Leonard v Northside Community Services Limited - [2016] ACTSC 90

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Leonard v Northside Community Services Limited
Citation:	[2016] ACTSC 90
Hearing Date:	22 April 2016
DecisionDate:	22, 26 April 2016
Before:	Mossop AsJ
Decision:	See [42]
Catchwords:	PROCEDURE – Non-compliance with directions in relation to service of expert evidence – failure to provide affidavit evidence explaining delay – whether explanation for delay by defaulting party adequate – consequences of non-compliance – directions made amending timetable for service for all parties
Legislation Cited:	Court Procedures Act2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), r 245
Cases Cited:	Crawford v Australian Capital Territory [2015] ACTSC 282
Parties:	Margaret Leonard (Plaintiff) Northside Community Services Limited (Defendant)
Representation:	Counsel S Sharmin (Plaintiff) B Ness (Defendant in the interests of AAI Ltd t/as GIO Workers Compensation) N Willing (Defendant in the interests of Guild Insurance Ltd)
Solicitors Ken Cush & Associates (Plaintiff) Moray & Agnew (Defendant in the interests of AAI Ltd t/as GIO Workers Compensation) Hall & Wilcox (Defendant in the interests of Guild Insurance Ltd) Curwoods Lawyers (Defendant in the interests of QBE Insurance (Australia) Pty Ltd)
File Number:	SC 316 of 2014

MOSSOP AsJ:

Introduction

These proceedings were docketed to me by the Deputy Registrar on 18 April 2016. They had been listed before the Deputy Registrar because the plaintiff had sought a variation of orders made by the Deputy Registrar on 8 February 2016.

In her originating claim filed 8 July 2014, the plaintiff alleges that she suffered three injuries, the first in October 2009, the second in August 2012 and the third in November 2013. Two of those injuries were injuries to her right shoulder and one of them was to her left shoulder. Because of the period over which the injuries were alleged, three separate insurers have entered appearances pursuant to r 245 of the Court Procedures Rules 2006 (ACT) (CPR): AAI Ltd t/as GIO Workers Compensation (GIO), QBE Insurance (Australia) Pty Ltd (QBE) and Guild Insurance Ltd (Guild).

The orders made on 8 February 2016 provided a timetable for the service of expert evidence, participation in a mediation, the service of a statement of particulars and the conduct of a listing hearing. The first order required that the plaintiff file and serve all expert evidence that she intended to rely upon by 4 April 2016. The defendants were permitted seven weeks to serve their evidence. The plaintiff had an opportunity to serve evidence in reply before a mediation on 20 June 2016 and a listing hearing on 30 June 2016. Having regard to the nature of the proceedings, being personal injury proceedings arising out of the employment of the plaintiff by the defendant, it is not clear why the orders required filing of evidence as well as its service, but nothing turns on that for present purposes.

Default and correspondence

On 1 April 2016, the Friday before the Monday upon which service of all the plaintiff’s expert evidence was due, Mr Tierney, the solicitor for 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.

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Details

Case: [2016] ACTSC 90
Decision Date: 26 April 2016

CaseChat Overview and Summary

The matter of Leonard v Northside Community Services Limited involved a dispute between the plaintiff, Leonard, and the defendant, Northside Community Services Limited, regarding a claim for damages arising from an alleged breach of duty of care. The case was heard in the District Court of New South Wales. The primary issue was whether the plaintiff had complied with the procedural directions relating to the service of expert evidence and, if not, what the consequences of such non-compliance should be. Specifically, the court needed to determine whether the explanation provided by Leonard for the delay in serving expert evidence was adequate and what, if any, amendments to the timetable for service should be made for all parties.

The court addressed the procedural non-compliance by examining whether the plaintiff had provided a satisfactory explanation for the delay in serving expert evidence. The plaintiff argued that the delay was due to unforeseen circumstances and that the delay was not prejudicial to the defendant. The court considered the adequacy of the explanation and the extent to which the non-compliance prejudiced the defendant. Ultimately, the court found that the explanation provided by Leonard was not sufficient to excuse the non-compliance with the procedural directions. The court also took into account the potential prejudice to the defendant due to the late service of the expert evidence. Based on these factors, the court concluded that the non-compliance warranted consequences, including amendments to the timetable for service for all parties.

In light of the findings, the court issued directions amending the timetable for service for all parties. These directions aimed to ensure that the case proceeded in an orderly and timely manner, taking into account the late service of expert evidence by the plaintiff. The court emphasised the importance of adhering to procedural directions and the need for adequate explanations when such directions are not followed. The final orders included specific directions for the service of further expert evidence and other procedural steps to be taken by both parties within the amended timetable.

Orders

Orders of the court

See [42]

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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