Hinchcliffe v Carter's Transport Australia Pty Ltd
[2017] ACTSC 223
•21 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hinchcliffe v Carter’s Transport Australia Pty Ltd & Ors |
Citation: | [2017] ACTSC 223 |
Hearing Date: | 21 July 2017 |
DecisionDate: | 21 July 2017 |
Before: | Mossop J |
Decision: | See [21] |
Catchwords: | PRACTICE AND PROCEDURE – PERSONAL INJURY PROCEEDINGS – Application for leave to serve experts report after date permitted by prior directions – desire to avoid incurring costs – need for full explanation of reasons for late service of report – leave refused |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 6256 |
Parties: | Christopher Hinchcliffe (Plaintiff) Carter’s Transport Australia Pty Ltd (First Defendant) Spotless Group Limited (Second Defendant) C. Turnbull Pty Ltd (Third Defendant) |
Representation: | Counsel D Crowe (Plaintiff) M Treffers (First Defendant) S Onitiri (Second Defendant) D Carroll (Third Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Minter Ellison (First Defendant) Sparke Helmore (Second Defendant) King & Wood Mallesons (Third Defendant) | |
File Number: | SC 262 of 2016 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Registrar Glover Date of Decision: 13 June 2017 Case Title: Hinchcliffe v Carter’s Transport Australia Pty Ltd & Ors Court File Number: SC 262 of 2016 |
MOSSOP J:
Introduction
This is an appeal from a decision of the Registrar of the ACT Supreme Court. It is brought pursuant to r 6256 of the Court Procedures Rules 2006 (ACT) and is a hearing de novo.
The plaintiff seeks a direction which would permit it him to serve an expert report going to liability from an ergonomist. The case involves two work injuries. The first injury, which occurred in 2011, related to moving laundry on a trolley down a ramp. The second relates to an injury suffered when walking through a garden carrying a bundle of fence railings. The proceedings have been on foot since 2013. They were originally commenced in the Magistrates Court and subsequently transferred to this Court. They have not been subject to the procedures under Practice Direction 2 of 2014.
On 30 June 2015 the Registrar of the Magistrates Court made an order that the plaintiff was to serve his expert evidence by 14 September 2015.
On 8 August 2016 a Deputy Registrar of this Court made an order that the plaintiff was to serve as expert evidence by 3 October 2016.
On 16 March 2017 the plaintiff’s solicitors first advised the defendants that they were instructed to obtain new medical and liability evidence.
The listing hearing on 20 April 2017 was adjourned. The plaintiff had opposed the matter being set down for hearing. The plaintiff was directed to file an application seeking leave to file additional evidence by 12 May 2017.
The present application was only filed on 31 May 2017, immediately prior to the listing hearing on 1 June 2017. At that hearing, the plaintiff again opposed the matter being set down for hearing. It was on that date that the proceedings were listed for hearing commencing on 16 October 2017.
On 13 June 2017, the Registrar declined to grant the plaintiff leave to serve the expert liability evidence.
Consideration
The plaintiff has been interviewed by the ergonomist. No inspection has been undertaken of the premises at which the incidents occurred. The ergonomist is available to inspect those premises on 7 or 8 August 2017. Those premises are not controlled by the defendants. There is no evidence as to whether or not inspection will be able to in fact take place on that date. No report of the ergonomist has been served in support of the present application.
While it might be assumed, having regard to the plaintiff’s desire to serve the material, that is of some significance in relation to liability, the precise scope of the report and its significance for the plaintiff’s case is not explained in any detail by the evidence.
The only express explanation as to the failure of the plaintiff to obtain liability evidence and serve such a report in accordance with the directions of the Court was that in the affidavit of the solicitor for the plaintiff, affirmed 8 June 2017:
Further to my affidavit dated 31 May 2017, prior to the parties participating in an informal settlement conference on 14 March 2017, our office had hoped to avoid the need to incur the expenses associated with obtaining expert liability evidence.
While some other aspects of the chronology could be construed as being consistent with a change in counsel’s advice or it becoming apparent as a result of informal settlement negotiations that an ergonomist’s report would be required, that is not the expressly articulated reason.
There is no evidence as to the funding arrangements as between plaintiff and solicitors for reports such as that of an ergonomist. The evidence is consistent with there being knowledge on the part of the plaintiff that an ergonomist’s report would be necessary if the matter went to hearing but a desire to defer incurring that cost until settlement negotiations were concluded.
Courts will generally be sympathetic to the realities of personal injury litigation. Often that will involve changes of position necessitated by new information or changing circumstances. Where a proper explanation is provided and the other parties will have a fair opportunity to respond to new evidence without the need to vacate a hearing date, it will often be appropriate to permit additional evidence to be served notwithstanding prior directions of the Court.
Where such an indulgence is sought it is essential that the Court is fully informed of the reasons for the change of position, even where that involves confession of inadequacies in the conduct of the case on the part of the lawyers for the party. The aim of the process is the achievement of a fair trial rather than punishment for mistakes that might have been made during the course of preparation.
In the present case, the evidence is consistent with a deliberate decision on the part of the plaintiff and his solicitors to not serve evidence which would be necessary if the matter proceeded to a hearing. Particularly in circumstances where the matter has already been subject to a hearing before the Registrar and the plaintiff has had the opportunity to put on further evidence in support of this appeal I think it is appropriate to proceed on the basis of the explanation given in the evidence. That evidence is consistent with a deliberate decision. It is not consistent with there being new information or advice that necessitates the change of forensic position. The evidence does not disclose a mistake on the part of solicitor or counsel.
There is no evidence explicitly addressing the significance of any such report although it is open to infer that it will be of some significance.
There have been previous orders of the Court requiring the plaintiff to file his evidence.
While it is certainly possible that the ergonomist’s report might have been able to be served and the defendants given a fair opportunity to respond to that evidence, having regard to the fact that the content of the ergonomist’s evidence is not known, and it is not certain that inspections will be able to occur on the timetable that is indicated there is a risk that the filing of new evidence will result in a position where a fair trial cannot proceed on the date upon which it has been set down.
As a consequence as a matter of discretion, I decline to make a direction that would permit the service of the additional evidence.
Subject to any submissions of the parties in relation to costs the orders that I propose are:
1.The appeal is dismissed;
2.The plaintiff is to pay the defendants costs of the appeal; and
3.The costs ordered to be paid pursuant to order 2 may not be assessed until the proceedings end.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 15 August 2017 |
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