Moussa v Camden Council (No.8)

[2025] NSWSC 186

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Moussa v Camden Council (No.8) [2025] NSWSC 186

Hearing dates:

07 March 2025

Date of orders:

07 March 2025

Decision date:

07 March 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Extend the time required for compliance by the first and second defendants, with Order 1 of the Court’s orders made on 3 February 2025 to 11 April 2025.

(2)   Extend time for compliance by each of the defendants with Order 2 of the Court’s order made on 3 February 2025 to 9 June 2025.

(3)   Costs to be costs in the cause.

(4)   List the proceedings for directions on 20 June 2025 at 2pm.

Catchwords:

CIVIL PROCEDURE – Evidence – Time – Extension of time – Reasonable period for the filing of evidence – Where an extension of time is required for the filing of lay evidence and expert evidence – Whether delay has come about through the ordinary incidents of complex litigation – Where flexibility concerning filing dates of expert reports is necessary as a result of complexity of matter – Where lay evidence is made available to experts in the ‘best form possible’ to facilitate timely drafting of expert reports

Legislation Cited:

Civil Procedure Act 2005 s 56

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Danny Marielle Moussa (P)
Camden Council (D1)
Cornish Group Spring Farm Pty Ltd (D2)
SMEC Testing Services Pty Ltd (D3)

Representation:

Counsel:
D Priestley SC / J Burnett (P)
E Lovell-Jones (D1)
M Hall (D2)
P Gaffney (D3)

Solicitors:
Mayweathers (P)
McCabes Lawyers (D1)
Marsdens Law Group (D2)
Wotton + Kearney (D3)

File Number(s):

2020/359004

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. These proceedings are listed before me today for directions, in circumstances where each of the defendants seek additional time for the filing of lay evidence and expert evidence.

2. In support of the application for an extension of time, the first defendant relies upon an affidavit of its solicitor, Mr Stephen Donnelly. Mr Donnelly explains that the Council has served considerable lay evidence, including outlines of anticipated evidence, and wishes to serve nine further statements or outlines of anticipated evidence.

3. The deadline for the service of the Council’s lay evidence has passed. However, the affidavit of Mr Donnelly indicates that the bulk of the outstanding material, by way of lay statements, can be filed by 28 March. Three other statements of current council employees may take a little longer.

4. In support of further time, the second defendant relies on the affidavit of its solicitor, Mr Matthew Rofe affirmed on 6 March 2025. Mr Rofe describes, in detail, events which have occurred that have led to the need for additional time to organise lay evidence.

5. Partly, the additional time is due to what I might describe as “the ordinary incidents of litigation”. It is also partly due to the fact that one of the principal lay witnesses has been unavailable as a result of an unexpected health issue.

6. All defendants, including the third defendant, submit that it is apparent from the subject matter of the proceedings generally and the material contained in the affidavits that it will be imperative for the experts to have available, in the best form possible, the entirety of the lay evidence which is to be relied upon by the defendants in answer to the plaintiff's claim before finalising their reports.

7. I use the term “in the best form possible” to include a number of different forms of evidence, such as; statements that are in a form appropriate, pursuant to r 31.4 of the Uniform Civil Procedure Rules 2005, to comprise evidence‑in‑chief; where witnesses refuse or decline to make statements, outlines of their anticipated evidence in as full a form as possible, and, where it is not possible for either of those two things to be done, the preparation of a document entitled “Statement of Assumptions”, or a document of a similar kind, setting out what the solicitors’ understanding will be as to the matters of fact that the witness is anticipated to give in evidence upon the basis of which the experts can prepare their report.

8. Broadly speaking, the Court has previously allowed about a month between the conclusion of the period for service of the lay evidence and the provision of expert reports. It seems to me that that period is significant and is necessary in order to enable the experts to prepare their reports in a way which is relevant to the factual evidence which it is anticipated the defendants will each lead.

9. The remaining issue between the parties is whether, as contended for by the plaintiff, fixed sequencing dates in respect of reports should be determined by the Court or whether the Court, as contended for by the defendants, should provide for the last cut-off date by which reports will be served and accompany that by a direction that expert reports are to be served promptly upon receipt of finalised reports.

10. There is frankly not a lot of substantial difference between the parties’ positions. The plaintiff presses for the orders that it seeks, saying that they are more efficient, more likely to be effective and will better support the overriding purpose set out in s 56 of the Civil Procedure Act 2005. The defendants’ point, in the context of the complexity of these proceedings, and the complexity of the expert issues, to the need for them to have some flexibility in when reports are provided, in the context that the Court would give a direction that the reports be provided as soon possible upon receipt. The plaintiff responds by expressing a fear that any such direction would be inutile.

11. In the context of these proceedings, which have now been case managed for a considerable period, it has become apparent to the Court that the preparation of evidence, either on the part of the plaintiff or on the part of the defendants, has taken a considerable period of time. No doubt that is because of the complexity of the case, and the issues and other similar interlocutory steps.

12. Whilst the positions put forward by the plaintiff and the defendants have features which commend them, I have rather more faith in the integrity of the assurances by the defendants that reports will be served promptly upon receipt than does the plaintiff. In those circumstances, I am persuaded that the flexible approach contended for by the defendants should be adopted.

13. In light of the default, in compliance with the Court’s previous orders, the plaintiff has sought the costs of today’s hearing. The defendants submit that the costs should be costs in the cause because the plaintiff had the opportunity earlier this week to consent to orders and chose to press for the orders which it contended for. I note also in this respect that the plaintiff did contend for what, on one view, might be thought to be a mild form of a guillotine order. I am not sure that either of those descriptions sit comfortably with each other. However, the plaintiff was unsuccessful in that respect. I see no point in making any form of cut off order at the moment.

14. In all of the circumstances, my view is that today’s directions hearing has come about through the ordinary incidents of this complex litigation, and the proper order for costs is that the costs should be in the cause.

Orders

15. I make the following orders:

1. Extend the time required for compliance by the first and second defendants, with Order 1 of the Court’s orders made on 3 February 2025 to 11 April 2025.

2. Extend time for compliance by each of the defendants with Order 2 of the Court’s order made on 3 February 2025 to 9 June 2025.

3. Costs to be costs in the cause.

4. List the proceedings for directions on 20 June 2025 at 2pm.

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Amendments

11 March 2025 - Correction to firm on coversheet

Decision last updated: 11 March 2025