Holdway v Acuri Lawyers

[2007] QSC 355

SUPREME COURT OF QUEENSLAND

CITATION:	Holdway v Acuri Lawyers [2007] QSC 355
PARTIES:	MARGARET ELIZABETH HOLDWAY (plaintiff) v ACURI LAWYERS (defendant) MICHAEL EASTWOOD (third party)
FILE NO:	SC No 3255 of 2004
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING
COURT:	Supreme Court
DELIVERED ON:	22 November 2007
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2007
JUDGE:	Fryberg J
RULING:	Leave to lead evidence in chief from an expert witness orally, granted
CATCHWORDS:	Procedure – Supreme Court Procedure – Queensland – Evidence – Form of expert evidence allowed – Requirement
of leave
Uniform Civil Procedures Rules 1999 r 427
COUNSEL:	Plaintiff: M Cooke QC and D Morgan Defendant: R Derrington SC
SOLICITORS:	Plaintiff: Phillip Roberts Lawyers Defendant: Sparke Helmore

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
FRYBERG J 1

[2007] QSC 355

No 3255 of 2004

MARGARET ELIZABETH HOLDWAY Plaintiff

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and

ARCURI LAWYERS	Defendant
and

MICHAEL EASTWOOD Third Party

1895 of 2003	20
MARGARET ELIZABETH HOLDWAY Plaintiff
and
FRANCIS JOHN VIRGONA Respondent
BRISBANE
..DATE 22/11/2007	30
RULING
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HIS HONOUR: The plaintiff has sought leave pursuant to

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rule 427(iv)(c) to lead oral evidence-in-chief from an expert
witness. The witness in question is a solicitor from whom it
is proposed to lead evidence as to the proper conduct and
reasonable conduct of a solicitor in the circumstances which

faced the defendant in this case.	10
Although no report has been obtained from the expert, the
nature of his evidence is fairly obvious and the defendant has
known for at least two days of the intention to seek leave to
call the expert.	20
The defendant does not point to any possible prejudice which
would not be cured by an adjournment with a suitable order as
to costs, and indeed I am unsure that there is much likelihood
of the witness giving evidence of such a nature as even to	30
require that, given the amount of knowledge which the defendant has had of the case throughout the proceedings.
It follows that, in my judgment, if leave is necessary it
should be given.	40
I am not persuaded that leave is necessary or even that rule
427(iv)(c) applies to the case. Rule 427(iv) refers to the
situation on its face where oral evidence is to be given or is
proposed to be given by an expert who has furnished a report.	50

If the structure of the rules were that it was intended that without leave, expert evidence may be given only by a report, one would have expected that to appear in rule 427(i), either by a wording such as, "An expert may give evidence in a 3 60

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proceeding only by a report", subject perhaps to a grant of

leave otherwise.

Subrule 1 is not worded in any such way, but is worded

permissively and the structure of division 2 of part 5 is	10
designed to deal with expert reports.
If it be suggested that such a construction is an invitation
to parties to try to ambush their opponents by leading expert
evidence orally, the answer is, I think, that it would be	20
foolish in the extreme for any litigant to adopt such an
approach. The Court would have great difficulty in most cases
in comprehending such expert evidence. The adoption of such a
course unless unavoidable, and even if unavoidable in some
cases, might well lead to an adjournment at the cost of the	30
party who adopted the course and it might reasonably be expected that steps would be taken to ensure that the opposing party was not prejudiced.
Practical experience teaches that almost invariably expert	40
evidence is given by way of a report, simply because that is
the way to make it most comprehensible to the Court. The
task of advocates is to persuade the Court, a task which
would not be performed were they to lead incomprehensible
evidence.	50
As presently advised, therefore, I would not think that leave
is necessary.
However, I have not heard full argument on the point. It is

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unnecessary to decide it in the present case since I am	1
content to grant leave and that is the course which I shall follow.
You have leave to adduce the evidence.

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