McFarlane v The State of Western Australia
[2002] WADC 5
•17 JANUARY 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: McFARLANE & ORS -v- THE STATE OF WESTERN AUSTRALIA & ORS [2002] WADC 5
CORAM: DEANE DCJ
HEARD: 5 OCTOBER 2001
DELIVERED : 17 JANUARY 2002
FILE NO/S: CIV 3522 of 1997
BETWEEN: ANNE PATRICIA McFARLANE
First Plaintiff (Appellant)
HELEN ELIZABETH THOMPSON
Second Plaintiff (Appellant)GRANTLEY OTTO
Third Plaintiff (Appellant)LESLEY JANE BREMNER
Fourth Plaintiff (Appellant)ANTHONY JOHN MORGAN
Fifth Plaintiff (Appellant)MARILYN JOY STANDEN
Sixth Plaintiff (Appellant)CORRINA IDDON
Seventh Plaintiff (Appellant)TERRY SOTIRIADIS
Eighth Plaintiff (Appellant)AND
THE STATE OF WESTERN AUSTRALIA
First Defendant (Respondent)SHIRE OF AUGUSTA-MARGARET RIVER
Second Defendant (Respondent)EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT
Third Defendant (Respondent)MINISTER FOR EDUCATION
Fourth Defendant (Respondent)
Catchwords:
Practice and Procedure - Exchange between parties of expert's reports - Whether exchange should be simultaneous prior to trial - O 29 and O 36A of the Rules of the Supreme Court - O 1 and O 5 of the District Court Rules.
Legislation:
Rules of the Supreme Court, O 29 and O 36A
District Court Rules, O 1, r 6, and O 5
Result:
Appeal Dismissed
Representation:
Counsel:
First Plaintiff (Appellant) : Mr L A Tsaknis
Second Plaintiff (Appellant) : Mr L A Tsaknis
Third Plaintiff (Appellant) : Mr L A Tsaknis
Fourth Plaintiff (Appellant) : Mr L A Tsaknis
Fifth Plaintiff (Appellant) : Mr L A Tsaknis
Sixth Plaintiff (Appellant) : Mr L A Tsaknis
Seventh Plaintiff (Appellant) : Mr L A Tsaknis
Eighth Plaintiff (Appellant) : Mr L A Tsaknis
First Defendant (Respondent) : Mr J F O'Sullivan
Second Defendant (Respondent) : Mr P Mendelow
Third Defendant (Respondent) : Mr J F O'Sullivan
Fourth Defendant (Respondent) : Mr J F O'Sullivan
Solicitors:
First Plaintiff (Appellant) : Hammond Worthington
Second Plaintiff (Appellant) : Hammond Worthington
Third Plaintiff (Appellant) : Hammond Worthington
Fourth Plaintiff (Appellant) : Hammond Worthington
Fifth Plaintiff (Appellant) : Hammond Worthington
Sixth Plaintiff (Appellant) : Hammond Worthington
Seventh Plaintiff (Appellant) : Hammond Worthington
Eighth Plaintiff (Appellant) : Hammond Worthington
First Defendant (Respondent) : State Crown Solicitor
Second Defendant (Respondent) : Phillips Fox
Third Defendant (Respondent) : State Crown Solicitor
Fourth Defendant (Respondent) : State Crown Solicitor
Case(s) referred to in judgment(s):
Kirkup v British Rail Engineering Ltd [1983] 3 All ER 147
Case(s) also cited:
Aiken v Kingborough Corporation (1939) 62 CLR 179
BMG Resources Ltd v Pine Rivers Shire Council [1989] 2 Qd R 1
Burrum Corporation v Richardson & Gehrmann (1939) 62 CLR 214
Cameron v Cole (1944) 68 CLR 571
Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714
Dare v Pulham (1982) 148 CLR 658
Ellis v Commission of Main Roads (1991) 74 LGRA 96
Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1994) 61 SASR 424
Esanda Finance Corp Ltd v Peat Marwick Hungerfords (Reg) (1997) 142 ALR 750
Hawkes v Schubach [1953] VLR 468
Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 28 FLR 195
Randal v Brisbane City Council (1990) 2 Qd R 440
Sharpe v Smail (1975) 5 ALR 377
Simpson v Midalco, unreported; SCt of WA; Library No 6665; 19 March 1987
South Australia v Wilmot (1993) 82 LGERA 122
Spedley Securities Ltd (In Liq) v Yuill (No 4) (1991) 5 ACSR 758
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Syndey City Council v Reid (1994) 84 LGERA 381
Taylor v Taylor (1979) 143 CLR 1
Western Australia v Dale (1996) 15 WAR 464
DEANE DCJ: In this matter on 10 May 2001 at a directions hearing a learned Registrar of the District Court made orders to the effect that the plaintiffs (whom I shall refer to in these reasons as the appellants) provide expert reports to each of the defendants (whom I shall refer to as the respondents) by 31 August 2001 and further that the respondents' expert reports be exchanged on or before 30 November 2001. In a notice of appeal filed 29 June 2001 the appellants seek orders that they have leave to appeal out of time and that the parties exchange expert reports on which they propose to rely at trial. I take this to be a reference to simultaneous exchange of reports. In the notice of appeal the trial date is referred to as 30 September 2001 but clearly that date has now passed and as I understand it as matters have unfolded it became apparent that the trial was not going to occur on or about that date. I am informed by the parties that it is now proposed that a trial date be fixed, if possible, at some time this year.
This matter has a slightly unusual history in that when the learned Registrar made the relevant order on 10 May last year, rather than appeal that decision the appellants made an application for the Registrar to reconsider the matter. This application seeking a variation of the orders was heard by the Registrar on 26 June 2001 but he was not persuaded to alter his previous decision and so the orders stood.
Counsel for the appellants made it clear that in the alternative they sought to appeal the original decision of the learned Registrar out of time. As I understand it this procedure was adopted in order to avoid lengthy and time consuming arguments as to whether or not the Registrar had jurisdiction to reconsider the matter and whether or not in any event the Registrar ought to have changed or altered his original decision. I accept the submission that the substantial issue for consideration is whether or not the Registrar was correct in not ordering a simultaneous exchange of expert evidence by way of reports. As I understand the position of the respondents relevant to the question of delay, they say simply that the appellants considered it more appropriate at the time to attempt to have the Registrar reconsider the terms of his previous orders in the hope that he would vary them.
I do not consider that any useful purpose would be served in spending considerable time canvassing the question of jurisdiction and whether or not the appellants' approach to the matter was correct. In my view with the benefit of hindsight the approach that the appellants took relevant to requesting reconsideration of the orders by the Registrar was perhaps not an approach that should become the norm, but rather the rules of the Court should be observed and followed. The respondents do not, however, complain of any prejudice to their position as a result of the delay and the procedure adopted by the appellants. I accept the appellants' contention that at all times since the original decision by the Registrar it was plain that the appellants wished to appeal the substance of that decision. As no prejudice would be occasioned to any of the respondents by granting the appellants leave to appeal the original decision out of time I am minded to grant such leave and accordingly this matter will proceed as an appeal by way of hearing de novo.
The exchange of expert reports is the subject of O 29 and O 36A of the Rules of the Supreme Court (RSC). Order 1 r 6 of the District Court Rules provides that except where inconsistent with the order, the provisions of Order 29 of the RSC will continue to have effect. Further, relevant to this issue, Seaman on Civil Procedure states "the usual order for the exchange of expert reports follows common form 80" which contemplates provision of expert reports to be adduced by defendants following provision of any expert reports to be produced on behalf of or by the plaintiff or plaintiffs. Counsel for the second respondent concedes that this procedure does not necessarily apply in the District Court. The exchange of expert reports is governed by O 5 r 3(2) of the District Court Rules which grants a discretion to a Registrar in making such orders taking into account relevant case management principles. The effect of such principles is to promote a just determination of litigation, the efficient disposal of matters before the Court, the maximisation of efficient use of judicial time and administrative resources and the conduct and disposal of matters before the Court at an affordable cost to the parties/litigants. Order 1, r 2(a) of the District Court Rules expresses the desire to achieve the objectives set forth in Order 1 r B of the RSC.
Clearly expert reports are intended to inform the Court of the relevant opinions of independent witnesses and for that reason the purpose of such reports is not to advance or espouse the cause of a particular party to an action. I accept the appellants' submission that the usual practice is that the Court makes provision for the parties to simultaneously exchange expert reports at some predetermined point prior to a pre‑trial conference. It is not the case, however, that this is the invariable practice of the Court. If one accepts that expert reports are truly documents containing relevant opinions of independent witnesses then there is no real risk and there should not be such a risk that one party expert report will be tailored to address or refute the content of their party's expert report. This was a potential concern raised on behalf of the appellants who, argue that such circumstances could possibly occasion prejudice to them in the presentation of their case.
In view of the history of this matter and the considerable amount of materials before the Court to date in these proceedings, I do not believe that it can be categorically stated, as the appellants submit, that any expert report or reports that may be prepared, or have been prepared, do not involve particularly complex issues and do not require particularly technical matters to be addressed. Paragraphs 15(e) and (f) of the amended statement of claim contain allegations with respect to the geological composition of the relevant cliff area which is said to have collapsed thereby causing death to certain individuals who were underneath or near to the cliff. In addition, there is an allegation that prior to 27 September 1996 the particular cliff area in question showed signs of instability, which if inspected by an experienced geologist or engineer, would have revealed a potential danger or dangers. Clearly such allegations raise a number of important and potentially complex and technical issues which will need to be addressed by the relevant experts. I accept the submission by Mr O'Sullivan that the nature of the enquiry raised on the pleadings generally is somewhat broad ranging, although it must be conceded that the appellants have provided considerable information by way of further and better particulars. Each of the respondents rejects the possibility that as a result of the orders made by the Registrar with respect to the timeframe for the exchange of expert reports, the evidence of any experts relied on by the respondents will in some fashion be tailored to meet or refute the contents of any reports provided by experts relied on by the appellants. It is argued that the orders made by the Registrar should stand because it will permit the issues to be narrowed, in what is a case of some complexity and further the respondents will be assisted by knowing exactly or more precisely the case they must meet in this particular context.
Counsel for each of the respondents referred to Kirkup v British Rail Engineering Ltd[1983] 3 All ER 147 in support of their contention that in cases where the issues of enquiry are complex, wide ranging and not easily identifiable, it is not unreasonable to require plaintiffs to show their hand by sending their experts' reports in order that defendants may consider the issues raised with a view to requesting their own expert or experts to deal with such matters. That case made the point that in the majority of cases the probability is that it is convenient and just for there to be simultaneous disclosure or exchange of expert reports. Such a practice, however, is not inflexible because each case is different and a great deal may depend upon what was described as the "whole area of enquiry" in a particular matter. It is for that very reason, of course, that a discretion exists which enables the Court to make orders which depart from the norm in certain cases. It is difficult at this point in time to make anything other than somewhat broad and general observations about the nature of this particular matter, but from the materials before me including the pleadings, it does appear that the nature of the issues which will apparently be canvassed at trial is broad and on current indications may well involve matters of some complexity and technicality. There are issues raised, for example, as to knowledge and propensity. I accept the admission made by Mr Mendelow on behalf of the second respondent, that there is a possibility that both time and resources may be wasted if the respondents do not know with considerable precision at the outset of the matter, what the appellants rely on by way of expert evidence with respect to matters such as knowledge and propensity. Mr Mendelow made this point, for example, in relation to pars 15(h), (i) and (k)(vi) of the amended statement of claim.
Mr Mendelow argued that simultaneous exchange of reports may lead to a situation whereby the expert or experts relied on by the various parties to these proceedings in their respective reports do not meaningfully address the assertions raised by each other. The practical result of this could be that there would then be a need for supplementary expert reports to be prepared and served in order to rectify or address this deficiency. This in turn would lead to a waste of time and funds. I consider that there is merit in this argument, although at this point in time it is somewhat hypothetical. For this reason I do not accept the argument in reply on behalf of the appellants, that a simultaneous exchange of reports would ensure that all issues are properly ventilated and that any additional expense and time incurred in supplementary reports needing to be prepared and exchanged would be outweighed by the benefit of having a thorough exposure of all the issues raised in the reports of various experts.
It is the case that the normal practice is that there be simultaneous exchange of expert reports, but equally the discretion referred to earlier, reposes in the Court for very sound reason in cases where it is appropriate that a simultaneous exchange is not ordered to occur. For the reasons referred to previously and because in my view it would promote the objectives of positive case flow management and hopefully narrow the issues in this matter which would be to the advantage of all the parties, I am not persuaded that there should be simultaneous exchange of expert reports between the parties. In my view it is appropriate in these circumstances that any report or reports prepared by experts upon which the appellants intend to rely be provided to the respective respondents before they are required to provide to the appellants any report or reports prepared by experts upon which the respective respondents intend to rely at trial.
As I am unaware as to precisely what stage this matter has reached as to it being listed for trial, I will hear counsel as to the appropriate timeframe in which such reports should be exchanged. Although it is not readily apparent from the materials before me at this stage, commonsense would suggest that a three month hiatus between exchange of experts' reports was contemplated by the Registrar as being appropriate and reasonable because there could be some difficulty in locating and securing the services of appropriate experts. In addition it could well be that the preparation of such reports could involve a need to visit the site in question which, as I understand it, is somewhat remote in that it is well outside the metropolitan area.
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