Grasso v CMG Consulting Engineers Pty Ltd
[2011] QCAT 306
•5 July 2011
| CITATION: | Grasso and Anor v CMG Consulting Engineers Pty Ltd [2011] QCAT 306 |
| PARTIES: | Steven Grasso Diane Grasso |
| v | |
| CMG Consulting Engineers Pty Ltd |
| APPLICATION NUMBER: | BD330-08 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 5 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Leave to amend the statement of claim is refused. |
| CATCHWORDS: | EXPERT EVIDENCE – where expert conclave completed and joint report signed by all but one – where party whose expert did not sign conclave engaged a new expert – where expert provided different advice – whether to grant leave to amend pleadings in accordance with new expert’s report QCAT Practice Direction 4 of 2009 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr and Mrs Grasso’s home has suffered significant structural damage, the cause of which is the subject of these proceedings. Since the proceedings were filed in 2008, the parties have expended much time, effort and expense in drafting pleadings and preparing reports. On 25 May 2011, Mr and Mrs Grasso applied for leave to file an amended statement of claim based upon the report of Peter Wright.
The dispute will shortly be listed for hearing. This is not a proceeding in which the parties have been floundering without direction until the very last minute; the parties were granted leave to be legally represented as early as 3 December 2008 and both the Commercial and Consumer Tribunal and this tribunal have made numerous directions about the filing of material.
It is important to record the number of directions about experts’ reports. As early as 18 June 2009, the parties were directed to file expert reports; the first joint expert report was filed on 19 June 2009 in compliance with a direction dated 15 April 2009. There have been directions about the expert evidence made on 7 August 2009, 9 September 2009, 23 September 2009, 23 March 2010, 19 May 2010, 25 June 2010, 24 August 2010, 15 September 2010, 28 October 2010, 22 February 2011 and 18 April 2011.
On 23 August 2010, the experts participated in an expert conclave, pursuant to a direction of 25 June 2010. On 14 October 2010, the tribunal received a conclave report. It was signed in counterpart by all experts save for Mr Thirkell, the expert retained by Mr and Mrs Grasso.
The submissions for leave to amend the statement of claim are:
a)The conclave report shows a difference of opinion between Messrs Fox and Thirkell.
b)Mr Fox did not directly answer anything expressed by Mr Thirkell nor did he answer the issues raised by Mr and Mrs Grasso.
c)After considering the expert conclave report, Mr and Mrs Grasso have formed the view that the damage to their house can be rectified without the whole house being rebuilt, as recommended by Mr Thirkell.
d)That amended view is supported by Mr Wright.
e)As Mr Thirkell does not support Mr and Mrs Grasso’s amended view of their claim, and Mr Wright does, it would be unfair if the tribunal did not allow Mr and Mrs Grasso to rely on Mr Wright’s evidence.
The purpose of Practice Direction 4 of 2009, which deals with expert evidence, would be completely subverted by granting Mr and Mrs Grasso’s application:
a)The rule that a party to a proceeding may call evidence from only one expert for each area of expertise does not mean that a party can indulge in the serial engagement of experts if one expert’s opinion turns out not to be to their liking.
b)The purpose of the conclave is to identify and clarify areas of agreement and disagreement amongst the experts and the reasons for disagreement. Mr Wright has not taken part in a conclave so his conclusions have not been explored, or tested, by the other experts.
c)Experts engaged in a conclave must sign a joint report. That report can record agreement and disagreement. The tribunal has not been told why Mr Thirkell has not signed the joint report.
d)The expert evidence at the hearing is based upon the written reports, and the joint report is taken to be a statement of the experts’ evidence. Further reports may only be submitted on points of disagreement. Mr Thirkell has not submitted any report as to the areas of disagreement.
e)An expert may not contradict, depart from or qualify an opinion on which there is an agreement in the joint report except with the leave of the tribunal. The tribunal has not heard from Mr Thirkell at all on this point.
If experts disagree at conclave, the proper response is not to engage another expert. Mr Thirkell had the opportunity to reconsider his report; Mr and Mrs Grasso had the opportunity to reconsider whether this dispute had to go to hearing or whether there was an avenue for compromise; there may have even been scope for the experts to confer again in order to agree a rectification proposal. The interpolation of Mr Wright and an amended statement of claim would put all these options off the table.
Mr and Mrs Grasso have not addressed the costs and time thrown away by the proposed amendment to their statement of claim. They have not offered to pay the costs of filing a response to the amendment; they have not offered to pay the costs of a reconvened expert conclave; they have not addressed the fact that, since the conclave they have been given leave to withdraw their claim against three respondents in circumstances where a notice of contribution was filed early in 2010. What is the tribunal to do if the amended statement of claim reignites a claim for contribution against parties who are no longer part of the proceedings?
The proposed amended statement of claim comes too late. It is less of a case of changing horses mid stream as changing them when the finishing post is in sight. The application to amend the statement of claim should be refused.
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