Laurendi v Boral Contracting Pty Ltd - [2000] WADC 184

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LAURENDI -v- BORAL CONTRACTING PTY LTD [2000] WADC 184

CORAM: NISBET DCJ

HEARD: 22 JUNE 2000

DELIVERED : Delivered Extemporaneously on 22 JUNE 2000 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 3361 of 1998

BETWEEN: JOSEPH LAURENDI
Plaintiff
AND
BORAL CONTRACTING PTY LTD
Defendant

Catchwords:

Practice and procedure - Order 36A - Order shutting plaintiff out of right to call expert evidence - Whether within power - Whether permitted by rule - Appeal from order

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendant: Mr P D Whight

Solicitors:

Plaintiff: Bradford & Co
Defendant: Freehhill Hollingdale & Page

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

NISBET DCJ: The plaintiff, in an application for damages for personal injuries said to have been sustained by reason of the negligence of the defendant, by notice of appeal seeks an order setting aside the order of Registrar Kingsley made 27 April this year wherein he barred the plaintiff from bringing any expert evidence; the terms of which order read:
"(2)The plaintiff be barred from bringing any subsequent application for leave to adduce expert evidence."
The circumstances giving rise to the appeal are set out at least in part in the affidavit filed by Mr Whight of counsel for the defendant wherein he details the history of the discussions in relation to expert evidence between the parties. They are also set out, insofar as they materially affect this appeal, in the affidavit of Mr Bradford sworn 30 May this year.
It seems that the Registrar's order of 27 April was made after an unfortunate history of communication (or lack of it) between the parties. The plaintiff, it can be said at best, had not made up his mind as to whether or not he intended to call expert evidence. This left the defendant in the position that it was in some difficulty in preparing its case for trial because, to a certain extent, it was obliged to predict the case the plaintiff was going to bring against it, as opposed to knowing the case the plaintiff was going to make against it. It was much more apparent to the defendant's solicitors than the plaintiff's solicitors that this is a case where expert evidence would be of assistance to the court.
Mr Bradley informed me this afternoon that when he was retained as counsel, he advised his instructing solicitors that this was a case where expert evidence was required and should be sought. Mr Bradford's affidavit, previously referred to, discloses that having received advice that expert evidence should be sought, attempted to find an expert who could relevantly advise the plaintiff as to engineering considerations that might have been present at the time that he sustained his injuries.
Mr Bradford's affidavit discloses that attempts were made to contact Mr Stephen Chew, a well‑known consulting engineer who used to frequently give evidence in this Court on matters which required engineering and safety opinion but found that Mr Chew was no longer available. He then proceeded to instruct Mr Andrew Van Der Meer, another expert who was also well known to the court, who is an engineer who frequently gives evidence as an expert on engineering and safety type matters in actions for personal injuries in this Court.
Mr Van Der Meer proceeded to take his engagement and to give some advice to the plaintiff and it seems that that advice is both important and relevant to the matters in issue between the parties. Hence the plaintiff only obtained lately the advice of an expert whom he now believes will assist in the presentation of his case at trial.
This advice of course should have been obtained a lot earlier in the proceedings and, at the latest, before the case was entered for hearing, because only then would the court know the issues to be confronted such that appropriate orders could be made in accordance with the court's ordinary pre‑trial listing procedures.
The defendant legitimately complains I think that the progress of this matter has left it disadvantaged and whilst the defendant probably places the nature of its disadvantage higher than perhaps my comments would otherwise suggest, it is a real disadvantage, bearing in mind that we are operating in an adversarial system where the parties are rightfully jealous to guard what they see as forensic advantages and to oppose any forensic disadvantage to them.
So I make no criticism of the defendant at all in relation to its opposition to the plaintiff's appeal on that score because, from what I can tell so far on the papers, it has acted timeously and in accordance with the ordinary interlocutory procedures of the court and now finds that it has disclosed its expert's report in a circumstance which it says has operated unfairly to it.
I think though, to be quite fair about the matter the forensic disadvantage the defendant claims is probably more illusory than real in that there must come a time before the trial starts, when each of the parties will know what the other party's experts are going to say, and at that time they each have to make decisions about how their respective cases will be conducted at trial; and whilst it is irritating to see a plaintiff "getting away" with inadequate attention to its case which is perceived to act to the disadvantage of the defendant, nevertheless, the broad interests of justice are such that a party, no matter be it plaintiff or defendant, should not be shut out of calling a witness that that party says will assist it in the promotion of its cause.
It was said that the Registrar did not have the power to make this order. Without taking the opportunity to consider how s 25 and s 26 of the District Court Act interact with s 53(1) of the Act insofar as the powers of Registrars are concerned, and those authorities which show that a Registrar of this Court is not in the same position as a Registrar of the Supreme Court, for example, or a Master of the Supreme Court because Registrars of this Court do not comprise the court as do Masters and Registrars of the Supreme Court – hence their status is different such that they cannot be said to enjoy inherent or implied powers, I would prefer to put it on this basis: Order 36A was introduced to regulate the use of experts in personal injuries cases and there is no suggestion anywhere in the rule, that I can see, that a party can be shut out of calling an expert as the Registrar has purported to do here.
So to that extent it may be said, without more, that the Registrar acted in excess of the powers conferred by O 36A because a fair reading of these Rules does not confer that power. I do note of course O 36A r 5, which says that the number of experts can be limited. This rule was specifically formulated to prevent the parties lining up endless numbers of experts against each other. It was not intended to prevent a party from calling an expert, as here.
I also note O 36A r 9 provides that an order in relation to experts can be revoked or varied at any time. That rule, it seems to me, provides the answer to Mr Whight's well‑made submissions about this application being out of time. I say "well-made" on the basis that these matters – that is, appeals from Registrars – are meant to be dealt with timeously, particularly in circumstances as here, where the trial dates have been allocated. So if there was an order that had the potential to affect the conduct of the trial, it is very important, much more important than in the usual case, to have that application instituted straight away; that is, within the three days provided for.
Here I observe firstly that the appeal was not instituted until 11 May which on my calculations is some 11 days out of time depending on what way one calculates the time. I think that 27 April, from memory, was a Wednesday. So the appeal, to be instituted within three days should have been instituted on the Friday or at the very latest, depending on how one counts the hours, the following Monday. So it is anywhere between seven and 11 days out of time.
Ordinarily I would not think that was a great amount of time and ordinarily I would not have any difficulty in granting leave for that type of delay. I do not want to be seen as making a rule for the future in relation to those times because each application must be dealt with on its merits, but it seems to me here where the trial is listed for hearing a month away, a matter of 10 or 11 days could be enough to disentitle a party to appeal in circumstances such as this. The real answer however lies in O 36A r 9 which provides that an application pursuant to O 36A could have been made at any time without leave, and if that is the case then whilst this matter has technically been brought before the court as an appeal, it would be inappropriate of me I think in the circumstances to deal with it on that technical basis. Accordingly I allow the appeal and grant the plaintiff leave to adduce expert evidence of Mr Van Der Meer. I will hear the parties as to costs.