Greentree v Sew Simple Australia Pty Limited - [2021] ACTSC 66

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Greentree v Sew Simple Australia Pty Limited
Citation:	[2021] ACTSC 66
Hearing Date:	9 April 2021
Decision Date:	20 April 2021
Before:	McWilliam AsJ
Decision:	See [57]
Catchwords:	PRACTICE & PROCEDURE – EXPERT EVIDENCE – Whether leave should be granted to rely on expert reports served late – where plaintiff required further surgery after orders for serving expert evidence were made – where plaintiff failed to communicate the need to serve further evidence with defendant – whether exceptional circumstances
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1205, 1241
Cases Cited:	Steed v McGougall and Anor [2018] ACTSC 233 Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
Parties:	Debra Ann Greentree (Plaintiff) Sew Simple Australia Pty Limited (ACN 008 587 326) (Defendant)
Representation:	Counsel J Ronald (Plaintiff) S Bryson (Defendant)
Solicitors Blumers (Plaintiff) Moray & Agnew (Defendant)
File Number:	SC 401 of 2018

McWilliam AsJ:

The plaintiff has brought a claim in negligence against her employer, the defendant. The plaintiff alleges that on 9 June 2016 she was injured when lifting a sewing machine in the course of carrying out her duties at work. The substantive proceedings are listed for hearing on 10 May 2021.

By the present application dated 2 March 2021, the plaintiff seeks leave to rely upon further expert evidence at the hearing, which has been served out of time. The plaintiff seeks to rely on the following four medical reports:

(a)Report of Professor Stevens, psychologist, dated 18 December 2020 (the Stevens Report), served on 12 January 2021;
(b)Report of Dr Beer, orthopaedic surgeon, dated 8 February 2021 (the Beer Report) served on 10 February 2021;
(c)Report of Mr Woolley, occupational therapist, dated 18 February 2021 (the Woolley Report) served on 24 February 2021; and
(d)Report of Dr Buckley, pain specialist, dated 11 February 2021 (the Buckley Report), served on 1 March 2021.

The matter has been listed for hearing since 17 December 2020. At that time, the Court ordered that updated medical reports were to be served within 14 days of receipt, and that any service of primary medical evidence not served to date would require a formal application in proceeding to be made if not agreed by the parties.

The four reports that are the subject of this application are not updating evidence, nor does the defendant consent to any of the reports being admitted at the hearing. Accordingly, a formal application has been made to rely upon the evidence, and the Court must determine whether to grant leave to the plaintiff to do so. It has been convenient to the parties to have the Court determine the issue in advance of the hearing.

In support of the application, the plaintiff relied upon two affidavits of her solicitor, and a bundle of correspondence which included each of the four expert reports. No affidavit evidence was relied upon by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Greentree v Sew Simple Australia Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] ACTSC 66
Decision Date

CaseChat Overview and Summary

The plaintiff, Debra Ann Greentree, sought to rely on four expert reports in her claim for damages against her employer, Sew Simple Australia Pty Limited, alleging she had been injured in the course of her employment. The defendants opposed the application to rely on the reports, which had been served out of time. The Court was required to determine whether leave should be granted for the plaintiff to rely on the reports in light of the exceptional circumstances test set out in Yacoub v Pilkington (Australia) Ltd. The Court found that the plaintiff's injuries had not stabilised until late in 2020 and that her medical condition had changed significantly after proceedings had commenced. While it was not exceptional that a plaintiff would require further surgery after proceedings had commenced, nor that a medical condition may take some time to stabilise, it was exceptional that the plaintiff had failed to communicate with the Court and the defendant about the impact the surgeries would have on the nature and timing of the plaintiff's evidence. As a result, the defendant was entitled to assume no further evidence was being served. The Court was satisfied that the circumstances of this case amounted to 'exceptional circumstances' under r 1241(4)(a) of the Court Procedures Rules 2006 (ACT). The Court was also satisfied that those circumstances justified the grant of leave. The Court granted leave for the plaintiff to rely on the reports and ordered that each party bear their own costs of the application.

Orders