Owners Strata Plan 58577 v Banmor Developments Finance Pty Ltd

[2006] NSWSC 174

CITATION:	Owners Strata Plan 58577 v Banmor Developments Finance Pty Ltd [2006] NSWSC 174
HEARING DATE(S):	9 March 2006
JUDGMENT DATE :	9 March 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	03/09/2006
DECISION:	Leave refused
CATCHWORDS:	PRACTICE - court-appointed expert - whether leave to be given to a party to file an expert report in response to the report of the court-appointed expert
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005
PARTIES:	Owners Strata Plan 58577 - Plaintiff Banmor Developments Finance Pty Limited - First Defendant Pluim Constructions Pty Limited - Second Defendant Ryde City Council - Third Defendant
FILE NUMBER(S):	SC 4822/02
COUNSEL:	G Segal - Plaintiff W La Hood, solicitor - First Defendant G W McGrath - Second Defendant M Hewett - Third Defendant
SOLICITORS:	Charles G Roth & Co - Plaintiff Toltz La Hood Lawyers - First Defendant Tesoriero Henderson Cotter - Second Defendant Pike Pike & Fenwick - Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

THURSDAY 9 MARCH 2006

4822/02 OWNERS STRATA PLAN 58577 v BANMOR DEVELOPMENTS FINANCE PTY LIMITED & 2 ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: This long running case is one in which the plaintiff now seeks the opportunity to file a further expert's report.

2 The Court, on 13 February 2004, made an order that Dr Robinson be appointed as an expert, to report on a variety of matters which relate to the water flow connected with properties of the plaintiff and the first defendant. The plaintiff’s property is downstream from the first defendant’s. There is, it seems, a very large drain underneath the first defendant’s land, which narrows significantly around the place where it crosses onto the plaintiff’s land. The narrowed drain under the plaintiff’s land is referred to as a Tonkin drain.

3 The topics on which Dr Robinson was asked to report included the capacity of the culvert constructed on the first defendant’s property, incorporating flow through and to the transition structure to the Tonkin drain on the plaintiff's property, and flow to and through the Tonkin drain on the plaintiff's property. There were other topics that Dr Robinson was asked to inquire into, which, in very broad terms, related to the adequacy of the system for dealing with stormwater. He was asked to report on whether there has been certain changes, as a result of work carried out on the first defendant’s property, in the way in which water affected the plaintiff’s property. Those questions were all posed at a level of generality which was not restricted to any particular field of expertise.

4 The appointment of Dr Robinson was an appointment by consent of all parties. It was made at the recommendation of Engineers Australia, after the solicitor for the third defendant had written to that organisation, explaining, in broad terms, the allegations which the plaintiff was making about the inadequacies it said existed in the stormwater system connected with the land. The request to Engineers Australia was:

“that you nominate an appropriate member of your Institution who is able and prepared to so enquire into and report on the questions set out in the Schedule. As indicated the person should have expertise in hydrology.”

5 The Schedule referred to is a schedule which sets out the various questions which the Court ultimately appointed Dr Robinson to answer.

6 Dr Robinson provided his report on 20 September 2004. On 12 November 2004 the plaintiff obtained an order permitting it to file and serve an expert response to Dr Robinson’s report by a particular date. No such report was provided within the time allowed, following which all three defendants filed a strike out motion. That strike out motion was ultimately unsuccessful, and the plaintiff obtained leave to file a report from a Dr Cordery. Dr Cordery has now provided a report - a week outside the time limited by the Court's order, but nobody complains they are prejudiced by that delay - and it is Dr Cordery’s report which has led the plaintiff to make the present application.

7 Dr Cordery has drawn attention to a distinction which exists between hydrology and hydraulics as areas of expertise. Counsel explained the difference as being that, broadly, hydrology concerns the flow of water over natural surfaces, while hydraulics concerns the flow of water over artificial surfaces such as in a pipe. Dr Cordery says that, while he is a hydrological expert, he does not regard himself as a hydraulics expert. Having read the curriculum vitae in Dr Robinson’s report, he expresses the view that he doubts that Dr Robinson is a hydraulics expert either.

8 On the strength of that report, the plaintiff now seeks the opportunity to file a further report, from an as yet unidentified hydraulics expert.

9 The CV of Dr Robinson, annexed to his report, itself refers to the distinction between hydrology and hydraulics. He describes himself as having done, in the period 2003 - 2004, work which involved “provision of hydrologic & hydraulic advice on stormwater management issues” concerning the Warringah Mall. Other experience which he quotes is described more generically, in terms such as advice on stormwater management, or advice on drainage and related issues, concerning particular properties. He does not say that he has dealt only with the hydrological aspects, as opposed to any hydraulic aspects, of those issues. Reference material that he indicates having relied upon include something described as a “hydraulic study” concerning the plaintiff’s land.

10 Part 31 rule 33 Uniform Civil Procedure Rules 2005 provides:

“Except by leave of the court, a party to proceedings may not adduce evidence of any expert on any question arising in proceedings if an expert has been appointed under this Division in relation to that question.”

11 Dr Robinson is someone who was recommended by Engineers Australia as being someone appropriate to deal with a problem the nature of which was described in quite lengthy detail in the schedule to the letter requesting recommendation of an expert. Dr Robinson’s CV and reference list itself alludes to the difference between hydraulics and hydrology, and it appears that Dr Robinson has at least some experience concerning both. In these circumstances I am not persuaded, by Dr Cordery’s doubts about Dr Robinson’s experience, that a sufficient case has been made out in relation to the grant of leave under Part 31 rule 33. This case has been going for a very long time, and the reference of questions to a court-appointed expert is something which aims at reducing the number of expert witnesses, who are heard in a case, not increasing them - although sometimes that result will not be achieved.

12 I grant the plaintiff leave to file the report of Dr Ian Cordery dated 7 February 2006, notwithstanding that it is out of time.

13 Under those circumstances, the defendants seek the opportunity to file further non-expert evidence to complete their case, and as well to have Dr Robinson prepare a response to Dr Cordery’s report. Each of those requests is, in my view, an appropriate one to accede to.

14 I direct the defendants to file any evidence upon which they seek to rely, of a non-expert nature, by Tuesday 30 May 2006. I direct that, if Dr Robinson deems it appropriate to file any response to the report of Dr Cordery, any such report be filed by Friday 12 May 2006.

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