Meloni v Brookvista Pty Ltd - [2009] WADC 51

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MELONI & ANOR -v- BROOKVISTA PTY LTD & ORS [2009] WADC 51

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 31 MARCH 2009

DELIVERED : Delivered Extemporaneously on 31 MARCH 2009 typed from tape and edited by The Principal Registrar

FILE NO/S: CIV 1190 of 2006

BETWEEN: MARCO MARINO MELONI
First Plaintiff
PAOLA STEPHANIE LOVI
Second Plaintiff
AND
BROOKVISTA PTY LTD
First Defendant
CHERYLE EVELYN BANDY
Second Defendant
CLAUDIO PAPALIA
Third Defendant
LELLO ROLAND PAPALIA
Fourth Defendant

Catchwords:

Practice and procedure - Leave to adduce expert evidence

Legislation:

District Court Rules 2005
Rules of the Supreme Court 1971

Result:

Application allowed

Representation:

Counsel:

First Plaintiff                  :     Mr J C Hammond
Second Plaintiff             :     Mr J C Hammond
First Defendant              :     Mr C P Stokes
Second Defendant         :     Mr C P Stokes
Third Defendant            :     Mr J C Benari
Fourth Defendant           :     Mr J C Benari

Solicitors:

First Plaintiff                  :     Hammond Worthington
Second Plaintiff             :     Hammond Worthington
First Defendant              :     Christ Stokes & Associates
Second Defendant         :     Chris Stokes & Associates
Third Defendant            :     John Benari & Associates
Fourth Defendant           :     John Benari & Associates

Case(s) referred to in judgment(s):

State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

PRINCIPAL REGISTRAR GETHING: The application before me this afternoon is an application by the defendants for leave to inspect certain flooring at premises 17 Joyce Street, Dalkeith. The flooring is the principal subject of this action. The defendants want the flooring inspected, firstly, by the solicitors for the parties, secondly, by the second defendant, and thirdly, by an expert nominated by the first and second defendants.
The application then goes on to provide that the defendants have leave to adduce further expert evidence at the trial of the action, and for orders that the reports of the experts be served by 14 April. The application has as its context the pending trial in this action, which is listed for five days commencing on 20 April 2009.
The Rules of the Supreme Court 1971 and District Court Rules 2005 both provide frameworks for the admission of expert evidence. Those Rules are part of the case management regime of both courts. The High Court in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, makes it clear that case management is not an end in itself. In the decision of Dawson, Gaudron and McHugh JJ, their Honours, after observing that case management is not an end to itself (at 154) state:
"It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim."
It seems to me that the appropriate way to deal with this case is to balance the competing risks of injustice.
Dealing first with the plaintiffs, the risk of injustice to the plaintiffs arises if they receive a further expert report or expert reports on 14 April which is only three clear business days prior to the commencement of the trial. The prejudice is that they will not be able to take sufficient instructions on the expert evidence in order to respond and adequately prepare for the trial of the action.
The plaintiffs also point out that the issue of inspection for a further expert's report has been live since June 2007. The submission on behalf of the plaintiffs was that, in essence, there was no reason why the inspection could not have taken place prior to this late stage. Even if the requests for inspection were not acceded to, the request could have been the subject of an earlier application to the court.
The prejudice to the defendants is that, if they are not able to file further expert evidence, they will not be able to prepare their case at its strongest. It is clear from the pleadings that the issue of the quality of the flooring is the central issue in the case.
The defendants also point out that there has been late disclosure of a number of photographs of the subject flooring. These were informally discovered by letter dated 26 March 2009. In affidavit material filed on behalf of the defendants, the defendants state that one of the reasons they want to carry out an inspection is to ascertain the accuracy of the photographs.
In balancing the competing risk of injustice, it is convenient to deal with the two experts proposed to be called by the defendants separately. The first is a Dr Zurhaar. It appears the Dr Zurhaar is going to be called effectively on behalf of all parties. The plaintiffs filed a substance of his expert evidence dated 6 June 2007. The defendants in their affidavit material state that they also wish to retain Dr Zurhaar.
It appears from the affidavit in support filed by the first and second defendants that the plaintiffs are going to be arranging for Dr Zurhaar to carry out a further inspection. As I understand the proposition, it is that at the same time Dr Zurhaar carries out inspection on behalf of the first and second defendants.
It seems to me that there is no reason why that could not occur. It seems clear that both parties are placing reliance on Dr Zurhaar. It would seem to be of maximum assistance to the trial Judge that Dr Zurhaar have the benefit of questions from both the plaintiffs and defendants in order to ensure that his preparation is optimal on behalf of all the parties. The fact that Dr Zurhaar is already going to inspect seems to indicate that any additional inconvenience to the plaintiffs as a result of inspection on behalf of the defendants is minimal.
The more difficult issue is the question of the inspection sought on behalf of at least the first and second defendants by a representative of the Australian Timber Flooring Association. The proposition, as I understand it, is that at the same time Dr Zurhaar inspects the flooring, or perhaps shortly afterwards, that another expert would inspect it.
I am informed from the Bar table on behalf of the plaintiffs that the plaintiffs have two further experts in addition to Dr Zurhaar on the question of the quality of the flooring. It seems to me that the prejudice to the plaintiffs in this situation is at this stage hypothetical. It may well be that, if they receive a report on or about 14 April, they can show it to one of their existing experts and the experts can take that on board and that there is no difficulty in terms of the trial preparation in incorporating any further information.
On the other hand, it may well be that having seen the further expert report filed on behalf of the defendants, there is a significant prejudice to the plaintiffs in the preparation of a trial and the issue arises as to whether or not the trial needs to be vacated.
In looking at this, it is relevant to consider the issue of the standard of workmanship of the flooring is not likely to be a hugely complex one. I derive support for that proposition from the fact that the substance of expert evidence of Dr Zurhaar filed by the plaintiff is five paragraphs long and comprises 15 lines of text.
On balance, it seems to me that it is appropriate to order that inspection be allowed by a second expert on behalf of the first and second defendants. In coming to that conclusion, I have taken into account the submissions on behalf of the plaintiff in terms of the importance of the case management principles being adhered to. However, in the circumstances of this case, it is clear form the file that the case management principles of this Court have not really been adhered to by any of the parties.
In particular two things stand out. Firstly, no party has filed an index of the reports that they propose to rely on at trial. That is required to be done prior to the first listing conference: District Court Rules r 45E(3). The second is that the plaintiff hasn't complied with District Court Rules r 45G. That Rule provides that at least 42 days before trial the plaintiffs are to serve on the defendants a list of all the records and objects they propose to tender at trial. Importantly, had that been complied with, the photos discovered informally in late March would have been discovered by approximately 2 March. Had there been compliance with that case management principle, then it may well be the whole issue of further expert evidence would have been dealt with much earlier.
For these reasons I am prepared in substance to grant the application in terms of the chamber summons. I will heard from counsel in terms of drafting the precise orders.