Hall v Swan

[2013] NSWSC 1758

Supreme Court

New South Wales

Medium Neutral Citation:	Hall v Swan [2013] NSWSC 1758
Hearing dates:	10 October 2013
Decision date:	10 October 2013
Before:	McCallum J
Decision:	Time within which defendants to serve expert evidence extended; defendants ordered to pay plaintiff's costs.
Catchwords:	PROCEDURE - application seeking extension of time in which to serve expert reports - whether discretion enlivened.
Legislation Cited:	Uniform Civil Procedure Rules 2005, 31.28; 42.7
Cases Cited:	Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
Category:	Interlocutory applications
Parties:	Bruce Hall (plaintiff) Norman Swan (first defendant) Australian Broadcasting Corporation (second defendant)
Representation:	Counsel: ATS Dawson (plaintiff) B Burke (defendant) Solicitors: Banki Haddock Fiora (plaintiff) G McAvaney, ABC (defendants)
File Number(s):	2008/289149
Publication restriction:	None

Judgment - ex tempore

1. HER HONOUR: These are proceedings for defamation which are listed for hearing in May next year. The application before the Court is the defendants' application for an extension of the time within which to serve expert reports.

1. The context in which orders for the service of expert reports were made is that the defendants have pleaded truth as a defence to a series of imputations arising out of the publication of the Science Report on ABC radio. The imputations relied upon by the plaintiff raise issues of some scientific complexity. There is detailed evidence before the Court as to the difficulties the defendants have had retaining experts to address those issues.

1. The matter came before me on 2 September 2013. The order of which an extension is sought was that the defendants serve any expert evidence by 14 October 2013. I further ordered that, if either party anticipated being in default of any of my orders, that party re-list the proceedings before the default occurred. It is pursuant to that order that the matter comes back before me today.

1. The extension of time sought is until 4 November 2013. The defendants accept that this will entail ancillary extensions for the service of the plaintiff's expert evidence and any evidence from the defendants in reply. That will necessarily extend the timetable beyond 25 February 2014 in circumstances where the matter is listed for hearing for eight weeks from 4 May 2014.

1. In those circumstances, I am extremely reluctant to grant an extension of time as sought. However, the application is supported by the affidavit of Mr McAvaney, which shows that the defendants have, after experiencing considerable difficulty in this respect, finally now identified the three individuals from whom they wish to adduce expert evidence. Those people are identified in Mr McAvaney's affidavit at paragraph 11. Paragraphs 13 to 15 of the affidavit explain the defendants' reasons for being hopeful that each expert will complete a report by 28 October 2013, with the caveat that Professor Vaux, a molecular biologist, is presently unfamiliar with the extent of the material he will have to consider and may require some further time.

1. I must also have regard to the fact that, if the extension of time is not sought, then in accordance with rule 31.28 of the Uniform Civil Procedure Rules 2005, the defendants will have to establish exceptional circumstances to warrant the grant of leave to rely on any further evidence. I am also mindful of the fact that, although the timetable is becoming extremely tight, the matter is not listed for hearing until next year and there is still some time left for the plaintiff to respond to any material served.

1. Against those considerations, I am concerned by the fact that the difficulties encountered by the defendants in identifying appropriate experts may in turn have a knock-on effect for the plaintiff. There would appear from the evidence before me to be at least a small risk that the defendants have, in effect, trawled the field and that the plaintiff may encounter difficulty identifying an appropriate expert to respond to material he has not yet seen.

1. In all the circumstances, with some reluctance, I have concluded that it is appropriate to grant the extension sought because, if I do not do so, there is a risk that the defendants will not have a fair hearing. It may be that I would be criticised in another place for not having given the defendants the further time sought. On that issue, I have in mind the principles I had occasion to consider recently in a different context stated in the decision of the Court of Appeal in Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279. As stated by Young JA in that case at [38], a judge's primary duty is to ensure a fair trial.

1. In my view it would be premature peremptorily to preclude the defendants from relying on expert evidence, especially since they have now identified people who can provide reports within a relatively short time.

1. I would, however, indicate that the plaintiff should not consider, by reason of this extension of time, that he is precluded in due course from arguing that the timing of the service of the material has caused prejudice to him, such as to found any application he may need to make in the event that he has difficulty qualifying appropriate experts to respond to the defendants' experts.

1. The plaintiff has argued that he should have his costs of the argument before me on 2 September and of today assessed on an indemnity basis and payable forthwith. Rule 42.7 provides that the ordinary position is that costs are payable at the conclusion of proceedings unless the Court otherwise orders. The principles as to the circumstances in which it is appropriate for the Court to order otherwise are summarised in the annotations to the rules. They include circumstances where the costs have been incurred as a result of unreasonable conduct by the party against whom the order has been made; where the interlocutory proceedings relate to matters distinct from substantive issues in the proceedings; where the costs are significant and the time for payment may otherwise be long postponed because of the state of the proceedings and where the interlocutory proceeding was unnecessary or unwarranted. It is also appropriate for the Court to have regard to any disparity between the parties' ability to their ongoing costs.

1. There has undoubtedly been some delay on the part of the defendants in providing the present material, having regard to orders made by Nicholas J in May and the defendants' failure to comply with one of his Honour's orders to identify appropriate experts by a specified date. However, I have on balance concluded that there is an adequate explanation of that delay in the affidavit of Mr McAvaney, who has set out the difficulties that the defendants have encountered in identifying appropriate experts.

1. Whilst that has placed the plaintiff in a very difficult position, it is difficult to conclude that this is as a result of unreasonable conduct on the part of the defendants as opposed to hurdles faced by them by reason of the complexity of the issues raised by the proceedings.

1. Further, having regard to the hearing date in May, I do not think I can fairly conclude that there will be a lengthy period of time before the proceedings are bought to a determination.

1. Accordingly, while I would accept that Mr Burke behaved entirely properly in opposing the extension sought and in making the costs application he made, on balance I am not persuaded that this is a matter in which the defendants should be ordered to pay costs on a special basis. I would, however, order the defendants to pay the costs of 2 September 2013 and of today, without making any order for special assessment or early payment of those costs.

1. I extend the time within which the defendants are to serve their expert evidence in accordance with order 1 made on 2 September 2013 to 4 November 2013. I order that the defendants pay the plaintiff's costs of 2 September 2013 and of today.

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Decision last updated: 05 December 2013