| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MOKDAD -v- FMA ENGINEERING AUSTRALIA PTY LTD [2011] WADC 180 CORAM : DERRICK DCJ HEARD : 21 OCTOBER 2011 DELIVERED : 21 OCTOBER 2011 FILE NO/S : APP 55 of 2011 BETWEEN : SIMON MOKDAD Appellant
AND
FMA ENGINEERING AUSTRALIA PTY LTD
Respondent
Catchwords: Practice and procedure - Appeal against decision of magistrate refusing to extend time for filing of expert evidence - Legal principles to be applied in deciding appeals against decisions involving exercise of discretion Legislation: District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA) Result: Appeal allowed
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Representation: Counsel:
Appellant : Mr D A Lenhoff
Respondent : No appearance
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : Not applicable
Case(s) referred to in judgment(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625
House v R [1936] HCA 40; (1936) 55 CLR 499
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Morton Seed & Grain Pty Ltd v Corser & Corser [2006] WADC 90; (2006) 43 SR (WA) 182
State of Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146
Wilson v Metaxas [1989] WAR 285
(Page 3)
DERRICK DCJ: [This judgment was delivered extemporaneously on 21 October 2011 and has been edited from the transcript.]
Introduction 1 The appellant appeals against the decision of a magistrate refusing to grant him an extension of time for the filing and service of expert witness statements and reports. 2 To enable this court to deal with the appeal the Magistrates Court file has been provided to the court pursuant to r 52(3) of the District Court Rules 2005. I have therefore had access to all documentation that was before the Magistrates Court at the time that the decision the subject of the appeal was made. I have also had access to the transcript of the relevant hearings that took place in the Magistrates Court.
Non- contentious factual background 3 During the period between around June 2008 and July 2009 the appellant engaged the respondent to manufacture, supply and install some balustrades at two of his properties. The appellant subsequently refused to pay invoices issued by the respondent for work done in manufacturing, supplying and installing the balustrades. The appellant refused to pay the invoices because he believed that the balustrades were defective and did not comply with the Australian Standards and Building Code of Australia (BCA) standards. 4 After July 2009 the appellant and the respondent spent some time trying to resolve their dispute. They were not able to do so. 5 On 8 July 2010 the respondent commenced an action against the appellant in the Magistrates Court. The action was for non-payment of invoices issued for the manufacture, supply and installation of the balustrades at the appellant's properties. 6 On 20 July 2010 the appellant filed and served a notice of intention to defend the action. 7 On 29 September 2010 the respondent filed and served a statement of claim. 8 On 14 October 2010 the appellant filed and served his defence and his counterclaim against the respondent. (Page 4)
9 On 11 November 2010 the respondent filed and served a defence to the appellant's counterclaim. 10 On 20 April 2011 the parties appeared before Magistrate Jones at a listing conference (the April hearing). The appellant appeared in person. The respondent was legally represented. 11 At the April hearing the magistrate made a number of orders including the following orders: 1. The appellant file and serve on the respondent a copy of the statement in the approved form of the intended evidence of each witness who is not an expert witness that he intends to call at the trial of the action by 10 May 2011; 2. In the event of the appellant failing to comply with the order relating to the filing and service of statements of witnesses who are not expert witnesses, default judgment be entered against him; and 3. The appellant file and serve on the respondent a copy of any statement or report of any expert that he intends to call at the trial of the action by 7 June 2011. 12 His Honour adjourned the April hearing to 13 July 2011. 13 During the April hearing the magistrate told the appellant that although there was no springing order (a term the meaning of which his Honour explained to the appellant) attached to the order concerning the filing and serving of his expert witness statements and reports (the expert evidence), the effect of a failure on the appellant's part to comply with the order would be that he would be unable to call the experts at the trial. The magistrate asked the appellant if he understood this. The appellant responded that he did. 14 The appellant did not file and serve the expert evidence until 12 July 2011. The expert evidence filed and served consisted of a statement made by Mr David Hopkins, Operations Director of Balustrading WA Pty Ltd, dated 11 July 2011, a statement made by Mr Richard Olsen, Consultant Building Surveyor, dated 11 July 2011, and a report prepared by Mr Olsen dated 19 October 2010. (Page 5)
15 On 13 July 2011 the matter came back before Magistrate Jones (the July hearing). The appellant appeared in person. Mr Quentin Beale, a director of the respondent, appeared for the respondent. 16 During the July hearing the appellant, given that he had not filed the expert evidence by 7 June 2011 as ordered by the magistrate at the April hearing, applied for an extension of time for the filing and service of the evidence. In support of his application the appellant made the statements to the following effect to the magistrate: 1. The late submission of the expert evidence was out of his control. At the time that his expert witness left on business overseas the expert had provided him with comments that were not in the form of a witness statement. The expert failed to provide him with the expert's photographs and the appellant had to wait for the expert's return to file the photographs (ts 3); 2. As soon as he knew that his expert was overseas he sent a letter to Mr Beale requesting an extension of time for the filing and service of the expert evidence together with a memorandum of consent orders. He did not receive a response from Mr Beale until 4 July 2011 when he had without prejudice negotiations with Mr Beale's father, a Mr Geoffrey Beale (ts 3); 3. At the time of agreeing to the orders at the April hearing he was not aware of his experts' unavailable dates (ts 3); 4. He was happy for the matter to proceed as quickly as possible, but at the same time he was happy for the respondent to have as much time as required to prepare its evidence (ts 4); 5. He did not make an application to the court for an extension of time within which to file the expert evidence as soon as he became aware that he was going to have difficulties complying with the orders made at the April hearing because he was waiting for a response from Mr Beale to his request for an extension of time and he was not aware of the process for making an application (ts 4 - 5); 6. The building industry had been very busy in the last 12 months and his two experts were in the industry so he had to rely on them when they were available to prepare reports for him (ts 7); and (Page 6)
7. He would be prejudiced if he was not allowed to rely upon the expert evidence at trial because it was a clear case of non-compliance with the codes (ts 9). 17 The appellant's application for an extension of time was opposed by the respondent. When the magistrate asked Mr Beale what the respondent's attitude was to the extension of time, Mr Beale responded (ts 6): The main reason is that we had engaged lawyers, incurred considerable costs from the delays that have ultimately happened through the last year to 18 months and our advice was that the defendant needed to comply to the three orders that were given to him, which he did not, and we seek that the expert witness – expert reports are disallowed, otherwise we will need to go and extend the time and get our expert reports and it will just drag on considerably. Also, Your Honour, the defendant has (indistinct) stated to us since November 2009, that he will get an expert engineer's report, an expert report and numerous letters sent to us, which up until yesterday, he never provided. 18 Mr Beale also told the magistrate that if the matter went to trial the respondent would re-engage its lawyers and that the respondent was just trying to minimise its costs at the moment (ts 6). 19 The magistrate refused the appellant's application to extend time for the filing and service of the expert evidence. In doing so the magistrate made the following remarks. At transcript pages 6 – 7 his Honour said: ...You have known about your experts for quite some time, and in fact, the order was made on 20 April and was specific to enable (indistinct) expeditiously in retrospect. It has not been very expeditious but expeditiously to get this to trial...You've got quite a – I don't – probably haven't seen such a big statement with the annexures that you've got in your...defence and counterclaim but you haven't complied with it. It's obviously caused great inconvenience and costs a lot of money to the claimant... 20 At transcript page 7 his Honour said: I've got to take into consideration the list and the compliance with orders and when we're dealing with this amount of money and when we're dealing with a claim of this type, whilst we do relax the compliance with orders to some extent in some areas, when we're dealing with (indistinct) this and such a large amount of money and complex issues it would appear, then the orders have to be complied with. That's what it was made for in the first place… 21 At transcript page 8 his Honour said: (Page 7)
Your responsibility is to the court orders and you didn't comply with the court orders. It is as simple as that and it is not a matter of whether the claimant wishes to waive the court orders, the court made the order and it hasn't been complied with – well, it has been complied with to the extent that you've done your statements and the statements of the witnesses, you were required that any witnesses that you were going to rely on, you should have had those – there was specific time for that too and it wasn't done…. 22 At transcript page 9 - 10 his Honour said: …[Y]ou were given specific orders on 20 April. There was no application brought. As soon as you became aware that your expert witnesses, if they were, (indistinct) that you didn't lodge an application to extend those orders made on 20 April and it's now the day that its (indistinct) down for a listing conference, the day before, it seems, before the listing conference, you have now lodged and I think served, two expert witness statements. One from, it seems, Mr Olsen and the other one from Mr Hopkins. It hasn't complied with the order. The requirements were made quite clear on 20 April that you were to comply with certain – and you did not comply with part of the order...but you didn't comply with the expert's statement. That due to the delaying tactics or the delaying all the time… 23 Finally, further on at transcript page 10 His Honour said: That's how it has come across and you haven't complied with my orders. You don't comply with anything – in fact you haven't complied with anything that has been said. I accept that because of the further delays it would cost the claimants even more money and it would muddy the water, in my view, so I've come to the conclusion based after hearing from Mr Beale, that given the fact that he has had to discharge his legal representatives, which he's entitled to have, but so are you, discharge his legal representatives because of the costs and will have to re-engage them when he goes to trial, your application to lodge those two expert witness statements out of time is refused. Therefore, you won't be able to adduce any expert evidence other than what you have already lodged as far as your own statements are concerned and the matter is going to be down for trial on 19 October. 24 The remarks by the magistrate that I have just quoted were interspersed with exchanges between his Honour and the appellant the majority of which I need not refer to. I do note, however, that when the magistrate said that the appellant had not complied with the order relating to the expert statements due to delaying tactics the respondent stated to his Honour, 'I object to them being delaying tactics. It's like I explained, my experts were unavailable'. 25 The magistrate listed the action for trial on 19 October 2011. (Page 8)
26 On or about 2 August 2011 the appellant filed a notice of appeal bearing that date against the magistrate's decision refusing his application to extend time for the filing of the expert evidence. 27 On 15 September 2011 the Magistrates Court, in light of the appeal to this court, vacated the allocated trial date of 19 October 2011.
Statutory basis for the appeal 28 The appeal is made pursuant to s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004 (the Act) which provides that a party to a case that is not a minor case may appeal to the District Court against any order made by the Magistrates Court in the course of proceedings in the case. 29 The present case is not a minor case. 30 Section 40(4) of the Act provides that this court must decide the appeal on the material and evidence that was before the Magistrates Court and on any other evidence that it gives leave to be admitted. 31 Section 40(5) of the Act provides that leave may only be given under s 40(4) in exceptional circumstances.
Non-appearance by respondent on the appeal 32 A directions hearing relating to the appeal took place before a registrar of this court on 13 September 2011. According to a note of the hearing made by the registrar the respondent had filed a notice stating that it did not intend to participate in the appeal and would accept the court's determination. 33 I have not been able to locate such a notice on the court file. However, on 19 October 2011 the appellant's solicitors provided the court with a copy of a notice of respondent's intention which appears to have been signed by Mr Quentin Beale on 9 September 2011. The notice indicates that the respondent does not intend to take part in this appeal and will accept any order made by the court other than as to costs. 34 Consistently with the notice there was no appearance for the respondent at the hearing of the appeal. The appellant was represented by counsel at the appeal hearing. (Page 9)
Evidence filed in support of appeal 35 In support of the appeal, and in accordance with a direction made by the registrar of this court, the appellant has sworn and filed an affidavit. The appellant swore the affidavit on 21 September 2011. 36 During today's hearing of the appeal the appellant's counsel made an application pursuant to s 40(4) of the Act for leave to adduce the affidavit as evidence on the appeal. I allowed the application. 37 I do not need to detail the contents of the affidavit. It suffices to say that the appellant in the affidavit sets out in more detail than he provided to the magistrate the reasons for him not having complied with the order for the filing of the expert evidence. There is nothing in the affidavit which is inconsistent with what the appellant told the magistrate.
Legal principles relevant to determination of appeal 38 The magistrate's decision to refuse the application for an extension of time for the filing and service of the expert evidence was a discretionary decision which related to practice and procedure. Accordingly, I must exercise particular caution in reviewing the decision. I must bear in mind that there is a material difference between an exercise of discretion on a point of practice and procedure and an exercise of discretion which determines substantive rights. The need for caution flows from the concern that cases should not be delayed interminably and costs increased indefinitely as the result of continued appeals from interlocutory decisions: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177; Morton Seed & Grain Pty Ltd v Corser & Corser [2006] WADC 90; (2006) 43 SR (WA) 182 [15]. 39 Consistently with the principles that I have just stated, the courts have held that before an appeal against a discretionary decision on practice and procedure will be allowed, an appellant must demonstrate that the decision maker made an error of legal principle, made a material error of fact, took into account some irrelevant matter, failed to take into account, or gave insufficient weight to, some relevant matter, or arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error occurred, even though the error in question does not explicitly appear on the face of the reasoning: House v R [1936] HCA 40; (1936) 55 CLR 499, 504-505; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 [45]. Further, even if an appellant can establish one of the types of errors that I have identified, the appeal against the discretionary decision will not be allowed unless refusal of the (Page 10)
appeal will result in a serious injustice to the appellant and allowing the appeal will not cause injustice to the respondent: Wilson v Metaxas [1989] WAR 285, 294; Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625, 628-629, 635. In considering the question of injustice the court is entitled to have regard to case management principles: Haset Sali v SPC,629, 636; State of Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146, 154; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
Appellant's case on the appeal and analysis 40 The appellant's notice of appeal specifies as grounds of appeal that the magistrate erred in fact by failing to take into account a number of matters (grounds (a) - (f) and (h)). In the notice the appellant also asserts as grounds of appeal that the magistrate erred in fact by finding that the granting of an extension of time within which to lodge the expert evidence would cause the respondent great inconvenience and cost (ground (g)), and by listing the action for trial without allowing the appellant sufficient time to prepare his case (ground (i)). 41 I will now turn to deal with the grounds. It is not necessary for me to refer to each of the grounds individually. A number of them are directed at the same issue and can be dealt with under the one heading.
Ground (a) – failure to take account that appellant was self represented 42 Ground (a) asserts that the magistrate erred by failing to take account that the appellant was self represented. 43 In my view the appellant has failed to establish the alleged error. It was obvious that the appellant was self represented. It is in my view inconceivable that the magistrate did not take this fact into account in making his decision on the appellant's application.
Grounds (b) – (f) – failure to take account of appellant's explanation for delay 44 Each of grounds (b) to (f) allege that the magistrate erred by failing to take into account various aspects of the appellant's explanation for not complying with the order made at the April hearing for the filing and serving of the expert evidence. 45 The explanations provided by the appellant to the magistrate at the July hearing for failing to comply with the order for the filing and serving of the expert evidence were, in substance, as follows: (Page 11)
1. His inability to comply with the order for the filing and service of the expert evidence was due to circumstances outside his control; 2. He was, despite his best efforts, unable to obtain the necessary statements from Mr Olsen and Mr Hopkins due to their travel and work commitments; 3. As soon as he realised that one of his experts was overseas he wrote to Mr Beale requesting agreement to an extension of time for the filing and service of the expert evidence and did not receive a response to his request until July 2011; and 4. He was not aware of the process for making an application to the court for an extension of time within which to file the expert evidence. 46 The appellant's stated explanations to the magistrate for failing to comply with the order for the filing and service of the expert evidence revealed that he had made reasonable efforts to obtain the expert evidence within the time limit prescribed by the order. The fact that he did so is confirmed by the contents of his affidavit. The appellant's stated explanations also revealed that the appellant's failure to comply with the order was not the result of a deliberate tactical decision on his part or a contumelious disregard of the court's order. These were matters that the magistrate was required to take into account in determining the appellant's application for an extension of time. However, a reading of the magistrate's previously quoted remarks in dismissing the application reveals that his Honour did not make any reference to the appellant's explanations for failing to comply with the order. Indeed, at one point during the hearing when the appellant said to the magistrate that the building industry had been very busy in the last 12 months, that his two experts were in the building industry, and that he had to rely on their availability to prepare the reports, the magistrate responded, 'I cannot take that into consideration' (ts 7). In addition his Honour, far from taking into account the appellant's explanations, and without any apparent justification for doing so, referred to the appellant as having engaged in delaying tactics. I am therefore satisfied that the magistrate did, in refusing the appellant's application for an extension of time, make an error by failing to take into account, or give sufficient weight to, the appellant's explanations for failing to comply with the order relating to the filing and service of the expert evidence. (Page 12)
Ground (g) – finding grant of extension would cause respondent inconvenience and cost 47 Ground (g) alleges that the magistrate erred in finding that the granting to the appellant of an extension of time would cause the respondent great inconvenience and cost. This ground is apparently based on the previously quoted statement of the magistrate that 'It's obviously caused great inconvenience and costs a lot of money to the claimant' (ts 7). 48 I do not consider that the magistrate did find that the granting of an extension of time within which to lodge the expert evidence would cause the respondent great inconvenience and cost. On my reading of the magistrate's previously cited statements his Honour, in referring to 'it' having caused great inconvenience and cost to the respondent, was referring to the appellant's defence and counterclaim, not the appellant's delay in filing and serving the expert evidence. 49 Although in my opinion the magistrate did not find that the appellant's delay in filing and serving the expert evidence had caused the respondent inconvenience and cost, it does appear to me from his Honour's remarks that his Honour did, in deciding to dismiss the application for the extension of time, take into account that the appellant's defence and counterclaim to the respondent's action against him had caused the respondent great inconvenience and cost. This was not a factor that the magistrate should have taken into account. It was irrelevant to the determination of whether the appellant should be granted an extension of time within which to file the expert evidence that the appellant's defence of the respondent's action had caused the respondent great inconvenience and cost, even assuming that it had. I therefore find that the magistrate made an error in taking this consideration into account. 50 As is apparent from the previously quoted statements of the magistrate, his Honour did apparently find that 'further delays … would cost the claimants even more money' (ts 10). It is also clear from his Honour's statements that he took this finding into account in refusing the appellant's application for an extension of time within which to file the expert evidence. 51 There was nothing before the magistrate that could justify a conclusion that the cost to the respondent of obtaining expert reports in response to the appellant's expert evidence would be increased beyond what would otherwise be incurred by reason of granting an extension of time. Nor was there anything before the magistrate that could justify a (Page 13)
conclusion that the respondent's costs generally would be increased beyond what would otherwise be incurred by reason of granting the extension. I am therefore satisfied that the magistrate made an error in making this finding and taking it into account in deciding the appellant's application for the extension of time.
Grounds (h) and (i) – failing to take into account effect of refusal of application on appellant's case 52 I turn to grounds (h) and (i) on the notice which allege, in substance, that the magistrate failed to take into account the consequences for the appellant's case of refusing to grant him the requested extension of time. 53 By the time of the July hearing the expert evidence had been provided to the court. It was available to the magistrate. Furthermore, during the hearing the appellant told the magistrate that he would be prejudiced if he was not allowed to adduce the expert evidence (ts 9). 54 I have read the witness statement and report of Mr Olsen and the witness statement of Mr Hopkins. On their face the statements and report do provide support to the appellant's case, although for obvious reasons I am not in a position to say whether the evidence, if it is permitted to be adduced, will ultimately be accepted by the court. In any event, what is clear is that the effect of the magistrate's decision is that the appellant has no prospects at all of defending the appellant's action or making out his counterclaim. He has been denied the opportunity of presenting an integral part of his case. 55 The impact of refusing the appellant's application for an extension of time on the ability of the appellant to present his case at trial was clearly a factor that was relevant to the exercise of the magistrate's discretion. However, the magistrate in making his remarks leading to his refusal of the appellant's application does not appear to have made any significant reference to this factor. The only possible reference to the issue by the magistrate appears at transcript page 4 where his Honour, in response to a statement by the appellant that he felt he would be prejudiced if he was unable to file his expert evidence, said 'You did not bring it – of course you will. You didn't bring your application before this court'. It may be that his Honour's statement 'of course you will' was an acknowledgment that the appellant would be prejudiced by not being able to adduce his expert evidence. However, even if the statement was such an acknowledgment, it does not disclose any real consideration by the magistrate of the extent of the prejudice that would be suffered by the appellant by reason of not being able to adduce the evidence. (Page 14)
56 In the circumstances I am satisfied that the magistrate erred in the exercise of his discretion by failing to take into account, or at least by failing to give sufficient weight to, the prejudice that would be caused to the appellant by refusing the application to extend time within which to file the expert evidence.
Injustice 57 I have found that the appellant has established appealable error on the part of the magistrate. The questions which remain for determination are whether to refuse to allow the appeal will result in a serious injustice to the appellant and whether allowing the appeal will cause injustice to the respondent. In this regard it is important to bear in mind that while the ultimate obligation of a court is to seek to attain justice, the justice that is to be striven for is justice between the parties: Micallef v ICI [64]. It is for this reason that case management principles are relevant to the issue of injustice. 58 For the reasons that I have already stated, it is clear that the effect of refusing the appeal will have very significant adverse consequences for the appellant. It will, in effect, prevent him from mounting a case in defence of the action and in support of his counterclaim. 59 Against the prejudice that will be suffered by the appellant if the appeal is refused must be weighed the importance of litigants complying with programming orders of a court. The fact that this consideration is one that his Honour was entitled to take into account and which is relevant in considering the issue of injustice is made clear by s 13 of the Act which provides: 60 However, while it is obviously important for litigants to comply with court orders it needs to be borne in mind that in the present case the expert (Page 15)
evidence had been filed and served, albeit on the day before the July hearing, and no trial date had at the time of the hearing been set. Accordingly, this was not a case in which a decision to grant the requested extension of time carried with it the risk that the matter would be further delayed by the appellant's non-compliance with programming orders. Nor was it a case in which to allow the application to extend time would imperil existing trial dates or would result in court dates not being available to other litigants who were waiting to be allocated trial dates. Further, to allow the appeal will not imperil existing trial dates. The previously allocated trial date of 19 October 2011 was vacated over one month ago and has now passed in any event. In short, this is not in my view a case in which a decision by the court to allow the appeal and thereby to effectively grant the appellant a further indulgence will impact adversely on the public interest in the proper and efficient administration of justice or cause confidence in the court system to be undermined. 61 I turn finally to the impact of allowing the appeal on the respondent. 62 To allow the appeal will mean that the respondent may have to incur the cost of obtaining expert reports in reply to those which the appellant seeks to rely upon. However this is not prejudicial in the relevant sense. It cannot be viewed as a form of injustice given that the respondent is the claimant in the action. 63 There is no evidence before me that the respondent has incurred costs which have been wasted by the appellant's failure to comply with the order for the filing of the expert evidence. Indeed, it appears from what Mr Beale told the magistrate that at some point after the April hearing the respondent stopped using its lawyers. 64 The only prejudice to the respondent that will result from allowing the appeal is that the bringing of the action to trial and finalisation will be further delayed by some period of time, perhaps two or three months, by reason of the respondent needing time to obtain expert evidence in response to the appellant's expert evidence. While the desire of the respondents to bring the matter to finalisation should not be underestimated, the prejudice that it will suffer by some further delay is not nearly as significant as that which will be suffered by the appellant if the appeal is refused. The extent of any further delay will not, in my view, be such as to require the conclusion that the respondent will suffer an injustice if the appeal is allowed. (Page 16)
65 For the reasons stated I am satisfied that the appellant will suffer a serious injustice if the appeal is refused and that to allow the appeal will not cause injustice to the respondent. I am satisfied that to allow the appeal is to do justice between the parties.
Conclusion 66 I therefore allow the appeal. 67 The orders that I make are as follows: 1. The appeal is allowed; 2. The decision of the magistrate made on 13 July 2011 refusing the appellant's application for an extension of time within which to file and serve the witness statements and reports of his expert witnesses is set aside; 3. The time for the appellant's filing and service of the witness statements and reports of his expert witnesses is extended to 12 July 2011; 4. The matter is remitted to the Magistrates Court for hearing; 5. There is no order as to costs. |