Pimley v Fremantle Sailing Club Inc

[2019] WADC 156

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   PIMLEY -v- FREMANTLE SAILING CLUB INC [2019] WADC 156

CORAM:   PRIOR DCJ

HEARD:   2 SEPTEMBER 2019

DELIVERED          :   20 NOVEMBER 2019

FILE NO/S:   CIV 3911 of 2017

BETWEEN:   JOHN PIMLEY

Plaintiff

AND

FREMANTLE SAILING CLUB INC

Defendant

Catchwords:

Appeal - Appeal by plaintiff from deputy registrar's decision for leave to adduce non‑medical expert evidence at trial

Legislation:

District Court Rules 2005 (WA) r 15 and r 47F

Result:

Appeal allowed
Leave to adduce non-medical expert evidence

Representation:

Counsel:

Plaintiff	:	Mr G Stubbs
Defendant	:	Mr J J Sheldrick

Solicitors:

Plaintiff	:	WA Legal Pty Ltd
Defendant	:	Hall & Wilcox (Perth)

Case(s) referred to in decision(s):

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47

Guy v Hampson [2019] WADC 19

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254

Stewart v Hames [2019] WASCA 127

Tremeer v City of Stirling [2002] WASCA 281

PRIOR DCJ:

Introduction

1. The plaintiff's claim against the defendant is for damages for personal injuries sustained and losses suffered in and as a result of an accident on or about 3 November 2014 when he fell from a finger jetty at Fremantle Sailing Club at 151 Marine Terrace, Fremantle (the jetty).

2. The pleadings disclose that there is a contest between the parties as to the state and safety of the jetty.  The defendant by its defence admits that it was the occupier of the jetty as defined in the Occupiers Liability Act 1985 (WA). 

3. On 8 February 2019, the plaintiff filed a chamber summons pursuant to District Court Rules 2005 (DCR) r 47F seeking leave to adduce non‑medical expert evidence at trial (the plaintiff's application).

4. The plaintiff had obtained an expert evidence report dated 31 July 2018 prepared by engineers Peter Airey and Marian Kustra of Airey Taylor Consulting (the expert report).[1]

   [1] Affidavit of Radek Zacharek affirmed 12 August 2019, Annexure RZ1.

5. The defendant opposed the plaintiff's application on the basis that the expert report is inadmissible, submitting that the evidence in the expert report was obtained improperly or illegally as one of the authors of the expert report and a legal representative of the plaintiff had gone onto the jetty on 28 June 2018 without the defendant's permission.  The defendant also submitted that it had been prejudiced as no representative of the defendant was present on 28 June 2018 when an inspection was carried out by an author of the expert report.[2]

   [2] Affidavit of Bree Lawrence sworn 30 May 2019, par 16, Affidavit of Elizabeth Anne-Louise Seggie affirmed 21 February 2019, par 15 and transcript of proceedings 5 June 2019 pages 18 - 19.

6. The plaintiff denies that when the author of the expert report and a legal representative attended the premises on 28 June 2018 they trespassed on the jetty.[3]

   [3] Affidavit of Radek Zacharek affirmed 12 August 2019, par 19 – par 23, Affidavit of Radek Zacharek affirmed 31 May 2019 and Affidavit of Bree Lawrence sworn 8 August 2019.

7. The plaintiff submitted that the defendant's opposition to the plaintiff's application was premature as it was not seeking to have the expert evidence admitted into evidence, but simply to comply with DCR r 47F. He submitted that the defendant could dispute the admissibility of the expert report at trial or in a separate application.

8. On 5 June 2019 Deputy Registrar Hewitt (the registrar) dismissed the plaintiff's application with costs.  The registrar considered the expert report contained material which was largely inadmissible.

General principles as to appeals from registrars

1. A party who is dissatisfied with a decision of a registrar may appeal to a judge.[4]

   [4] DCR r 15(1).

2. The appeal is to be by way of a new hearing of the matter that was before the registrar.[5]  This requires the plaintiff body to exercise its powers whether or not there was an error at the first instance.[6]  The plaintiff is not required to establish an appealable error was made by the registrar.[7]  The application is to be dealt with as though it had not been previously determined.  A hearing de novo requires that the appeal court consider the matter afresh without regard to any previous decision.[8]

   [5] DCR r 15(6) and Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ).

   [6] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14].

   [7] Stewart v Hames [2019] WASCA 127 [8] (Murphy and Mitchell JAA).

   [8] Guy v Hampson [2019] WADC 19 [14] (Bowden DCJ).

District Court Rule 47F

1. This appeal relates to the powers of this court pursuant to r 47F and in particular r 47F(3)(c) and the court's discretion to grant leave for non-expert medical evidence to be adduced in personal injury cases.

2. The rule is in the following terms:

   47FOther expert evidence

   (1)This rule applies to expert evidence other than expert medical evidence in personal injury cases.

   (2)A direction given under this rule may apply to only a part of the report or evidence of an expert.

   (3)Expert evidence cannot be adduced at a trial unless –

   (a)the party seeking to adduce the evidence has applied to Court to determine whether a direction should be given under this rule and has complied with any direction given on the application; or

   (b)        all parties consent to it being adduced; or

   (c)        the Court has given leave for it to be adduced; or

   (d)the Court has permitted the evidence to be given by affidavit.

   (4)After a case is entered for trial -

   (a)the party who entered the case for trial cannot apply under subrule (3); and

   (b)any other party cannot apply after the time for applying under rule 38B for an order countermanding the entry for trial expires, or any later time that may be fixed by an order made on any such application.

   (5)On an application made under this rule, the Court may direct -

   (a)that a copy of an expert witness's report, the substance of which a party intends to rely on at the trial, be served on such other parties and within such period as the Court may specify; or

   (b)the substance of all or any expert evidence that a party intends to adduce at the trial be disclosed in writing to such other parties and within such period as the Court may specify.

   (6)The author of a report containing expert evidence must certify in the report to having read and complied with the practice direction made by the Court for the purposes of this subrule.

   (7)If a report has not be certified as required by subrule (6), it is not admissible at trial, except with the Court's leave.

3. Rule 47F came into effect on 21 September 2018.  It has not been the subject of any judicial consideration by this court or the Court of Appeal of Western Australia.

4. Rule 47F complements r 47E which deals with expert medical evidence.  The purpose of rules requiring disclosing of expert evidence is to ensure that no-one is taken by surprise at trial and that each party has an adequate opportunity to consider, investigate and, if necessary, answer expert evidence to be led by an opposing party.[9]

   [9] Tremeer v City of Stirling [2002] WASCA 281 [33].

5. The plaintiff's case has not been listed for trial. If the plaintiff's case had been listed for trial r 47F(4)(a) would have precluded the plaintiff's application.

6. The plaintiff's legal representatives have not confirmed at this stage whether they will rely on the expert's report as evidence at the trial.  Due to the defendant's response to the plaintiff's application the plaintiff is on notice that the defendant takes issue with the admissibility of the expert report.

Admissibility

1. The plaintiff submits that the court's discretion pursuant to r 47(3)(c) to grant leave to a party to adduce an expert report does not require at that stage that the court consider whether the expert evidence is admissible.

2. The defendant submits that the terms 'adduce' and 'admit' are synonymous and that therefore the court should consider the admissibility of the expert evidence before granting leave to adduce it.

3. In DCR r 47F both the terms 'adduced' and 'admissible' are used. The reference to 'adduced' appears at r 47F(3)(c) in reference to expert evidence and 'admissible' at r 47F(7) in regards to certification of expert reports.

4. This suggests that a grant of leave to adduce non-medical expert evidence is not a ruling that the expert evidence is admissible.  It also suggests that the issue of admissibility of expert evidence should be determined after an order is made pursuant to r 47(3)(c).

5. Adduce means to present, offer, bring forward or introduce.  In my view the question of admissibility is a separate issue.  If the expert evidence sought to be adduced is objected to, the decision as to its admissibility is one for the trial judge.

6. As I am of the view that the Court's discretion to grant leave to adduce an expert report pursuant to r 47F(3)(c) does not require consideration as to the admissibility of the evidence contained in the expert report. It is therefore unnecessary for me to determine whether the plaintiff's expert report contained evidence improperly or illegally obtained.

Does Order 28 rule 2 Rules of the Supreme Court apply?

1. The defendant also submitted that the plaintiff should have by notice in writing pursuant to O 28 r 2(1) Rules of the Supreme Court 1971 sought permission from the defendant to inspect the jetty.[10]  The plaintiff accepts that it did not comply with this rule.

   [10] DCR r 6(1).

2. This rule is not mandatory and applies to 'physical objects'.  It applies to moveable physical objects.[11] A jetty is not a moveable physical object. In those circumstances the appropriate application was pursuant to r 47F.

   [11] Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2012] WASC 254 [13] (Martin J).

Conclusion

1. For these reasons I would make the following orders:

   1.The appeal be allowed.

   2.The orders made by the registrar on 5 June 2019 be set aside.

   3.Leave is granted for the plaintiff to adduce the expert report.

   4.The plaintiff serve a copy of any non-medical expert report or a written substance of any non-medical expert evidence he intends to adduce at the trial of the matter on the defendant within 21 days.

   5.The defendant serve a copy of any responsive non-medical expert report or a written substance of any responsive non‑medical medical evidence it intends to adduce at the trial of the matter on the plaintiff within 42 days of the service of any non‑medical expert report or written substance upon the defendant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

RR
Associate to Judge Prior

19 NOVEMBER 2019