Peou v Cabana Home Units Pty Ltd

[2014] NSWSC 1953

Supreme Court

New South Wales

Medium Neutral Citation:	Peou v Cabana Home Units Pty Ltd [2014] NSWSC 1953
Hearing dates:	27 June 2014
Date of orders:	27 June 2014
Decision date:	27 June 2014
Jurisdiction:	Common Law
Before:	Garling J
Decision:	Dismiss the Notice of Motion of 16/5/14
Catchwords:	PROCEDURE – civil – r 31.20 and r 31.26 UCPR – application to prevent plaintiff relying upon expert evidence – three joint reports from separate conclaves already prepared – whether new expert evidence will affect existing reports – not just to deprive plaintiff of adducing further evidence – no delay to proceedings – application dismissed
Legislation Cited:	Civil Procedure Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules 2005
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	C Peou (P) Cabana Home Units Pty Ltd (D)
Representation:	Counsel: In person (P) S Dixon (D)
File Number(s):	2010/356917
Publication restriction:	Not Applicable

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EX TEMPORE Judgment

Notice of Motion

1. This is an application by Notice of Motion by the defendant which was filed on 16 May 2014. Putting it shortly the orders were directed through the prism of r 31.,20 and r 31.,26 of the Uniform Civil Procedure Rules 2005 (“UCPR”), to obtain orders which prevented the plaintiff from relying upon expert evidence, the substance of which is set out in a report of Mr Evan Smith of GHD Pty Limited dated 1 April 2014 (“the Smith Report”).

2. The principal basis for the objection to the plaintiff being able to rely upon the Smith Report is that, a joint report dated 5 May 2013 from experts retained by both the plaintiff and the defendant has been completed dealing with air quality issues, which is the subject of the Smith Report.

3. In order to determine the notice of motion a little background is necessary.

Background Facts

4. The plaintiff is the owner of an apartment in an apartment building in Wylde Street at Potts Point. The defendant is the owner and occupier of an adjoining apartment building at 7 Wylde Street, Potts Point.

5. Apparently for some years, hot water for the defendant's building has had been supplied from a closed room area designated on a sketch as an old boiler room. Sometime after that, it It is alleged around August or September 2006, that the defendant caused a new hot water heater which is powered by gas to be installed on its premises. It was installed on the ground level according to the photographs contained in a report which has been tendered, in an open area proximate to, and below, the unit occupied by the plaintiff.

6. The unit occupied by the plaintiff has a small metal balcony projecting out from the outside wall of her apartment block and it is above, but not directly above, the open area which contains the hot water heater.

7. On 27 October 2010, the plaintiff commenced proceedings in the District Court of New South Wales claiming damages from the defendant and, as well, an order that the defendant remove the hot water heater from alongside the premises of the plaintiff.

8. The legal cause of action giving rise to that claim for damages, and the entitlement to the orders, is said to be a claim in tort and a claim in nuisance. The statement of claim pleads an ongoing nuisance. It pleads amongst other things that the fumes emitted by the water heater have rendered the premises of the plaintiff unfit for habitation, that the continuous presence of the hot water heater is a nuisance and hence the plaintiff has an entitlement to have the hot water heater removed.

9. The plaintiff also claims significant sums of money because she says she has been unable to rent out the apartment. She also claims that she has suffered from personal injury. Whether any of these claims are made good at a hearing of this matter is not something upon which I am required to, nor do I, express any opinion.

Procedural History

10. The proceedings commenced in the District Court, with the consent of both parties, were transferred to the Supreme Court of New South Wales on 22 June 2012. It seems from the judgment of Truss DCJ, that nearly two years after the proceedings were commenced, it first occurred to the lawyers for the parties that the District Court did not have jurisdiction to grant the relief sought in the Statement of Claim, namely, an order for the removal of an ongoing nuisance, and so the matter was transferred to this Court.

11. The proceedings were first listed for directions in this Court in November 2012. In December 2012, the Registrar made orders contained in Short Minutes of Order proposed by the plaintiff and with which the defendant agreed.

12. Those Short Minutes of Order ordered that "Three respective joint conclaves of expert witnesses are to be convened". The short minutes provided that those experts were to confer together to provide a joint report, seemingly by the end of April 2013.

13. Prior to the making of those orders, no orders had been made at all requiring the parties to serve all of their expert reports on each other; nor had orders been made requiring the parties to serve their lay evidence. It is unsurprising that the Registrar made orders of the kind he did, because he was requested to do so by the parties.

14. However, it needs to be said that the orderly case management of any litigation of this kind requires attention to a series of matters. Firstly, the identification of, and obtaining of, the requisite lay evidence which provides the factual basis upon which experts are asked to make assumptions. Second, the preparation of the individual expert reports upon the basis of identified assumptions. It may be that part of the expert report, and retainer of an expert, includes asking the experts themselves to establish facts by the undertaking of testing or examination or the like. Ultimately, however, experts as the authorities provide, with the exception of those facts which they establish themselves, must assume the existence of facts in order to express their opinions.

Joint Conclaves

15. The conclaves of experts took place. There are three joint reports from the separate conclaves. The first was one in which the conclave of experts, were asked to identify whether the current heating unit complied with the relevant Australian Standards and other building and safety standards. They were asked to express a view about whether it complied and, if it did not, what needed to be done to make it comply, what regulatory approvals were required, and whether there were any other inquiries or tests or examination that would assist in the determination of their expert opinions. That conclave reported on 26 March 2013. The thrust of the report of those experts is about the fixed hot water unit and its compliance or otherwise given its location, and surrounding fixtures and fittings, with the requisite Australian or other relevant building safety standard. The first conclave reported on 26 March 2013.

16. The third conclave which reported on 15 April 2013, resulted in agreement largely about issues relating to the plaintiff's symptoms and health complaints, and what her diagnosis was and like issues. The participants in that were consultant physicians. The basis for their expert opinions were largely their own examinations and the plaintiff's symptoms and complaints recorded in various medical reports with which they were provided.

17. The second conclave, which in fact reported last in time on 5 May 2013, asked expert scientists and toxicologists to consider whether the emissions from the hot water service were of a particular kind, namely, one which would enable the detection of the quality of the air inside the plaintiff's apartment or on her external balcony, and whether if there was such an adverse effect, it was attributable to the emissions from the hot water unit.

18. Those experts agreed that the various testing which had been undertaken, was of an appropriate character and quality. They agreed on what those tests showed, but they disagreed on the consequences of those facts tests. They were all agreed that the contaminants measured did not disclose any evidence of a breach of any applicable air quality standards or guidelines at the time the measurements were made.

The Smith Report

19. The report of Mr Evan Smith of GHD was commissioned initially following an approach by the plaintiff to GHD. She has largely acted for herself. It was commissioned on or about 4 July 2013. The report is dated 1 April 2014 and relates to sampling undertaken in October 2013 and also in March 2014.

20. The report sets out the testing techniques that were followed, the parameters of gaseous substances which was contended ought be measured, the times and places at which measurements were taken, a review of the indoor air quality by reference to identified and published standards, and having recorded all of the results set out in a discussion passage what was to be drawn from there.

21. Putting it as simply as one can, the report concludes this,

"Results of the assessment show that the air quality inside the apartment is not adequately maintained at times and may be resulting in impacts on the occupant".

22. The report points to obvious issues, namely as to what the general meteorological conditions were doing at the time and whether there were any other potential sources for the nature of the air quality.

Discernment

23. Counsel for the defendant submits that allowing the plaintiff to rely upon a further report at this stage would be to set at nought the conclave of experts and to circumvent the proper case management principles which ought to apply to this litigation. I do not agree.

24. There are a number of reasons which particularly apply in this case. First, this Court has made no direction which constrain the service of expert reports by either the plaintiff or the defendant, and which required either the plaintiff or the defendant to arrive at a position where no further expert evidence was to be obtained or served.

25. Secondly, the conclaves were arranged by the parties at a time many, many months before the matter was due to be heard and at a time before any order was obtained about the filing of lay evidence and the filing of any final reports. It may be, and I refrain from speculation, that the parties anticipated that if all of the experts who attended these conclaves could agree then there was a sound basis for a resolution of the proceedings without a hearing either through mediation or otherwise. Alternatively, it may be, and again I refrain from speculation, that the parties did not turn their mind to it.

26. Thirdly, the conclave report which is particularly affected by the report from GHD is the second conclave. The experts attending that conclave looked at results from the past and expressed views with respect to those results. The GHD report does not express any views at all about the early results, nor does it express any view about what was set out in the conclave. It undertakes a different task, namely to undertake up-to-date testing in October and December of 2013 and March of 2014.

27. The experts who have attended the conclave have not been asked to express any opinion about the Smith Report or the 2013 and 2014 testing, and the GHD report author has not been asked to express any opinion about what the conclave have said. I am not persuaded there is any clash or crossover of any kind which would set at nought the benefits to be obtained from the joint conclave report.

28. Fourthly, given that the plaintiff makes a claim for ongoing nuisance and ongoing loss, the plaintiff necessarily needs to obtain up-to-date expert reports about the state of air quality in her unit, to tender at court, lest it be said against her case, that the proof of it is inadequate because the proof stopped at some time earlier than the joint conclave.

29. Obtaining the Smith Report is, in the context of the particular claim of the plaintiff, a proper way to obtain evidence of her cause of action and her damage. For these reasons I would not propose to make orders of the kind set out in the Notice of Motion.

Further Objection to the Smith Report

30. Counsel for the defendant also sought to submit that there were deficiencies in the Smith Report which would mean that the Court ought rule that it was not admissible, or alternatively could not be relied upon because it was of such little weight that it did not advance the plaintiff's case. I will not accede to this submission.

31. In the first place the Motion did not seek to preclude the plaintiff from relying upon the report by reason of any of those matters. Secondly, in the absence of an advance ruling under s 192A of the Evidence Act 1995, that is a matter entirely for the trial judge, and in the absence of a specific motion the Court would be reluctant to give an advance ruling of that kind.

32. Thirdly, it is a matter for the defendant as to whether it chooses to respond to the Smith Report. If the defendant is correct, that the report is of little value, then it need not respond to it. If, on the other hand, the defendant thinks that its case, properly prepared, requires it to respond to it, then it should do so but that is a value judgment made by the defendant in the face of the evidence.

33. The defendant is correct to point to the fact that the report does not bear the requisite statement by the author of compliance with the expert code of conduct. Ordinarily without such an endorsement and acceptance by the expert that they have read the expert code of conduct and have applied it in undertaking their tests and expressing their views, the report would not be admissible at a final hearing.

34. However, it is always open to a plaintiff or any other party adducing expert evidence to provide evidence of adoption of the expert code by the expert in a way which addresses that requirement Although the requirement does not, on its face, appear to have been complied with by the author of the report, particularly as the report was commissioned by the plaintiff herself at a time when she was not legally represented, the court would be astute to ensure that there would be no injustice from a failure of the expert to comply with this requirement, in particular where the expert had, in substance, adopted that requirement. No doubt the plaintiff will need to turn her mind to this well prior to the trial in the next short while.

Conclusion

35. Ultimately the court is being asked to exercise a discretion. That discretion is one which is to be exercised having regard to the overriding purpose of the Civil Procedure Act 2005. The overriding purpose is to ensure that the real issues in the proceedings are dealt with in a just, quick and cheap manner. I do not think it would be just to deprive the plaintiff of adducing evidence of an ongoing cause of action. I do not think that allowing the plaintiff to rely upon this expert report would have anything to do with when the matter to be heard, or the complexities of the matter.

36. The fact is this: This case is a long way from being heard. It has not yet been fixed for hearing, and is unlikely to be heard for many months into the future. If the defendant chooses to respond to this report there is no reason why that response couldn't be obtained in that time, and if the defendant chooses, having responded to the report, or else the court requires that the experts confer with respect to the contents of this report then there's no reason why that can't occur either. I am not satisfied that any of that would cause a delay in the proceedings.

37. For all of those reasons I am not satisfied that the orders sought in the Notice of Motion should be made.

38. I make the following order:

1. I dismiss the Notice of Motion of 16 May 2014.

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Decision last updated: 10 April 2015