Jausnik v The Nominal Defendant
[2014] ACTSC 406
•18 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jausnik v The Nominal Defendant |
Citation: | [2014] ACTSC 406 |
Hearing Dates: | 18 November 2014 |
DecisionDate: | 18 November 2014 |
Before: | Mossop M |
Decision: | See [35] |
Category: | Interlocutory application |
Catchwords: | PRACTICE AND PROCEDURE – Expert reports – where expert reports served after certificate of readiness has been filed and hearing date set – where third-parties oppose reliance on the expert reports – where no evidence of difficulty in obtaining reports in reply to the reports served by the defendant or costs thrown away if hearing date required to be vacated – significance of uninformative pleadings to exercise of discretion – reports permitted to be served – turns on own facts |
Legislation Cited: | Court Procedure Rules 2006 (ACT) rr 21, 1241 |
Cases Cited: | Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175 |
Parties: | Edward Robert Jausnik (Plaintiff) The Nominal Defendant (Defendant) Michael Hannaford (First Third-Party) State of New South Wales (Second Third-Party) |
Representation: | Counsel: Mr R Clynes (Defendant) Mr W Reynolds (Third-Parties) |
| Solicitors: Minter Ellison (Defendant) Moray & Agnew (Third-Parties) | |
File Numbers: | SC 291 of 2012 |
Introduction
By application in proceeding dated 27 October 2014 the defendant seeks leave to serve and rely on two expert reports pursuant to r 1241(1)(b) or, alternatively, r 1241(4)(a) of the Court Procedure Rules 2006 (ACT) (Rules). At the hearing the defendant did not press reliance upon the latter rule.
Rule 1241 provides:
1241Service of expert reports
(1)The plaintiff must serve on each other active party to a proceeding a copy of each expert report obtained by the plaintiff—
(a)at least 28 days before a certificate of readiness is filed in the proceeding; or
(b)if the proceeding has been assigned to the docket of a judge or the master—in accordance with any direction made by the judge or master.
(2)Not later than 14 days after being served with a copy of a report under subrule (1), the defendant must serve on each other active party a copy of each expert report obtained by the defendant.
There was an issue as to whether or not r 1241(1)(b) contemplated a grant of leave as sought in the application in proceeding. In my view, r 1241(1)(b), either by itself or in combination with the general power to give directions in r 1401, empowers a docket judge to make a direction permitting reliance upon a report previously served other than in accordance with a direction relating to service. Whether that is characterised as a direction nunc pro tunc or a grant of leave does not really matter. The order will have the effect of bringing the report within the scope of r 1241(1).
Background
The proceedings arise out of a motor vehicle accident which occurred on 20 March 2010. The plaintiff and the first third-party were in a police vehicle pursuing a driver of an unregistered motor vehicle, Justin Williams, who was attempting to evade apprehension by New South Wales police. The first third-party was the driver of the police vehicle, the plaintiff a passenger.
The vehicle driven by Mr Williams collided with another vehicle. The plaintiff will allege that he was required to render first aid to the occupants of the two vehicles involved in the collision and, as a result, sustained psychiatric injury.
The proceedings between the plaintiff and the defendant were settled by a consent judgment entered in July 2013 on the basis that the plaintiff recover the sum of $1.225 million. The balance of the proceedings involves the defendant’s claim for contribution against Michael Hannaford, the first third-party, and the State of New South Wales, the second third-party. The two third-parties have separate solicitors although for the purposes of this application they were jointly represented.
The claim made against the first third-party and the second third-party is set out in a statement of claim dated 22 November 2012. In summary, the allegation against the first third-party is that he continued the pursuit of Williams vehicle in circumstances where it was not appropriate to do so. In summary, the claim against the second third-party is that it failed to provide training or instruction to officers concerning the pursuit of other vehicles, including the termination of pursuits, and failed to provide training in the use of radio equipment to obtain instructions on the pursuit.
The defences filed by each third-party contain general denials. The defence filed by the first of third-party also claims contributory negligence.
The proceedings were docketed to me and first before me on 18 July 2014. On that occasion I directed that the parties were to consult in relation to directions necessary to have the matter listed for hearing and provide either agreed or competing directions to my associate by 11 September 2014. On 11 September 2014 agreed directions were communicated to my associate:
(a)requiring the first third-party to answer interrogatories;
(b)requiring a certificate of readiness to be filed if the matter did not settle at the mediation that was scheduled for 8 October 2014;
(c)permitting the second third-party to serve any liability evidence by 31 December 2014 and giving the defendant and the first third-party leave to apply for further directions in relation to any liability evidence served by the second third-party; and
(d)listing the matter for hearing.
Given the contention upon this application about precisely what was contemplated by the orders agreed by the parties in relation to a certificate of readiness and listing the matter for hearing, I have listened to the audio of what occurred on that day. The solicitor appearing for the defendant told the Court that the matter was ready for hearing, that the parties have agreed that it would take five days and provided available dates for the hearing from the dates which had been earlier provided by my associate the parties. Unsurprisingly, in those circumstances the proceedings were listed for hearing estimated at five days commencing on 16 February 2015. I also made additional directions in relation to the preparation for and conduct of the hearing.
The order in relation to the filing of a certificate of readiness was one which was agreed by the parties and, as a consequence, made by me. It either arose out of, or sowed the seeds of, some confusion. In circumstances where the proceedings have been docketed to either a judge or the Master prior to the filing of a certificate of readiness then the certificate of readiness does not operate as the trigger that it would otherwise operate as under the Rules. It simply provides information, both to the parties and the Court, about the state of preparation of parties.
The parties attended a mediation on 8 October 2014. It is apparent that as a result of the exchange of position papers the defendant considered that it would be necessary to obtain expert evidence going to liability. As a consequence, the mediation was adjourned and the defendant arranged for an expert, Professor Geoffrey Alpert, to inspect the pursuit route and provide an expert report. It also engaged his colleague, Mr Peter Hosking, to assist in the preparation of that report. Professor Alpert is based at the Department of Criminology and Criminal Justice at the University of South Carolina. Mr Hosking is based at the School of Criminology and Criminal Justice at Griffith University in Queensland. Both reports were served on 7 November 2014.
The defendant wishes to rely upon those two reports at hearing. The first and second third-parties oppose any order which would permit the defendant to rely upon those reports.
Evidence
The defendant read in support of its application an affidavit of Mark Treffers, a partner at Minter Ellison with carriage of the proceedings, dated 27 October 2014. The third-parties relied upon the affidavit of Lily Sher dated 13 November 2014, the solicitor with carriage of the matter for the first third-party and the affidavit of Fraser Doak of 14 November 2014, the solicitor with carriage of the latter on behalf of the second third-party. Each of Mr Treffers, Ms Sher and Mr Doak gave additional oral evidence and were cross-examined. The two expert reports were tendered, as was the email containing the orders agreed by the parties for the purposes of the hearing on 12 September 2014.
The reports of Professor Alpert and Mr Hosking went to two issues. They were the allegations of negligence in the defendant’s third-party claims and the issue of whether or not cessation of the police pursuit would have resulted in Mr Williams ceasing to drive dangerously and hence, avoiding the accident which in fact occurred.
Defendant’s Submissions
It was submitted that the reports of Professor Alpert and Mr Hosking were prima facie relevant and helpful reports. It pointed to the fact that Professor Alpert had expertise in psychology and in relation to police pursuits in the United States of America. Mr Hosking had significant policing experience in Australia and effectively “localised” the evidence of Professor Alpert to the extent that it was possible to do so.
The defendant submitted that this was a case where the defendant was appropriately progressing the proceedings and had taken steps to resolve the proceedings with the plaintiff in an appropriate manner. It identified that the proceedings were commenced on 3 October 2012 and that the third-party notices were filed in November 2012. It pointed to the fact that in June 2013 the defendant had engaged in a mediation with the plaintiff which the two third parties had declined to participate in and successfully resolve the claim so far as the plaintiff was concerned.
The defendant pointed to some aspects of the conduct of the case by the third-parties, which it submitted were relevant to the exercise of discretion. First, it pointed to the fact that the defences to the third-party claim was not entered until October 2013 although it accepted that there was some explanation as to why this was the case having regard to difficulties getting access to documents held by the coroner. Second, it pointed to the fact that both of the defences were bare denial defences, which had the effect of putting almost everything in issue and which did not specifically identify the causation issue relating to the effect of cessation of the car chase on Mr Williams behaviour. Third, it pointed to the fact that neither of the third-parties participated in the mediation with the plaintiff. Fourth, it pointed to the fact that although interrogatories were requested in January 2014, they were only answered on 3 October 2014.
The defendant also pointed to four other features of the case which it said favoured a grant of leave. First, the matter was essentially only a money dispute at this stage. That was because the proceedings had been settled by the defendant with the plaintiff. It was thus a case where any further delay in the resolution of the balance of the case would not have the effect of keeping a plaintiff out of his money. Second, there was no evidence of any actual prejudice to either of the third-parties arising out of the reliance upon the reports. Third, it pointed to the fact that the third-parties had been on notice of the defendant’s intention to engage Mr Hosking and Professor Alpert since no later than 22 October 2014 when the defendant solicitors wrote formally identifying that fact. That notice followed the mediation at which communication of the defendant’s position was discussed and agreed. The reports have in fact now been served. Fourth, the defendant submitted that there was no limitation issue that would prevent it from recommencing the proceedings if it had to, although I think it is fair to say that it did not press that submission with a great deal of vigour.
Third Parties’ Submissions
The third-parties submitted first that r 1241 did not empower the granting of leave per se. They accepted that, in any event, it was open to the Court to make an order or direction that would have the same effect as a grant of leave. I have addressed this issue above and I do not need to say anything more about it.
Second, they made submissions about the awareness of the defendant of the fact that on 12 September 2014 the Court would set a hearing date. In particular, they pointed to the terms of the directions made on 18 July 2014, which contemplated the listing of a matter for hearing. They pointed to the fact that the solicitor appearing on 12 September 2014 had made enquiries of counsel as to an appropriate hearing date, inconsistent with the proposition which Mr Treffers advanced, that he was only contemplating that the matter would be listed for hearing at some time following the filing of a certificate of readiness.
Third, they pointed to the fact that, as a result of the defences that were filed, any reasonably competent litigation solicitor familiar with personal injury actions should have realised that expert evidence was necessary to support the claims of negligence as well as the claim of causation. They point to the fact that at least one of the third parties had provided its mediation position paper on the afternoon prior to the matter being listed for hearing and that if there was something in that which ultimately caused the defendant to consider that it required additional expert evidence, it was in a position to and should have identified that fact on 12 September 2014.
Fourth, in so far as the defendant places reliance upon the general denials in the third-parties’ defences it points to the fact that the directions made on 8 October 2013 specifically permitted the defendant to request particulars of the defences and that no request for particulars was ever made. It submits that if particulars could not be sought of the general denials then further information about the third-parties’ cases could have been obtained by interrogatories.
Fifth, it submitted that the Court should infer from the evidence of, in particular, Mr Doak that it would not be possible for the third-parties to meet the evidence put on by the defendant in the time available prior to the hearing date.
Consideration
In my view the starting point must be the terms of r 21 of the Rules. Rule 21(2) requires that the rules are to be applied by the courts in civil proceedings with the object of achieving the just resolution of the real issues in the proceedings and the timely disposal of the proceedings and all other proceedings in the Court at a cost affordable by the respective parties. The parties are obliged to help the Court achieve those objectives.. The duty under r 21 is a duty which significantly qualifies the capacity of the parties to pursue their own adversarial interests. The terms of r 21 must obviously read in the light of the decision of the High Court in Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175.
I am satisfied that the reports of Professor Alpert and Mr Hosking are prime facie relevant to determining the real issues in dispute in the case, in that they go to the allegations of negligence and, probably more importantly, the question of causation.
Further, I am satisfied that in relation to the causation argument now proposed to be advanced by the third-parties, that this was not a proposition specifically disclosed by their defences which involve, as I have said, general denials. While parties are, in most categories of cases, entitled to put the moving party to proof, the fact that the parties have made a deliberate forensic choice to keep their defences as uninformative as possible is a matter to be taken into account in assessing whether or not another party should have anticipated a specific argument to be advanced at the hearing. A party that has filed a specific defence will be in a stronger position to oppose late filing of evidence than a party that has chosen, for legitimate forensic reasons, to give away as little as possible. I do not place weight on the direction that was made permitting the defendant to request particulars of the defences. A party is not entitled to seek particulars of a bare denial. Particulars may have been relevant to flushing out the basis of the first third-party’s claim of contributory negligence, although I note that those are matters which should have been included in its defence. Further, I do not accept the submission that it was open to the defendant to interrogate so as to discover the actual case to be run by the third-parties. While interrogatories may have the effect of narrowing some factual issues they cannot be used to discover the arguments that a party that has filed a general denial proposes to actually rely upon at trial.
I am also satisfied that it was clearly within the contemplation of the parties that the matter would be listed for hearing on 12 September 2014. That was expressly contemplated by the directions that I made on 18 July 2014. It was recorded as one of the orders that was agreed to by the parties and communicated to my associate in advance of the hearing on 12 September 2014. It was confirmed in unequivocal terms by the solicitor appearing for the defendant at the directions hearing on 12 September 2014. That Mr Treffers may have contemplated some different arrangement is, in my view, not of much significance having regard to the publicly articulated position taken by the defendant.
The submissions of the third-parties focused on criticism of the defendant’s assessment of what it was required to prove in order to succeed against them in order to undermine the defendant’s contention that it should be permitted to rely upon the reports of Professor Alpert and Mr Hosking. However, when one looks at the case from the perspective of r 21, the criticism of the approach adopted by the defendant becomes, in my view, less significant.
In my view, it is clear that proof of the allegations of negligence and of the causal link between that negligence and the accident that occurred are real issues in the proceedings. The proceedings have been on foot since 2012. There have been delays in the conduct of the proceedings which are explained by the evidence. However, the case is not one that involves any significant non-compliance with the orders of the Court, even though it does represent a slower than optimal progress of the case. There have been significant advances in the progress of the case by reason of the settlement between plaintiff and defendant.
The hearing date is still three months away. I accept that the intervention of the Christmas period may make the obtaining of expert evidence in reply to the reports more difficult than would otherwise be the case.
There is, however, no evidence of any difficulty in obtaining reports in reply to the reports served by the defendant. Notwithstanding that, I am asked to draw that inference, in particular from the evidence of Mr Doak. It is apparent, however, from the evidence of Mr Doak that, notwithstanding he has had notice of the position adopted by the defendant, he has not sought any instructions from his client as to what to do about that and has taken the forensically targeted position of trying to prevent the defendant from relying upon the report. Although not explained in that manner, that is also consistent with the approach adopted by the first third-party. As a consequence, there is no evidence of any genuine detailed investigation of whether or not experts are readily available to the third-parties and, if so, how long it would take to prepare reports in reply to those prepared by Professor Alpert and Mr Hosking. I note that the reports prepared by Professor Alpert and Mr Hosking appear to have been each prepared in less than a month.
Even accepting, as I do, that there is a risk, presently unquantified, that permitting the defendant to rely upon the reports will necessitate the vacation of the hearing date, there is no evidence before me that there will be costs thrown away as a result of that course. There is no evidence that counsel has been briefed for the purposes of the hearing by either one or both of the third-parties. There is no evidence of costs incurred by solicitors in preparation for the hearing, which would be thrown away if it was ultimately required to be vacated. Finally, the state of the Court’s lists is presently not such that if the hearing date was required to be vacated there would be an extensive delay before the proceedings could be relisted.
Had this been a case where the late service of the report was demonstrated to be a source of real prejudice to either of the third-parties, who had genuinely attempted to address the additional evidence, then it would be a case where, having regard to the principles in Aon, the interests of justice might lie with forcing the defendant to live with the consequences of not having considered earlier the necessity for expert evidence directed to breach of duty and causation. However, in the absence of such evidence the position taken by the third parties appears instead to me to be one targeted at gaining a forensic advantage through the exclusion of evidence going to what has now been identified as the real issues in the case. In those circumstances it appears to me to be appropriate to permit the defendant to serve the reports of Professor Alpert and Mr Hosking.
I therefore propose to make a direction that the defendant is permitted nunc pro tunc to serve the reports of Professor Alpert and Mr Hosking no later than 7 November 2014. I will also make a direction permitting the third parties to serve reports in reply to that report. I will hear the parties’ submissions as to the date by which those reports must be served and also in relation to the question of costs of this application.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 5 May 2015 |
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