McCloskey v Nexis Accountants Pty Ltd - [2023] ACTSC 41

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:		McCloskey v Nexis Accountants Pty Ltd
Citation:		[2023] ACTSC 41
Hearing Date:		23 February 2023
Decision Date:		23 February 2023
Before:		McCallum CJ
Decision:		(1) The hearing listed on 6 March 2023 at 10 am is vacated. (2) Each party is to bear their own costs of the application and those thrown away as a result of the hearing being vacated. (3) The plaintiffs are to file and serve expert evidence in reply by 30 April 2023. (4) List the matter at 9:30am on 5 May 2023 before the Registrar in the civil directions list.
Catchwords:		CIVIL LAW – CIVIL PROCEDURE – Expert evidence – Service of expert reports – where leave was granted for the defendant to serve an expert report out of time – where the plaintiff seeks to have hearing date vacated for time to serve an expert report in reply – history of breach of orders by defendant – whether the hearing date should be vacated
Legislation Cited:		Court Procedures Rules 2006 (ACT) rr 1205, 1241, 1401
Cases Cited:		Glover v Fuller [2022] ACTSC 144 Pryce v Dunlap [2016] ACTSC 338 Smith v Children Australia Inc [2022] ACTSC 310
Text Cited:		Practice Direction No 2 of 2014, ACT Supreme Court
Parties:		Steven McCloskey (First Plaintiff) SM Precision Building Services Pty Ltd (ACN 144 883 652) (Second Plaintiff) Nexis Accountants Pty Ltd (ACN 108 623 338) t/as Nexis Accountants and Business Advisors (Defendant)
Representation:		Counsel C Erskine SC (Plaintiffs) M Wells (Defendant)
Solicitors Aulich (Plaintiffs) Kanther Law (Defendant)
File Number:		SC 175 of 2021

McCALLUM CJ:

These proceedings were listed for hearing commencing on 6 March 2023 with an estimate of 5 days. On 23 February 2023, the plaintiff filed an application to have the hearing date vacated. I heard brief argument on the application and proposed to rule on it later in the day after the conclusion of other business of the Court.

In the meantime, the parties resolved the application; the defendant consenting to application and the parties agreeing that each party was to bear their own costs of the application and those thrown away as a result of the hearing being vacated.

I nonetheless wish to record my reasons for indicating, as I did in relatively strong terms before the application was resolved, that the hearing date had to be vacated.

The plaintiffs served an expert report on 12 July 2022. That report had been served about three weeks late and accordingly the plaintiffs consented to a reciprocal extension of time for the defendant to serve any expert evidence. Thereafter, three deadlines for service of the defendant’s expert evidence were missed. The third deadline was 4 October 2022.

The direction permitting the defendant to serve expert evidence by that date was made after the plaintiffs relisted the proceedings in accordance with Practice Direction No 2 of 2014.

Before the matter was relisted, the plaintiff had warned the defendant that they would be preparing affidavit material…

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: [2023] ACTSC 41
Decision Date

CaseChat Overview and Summary

In the case of McCloskey v Nexis Accountants Pty Ltd, the plaintiffs, Steven McCloskey and SM Precision Building Services Pty Ltd, sought to have the hearing date vacated in the Supreme Court of the Australian Capital Territory. The defendant, Nexis Accountants Pty Ltd, had been granted leave to rely on an expert report served out of time. The plaintiffs argued that they needed more time to prepare a reply to the defendant's expert report. The court was required to decide whether the hearing date should be vacated due to the defendant's repeated breaches of court orders regarding the service of expert evidence.

The court considered the principles governing the service of expert evidence in civil proceedings. It emphasised the importance of obtaining expert opinions before commencing proceedings, seeking directions for the service of expert evidence early in the process, and the need for exceptional circumstances to justify granting leave to rely on a report served out of time. The court found that the defendant's disregard for the rules governing the service of expert reports and their failure to seek leave to rely on their late report necessitated the vacation of the hearing date. The court also highlighted that parties should be mindful of the purpose of the special rules about the service of expert reports.

The court made several orders, including vacating the hearing date, requiring each party to bear their own costs of the application and those thrown away due to the vacation, and instructing the plaintiffs to file and serve expert evidence in reply by 30 April 2023. The matter was listed for 9:30 am on 5 May 2023 before the Registrar in the civil directions list. Had the matter not been resolved, the court would have called upon the defendant to justify why they should not pay the plaintiffs' costs thrown away due to the vacation of the hearing date.

Orders