Milhem v Sam's Carpentry Pty Ltd (in liquidation) & IC - [2023] ACTSC 51

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Milhem v Sam’s Carpentry Pty Ltd (in liquidation) & IC Formwork Services Pty Ltd
Citation:	[2023] ACTSC 51
Hearing Date:	17 March 2023
DecisionDate:	20 March 2023
Before:	Baker J
Decision:	Extend the time for service of the expert report of Dr McIntosh dated 14 February 2023 to 20 February 2023. I grant parties liberty to apply on 24 hours’ notice for any further direction arising from these orders.
Catchwords:	Where defendant seeks to admit expert report out of time – where late service would prejudice the plaintiff and result in delay to hearing date – where no reasonable explanation for late service – where non admission would significantly prejudice the defendant – late service of expert report permitted
Legislation Cited:	Court Procedures Rules 2006 (ACT)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Glover v Fuller [2022] ACTSC 144 Hinchcliffe v Carter's Transport Australia Pty Ltd [2017] ACTSC 223 McCloskey v Nexis Accountants Pty Ltd [2023] ACTSC 41 Pryce v Dunlap [2016] ACTSC 338 Smith v Children Australia Inc [2022] ACTSC 310
Parties:	Ali Milhem ( Plaintiff) Sam’s Carpentry Pty Ltd (in liquidation) ( First Defendant) IC Formwork Services Pty Ltd (Second Defendant)
Representation:	Counsel A Muller ( Plaintiff) K Martin ( First Defendant) S Gaussen (Second Defendant)
Solicitors United Legal ( Plaintiff) Moray & Agnew ( First Defendant) Hall & Wilcox (Second Defendant)
File Number	SC 353 of 2020

BAKER J:

Introduction

On 14 April 2022, McCallum CJ ordered that all expert reports be served in these proceedings on or before 12 August 2022. On 20 February 2023, the second defendant served an expert report of Dr Andrew McIntosh dated 14 February 2023 on the plaintiff. By an application filed on 28 February 2023, the second defendant moved under r 1205 of the Court Procedure Rules 2006 (ACT) to vary the direction made by McCallum CJ to “regularise” the service of this expert report.

For the reasons outlined below, I am of the view that amendment of the direction would prejudice the plaintiff and that it is likely that the hearing date will need to be vacated as a result of the second defendant’s conduct. I do not accept that there has been a reasonable explanation for the late service.

However, I accept that the report is critical to the second defendant’s case and that there will be significant prejudice to the second defendant if the report is not admitted into evidence. The plaintiff’s position may be protected, to a degree, by an appropriate costs order. Accordingly, despite reservations, I will make an order varying the direction to permit the late service of the report of Dr McIntosh.

Background

The claim

The proceedings concern a claim for damages in personal injury sustained whilst the plaintiff was working on a building site in Belconnen. The first defendant was the plaintiff’s employer at the time of the incident. The plaintiff…

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 51
Decision Date

CaseChat Overview and Summary

Ali Milhem has commenced proceedings against Sam’s Carpentry Pty Ltd (in liquidation) and IC Formwork Services Pty Ltd, seeking damages for personal injury sustained at a construction site in Belconnen. The first defendant was the plaintiff’s employer at the time of the incident, and the second defendant was a subcontractor engaged in the project. The plaintiff alleges that he injured his back while lifting a section of an H-frame at the site. The defendants have applied to admit an expert report out of time. The plaintiff opposed the application, arguing that the late service would prejudice him and result in a delay to the hearing date. The court was required to decide whether to permit the late service of the expert report and, if so, under what conditions. The court considered the factors relevant to the exercise of its discretion, including whether there would be prejudice to either party, whether there had been a reasonable explanation for the delay, and whether the grant of leave would jeopardise the listed hearing date. The court found that the plaintiff would be prejudiced by the late service of the report, as he would be unable to obtain a supplementary report from his expert in time to respond to the new issues raised by the defendants. However, the court also found that there would be significant prejudice to the defendants if the report was not admitted into evidence. The court concluded that, in all the circumstances, it was necessary to amend the directions to permit the defendants to rely on the report of Dr McIntosh so as to enable the issues between the parties to be determined on their merits at trial. The court extended the time for service of the expert report to 20 February 2023 and granted the parties liberty to apply on 24 hours’ notice for any further directions arising from these orders. The court will hear the parties as to the appropriate costs order to be made.

Orders