whose favour the permission is granted, or that party’s lawyer, is to be liable for costs related to the non-disclosure.
Practice Direction 5.4 contains detailed requirements about the obligations of expert witnesses and the contents of their reports, but it is not necessary to set it out in these reasons.
I do not accept the defendants’ contentions that the definition of “expert report” in 6R 4 or requirement of service of an expert report in 6R 160(1)(b), are limited to expert reports whose contents wholly comply with 6R 160(3) and Practice Direction 5.4. If a report is in writing, and its author is an expert on a question involved in an action which is relevant it is an “expert report” for 6R 160(1)(b) even if it does not otherwise satisfy 6R 160(3) or Practice Direction 5.4. Otherwise parties could avoid the obligation of serving reports which are unfavourable to their case by claiming that there was some non-compliance with 6R 160(3) or Practice Direction 5.4 in their contents. That is clearly not the intention of 6R 160(1).
For the purpose of these reasons I am prepared to assume that the material from Mr Mercer which has been supplied by the plaintiff’s solicitors does not wholly comply with 6R 160(3) or Practice Direction 5.4. If the plaintiff seeks to call Mr Mercer as a witness at the trial, it will be for the trial Judge to determine those issues.
Counsel for the defendants submitted that the power to make the order sought was contained in the very broad 6R 117(1), which provides:
(1)The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
He could not cite any precedent for such an order as he seeks here being made and I am not aware of any. He referred to the decision of Southern Equities Corporation Ltd v Arthur Andersen (No 9) [2002] SASC 118, 8 April 2002, but that was decided on 87R 38.01(8) which has no equivalent in the 2006 Rules.
The defendants’ contentions were based on the premise that the plaintiff would call Mr Mercer as an expert witness at the trial of the action. While that may be highly likely it is not an established fact. 6R 160(1)(b) does not by its terms oblige a party who has served an expert report to call that expert at the trial. Ultimately, it is in the discretion of the plaintiff’s counsel at the trial what witnesses he or she calls for the plaintiff: Briscoe v Briscoe [1968] P 501 at 504. Without the defendants having put forward any expert evidence from a valuer retained by them, it is not certain that there will be an issue at the trial on the value of the land on which expert evidence will need to be called. It is also theoretically possible that the plaintiff may call a valuer who has given a report to the defendants rather than Mr Mercer.
Under 6R 141(2) it is open to the plaintiff to apply to the trial Judge in the course of the trial for permission under 6R 214(2)(b) to call an expert despite not having not made proper disclosure of that expert’s evidence at the proper time. The plaintiff has not sought any such order at the interlocutory stage of this action, and it is not for me to say that it cannot be made at the trial. If there are significant deficiencies in the material disclosed about Mr Mercer’s expert evidence, and the trial Judge refuses permission under 6R 214(2)(b), it may be that the plaintiff will be in considerable difficulties in proving her case at trial. That is a risk which she is entitled to take. Whether such permission is to be granted is often a matter which is best left to the trial Judge to be determined in the circumstances which exist at the trial.
The defendants’ allege prejudice in preparing their responding expert evidence because of the alleged deficiencies in the material from Mr Mercer. For this purpose I am prepared to assume that there is such prejudice, but it is not necessary for me to decide it. It should be noted that the plaintiff has granted an indulgence to the defendants in agreeing to directions about the experts’ reports which allow the defendants to await the receipt of the plaintiff’s reports before having to obtain their own reports. 6R 160 envisages that all parties will deliver within the same time all of their expert reports on the issues raised by the pleadings which can be the subject of expert evidence. However, in practice it is often accepted it is expedient for the defendants’ expert to respond to the plaintiff’s expert rather than to put forward their own report and then a supplementary responding report. The time for the plaintiff to deliver her experts’ reports has now expired. The defendants have the material from Mr Mercer, such as it is, and they can now obtain their own experts’ reports in the light of it. If the plaintiff wishes to supplement the material from Mr Mercer in the future by other than a responding report within subr 160(4), she will need an extension of time within which to serve such material. If that causes prejudice to the defendants, it will be a ground for either refusing the extension of time or imposing conditions to address the prejudice. This is the most appropriate way to deal with any such prejudice.
Even if I was disposed to make an order to address the issue raised by the defendants, I do not consider it would be proper to make it in mandatory terms requiring the plaintiff to serve a further report from Mr Mercer. The correspondence from Mr Mercer suggests that he is reluctant to become further involved in the matter. He probably cannot be compelled to act as an expert witness: Cross on Evidence [13,265], and, if an order was made as sought, and he refused to supply the further material, he may potentially be in contempt of Court. If such an order was made, it may also require the plaintiff to incur significant expense in obtaining the supplementary report which she may not be able to afford. If the Court were to consider that full compliance with 6R 160(3) and Practice Direction 5.4 was to be insisted on for any reports of Mr Mercer at this stage, the appropriate order would be that unless a complying supplementary report was delivered within a specified time the plaintiff would be precluded from adducing expert evidence from Mr Mercer at the trial. It may be that any such order should only be made by the trial Judge as it is essentially an order about the admissibility of evidence at the trial. I do not need to pursue it further.
For these reasons I dismissed the defendants’ application of 9 June 2009