Glover v Fuller

[2022] ACTSC 144

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Glover v Fuller

Citation:

[2022] ACTSC 144

Hearing Date:

3 June 2022

DecisionDate:

22 June 2022

Before:

McWilliam AsJ

Decision:

(1)    Leave is granted to the defendant to serve expert evidence from the following: 

(a)    Mr Jeff Williams, aquatic event consultant;

(b)    Associate Professor Paul Miniter, orthopaedic surgeon;

(c)    Dr McGill, rheumatologist; and

(d)    Mr Stretton, occupational therapist.

(2)    Service of the said expert evidence is to be completed on or before 29 July 2022.

(3)    The plaintiff has leave to serve any reply evidence on or before 26 August 2022.

(4)    The costs of the application are to be paid by the defendant. 

Catchwords:

PRACTICE AND PROCEDURE – Application for leave to file expert evidence out of time – rules 1205, 1241 and 1401 of Court Procedures Rules 2006 (ACT) – where neither party complied with timelines for service of evidence – where matter listed for hearing and no expert evidence has been served by defendant – whether extension of time in the interests of justice

Legislation Cited:

Court Procedures Act 2004 (ACT) s 5A

Court Procedures Rules 2006 (ACT) rr 1205, 1241, 1401

Cases Cited:

Alam v Australian Capital Territory [2019] ACTSC 153
Hinchcliffe v Carter’s Transport Australia Pty Ltd & Ors [2017] ACTSC 223

Pryce v Dunlap [2016] ACTSC 338
Russell v Glen [2020] ACTSC 81

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

Parties:

Jack Glover (Plaintiff)

Daniel Fuller (Defendant)

Representation:

Counsel

D Crowe (Plaintiff)

S Walsh (Defendant)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

Barry Nilsson. Lawyers (Defendant)

File Number:

SC 281 of 2018

McWilliam AsJ:

1. The plaintiff in this proceeding was 12 years old when he participated in a recreational activity described as “tubing”.  That involved being carried in an inflatable tube or “biscuit”, which was towed by a speedboat along the water at Burrinjuck Dam in New South Wales.  The tube flipped, which the plaintiff alleges caused him to suffer a range of injuries to the spine, back and shoulders, which have led to cognitive and physical disabilities.  He has brought a claim in negligence against the defendant, who was the driver of the speedboat, alleging that by failing to have a spotter, driving the boat in a manner that predisposed the tube to flipping and disregarding the risks to the plaintiff when this occurred, the defendant negligently caused a wrenching injury to the plaintiff’s spine.

1. The defence to the allegations includes that the plaintiff’s injuries were due to pre-existing vulnerabilities in his back (including a pars defect and stress fractures in his lower back) rather than any negligent conduct by the defendant.  Causation is thus a substantial issue in the proceeding, which is listed for final hearing, commencing on 5 September 2022.

The interlocutory application for determination

1. Before the Court is an application (filed 2 May 2022) by the defendant for leave to serve expert evidence.  Expert evidence has been served by the plaintiff.  A separate aspect of the application dealing with answers to interrogatories was disposed of at the hearing on 3 June 2022 with orders being made by consent. 

The Court’s discretion to grant leave

1. Insofar as the present dispute is concerned, the application was initially pursued under r 1241(3) of the Court Procedures Rules 2006 (ACT) (Rules) but was orally amended during the hearing to seek leave under r 1401 of the Rules. That rule is a general power to seek directions and the applicable discretionary test is what the interests of justice require (r 1401(3)). 

1. A more specific rule directly dealing with expert evidence is r 1205(1)(a), which permits the Court (on its own initiative or on a party’s application) to give directions about the time for service of an expert report. Although that rule itself does not expressly incorporate as a paramount consideration what the interests of justice require, that objective is plainly contemplated, as seen by the reference to the interests of justice in the purposes of the part set out in r 1200 of the Rules.  Further, the overriding purpose of the Rules is to promote the objects of the Court Procedures Act 2004 (ACT) which includes the purpose of facilitating the “just resolution” of disputes according to law and as quickly, inexpensively and efficiently as possible: s 5A. Assuming that s 5A informs and guides what might be considered the interests of justice, there is ultimately no difference in the applicable discretionary test whether the general r 1401 or the specific r 1205 is invoked.

1. The plaintiff argued the defendant’s application ought still be considered under r 1241. Where r 1241(3) applies, it imposes an additional requirement for the Court to be satisfied of the existence of “exceptional circumstances” that justify granting leave. However, that provision is directed to the tender of expert evidence at a hearing, and as such, there is an implied assumption that such evidence exists to be tendered. The rationale for what may be characterised as the heavier burden of exceptional circumstances is to prevent parties “belatedly seeking to tender fresh expert evidence at the hearing”: see Alam v Australian Capital Territory [2019] ACTSC 153 at [10]. Those circumstances do not apply here as the evidence has not yet been obtained, let alone sought to be tendered. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [122], Refshauge J described the purpose of r 1241 as

…[d]irected towards ensuring that the issues are crystallised well before an action is heard and to [prevent] prejudice to a party in not knowing what expert evidence needs to be confronted and addressed as well as ensuring that there is time to do so.

1. The hearing is not until September 2022, so it cannot be said that the imminence of a hearing otherwise should bring the circumstances within the scope of r 1241(3). In any event, as Mossop AsJ (as his Honour then was) observed in Pryce v Dunlap [2016] ACTSC 338 at [7], the constraints in r 1241(3) are subject to the orders of the Court: r 1241(5). The present application was made at a stage in proceedings sufficient to enable the Court to deal with the application on the basis of rr 1401 or 1205.

1. Matters relevant to the exercise of the Court’s discretion vary depending upon the circumstances leading to the application being brought.  In Russell v Glen [2020] ACTSC 81, Walker AJ drew attention (at [18]) to matters to which a court may have regard in making general directions, which are set out in r 1401(5). The list of considerations is non-exhaustive, and includes factors such as that each party is entitled to a fair hearing, with steps in the proceeding being taken within a reasonable time and each party being given a reasonable opportunity to lead evidence. The importance of the issues, volume and character of the evidence, and complexity of the case, are also mentioned.

1. Where there has been delay, a proper explanation for such delay should be forthcoming.  In Hinchcliffe v Carter’s Transport Australia Pty Ltd & Ors [2017] ACTSC 223 (Hinchcliffe) at [15], Mossop J held that where leave is sought to serve additional evidence notwithstanding prior directions of the Court, the Court must be fully informed of the reasons for any change of position, even if this requires an admission that some of those reasons are the applicant’s own fault.

The competing arguments of the parties

1. The nature of the evidence to be obtained by the defendant, as ultimately confirmed shortly after the hearing of the application, is in the nature of expert reports to be provided by the following:

(a)Mr Jeff Williams, aquatic event consultant, specialising in injuries from water sport activities.

(b)Associate Professor Paul Miniter, orthopaedic surgeon;

(c)Dr McGill, rheumatologist; and

(d)Mr Stretton, occupational therapist.

1. The affidavit affirmed by Mr Nicholas Bell, solicitor with carriage of the matter for the defendant, deposes to the defendant being in a position to serve the above expert evidence by the end of July 2022.  In a subsequent communication to the Court, Mr Bell confirmed that Mr Williams would be in a position to provide his report by 15 July 2022.

1. Mr Bell further explained the history of the proceedings, which were initially commenced by the plaintiff in 2018.  Mr Bell noted that the matter was placed in the Court’s inactive list, as the plaintiff’s injuries had not yet stabilised in a way that would allow it to particularise the claim against the defendant.  The claim was re-enlivened by the plaintiff in July 2021 and orders made on 22 October 2021 for the filing of evidence.  On that timetable, the defendant was required to serve all expert evidence by 29 April 2022, following which there was to have been a listing hearing on 19 May 2022, with a view to taking a hearing date later in the year. 

1. Given the present application, it is plain that service of expert evidence did not occur in accordance with the orders made.  The plaintiff continued serving expert reports, with an updating report of the plaintiff’s expert occupational therapist and a report from the plaintiff’s expert neurologist each being served in April and May 2022 respectively.

1. Added to this, the matter was brought in for call-over before the Chief Justice on 14 April 2022, at which time the matter was set down for hearing in September.  The listing of the matter for hearing was not expected by the parties and was at a time earlier than they had anticipated.

1. The explanation for the default was accepted by the defendant as being somewhat unsatisfactory.  The defendant’s solicitor deposes to believing, from discussions with the plaintiff’s legal representative, that further expert evidence on liability and quantum was to be provided and he was waiting for that evidence to be served before progressing the defendant’s evidence.  The details of those discussions or what led to such belief were not set out in the affidavit and that, of itself, was an unsatisfactory aspect of the evidence dealing with the explanation.

1. More significantly however, it appears that the defendant’s legal representative did not even take steps to brief counsel or engage any expert prior to 14 April 2022.  It must have been known at that point that the defendant could not possibly comply with the existing timetable.  Why it took until 13 May 2022 for the defendant’s solicitor to receive instructions to seek an extension of time was also left unexplained.

1. The defendant submitted that if leave were not granted, he would not be able to put any evidence before the Court to defend his case.  The application was made in sufficient time before the hearing date to enable the plaintiff to respond, so that no prejudice arose.  As such, the defendant submitted that the interests of justice strongly favoured a grant of leave in those circumstances. 

1. The plaintiff contended that the explanation for the defendant’s failure to garner the necessary evidence was incomplete and unsatisfactory.  He accepted that evidence had been served after 25 February 2022, being the date by which the previous timetable had required completion of the plaintiff’s evidence, but argued that these were updating reports, rather than primary expert reports and there was no reason why the defendant should have waited for that evidence to be served.

Consideration

1. There is force in what each party submitted, but the reason the parties are in the position where this application has become necessary is because they failed to promptly notify the Court of the position regarding the service of their expert evidence.

1. When it became known that the plaintiff was not going to complete service of his evidence by 25 February 2022, even if that extra evidence was updating earlier reports, the parties should have approached the Court with a proposed revised timetable.  This would have avoided default.  It would also have ensured, when the Court was considering which matters were at the stage where they should be ready to take a hearing date, the Court was properly informed of any procedural delays in matters that were otherwise anticipated to be ready for hearing by the end of April 2022.  What appears to have occurred is that the parties agreed as between themselves to prepare the matter according to their own revised timetable, without any involvement of, or notification to, the Court.

1. The defendant may well have thought it more cost effective to wait for the extra reports to be served by the plaintiff before providing the complete bundle to each of his experts, but that was not consistent with the orders that had been made to prepare the matter for hearing.  Similarly, the plaintiff may well have believed its reports were merely updating reports and would not prevent the defendant from at least commencing the process of engaging relevant experts, but those reports were nevertheless further expert evidence to be relied upon.  As the plaintiff knew that they were to be relied upon at a stage well prior to 25 February 2022, such reports should have been either supplied to the defendant prior to that date or been the subject of revised timetabling orders.

1. As to the question of prejudice, the plaintiff has not yet seen the evidence to be relied upon by the defendant, and accordingly is not in a position to deal with any potential prejudice to his interest in preserving the hearing date if substantial reply evidence is required.  However, the prejudice to the defendant is known.  It arises from not being permitted to lead any expert evidence in a case that is likely to depend heavily on experts. 

1. That prejudice is significant to the Court’s discretion to be exercised on this application.  While the non-compliance with orders by the parties is unfortunate and not a procedural approach to be encouraged, the position as it stands is that the interests of justice favour the defendant being permitted to serve his expert evidence.  I accept that the defendant is entitled to defend the case and in doing so, to be provided with a reasonable opportunity to lead evidence.  This is not a case where the default of the defendant is so egregious as to warrant the Court’s procedures being applied to prevent the reasonable defence of the proceedings.

1. The matter was set down, it appears, with the expectation that an approaching hearing date would galvanise the parties into action to prepare the matter for hearing, rather than an expectation that the defendant would not be serving any expert evidence at all, or that the existence of a hearing date would prevent the defendant from taking those steps.

1. The extension required (or the period of delay) is approximately three months.  In the circumstances of this case, such further period of time is what I consider to be within the bounds of providing the reasonable opportunity to lead evidence, particularly when the plaintiff was still serving expert evidence in May 2022.  It is appreciated that the plaintiff served his liability evidence well in advance of that date, but there appears to have been some confusion on the part of the defendant’s solicitor as to whether further liability evidence was also to be served after February 2022. 

Conclusion

1. For those reasons, leave will be granted to the defendant to serve the expert evidence outlined above by the end of July.  The plaintiff may require evidence in reply.  Although any reply evidence will require immediate attention once the defendant’s evidence is served, at this stage, I will direct that reply evidence be served within a month of the defendant completing his evidence.

1. In relation to the costs of the application, the defendant has sought that such costs be costs in the cause.  Although successful on the application, the defendant was in default of previous orders of the Court, and it was only after the hearing of the application that the defendant identified a liability expert that was proposed to be engaged.  In the circumstances of this case, the defendant has been granted an extension which is properly to be viewed as an indulgence.

1. The orders of the Court are as follows:

(1)     Leave is granted to the defendant to serve expert evidence from the following: 

(a)     Mr Jeff Williams, aquatic event consultant;

(b)     Associate Professor Paul Miniter, orthopaedic surgeon;

(c)      Associate Professor McGill, rheumatologist; and

(d)     Mr Stretton, occupational therapist.

(2)     Service of the said expert evidence is to be completed on or before 29 July 2022.

(3)     The plaintiff has leave to serve any reply evidence on or before 26 August 2022.

(4)     The costs of the application are to be paid by the defendant.  

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate: Aislinn Grimley

Date: 22 June 2022