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 was supplied to the second defendant pursuant to a subcontractor/labour hire arrangement.
In brief, the plaintiff’s employment required him to stand to the side of a stack of H-frames, and individually pull the H-frames towards him, before then lifting and carrying the H-frame on his shoulder unassisted for a distance of approximately 20 metres. The plaintiff alleges that he injured his back lifting the section of the H-frame.
Procedural history
The history of the proceedings is set out in two affidavits of Ms Bonnie Wynne, the second defendant’s solicitor, dated 27 February 2023 and 14 March 2023 respectively.
The plaintiff commenced proceedings against the second defendant on 6 October 2020. The proceedings were served on the second defendant on 27 October 2020.
On 1 March 2022, the plaintiff served an expert liability report of Denis Cauduro dated 20 February 2022. An Amended Statement of Claim was filed on 8 March 2022.
On 14 April 2022, McCallum CJ ordered the parties to serve any expert evidence in the proceedings on or before 12 August 2022.
Ms Wynne states that in June 2022, she considered it “essential” to obtain a liability opinion for an expert with experience in the construction industry. Between 8 and 15 June 2022, Ms Wynne liaised with Unisearch and Experts Direct seeking an expert witness to provide a liability opinion. By 16 June 2022, an appropriate expert had been identified, but she states that “for reasons which are privileged”, the second defendant was not able to proceed with the expert’s engagement. Ms Wynne states that at this time:
… based on the enquiries that I had made, I formed the view that [the second defendant] would be unable to engage a suitably qualified liability expert. I also considered, based on the information available to me at that time, that the matter had reasonable prospects of settling and that an expert liability report was not critical to [the second defendant’s] case. On this basis, [the second defendant] determined not to proceed with an expert witness as to liability.
Contrary to Ms Wynne’s hopes, the proceedings did not settle.
On 1 September 2022, these proceedings were listed for hearing, with a five day estimate, commencing on 24 April 2023.
On 26 September 2022, the second defendant briefed Senior Counsel. On 18 October 2022, following advice from Senior Counsel and “during enquiries made in order to answer interrogatories”, Ms Wynne formed the view that obtaining an expert liability report was “critical” to the second defendant’s case.
Ms Wynne then made inquiries of three experts about their availability to provide an expert report on liability. Dr McIntosh immediately confirmed his availability to provide a report.
On 14 November 2022, the second defendant gave instructions to its lawyers to obtain an expert report on liability from Dr McIntosh. Dr McIntosh was provided with a briefing letter on 13 December 2023.
A report was obtained from Dr McIntosh on 14 February 2023. That report was first served on the plaintiff on 20 February 2023. The plaintiff advised the second defendant that the report would be objected to, and the present application was filed by the second defendant on 28 February 2023.
The expert reports
Mr Cauduro has a Masters Degree in Ergonomics, Health and Safety. He conducts expert safety, ergonomic and building assessment reports. In brief, Mr Cauduro is of the opinion that the lifting and carrying of the H-frame should have been conducted by two people, and that a single person should not have been permitted to lift the H-frame.
Dr McIntosh has degrees in biomedical engineering and physiotherapy. His expertise is in the field of biomechanics and ergonomics/human factors. Dr McIntosh is of the opinion that a single person lift of the H-frame was an acceptable manual handling procedure. He states that whilst it may have been acceptable for two people to “lift” the H-frame, a two person “lift/carry/transfer” would not have been an acceptable manual handling procedure.
Legal principles
The present application is made under r 1205(1)(a) of the Court Procedures Rules, which provides that:
(1) The court may, on its own initiative or on a party’s application, give 1 or more of the following directions in relation to expert evidence:
(a) a direction about the time for service of an expert report; …
It is necessary to read in r 1205 in accordance with s 5A of the Civil Procedure Act 2004 (ACT) (namely, to “facilitate the just resolution of disputes (a) according to law; and (b) as quickly, inexpensively and efficiently as possible”) and in conformity with other relevant provisions of the Court Procedure Rules, including rr 1241 and r 1401.
The relationship between rr 1205 and 1241 was explained by McCallum CJ in Smith v Children Australia Inc [2022] ACTSC 310 at [6] – [8] as follows:
[6] Rule 1205 of the Court Procedures Rules 2006 (ACT) is a broad rule which confers extensive power on the Court to control the use of experts in proceedings including by limiting the time within which expert reports are to be served and the number of experts who may be called to give evidence on an issue. Rule 1211 provides further scope to control the use of expert witnesses by empowering the Court to direct expert witnesses to meet, identify the matters on which they agree and disagree, state the reasons for any disagreement and try to resolve the disagreement. Those provisions, and like provisions in other jurisdictions, were introduced to address concern as to the duplication, expense and delay often caused by expert evidence, particularly in personal injury proceedings where experts were often polarised and, for want of a better expression, sometimes presented as guns for hire.
[7] The powers conferred by those two rules give the Court a substantial measure of control, from which there may be implied a responsibility, to prevent the incurring of unnecessary costs and delay in personal injury proceedings.
[8] Rule 1241 supports those powers by limiting the admissibility of an expert report that has not been served in accordance with the rule. The requirement of the rule is that each party must serve its expert reports in accordance with any direction made by the court: r 1241(1). Rule 1241(3) imposes a requirement for leave to tender any report not served in accordance with the rule (except where all active parties agree). Rule 1241(4) provides that the court “must not give leave under subrule (3) unless satisfied that there are exceptional circumstances that justify giving leave” or that the report only updates an earlier version of a report served in accordance with the rule.
Accordingly, where, as here, the application is made in advance of the hearing date, a defendant may apply for an order authorising service under r 1205, rather than for an order permitting leave to tender the report despite the lack of service under r 1241.
Rule 1401 of the Court Procedures Rules provides the Court with a broad power to give “any direction about the conduct of the proceeding it considers appropriate”. Rule 1401(3) prescribes that, “the interests of justice are paramount” in deciding whether to give a direction under the rule. Further relevant considerations are also specified in r 1401(5), which include, inter alia, the entitlement of each party to a fair hearing.
Unlike r 1401, r 1205 does not expressly provide that the interests of justice are paramount. However, as McWilliam AsJ observed in Glover v Fuller [2022] ACTSC 144 at [5], “that objective is plainly contemplated, as seen by the reference to the interests of justice in the purposes of the part set out in r 1200 of the Rules.”
The following factors are of particular significance in determining whether to grant leave to permit an extension of time to serve an expert report under r 1205:
(i) Whether there will be prejudice to the respondent if leave is granted to permit late service of the expert report;
(ii) Whether there will be prejudice to the applicant if leave is not granted to permit late service of the expert report;
(iii) Whether there has been a reasonable explanation for the failure to comply with prior directions of the Court: Hinchcliffev Carters Transport Australia Pty Ltd [2017] ACTSC 223 at [14] – [15] (Mossop J). The Court “must be fully informed of the reasons for any change in position, even if this requires an admission that some of those reasons are the applicant’s fault”: Glover v Fuller at [9]; and
(iv) Whether the grant of leave will jeopardise a listed hearing date. Where an application is brought at a time that is “likely to kybosh the hearing, the Court should be slow to grant leave having regard to the clear purpose of the special rules about the service of expert reports”: McCloskey v Nexis Accountants Pty Ltd [2023] ACTSC 41 at [14] (McCallum CJ).
These considerations are not exhaustive, and matters relevant to the exercise of the Court’s discretion will vary depending on the circumstances leading to the application being brought: Glover v Fuller at [8].
Evidence and Submissions
As noted above, the second defendant relies on two affidavits of its instructing solicitor, Ms Wynne, which set out the history of the proceedings, and the circumstances giving rise to the late service of Dr McIntosh’s report.
The second defendant contended that leave to amend the time for service of Dr McIntosh’s report should be extended because:
(i) The plaintiff is not prejudiced, and has “ample time” to obtain a supplementary report from his liability expert, Mr Cauduro, in reply to Dr McIntosh’s report;
(ii) The existing trial date will not be jeopardised if the late service of the report is permitted;
(iii) The second defendant has “adequately explained” the reasons for the delay; and
(iv) The report of Dr McIntosh relates to matters that are “critical” to the plaintiff’s case.
The first defendant consented to the second defendant’s application. The plaintiff opposed the orders sought.
The plaintiff noted that the second defendant is now making a positive case that a manual two person lift was not only not required, but that it was inappropriate, that an injury of the type the plaintiff suffered would not have been prevented by such a lift, and, significantly, that the one person lift was unlikely to have caused the plaintiff’s injury.
The plaintiff submitted that this latter causation point is “entirely new”, and “clearly comes from [Dr McIntosh’s] perspective as a biomedical engineer.” In this respect, the plaintiff tendered the curriculum vitae of Mr Cauduro and Dr McIntosh. The plaintiff submitted that unlike Mr Cauduro, who has qualifications and expertise in buildings and ergonomics, Dr McIntosh has qualifications and expertise in biomechanical engineering and physiotherapy. For this reason, the plaintiff submitted that he is prejudiced by the late service of the report. A supplementary report of Mr Cauduro will not answer Dr McIntosh’s evidence, because Mr Cauduro lacks Dr McIntosh’s expertise. As it will be necessary for a new expert to be retained on behalf of the plaintiff, the plaintiff submitted that it is likely that the plaintiff will need to apply for the vacation of the hearing date.
The plaintiff further submitted that the second defendant had not provided an adequate explanation for the late service of the report. The plaintiff submitted that Ms Wynne’s affidavit demonstrates that the second defendant had “adopted a deliberate forensic approach to the conduct of these proceedings but then changed its mind, for reasons that are not clearly articulated.” The plaintiff noted that when the second defendant changed its mind, and decided to obtain the expert report that it had previously declined to obtain:
… rather than proceed with haste and the notice to the Court and other parties that the situation warranted… the second defendant proceeded in silence to obtain the subject report, before serving it on 20 February 2023.
The plaintiff further submitted that if this Court declined to amend the directions for the service of Dr McIntosh’s report under r 1205, it would remain open to first defendant to seek leave to tender the report at the hearing of the proceedings on 24 April 2023.
Determination
I do not accept the second defendant’s submission that the plaintiff has not been prejudiced by the late service of Dr McIntosh’s expert report. The second defendant’s submissions concerning the lack of prejudice are predicated on the assumption that the plaintiff will be content to rely on Mr Cauduro in answering Dr McIntoch’s opinion. There is no basis for this assumption. As the plaintiff submitted, Mr Cauduro’s expertise is different to that of Dr McIntosh. In contrast to Mr Cauduro, who has a Masters degree and practical experience in ergonomics, Dr McIntosh has qualifications and experience in biomechanics. These qualifications and experience place Dr McIntosh in a significantly better position to opine upon the issues of causation now raised for the first time by the second defendant. The second defendant’s late service of Dr McIntosh’s report has deprived the plaintiff of the opportunity to obtain an expert of equivalent expertise without jeopardising the hearing date.
Nor do I accept that the second defendant has provided an adequate explanation for its late service of Dr McIntosh’s report. It is clear from Ms Wynne’s affidavit that the second defendant’s original decision not to obtain an expert report on liability was considered and deliberate. Ms Wynne refers to the view having been taken that expert evidence was “not critical to [the second defendant’s case]”, and that consequently, the second defendant “determined not to proceed with an expert witness as to liability”.
Although Ms Wynne’s affidavit refers to a discussion about interrogatories having occurred at a time that was proximate to the decision to obtain an expert report, there is nothing in Ms Wynne’s affidavit that indicates that there was anything about those interrogatories that altered the basis on which the original forensic decision was made. Rather, it is clear that the second defendant’s change of forensic decision followed the advice of Senior Counsel, that Senior Counsel having been first briefed on 26 September 2022, which was after the second defendant informed the Court that all evidence had been filed and that the proceedings were ready to be listed for hearing.
The late briefing of Senior Counsel is not an adequate explanation for the delay in filing Dr McIntosh’s report. As Mossop J held in Pryce v Dunlap [2016] ACTSC 338 at [49]:
Parties are, of course, entitled to delay briefing counsel or brief different or more senior counsel subsequent to obtaining the advice upon which they base their preparation of the case. However, the processes of the Court designed to bring proceedings to a hearing will often have a consequence that parties are required to live with the choices that they have made arising from the decisions about when to brief counsel.
The delay occasioned by the late briefing of Senior Counsel was further exacerbated by the second defendant’s delay in providing its legal representatives with instructions to obtain an expert report on liability. As the plaintiff submitted, these matters do not favour the grant of leave. In circumstances where the second defendant was in default of the directions for the filing of expert evidence, it was incumbent upon it to provide prompt instructions as to whether such expert evidence should be obtained.
Further, once instructions were obtained, the second defendant did not provide any notice to the Court or to the parties of its decision to obtain an expert report on liability. In particular, the second defendant did not approach the Court for an amendment of the directions for the filing of expert evidence at this time.
The second defendant’s failure to approach the Court for an amendment of the directions at this time was, no doubt, motivated by a desire to ensure that the plaintiff was not aware that it was obtaining an expert report on liability, so that if the report was ultimately not of assistance to its case, no adverse inference could be drawn against its case.
The unfairness of such an approach is amply demonstrated in the present application. Through its deliberate default of the Court’s directions, the second defendant was able to obtain an expert report from Dr McIntosh, without “showing its hand” to the plaintiff. Despite this, the second defendant contended that there was an onus on the plaintiff to adduce evidence of “prejudice”, in particular, from the plaintiff’s instructing solicitor as to whether it was proposed to retain a new expert to respond to Dr McIntosh, or as to when any such report could be obtained. In effect, the second defendant submitted that the plaintiff was required to “show its hand” in respect of precisely those matters which the defendant declined to do.
Generally speaking, there is no obligation on a party to advise its opponent when seeking an expert report. However, the position is different when a party chooses to brief an expert after a court imposed deadline for filing expert evidence has passed. If a party decides to brief an expert after the time for filing expert evidence has passed, it is incumbent on the party to immediately advise their opponent of the decision, and to seek an amendment of the Court’s directions at that time.
In summary, I accept that there is prejudice to the plaintiff that will arise if a direction is made permitting the late service of Dr McIntosh’s report. I am also of the view that there is no adequate explanation for the delay in seeking the amendment of the directions.
However, against this, there will be significant prejudice to the second defendant if Dr McIntosh’s report is not admitted in the proceedings. As the second defendant submitted, if Dr McIntosh’s report is not admitted, Mr Cauduro’s report will “go unchallenged”.
Mr Muller, who appeared for the plaintiff, submitted that prejudice to the second defendant was not demonstrated, because a refusal to amend the directions under Rule 1205 would not preclude the second defendant making an application at the outset of the hearing for the admission of Dr McIntosh’s report under r 1422.
Although I was initially attracted to this submission, after further consideration, I am of the view that such an approach would not be conducive to the fair and efficient conduct of civil proceedings in this Court. It is not in the interests of the parties, or the Court, for the matter to proceed to hearing in circumstances where there is uncertainty about the admissibility of the expert evidence to be admitted. Accordingly, I am of the view that, when considering whether there is prejudice to the defendant on an application under r 1205, the Court should assess the possible prejudice to the defendant on an assumption that the trial judge will not admit the evidence at trial under r 1422.
I am satisfied that there will be prejudice to the second defendant if leave is not granted to the second defendant to permit service of the report of Dr McIntosh.
In all of the circumstances, and with some reservation, I am of the view that it is necessary to amend the directions to permit the second defendant 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.
In so finding, I have taken into account that it may be necessary for the 24 April 2023 hearing to be vacated. In this respect, I have also taken into account the cost to the plaintiff (both the costs of litigation and the personal cost to the plaintiff that will result from any adjournment of the proceedings) and the cost to the administration of justice that would be occasioned by the vacation of the hearing date: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175. I also take into account the fact that, whilst costs are not “a balm for all ills” a costs order may protect the plaintiff to some degree against the adverse consequences of any vacation of the hearing date.
Orders
The order of the Court is:
1. Extend the time for service of the expert report of Dr McIntosh dated 14 February 2023 to 20 February 2023.
2. I grant the parties liberty to apply on 24 hours’ notice for any further directions arising from these orders.
I will hear the parties as to the appropriate costs order to be made.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Ariella Bucci Date: 20 March 2023 |
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