Maea v Acciona Infrastructure Australia Pty Ltd - [2025] NSWSC 567

Supreme Court

New South Wales

Medium Neutral Citation: Maea v Acciona Infrastructure Australia Pty Ltd [2025] NSWSC 567
Hearing dates: 27 May 2025
Date of orders: 3 June 2025
Decision date: 03 June 2025
Jurisdiction: Common Law
Before: Harrison CJ at CL
Decision:
(1) Dismiss the defendant’s application pursuant to UCPR 1.12 extending until 9 May 2025 the time for service of the report of Carl Strautins dated 17 April 2025.
(2) Dismiss the defendant’s application pursuant to UCPR 31.28 for leave to rely upon the report of Carl Strautins dated 28 April 2025.
(3) Pursuant to UCPR 1.12, extend until 9 May 2025 the time for the service of the unsigned evidentiary statement of Ashley Coates.
(4) Dismiss the defendant’s application pursuant to UCPR 23.4 for an order that the plaintiff be required to undertake psychometric testing.
(5) Order the defendant to pay the plaintiff’s costs of and incidental to the defendant’s notices of motion filed 1 May 2025 and 12 May 2025.
(6) Make no order as to the costs of the cross defendant.

Catchwords:
CIVIL PROCEDURE – experts reports – service of experts reports – notice of motion to extend time to serve expert evidence and unsigned evidentiary statement – whether there are ‘exceptional circumstances’ that warrant a grant of leave to rely upon expert reports – where there is no explanation for extensive delay in serving expert evidence – where defendant has identified difficulties in witness adopting unsigned evidentiary statement
CIVIL PROCEDURE – medical evidence – psychometric testing – notice of motion to require plaintiff undertake psychometric testing – where expert has expressed the opinion that plaintiff was ‘malingering’ – whether the proper purpose of the application is for a medical examination – where application is disguised as an attempt to impugn plaintiff’s credit

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59
Uniform Civil Procedure Rules, rr 1.12, 23.4, 31.28

Cases Cited:
Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

Category: Principal judgment
Parties: Siosaia Maea (Plaintiff)
Acciona Infrastructure Australia Pty Ltd (Defendant)
Bleasdale National Personnel Pty Ltd ATF Lindales Personnel Australasia Unit Trust t/a
Bleasdale National Contractors (Cross-Defendant)
Representation:
Counsel:
M Best (Plaintiff/Respondent)
I Griscti (Defendant/Cross-Claimant/Applicant)
O J Dinkha (Cross-Defendant)
Solicitors:
Beilby Poulden Costello (Plaintiff/Respondent)
Barry Nilsson (Defendant/Cross-Claimant/Applicant)
Turks Legal (Cross-Defendant)

File Number(s): 2022/16236
Publication restriction: Nil

JUDGMENT

HIS HONOUR: Siosaia Maea was injured in the course of his employment with Bleasdale National Personnel Pty Ltd on 22 January 2019 when he fell through an unguarded manhole into a pit. Mr Maea sued the defendant Acciona Infrastructure Australia Pty Ltd, which he alleged was the design and construction contractor responsible for the Sydney Light Rail Project where he was working. Mr Maea did not sue his employer. The proceedings were commenced by statement of claim filed on 19 January 2022. The defence was filed on 21 November 2022.
On 29 August 2023,…

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: [2025] NSWSC 567
Decision Date: 03 June 2025

CaseChat Overview and Summary

In the case of Maea v Acciona Infrastructure Australia Pty Ltd, the plaintiff, Mr Maea, brought an action against Acciona Infrastructure Australia Pty Ltd, alleging personal injuries sustained in an incident at work. The defendants sought to have the plaintiff’s claim dismissed on the basis of his failure to serve an expert report and evidentiary statement within the required timeframe, and also applied for an order for the plaintiff to undergo psychometric testing. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether there were exceptional circumstances that justified the plaintiff’s failure to serve his expert report and evidentiary statement within the specified timeframe, and whether the defendants’ application for the plaintiff to undergo psychometric testing was an appropriate means of assessing his credibility. The court had to consider whether the defendants had provided a satisfactory explanation for the delay in serving the expert report and whether the application for psychometric testing was a legitimate attempt to assess the plaintiff’s mental state or a veiled attempt to impugn his credibility.

The court held that there were no exceptional circumstances to justify the plaintiff’s delay in serving the expert report and evidentiary statement. The court noted that the plaintiff had provided no explanation for the delay and that the defendants had identified difficulties in their witness adopting the unsigned evidentiary statement. The court also held that the defendants’ application for the plaintiff to undergo psychometric testing was not an appropriate means of assessing his credibility and was instead an attempt to impugn his credit. The court found that the proper purpose of the application was to assess the plaintiff’s mental state and that this was not an appropriate means of doing so.

As a result, the court dismissed the defendants’ application for leave to rely on expert evidence and denied their application for an order for the plaintiff to undergo psychometric testing. The plaintiff’s claim was therefore allowed to proceed.

Orders