Jausnik v The Nominal Defendant - [2014] ACTSC 406

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jausnik v The Nominal Defendant

Details

AGLC: Jausnik v The Nominal Defendant [2014] ACTSC 406
Case: [2014] ACTSC 406
Decision Date: 18 November 2014

CaseChat Overview and Summary

The case of Jausnik v The Nominal Defendant involved the plaintiff, Mr. Jausnik, who sought to rely on expert reports that were served after the certificate of readiness had been filed and the hearing date set. The defendant, The Nominal Defendant, and third-party interveners opposed the late submission of these reports, arguing that they should not be admitted as evidence. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue in the case was whether the court should permit the late submission of expert reports in circumstances where no evidence was presented to show any difficulty in obtaining those reports, and whether doing so would result in costs being thrown away if the hearing date had to be vacated. Additionally, the court had to consider the significance of the plaintiff's uninformative pleadings in exercising its discretion on the matter.

In determining the matter, the court considered that the late submission of expert reports was generally disfavored, but the decision to permit such reports turned on the unique facts of each case. The court noted that the plaintiff's pleadings were not sufficiently informative to justify the late submission of the reports. However, the court acknowledged that the defendant and third parties had not demonstrated any prejudice or costs that would be incurred if the reports were admitted. The court concluded that the reports should be permitted as they did not significantly prejudice the defendant or third parties, and allowing them would not result in unnecessary costs. The court's decision hinged on the specific circumstances presented, emphasizing that each case must be evaluated on its own merits.

The court ordered that the expert reports be permitted to be served and considered as part of the evidence in the case. The specific details of this order are outlined in paragraph [35] of the decision.

Orders

Orders of the court

See [35]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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