Livesay v Hawkins - [2010] QSC 489

SUPREME COURT OF QUEENSLAND

CITATION:

Livesay v Hawkins and Ors [2010] QSC 489

PARTIES:

SHIRLEY LIVESAY
(applicant/plaintiff)
v
GAYLENE HAWKINS
(first respondent/defendant)
JEREMY HAWKINS
(second respondent/defendant)
NEVILLE NEWMANN
(third respondent/defendant)
AMERICAN HOME ASSURANCE COMPANY
(ABN 67007483267)
(first third party)
GAYLENE HAWKINS AND JEREMY HAWKINS
(second third party)
NEVILLE NEWMANN
(third third party)

FILE NO:

BS 5449 of 2008

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

1 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2010

JUDGE:

Fryberg J

ORDERS:

1. The Orders of Her Honour Justice Atkinson of 12 February 2010, of His Honour Justice P Lyons of 4 august 2010 and of His Honour Chief Justice De Jersey of 21 September be varied as follows.
2. The Third Defendant provide copies of any documents disclosed in its updated List of Documents and that are requested by any other party within 7 days of the date of this order.
3. Pursuant to UCPR 429 the Plaintiff have leave to obtain expert engineering evidence by not later than 10 January 2011.
4. Disclosure of the Plaintiff’s expert engineering evidence be made to all parties of the proceeding by not later than 17 January 2011.
5. By 14 February 2011, in the event that the Plaintiff obtains expert engineering evidence, the author of such engineering report and Dr Charlotte Nash-Stewart, engineer:

(a) Confer and identity in writing the matters on which they agree and disagree (and the reasons why) and attempt to resolve any disagreement in accordance with Rule 429(6) of the uniform Civil Procedure Rules;
(b) List the issues of fact and opinions that they are unable to agree upon setting out what issues or facts and opinions remain in dispute and the reasons why they remain so; and
(c) Provide to the Registrar of the Court at Brisbane a written report as to those matters together with sufficient copies of the report to all parties of the proceeding.

7. The matter to be set down on the Brisbane Supreme Call-over List on 21 February 2011.
8. Liberty to apply.
9. Costs in the cause.

CATCHWORDS:

Procedure – Supreme Court procedure – Queensland – Procedure under Uniform Civil Procedure Rules and predecessors – Evidence – Expert evidence – Application for court’s approval on which expert witnesses to be called - Order not necessary – Uniform Civil Procedure Rules1999, r 429 – “may” is not “must”

Procedure – Supreme Court procedure – Queensland – Procedure under Uniform Civil Procedure Rules and predecessors – Trial – Other matters – Natural justice – Right to call evidence

Thomson v Mt Isa City Council [2010] QSC 148

Uniform Civil Procedure Rules 1999 (Qld), r 429, r 429G
Practice Direction 2/2005

COUNSEL:

E J Williams for the applicant/plaintiff
B Dimario (solicitor) for the respondent/defendant

SOLICITORS:

Colin Patino & Company for applicant/plaintiff
Sparke Helmore for respondent/defendant

FRYBERG J: In this matter the parties have agreed on forms of consent orders by way of directions designed to bring the matter to trial at an early date…

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: [2010] QSC 489
Decision Date: 1 December 2010

CaseChat Overview and Summary

The case of Livesay v Hawkins involved a legal dispute that was heard by the Queensland Supreme Court. The central issue in this case was the procedures and rules governing the calling of expert witnesses in civil litigation under the Uniform Civil Procedure Rules 1999. The plaintiff sought to obtain expert engineering evidence to support their claims, and the court had to determine whether the plaintiff could call an expert witness without prior court approval and the necessary steps to be taken if such evidence was obtained.

The primary legal issue before the court was the interpretation and application of rule 429 of the Uniform Civil Procedure Rules 1999, which allows the court to order that expert evidence be given by a person nominated by a party. The court needed to decide whether this rule mandated the court to give such an order or merely allowed it to do so at its discretion. Additionally, the court had to consider whether the principles of natural justice required the parties to be given an opportunity to call expert evidence and whether the failure to do so could be considered a breach of natural justice.

The court held that the phrase "may order" in rule 429 of the Uniform Civil Procedure Rules 1999 indicated that the court had discretion in determining whether to order the calling of expert evidence. The court found that "may" did not mean "must," and therefore, the court was not obligated to order the calling of expert evidence if it deemed it unnecessary. The court also noted that while natural justice principles required fairness in the proceedings, they did not necessarily require the court to order the calling of expert evidence. The court concluded that the plaintiff was entitled to obtain expert engineering evidence, and it set out detailed orders regarding the disclosure and reporting of such evidence, ensuring that all parties had an opportunity to address any disagreements and unresolved issues among the experts.

The court varied the orders of previous judges to include specific timelines for the disclosure of documents, the obtaining of expert evidence, and the reporting of expert opinions. The Third Defendant was required to provide documents within seven days of a request. The plaintiff was granted leave to obtain expert engineering evidence by a specified date, and the disclosure of this evidence was to be made to all parties. The experts were instructed to confer, identify areas of agreement and disagreement, and report unresolved issues to the court. The case was set down for further hearing on a specified date, and the parties were granted liberty to apply for further orders and costs were awarded in the proceedings.

Orders

Orders of the court

1. The Orders of Her Honour Justice Atkinson of 12 February 2010, of His Honour Justice P Lyons of 4 august 2010 and of His Honour Chief Justice De Jersey of 21 September be varied as follows.

2. The Third Defendant provide copies of any documents disclosed in its updated List of Documents and that are requested by any other party within 7 days of the date of this order.

3. Pursuant to UCPR 429 the Plaintiff have leave to obtain expert engineering evidence by not later than 10 January 2011.

4. Disclosure of the Plaintiff’s expert engineering evidence be made to all parties of the proceeding by not later than 17 January 2011.

5. By 14 February 2011, in the event that the Plaintiff obtains expert engineering evidence, the author of such engineering report and Dr Charlotte Nash-Stewart, engineer:

(a) Confer and identity in writing the matters on which they agree and disagree (and the reasons why) and attempt to resolve any disagreement in accordance with Rule 429(6) of the uniform Civil Procedure Rules;

(b) List the issues of fact and opinions that they are unable to agree upon setting out what issues or facts and opinions remain in dispute and the reasons why they remain so; and

(c) Provide to the Registrar of the Court at Brisbane a written report as to those matters together with sufficient copies of the report to all parties of the proceeding.

7. The matter to be set down on the Brisbane Supreme Call-over List on 21 February 2011.

8. Liberty to apply.

9. Costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Livesay v Hawkins and Ors [2010] QSC 489
PARTIES:	SHIRLEY LIVESAY (applicant/plaintiff) v GAYLENE HAWKINS (first respondent/defendant) JEREMY HAWKINS (second respondent/defendant) NEVILLE NEWMANN (third respondent/defendant) AMERICAN HOME ASSURANCE COMPANY (ABN 67007483267) (first third party) GAYLENE HAWKINS AND JEREMY HAWKINS (second third party) NEVILLE NEWMANN (third third party)
FILE NO:	BS 5449 of 2008
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	1 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2010
JUDGE:	Fryberg J
ORDERS:	1. The Orders of Her Honour Justice Atkinson of 12 February 2010, of His Honour Justice P Lyons of 4 august 2010 and of His Honour Chief Justice De Jersey of 21 September be varied as follows. 2. The Third Defendant provide copies of any documents disclosed in its updated List of Documents and that are requested by any other party within 7 days of the date of this order. 3. Pursuant to UCPR 429 the Plaintiff have leave to obtain expert engineering evidence by not later than 10 January 2011. 4. Disclosure of the Plaintiff’s expert engineering evidence be made to all parties of the proceeding by not later than 17 January 2011. 5. By 14 February 2011, in the event that the Plaintiff obtains expert engineering evidence, the author of such engineering report and Dr Charlotte Nash-Stewart, engineer: (a) Confer and identity in writing the matters on which they agree and disagree (and the reasons why) and attempt to resolve any disagreement in accordance with Rule 429(6) of the uniform Civil Procedure Rules; (b) List the issues of fact and opinions that they are unable to agree upon setting out what issues or facts and opinions remain in dispute and the reasons why they remain so; and (c) Provide to the Registrar of the Court at Brisbane a written report as to those matters together with sufficient copies of the report to all parties of the proceeding. 7. The matter to be set down on the Brisbane Supreme Call-over List on 21 February 2011. 8. Liberty to apply. 9. Costs in the cause.
CATCHWORDS:	Procedure – Supreme Court procedure – Queensland – Procedure under Uniform Civil Procedure Rules and predecessors – Evidence – Expert evidence – Application for court’s approval on which expert witnesses to be called - Order not necessary – Uniform Civil Procedure Rules1999, r 429 – “may” is not “must” Procedure – Supreme Court procedure – Queensland – Procedure under Uniform Civil Procedure Rules and predecessors – Trial – Other matters – Natural justice – Right to call evidence Thomson v Mt Isa City Council [2010] QSC 148 Uniform Civil Procedure Rules 1999 (Qld), r 429, r 429G Practice Direction 2/2005
COUNSEL:	E J Williams for the applicant/plaintiff B Dimario (solicitor) for the respondent/defendant
SOLICITORS:	Colin Patino & Company for applicant/plaintiff Sparke Helmore for respondent/defendant