Haron v Slea Pty Ltd

[2013] VSC 169

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

List D

No. 2114 of 2011

MARK HARON	Plaintiff
v
SLEA PTY LTD & ORS (according to the attached Schedule)	Defendants

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JUDGE:	DAVIES J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2013
DATE OF RULING:	13 March 2013 (reasons delivered 11 April 2013)
CASE MAY BE CITED AS:	Haron v Slea Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 169

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PRACTICE AND PROCEDURE – Application to vacate trial date – Whether in the interests of justice – Case management principles – Civil Procedure Act 2010 (Vic), ss 7, 8, 25, 65G, 65H – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Clarke	Wisewould Mahony
For the First Defendant	S Hibble	Arnold Bloch Liebler
For the Third and Fourth Defendants	Maddocks

HER HONOUR:

1. On 13 March 2013 I vacated the hearing date for the trial of this matter and stated that I would provide written reasons. 

1. The application to vacate the trial date was made by the first defendant. The primary basis of the application was that the first defendant had inadequate time before the trial was due to commence on 8 April 2013 to obtain expert evidence responding to an expert’s report that the plaintiff had filed and served on 8 March 2013. The application was supported by two affidavits sworn by Mr Vaatstra, the solicitor who has the care and conduct of the first defendant’s case.

1. The first defendant was only put on notice by the plaintiff of the plaintiff’s intention to rely on expert evidence on 1 March 2013, shortly prior to a directions hearing in the proceeding. At the directions hearing, the plaintiff confirmed that he intended to rely on expert evidence, which the plaintiff expected to file and serve the following week. The Court was told that the decision to rely on expert evidence was made in January 2013 and that the plaintiff had briefed his expert in February 2013. Notwithstanding the imminent trial date, the plaintiff did not then take steps to seek directions from the Court as required by s 65G of the Civil Procedure Act 2010 (Vic) (“CPA”) or to put the first defendant on notice about the nature of the expert evidence that would be relied on so as to afford proper opportunity to the first defendant to respond to that evidence. Section 65G of the CPA required the plaintiff to seek direction from the Court in relation to adducing expert evidence as soon as practicable upon becoming aware that he may adduce expert evidence at trial. Seeking such direction enables the Court, at the earliest opportunity, to consider the relevance of the proposed expert evidence to the real issues in dispute, to identify issues about admissibility, and to make appropriate directions for the provision of that evidence. Those directions may include, but are not limited to, the matters set out in s 65H of the CPA, namely:

·     the preparation of an expert’s report;

·     the time for service of an expert’s report;

·     limiting the expert’s evidence to specified issues;

·     providing that expert evidence may not be adduced on specified issues;

·     limiting the number of expert witnesses who may be called to give evidence on a specified issue;

·     providing for the appointment of single joint experts or court appointed experts; and

·     any other direction that may assist the expert witness in the exercise of his or her functions as an expert witness in the proceeding.

The purpose of obtaining such directions is to assist appropriate case management to further the objective of timely, efficient and cost effective resolution of civil disputes. The requirement on parties to obtain such directions in a timely fashion correlates with the duty on legal practitioners in the conduct of civil litigation to ensure that the court’s processes serve their purpose of achieving a just, fair and expedient resolution of the dispute. Legal practitioners must always be mindful of those duties in the conduct of civil litigation.

1. At the directions hearing on 1 March 2013, concern was expressed on behalf of the first defendant about the ability of the first defendant to obtain expert evidence in response within a sufficient time to maintain the hearing date. That concern was justified in my opinion. The plaintiff had not provided the first defendant with details of the expert retained or the question or questions for the expert’s opinion, and no meaningful steps could be taken by the first defendant to engage an expert until furnished with that information as the plaintiff’s expert report was not expected to be available for  another week. Of course, as the relevant inquiries had not been made, it was then speculative as to whether the first defendant would actually be prejudiced and so the directions hearing was adjourned to 13 March 2013.

1. On 13 March 2013, the first defendant made application to vacate the trial date on the basis that it would not be able to obtain responding expert evidence in time. Mr Vaatstra deposed in his two affidavits supporting the application to the attempts by the first defendant following the directions hearing on 1 March 2013 to engage an expert and to obtain a report in sufficient time before the trial commenced, and to the first defendant’s inability to do so. I accepted that evidence which set out in detail the efforts made to secure a responding expert’s report within time and the reasons why the defendant was unsuccessful.

1. The question of whether the trial should be vacated depended on the exercise of the Court’s discretionary power. In the present case, it was material to the exercise of the Court’s discretion to vacate the trial date that the plaintiff withheld notification to the first defendant of his intention to call expert evidence, with the consequence that the first defendant only became aware that expert evidence was to be adduced by the plaintiff some five weeks before trial. The materiality is to be considered against the circumstance that the trial date was given in March 2012 on the basis that only lay witnesses would be called by both parties. It must have been apparent to the plaintiff that the decision to call an expert witness would have an impact on the first defendant’s preparation and readiness for trial. The first defendant would have to make the decision whether to call expert evidence itself and take steps to obtain such evidence, if considered appropriate. As the trial date was approaching, the plaintiff should have taken steps back in January 2013 to notify the first defendant of his intention to call expert evidence and to seek direction from the Court as required by s 65G of the CPA, so as to guard against the possibility that the decision to call expert evidence may jeopardise the trial date.

1. I was satisfied that the interests of justice favoured the vacation of the trial date, notwithstanding the consequential delay. The late notification to the first defendant of the plaintiff’s intention to rely upon expert evidence jeopardised the first defendant’s ability to present its case adequately at the trial because the first defendant was not given sufficient opportunity to obtain expert evidence to meet the case put against it.  In the circumstance, I vacated the trial date and made directions about the further steps that must be taken in order to get this matter ready for trial as soon as possible.

1. I indicated when vacating the hearing date that there was a further reason for doing so, for which both parties are accountable.  It appears that there are outstanding discovery and other issues between the parties that are still the subject of interlocutory applications before the Court or in respect of which further applications have been foreshadowed. I found this rather extraordinary given that at a directions hearing on 10 February 2012, the Court was urged by the parties to list this matter for hearing.  The Court was told that it is “a contract case” where pleadings had closed and that discovery was “more or less complete”.  Furthermore, the Court had required the parties to provide a timetable for the conduct of the trial before listing the matter. The hearing date was given based on that timetable, and the matter was set down for trial to commence on 8 April 2013 on an estimate of five days.  The hearing date was given well in advance and at the request of all the parties on the basis that the proceeding was not far from being ready for trial.  Despite this, it is apparent that the parties are still not ready for trial.  It must have been apparent to the parties at a much earlier stage that the outstanding issues may impact upon the ability of the parties to be ready for trial and that it was necessary for the parties to return to the judge managing the proceeding to obtain directions that would ensure that all issues were resolved well before the trial was due to commence so that the hearing date would be maintained.  That was not done. 

1. Litigation is to be conducted in a way that facilitates the just, efficient, timely and cost effective resolution of the real issues in dispute. This objective is now a statutory requirement found in s 7 of the CPA and the Court is mandated by s 8 of the CPA to seek to ensure that objective is met. That objective was sought to be achieved here by giving the parties the hearing date that they requested at a time when the parties were confident about their time estimate and their ability to be ready for trial. It is recognised that sometimes matters arise in the course of preparation for trial that are unforeseen, or which require a re-evaluation of the case to be presented, and which may cause or prompt the parties to reconsider the evidence to be adduced, the estimated hearing time or the likelihood of their readiness for trial. But it is to be borne in mind that the giving of a hearing date does not mean that the Court’s role in case management ceases. The parties and their legal practitioners remain under the continuing duty to ensure the prompt conduct of the civil proceeding and to use reasonable endeavours to minimise delay.[1]  That duty carries with it the obligation to bring the matter back before the Court at the earliest opportunity when it becomes apparent that the timetable cannot be met, that further trial directions are required, or that the hearing date cannot be maintained. The unresolved issues had consequences here for the expedient conduct of the trial and should not have been left to the last moment for resolution.

   [1]Civil Procedure Act 2010 (Vic), s 25.

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SCHEDULE OF PARTIES

MARK HARON

Plaintiff

and

SLEA PTY LTD (ACN 106 752 434)

First Defendant

MILLSAVE HOLDINGS PTY LTD (ACN 115 160 097)

Second Defendant

CONNECTIVE SERVICES PTY LTD (ACN 107 366 496)

Third Defendant

CONNECTIVE OSN PTY LTD (ACN 106 761 326)

Fourth Defendant