Miski v Penrith Whitewater Stadium Ltd - [2017] NSWDC 110

District Court

New South Wales

Medium Neutral Citation: Miski v Penrith Whitewater Stadium Ltd [2017] NSWDC 110
Hearing dates: 22 May 2017
Date of orders: 23 May 2017
Decision date: 23 May 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff’s notice of motion filed on 22 May 2017 granted, subject to the orders set out below.
(2) The plaintiff has leave to rely upon the report of Associate Professor Eager dated 9 April 2017.
(3) The Court notes that the plaintiff does not seek leave to amend the pleadings or to serve any further expert or medical evidence.
(4) The defendant to serve any expert evidence in reply by 21 July 2017.
(5) The trial date of 5 June 2017 is vacated and the proceedings listed for directions before the List Judge on Friday 26 May 2017, with liberty to apply to Gibson DCJ in chambers to change this date if not appropriate.
(6) The plaintiff to pay the defendant’s costs of and associated with: (a) The relisting of the proceedings; (b) The plaintiff’s notice of motion filed in Court today; and (c) Thrown away by the vacation of the trial date, on an indemnity basis; and those costs are all payable forthwith, and to be assessed forthwith if not otherwise agreed to.
(7) Liberty to apply on 3 days’ notice.
(8) The Court reserves for consideration at the conclusion of the proceedings the question of whether the plaintiff’s solicitor should indemnify the plaintiff in respect of the costs order in order (6) above.

Catchwords: PRACTICE AND PROCEDURE – claim for damages for white water rafting injury – circumstances of plaintiff’s injury factually complex – plaintiff’s expert liability report served less than 28 days prior to hearing and without leave – defendant unable to meet expert report in time – proceedings relisted by defendant for orders in relation to admissibility of the expert report prior to trial – plaintiff alternatively seeks adjournment of the hearing date – prior history of delay including prior adjourned trial date – balancing the justice of the case with the unfairness to the opponent – court resources issues – desirability of expert report for trial judge – adjournment of hearing date granted on terms, including payment of costs on an indemnity basis to be paid forthwith
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 and 99
Competition and Consumer Act 2010 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 31.28
Cases Cited: Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309
Lee v Keddie [2011] NSWCA 2
Motorcycling Events Group Australia Pty Ltd v Kelly (2012) 303 ALR 583
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Rodi v Gelonesi [2016] NSWCA 348
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tong Hi To v Revro Pty Ltd; Tong Hi To…

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: [2017] NSWDC 110
Decision Date: 23 May 2017

CaseChat Overview and Summary

The plaintiff, Miski, sought damages for injuries sustained during a white water rafting activity at the Penrith Whitewater Stadium, operated by the defendant, Penrith Whitewater Stadium Ltd. The nature of Miski's injury was complex, and the factual circumstances surrounding it were intricate. The case was before the court, which needed to address the admissibility of a late-filed expert report and the broader issue of procedural fairness in light of repeated delays in the case.

The primary legal issue the court had to decide was whether Miski could rely on an expert report served less than 28 days before the hearing date, without having obtained prior leave from the court. The defendant argued that the late service of the expert report was unfair and prejudiced their ability to respond adequately, while Miski contended that the complexity of the case justified an exception to the usual procedural rules. The court also considered the history of delays in the proceedings and the implications for the efficient use of court resources.

The court found that, despite the procedural irregularity, the circumstances of the case warranted an exception to the usual rules regarding the timeliness of expert reports. The court emphasised the importance of balancing the justice of the case with the need to ensure procedural fairness to the defendant. The court also noted that the expert report would be beneficial for the trial judge to understand the complex medical issues involved. Consequently, the court granted Miski leave to rely on the late-filed expert report, but ordered Miski to pay the defendant’s costs associated with the relisting of the proceedings and the notice of motion, on an indemnity basis and forthwith.

The court vacated the trial date and relisted the proceedings for directions, with an option for the parties to apply to change this date if necessary. The court reserved the question of whether Miski's solicitor should indemnify Miski in respect of the costs ordered, to be considered at the conclusion of the proceedings.

Orders

Orders of the court

(1) Plaintiff’s notice of motion filed on 22 May 2017 granted, subject to the orders set out below.

(2) The plaintiff has leave to rely upon the report of Associate Professor Eager dated 9 April 2017.

(3) The Court notes that the plaintiff does not seek leave to amend the pleadings or to serve any further expert or medical evidence.

(4) The defendant to serve any expert evidence in reply by 21 July 2017.

(5) The trial date of 5 June 2017 is vacated and the proceedings listed for directions before the List Judge on Friday 26 May 2017, with liberty to apply to Gibson DCJ in chambers to change this date if not appropriate.

(6) The plaintiff to pay the defendant’s costs of and associated with: (a) The relisting of the proceedings; (b) The plaintiff’s notice of motion filed in Court today; and (c) Thrown away by the vacation of the trial date, on an indemnity basis; and those costs are all payable forthwith, and to be assessed forthwith if not otherwise agreed to.

(7) Liberty to apply on 3 days’ notice.

(8) The Court reserves for consideration at the conclusion of the proceedings the question of whether the plaintiff’s solicitor should indemnify the plaintiff in respect of the costs order in order (6) above.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Miski v Penrith Whitewater Stadium Ltd [2017] NSWDC 110
Hearing dates:	22 May 2017
Date of orders:	23 May 2017
Decision date:	23 May 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s notice of motion filed on 22 May 2017 granted, subject to the orders set out below. (2) The plaintiff has leave to rely upon the report of Associate Professor Eager dated 9 April 2017. (3) The Court notes that the plaintiff does not seek leave to amend the pleadings or to serve any further expert or medical evidence. (4) The defendant to serve any expert evidence in reply by 21 July 2017. (5) The trial date of 5 June 2017 is vacated and the proceedings listed for directions before the List Judge on Friday 26 May 2017, with liberty to apply to Gibson DCJ in chambers to change this date if not appropriate. (6) The plaintiff to pay the defendant’s costs of and associated with: (a) The relisting of the proceedings; (b) The plaintiff’s notice of motion filed in Court today; and (c) Thrown away by the vacation of the trial date, on an indemnity basis; and those costs are all payable forthwith, and to be assessed forthwith if not otherwise agreed to. (7) Liberty to apply on 3 days’ notice. (8) The Court reserves for consideration at the conclusion of the proceedings the question of whether the plaintiff’s solicitor should indemnify the plaintiff in respect of the costs order in order (6) above.
Catchwords:	PRACTICE AND PROCEDURE – claim for damages for white water rafting injury – circumstances of plaintiff’s injury factually complex – plaintiff’s expert liability report served less than 28 days prior to hearing and without leave – defendant unable to meet expert report in time – proceedings relisted by defendant for orders in relation to admissibility of the expert report prior to trial – plaintiff alternatively seeks adjournment of the hearing date – prior history of delay including prior adjourned trial date – balancing the justice of the case with the unfairness to the opponent – court resources issues – desirability of expert report for trial judge – adjournment of hearing date granted on terms, including payment of costs on an indemnity basis to be paid forthwith
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 58 and 99 Competition and Consumer Act 2010 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 31.28
Cases Cited:	Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309 Lee v Keddie [2011] NSWCA 2 Motorcycling Events Group Australia Pty Ltd v Kelly (2012) 303 ALR 583 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Rodi v Gelonesi [2016] NSWCA 348 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Tong Hi To v Revro Pty Ltd; Tong Hi To…