Roach v Malsave Pty Ltd

[2020] NSWSC 364

Supreme Court

New South Wales

Medium Neutral Citation:	Roach v Malsave Pty Ltd [2020] NSWSC 364
Hearing dates:	3 April 2020, 6 April 2020
Date of orders:	06 April 2020
Decision date:	07 April 2020
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	Refuse the plaintiff’s application to adjourn the hearing of this matter which was listed to commence on 6 April 2020 and will now commence at 10am on 7 April 2020.
Catchwords:	CIVIL PROCEDURE — Hearings — Adjournment – immediately prior to commencement of hearing   CIVIL PROCEDURE — Pleadings — Amendment — whether plaintiff permitted to recast case at late stage
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Criminal Procedure Act 1986 (NSW), ss 294B, 306ZB, 306ZC Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5BAA
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Makita v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844; [1985] HCA 58 Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65
Category:	Procedural and other rulings
Parties:	Allana Roach (Plaintiff) Malsave Pty Ltd (Defendant)
Representation:	Counsel: D Higgs SC/J Ryan (Plaintiff) N Chen SC/D Stretton (Defendant)   Solicitors: RMB Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2016/332410

Judgment

Introduction

1. Allana Roach (the plaintiff) seeks an adjournment of the proceedings of her claim against Malsave Pty Ltd (the defendant) which was listed to commence on 6 April 2020.

The background facts

The plaintiff’s pleading and particulars

2. The proceedings were commenced by statement of claim filed in the District Court on 7 November 2016. They were subsequently transferred to this Court. The statement of claim remains in its original form. The principal allegations are as follows:

“2.    At all material times the Defendant was contracted to the Department of Education to perform renovations ("the renovations") at the Bomaderry High School ("the school").

3.    The Defendant was contracted to perform the renovations between the periods of May to August 2013

4.    At all material times the Defendant owed the Plaintiff a duty to ensure that reasonable care was taken to avoid exposing the Plaintiff to unnecessary risks of injury.

5.    At all material times the Plaintiff was a history, geography and business studies teacher at the School.

6.    Between the periods May to August 2013, the Defendant performed renovations during school hours (i.e. 9 00 am to 3.00 p.m.).

7.    The Plaintiff taught in a classroom at the school directly above where the renovations were taking place.

8.    As a result of the excessive noise levels created over the period of time the constructions were being conducted, the Plaintiff was required to raise her voice to enable her students to hear her.

9.    As a result, the Plaintiff suffered injury to her vocal cords.

10.    The Plaintiff's injuries were occasioned by the negligence of the Defendant.”

[Emphasis added.]

3. In addition to the allegation of negligence, the plaintiff alleged breach of statutory duty and various breaches of the Work Health and Safety Regulations.

4. The particulars of negligence, which were included in the statement of claim, were as follows:

“11.    The Defendant by its employees, servants or agents was negligent in that it/they.

(a)    Failed to keep noise to a minimum

(b)    Performed renovations during school hours.

(c)    Failed to use sound barriers.

(d)    Failed to implement reasonable preventative measures which would not have involved excessive expense.

(e)    Failed to carry out any or any proper site safety audits.

(f)    Failed to comply with the Department of Education and Communities Asset Management Unit Comprehensive Briefing Document in that it performed noise during class hours.

(g)    Failed to conduct any or any proper risk assessment approach as articulated by Australian/New Zealand Standards AS/NZS/ISO 31000 Risk Management.

(h)    Failed to develop, implement, maintain and sustain a safe system of work considering noise generation and its impact on the operating school and adjacent classrooms.

(i)    Failed to comply with the requirement, as detailed in meeting minutes that "work of a noise nature" to be undertaken during the hours of 7.00-9.00 or a time suitable to the school.

(j)    Failed to develop and implement effective and safe systems of work as is required under AS 1470-1986 Health and safety at work - Principles and practices and AS/NSZ 4804 Occupational Health & Safety Management systems - General guidelines and principles, systems and supporting techniques.

(k)    Failed to comply with the intent as articulated within the Australian/New Zealand Standard AS/NSZ/ISO 31000 Risk Management by the provision of risk management controls.

(I)    Particulars of statutory breach as herein after pleaded.”

5. An expert liability report of Steve Williams dated 25 September 2016 accompanied the statement of claim and particulars. Mr Williams acknowledged that it was not possible to estimate accurately the noise levels to which the plaintiff would have been subjected to. However, he referred to a statement in the NSW WorkCover Code of Practice that if someone needs to raise their voice to communicate with someone about a metre away, “the noise is likely to be hazardous to hearing”. He deduced that this would “roughly equate to 90dB of sound energy”. It appears that Mr Watt, the plaintiff’s solicitor, prepared the plaintiff’s case on the basis that Mr Williams’ opinion would be sufficient to prove that the noise in the plaintiff’s classroom was excessive.

The lay witness statements on liability

6. In her evidentiary statement dated 18 January 2018, the plaintiff deposed as follows:

“28   In or about May 2013, major renovations were being undertaken at the School in regards to two of the science laboratories. To my understanding, the works included demolition and removal of furniture and fittings, installation of new cupboards and benches, installation of new battens and ceiling, installation of new lighting and flooring, as well as other works.

29    The science laboratories were located underneath and opposite the classroom in which I taught. Construction work was also occurring below the Faculty staffroom.

30    I recall that the renovations created excessively high levels of noise, which was the result of the constant use of jackhammers, drills and other power tools. Even when such equipment was not in use, loud and disruptive noises were created by hammering and the like.

31    The noise was almost constant, in one form or another.

32    Whilst I did attempt to utilise the library and other rooms when I could, it was not always possible. Other classes were also being disrupted, and alternative rooms were often being utilized by other members of staff. I also found it extremely difficult to teach in the library given the fact my teaching resources were all contained in my classroom.

33    The noise made from the renovations also made it extremely difficult to use the staffroom for meetings, to discuss matters with colleagues and to plan lessons. We were often required to yell in the staffroom to communicate over short distances.

34    For the duration of the renovations, I felt as though I was required to constantly raise and project my voice across my classroom and staffroom to communicate with students and staff.”

[Emphasis added.]

7. As can be seen from the plaintiff’s statement, she referred to the noise in the staffroom and the library although her pleading was limited to the noise that came into her classroom and required her to raise her voice. I accept the evidence of Mr Moroney, the solicitor for the defendant, that he prepared the case on the basis of the pleading and instructed experts accordingly.

8. On 2 May 2018 the plaintiff served lay witness statements as to liability. There was no allegation in the pleading, the particulars or the statements that the defendant had left the doors to the science laboratory open during construction.

9. On 4 April 2019, Mr Moroney foreshadowed to Mr Watt the defendant’s intention to qualify an expert on liability.

10. On 5 April 2019 the defendant was relevantly directed to serve any witness statements and liability evidence by 20 September 2019 and the matter was listed to commence on 6 April 2020. I assume that the delay in obtaining a hearing date was due to the estimated length of the matter of 7 days.

11. On 12 September 2019 the plaintiff filed a notice of motion to adjourn the hearing date as her senior counsel was, or had become, unavailable on the dates allocated. The motion was returnable on 19 September 2019 at which time it was listed before Fagan J for hearing on 23 September 2019. His Honour dismissed the notice of motion. A further direction was made that the defendant, which had failed to serve its witness statements and liability evidence by 20 September 2019, serve such documents by 31 October 2019.

12. On 23 October 2019, the defendant served lay witness statements on liability from Enzo Pelle, its site supervisor for the renovations, and David Virdun, the defendant’s “leading hand”. Both Mr Pelle (in his statement of 13 September 2019) and Mr Virdun (in his statement of 18 September 2019) deposed that the doors and windows to the science laboratory were shut when potentially noisy work was taking place. Mr Virdun deposed that it was common practice to keep doors and windows shut during such jobs. They both referred to the following tools being used in the renovation: drills, a small electric hand saw, power saws, crowbars and a small electric jackhammer.

The expert opinions and the further conduct of the matter

13. Mr Moroney instructed Nicholas Koikas, an acoustic engineer, to provide an expert opinion. He referred in his letter of instruction to the plaintiff’s claim that between May and August 2013 she was exposed to excessive noise levels and had to raise her voice to enable her students to hear her. Mr Koikas’ report dated 20 January 2020 said:

“It is understood that [the plaintiff] was teaching in classrooms across the open court yard of the building block on the first-floor level.

Koikas Acoustics conducted reverberation time tests within the science labs where renovations occurred and within the classrooms where [the plaintiff] was teaching.”

14. Mr Koikas addressed the noise coming from the laboratory to the plaintiff’s classroom. He also addressed the noise in the staff room, there being evidence from the plaintiff in her statement that she also spent time there. The assumptions made by Mr Koikas included that the doors and windows of the laboratory and the plaintiff’s classroom were kept closed. His opinion was that the use of jack hammer caused the loudest noise. He concluded:

“On the basis that doors and windows were kept closed to the laboratory and plaintiff’s classroom, Allana Roach would have required to speak between 10-15 dB louder than the ambient construction noise levels in the class room so that students at the rear of the class room could articulate her instructions. For this to occur, the vocal effort required would be referred to as ‘casual’ vocal effort being 39 dBA at 5 m. A vocal effort referred to as ‘normal’ would be 45 dB(A) at 5 m. ‘Casual’ to ‘Normal’ vocal effort is used for the majority of the time by most people daily in enclosed spaces.”

15. The report was served on the plaintiff’s solicitors on 21 January 2020. This was outside the time provided for in the most recent directions for service which had been made on 1 November 2019 and which had required service of expert reports by 20 December 2019.

16. By notice of motion filed on 30 January 2020, the defendant sought an extension of time for filing the report. The motion was listed before me for hearing on 25 February 2020. On that day, the parties informed me that the motion had been resolved by consent. At the hearing Mr Higgs SC, who appeared with Mr Ryan on behalf of the plaintiff, said at tr. 1.20-.30:

“… the matter is set down shortly for hearing at the beginning of April and there has been a problem with regards to an acoustic expert report that the defendants had leave to serve, but out of time, so the proposed consent orders allow for the late service, but on the basis that we, the plaintiff, have an opportunity of responding.  

It does I have to say raise the possibility that when our expert evidence comes back it might raise issues that cause problems for the parties. We don't think that that would be likely, but, given the uncertain nature of how experts operate and what their views ultimately are, it is for that reason that we ask that we have liberty to apply on 48 hours if there is a problem in that regard.”

17. At the conclusion of the hearing on 25 February 2020 orders were made in accordance with the parties’ short minutes of order as follows:

“1. Pursuant to Rule 1.12 of the Uniform Civil Procedure Rules, extend the time for service of the defendant's expert liability evidence to 21 January 2020.

2.   Otherwise, dismiss the defendant's notice of motion filed 30 January 2020 with no order as to costs.

3.   Grant leave to the plaintiff to qualify Matthew Harrison, acoustical engineer, to provide a report replying to the opinions expressed by Nick Koikas in his report dated 20 January 2020, with such report to be served on or before 13 March 2020.

4.   The liability experts to conclave by 27 March 2020 and to produce a joint report by 31 March 2020.

5.   Liberty to apply on 48 hours' notice.”

18. I also noted that the matter was listed for directions to confirm the hearing date and for any other evidentiary issues on 31 March 2020.

19. On 16 March 2020 the plaintiff served an expert building report of Aaron Kyle of that date. Although the report did not fall within the grant of leave made by consent on 25 February 2020, the defendant did not object.

20. On 17 March 2020 the plaintiff served a report of acoustical engineer, Matthew Harrison, dated 17 March 2020. Mr Harrison had not previously been qualified by the plaintiff and had apparently been retained to meet Mr Koikas’ report. In Mr Harrison’s report, he set out his understanding of his instructions as follows:

“1.4   From the Letter of Instructions, I understand that:

1)   Ms Allana Roach taught in classroom DR0016 whilst refurbishment works where being carried out in Block D rooms DR0002, DR0003, DR0004 & DR0005 between May and August of 2013;

2)   Ms Roach’s classroom is located diagonally across the courtyard and one level above the rooms that where being refurbished; and

3)   My engagement involves providing an assessment of the likely level of construction noise intrusion into the level 1 classroom occupied by Ms Roach during the refurbishment of the ground floor science laboratories.”

21. He set out his task as follows:

1.6    My findings obtained from acoustic testing performed of the subject environment at Bomaderry High School;

a)    My opinion as to the likely levels of noise generated by the renovation works, having regard to the Plaintiff’s evidence provided to me;

b)    My opinion as to the likely level of noise impacting and/or intruding upon the relevant staffroom, and the Plaintiff’s classroom (noting that a dispute exists as to whether doors and windows remained closed for the duration of the noisy works);

c)    My opinion as to the likely level of vocal effort (and speech levels) required by our client in order to communicate with her class during periods of noisy construction works; and

d)    My opinion as to whether those levels of noise generated by the works and travelling to nearby classrooms (including the Plaintiff’s) were acceptable, having regard to the specific nature of the school environment.”

22. In Table 4, Mr Harrison summarised his opinion as to the noise levels in the plaintiff’s classroom from the use of a jackhammer. He did so by reference to various permutations which involved the doors and windows to the laboratory and the plaintiff’s classroom being open, slightly open or completely closed.

23. It is plain from the content of that report that Mr Harrison calculated the noise levels in the plaintiff’s classroom but did not perform any other noise level calculations, such as those in the library or the staffroom. Further, it was conceded by Mr Higgs that neither Mr Koikas, nor Mr Harrison had measured the noise arising from equipment other than a jack hammer or concrete cutter. In particular, neither had measured the noise arising from a hammer drill, a collated screw gun, an angle grinder, a plasterboard orbital sander or floor sander. The importance of the equipment which was not measured was that the plaintiff sought that the experts, in the course of the expert conclave, conduct those measurements for the first time.

24. Notwithstanding that liberty to apply had been granted to the plaintiff, no such application was made following service of Mr Harrison’s report.

25. The parties sent a joint letter of instruction dated 27 March 2020 to Mr Koikas and Mr Harrison for the purpose of the experts meeting in conclave and preparing a joint expert report in accordance with the consent directions made on 25 February 2020. The questions for the experts concerned the noise levels in the plaintiff’s classroom, about which the experts had both already opined in the reports referred to above. The first question asked the experts to opine as to the likely noise level emitted from the use of particular equipment during “the works”, which were defined as “the works undertaken in the ground floor science laboratories in the period around May 2013 during their refurbishment”. Question 1(a) related to the noise emitted from the electric jackhammer; question 1(b) related to the electric sawcutter; and question 1(c) (which was included at the request of the plaintiff’s solicitors) related to the noise emitted by the hammer drill, a collated screw gun, an angle grinder, a plasterboard orbital sander or floor sander. There was some evidence that equipment of these types was used on the site although it had not previously been considered by the experts.

26. The joint expert report was provided to the parties and the Court on 30 March 2020. In respect of questions 1(a) and (b), the experts said that as they had used different noise data in their assessments they agreed that it would be preferable to measure the item “using agreed methodology”. They said that their data would be ready by 6 April 2020 and a joint report ready by 8 April 2020. Unsurprisingly, the experts said, in respect of question 1(c) that they would have to advise about that equipment and expressed reservations about a flooring sander because they said they had no records that one was used during the construction. I do not regard the experts’ answer to question 1(c) as being an indication that a material matter will not be ready for the trial.

Further evidentiary statements served by plaintiff

27. On 23 and 24 March 2020 the plaintiff served seven additional witness statements, five from former students of the plaintiff and two from former teachers. Only two of the makers of these statements had previously provided statements served by the plaintiff. The makers of these statements said that the doors to the science laboratory were regularly left open during the construction works. No leave has yet been sought to rely on those statements.

28. On 25 March 2020, the plaintiff’s solicitors advised the defendant’s solicitors by email that three witnesses, two former students and a teacher, whose evidentiary statements had been served would no longer be called.

29. On 31 March 2020 when the matter came before me to confirm the hearing date, the plaintiff raised the possibility that the matter would not be ready for hearing. Mr Higgs referred to the late service of the witness statements. He said, at tr. 2.35-.40:

“HIGGS: On behalf of each of the parties we are grateful for the opportunity of trying to hold onto the hearing date next week so the matter can proceed. Mr Chen and I have had discussions about the events which have occurred, and I don't think that there is any great disagreement with regards to what has occurred.

There is, however, a difference of an opinion, a slight one, in respect of how the matter is to be handled. As your Honour is aware, and I'm not saying this pejoratively, there were reports served from the builder and by the defendants we have to meet that, and we resisted it, but in the hope of holding onto the hearing date we did engage people, reports have been prepared.

There have been meetings yesterday. Our understanding is that from communications yesterday that the building report will not be ready until ‑ won't be ready this week, the joint report, because apparently there has been discussion that there needs to be continuing communication between the experts in order to get the joint report together. The other reports, the ENT report and the acoustic report, I think the acoustic report was up in the air but the latest intelligence is that that is likely to be due this week some time and the ENT report is in the pipeline.

There, however, does remain an issue with regards to the supplementary statement that we have put on in relation to whether or not the door to the building work or the laboratories that were being renovated was kept shut during the course of the building work. That is a matter that was said beforehand, that the materiality of that was not readily apparent until we obtained the building report and the acoustic report.

The position is that in the event of, as we foreshadow, the procedure proceeding next week, the plaintiff would be prejudiced by reason of its attempt to get this matter on, if we were shut out from leading evidence about the door being left open and, as opposed to that, the defendants in these troubled times would be shut out from getting evidence about that issue between now and the hearing because of the period of time, the long period of time when this work was carried out in 2013, there being subcontractors involved and the like, there being a number of people involved and it being difficult to track them down after such a long time.”

[Emphasis added.]

30. Mr Moroney deposed that if the plaintiff were permitted to raise the issue of the doors being left open, he would want to obtain statements from the construction project manager and the defendant’s eleven subcontractors. He said that there would not be time to do this before the commencement of the hearing on 6 April 2020. I accept this evidence, which was not challenged.

31. At the conclusion of the mention on 31 March 2020, I stood the matter over to Friday, 3 April 2020 for consideration of the plaintiff’s application for adjournment of the hearing.

32. On 2 April 2020 at 4.17pm the plaintiff’s solicitors served another statement by the plaintiff. In this statement, the plaintiff said that the noise was “intermittent” and “would occur in varying durations”. This is to be contrasted with her earlier statement extracted above in which she said that the construction noise was constant. In the recent statement, the plaintiff said that she taught 23 classes per fortnight and spent the remaining 17 periods in the staffroom where she said that the noise occurred at the same level as in the classroom and that she often had to raise her voice there. She also stated that she observed that the doors to the laboratories were open on “many if not most” of the occasions where she took the opportunity to observe them. Mr Moroney has deposed that there is insufficient time for him to investigate these additional allegations.

33. On 3 April 2020 both parties made submissions, Mr Higgs in support of the adjournment and Mr Chen SC with Mr Stretton, on behalf of the defendant, opposing the adjournment. Mr Higgs indicated that if I were not minded to grant the adjournment, he would want to put on evidence in support of the adjournment application. I made directions for the service of evidence and stood the adjournment application over to the first day of the hearing, 6 April 2020.

The plaintiff’s submissions in support of her application for an adjournment

34. Mr Higgs raised a number of reasons for the adjournment. These were classified by Mr Chen, without objection, as being in the following four categories:

1. Matters relating to the COVID-19 virus;

2. Issues with the plaintiff’s voice;

3. Absence of workable technology; and

4. Late evidence.

35. As matters (1), (2) and (3) are related, it is convenient to address them together. Mr Higgs submitted that it was undesirable that the plaintiff and her solicitor would have to participate in the hearing from Wollongong (where her solicitors are located) and that he and his junior would be in Sydney. He contended that it would be unreasonable to expect him to stay in a hotel in Wollongong because he would thereby be exposed to an additional and unacceptable health risk. He submitted that the physical separation would make it more difficult for him to give the plaintiff advice and obtain her instructions and that these difficulties would inevitably be exacerbated by the damage to her vocal chords (the subject of the proceedings). He said that the damage to the plaintiff’s vocal chords compromised the plaintiff’s ability to speak for any period without fatigue and that her voice was compromised by the effort involved.

36. Mr Higgs also contended that the plaintiff’s credibility was in issue and that, in those circumstances, she had little to gain and much to lose by having to give her evidence by audio-visual link (AVL) rather than in person in the witness box. He submitted that, because she bore the onus of proof, she would effectively have to “persuade” me of the merits of her case and that she would inevitably be at a disadvantage by having to do so by AVL.

37. As to matter (4), Mr Higgs said that the difficulties had been brought about by the defendant’s non-compliance with several directions for the service of its expert reports on liability. He submitted, in effect, that the plaintiff ought not be punished for agreeing to leave being granted on 25 February 2020, which she did in order to retain the hearing dates. He submitted that it was important to allow the plaintiff to put her “real case” and that this depended on her being able to rely on the noise with which she had to contend in the staffroom as well as her contention that the door of the laboratory where the work was being conducted was often open.

38. Mr Higgs submitted that the true significance of whether the door to the laboratory was left open or was closed (and the associated question of whether the noise was “constant” or “intermittent”) and whether the damage was suffered only in the classroom or also in the staffroom had become apparent only after the service of the experts’ reports. He argued that the plaintiff was entitled to rely on her evidence and on the further lay witness statements to put her real case and that she should not be “shut out” from doing so. He accepted that it would be necessary for the proceedings to be adjourned to give the defendant the opportunity to investigate the new allegations. He submitted that any prejudice occasioned by the defendant could be met with a costs order (in the event that I considered the plaintiff was at fault in causing the need for an adjournment). Mr Higgs argued that, if the adjournment were refused, the prejudice to the plaintiff could not be ameliorated since she would have been deprived of putting the case which she wanted to put.

39. Mr Higgs accepted that, in substance, the choice was whether to refuse to adjourn the matter and limit the plaintiff to her case as pleaded and as substantially set out in her first witness statement or to adjourn the matter and allow the plaintiff to rely on the further evidence and amend her pleading.

Consideration

40. Before turning to the matters raised, it is important to note that Part 6 of the Civil Procedure Act 2005 (NSW) applies. I am obliged, when considering the plaintiff’s application for an adjournment to give effect to the overriding purpose of facilitating the “just, quick and cheap resolution of the real issues in the proceedings” (s 56), including by reference to the “objects of case management” (s 57) and the “dictates of justice” (s 58).

Matters (1) to (3)

41. I am not persuaded that any of the first three matters raised by Mr Higgs, taken in isolation or together, are sufficient to warrant an adjournment.

42. The issues with the plaintiff’s voice will remain whenever and in whatever circumstances the hearing takes place. Although it might be more convenient for the plaintiff, her solicitor and her barristers all to be in one place for the hearing, it could also be observed that the plaintiff will be able to go home at night from Wollongong and will not be displaced from her usual residence if the matter is heard by AVL, as she might be if she were required to attend in person at this Court in Sydney. I accept Mr Higgs’ submission that it would be unreasonable, during the COVID-19 pandemic, to expect him to relocate to Wollongong for the hearing to be closer to the plaintiff because of the increased risk to which he would thereby be exposed.

43. I note that Mr Chen confirmed that although there will be a challenge to the plaintiff’s credibility in the sense of her reliability, there is unlikely to be a challenge to her honesty: for a discussion of the various concepts incorporated in the word “credibility”, see Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 431 (Lord Pearce). He estimated that the cross-examination would take in the order of half a day, or between two and three hours.

44. I do not accept that the plaintiff will be disadvantaged by giving evidence by AVL. First, it is not uncommon for witnesses in criminal trials to give evidence by AVL, including complainants in sexual offence proceedings (s 294B of the Criminal Procedure Act 1986 (NSW)), “cognitively impaired persons” (ss 306ZB and 306ZC of the Criminal Procedure Act) and “government agency witnesses” (s 5BAA of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)). Secondly, juries are required to be warned not to give such evidence any greater or lesser weight by reason of the circumstance that it is given by such alternative means. As I am the tribunal of fact, I can confirm that I will not give the plaintiff’s, or indeed any other witness’s evidence, greater or lesser weight by reason of that circumstance. Thirdly, it is not for the plaintiff to “persuade” me of anything. Although she is the plaintiff, she is relevantly a witness in her case. She has legal representatives who appear on her behalf whose task it is to “persuade” me of her case. Fourthly, in the present case all witnesses and counsel are subject to the same requirement that I will see them only via AVL.

45. If there are insurmountable technological difficulties occasioned in the course of the hearing, it may become necessary to revisit the question of an adjournment. But presently there is reason to believe that the hearing can proceed with the available technology.

Matter (4)

46. I turn to matter (4): the question whether an adjournment ought be granted to permit the plaintiff an opportunity to put the case which she now wishes to advance.

47. The starting point is the case as pleaded by the plaintiff. As is apparent from the extracts from the statement of claim and the particulars to its allegations, the plaintiff’s case as pleaded was that the defendant was negligent by allowing noise from the construction in the laboratory to come into the classroom where the plaintiff was speaking. Although the particulars of negligence alleged that “the plaintiff failed to keep noise to a minimum”, there was no specific allegation that the defendant ought to have kept the door to the laboratory closed while it was doing the work and no evidence from the plaintiff alleging that the door was open.

48. The legal principles with respect to pleadings (and, where relevant, particulars) were set out in Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ); [1982] HCA 70:

“Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it …; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial …; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings … But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence …”

[Citations omitted and emphasis added.]

49. The principles were confirmed in Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 (Banque Commerciale). The role played by pleadings in affording procedural fairness was emphasised. Mason CJ and Gaudron J said, at 286:

“The function of pleadings is to state with sufficient clarity the case that must be met … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness ...”

[Citations omitted.]

50. In light of these principles, the defendant was entitled to understand that the case it had to meet pertained to the noise levels in the classroom where the plaintiff taught and not at any other location.

51. The plaintiff’s statement of 18 January 2018 did not refer to the door to the laboratory being open. Further, the references in her statement to the noise being “constant” contained the implication that it was not attenuated or amplified by periodic closing or opening of a door. Although the question of the door to the laboratory being closed was addressed by the defendant’s lay witnesses, Messrs Pelle and Virdun, there was no basis for the defendant to appreciate that that matter was in issue since it was not raised on the pleading or in the plaintiff’s witness statement.

52. Various permutations were raised by Mr Harrison in his expert report as to the extent to which doors or windows were open or shut. However, an expert opinion is only as weighty as the evidence on which it is based: Ramsay v Watson (1961) 108 CLR 642 at 649; [1961] HCA 65; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846; [1985] HCA 58; Makita v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85] (Heydon JA). Thus Mr Harrison’s report could not, of itself, prove the state of the windows or doors.

53. The service of Mr Koikas’ report created several forensic difficulties for the plaintiff, the principal of which was that, if it was accepted, it would follow that the noise in her classroom was not excessive. These difficulties remained when Mr Harrison’s report was received. Indeed, Mr Higgs described the effect of Mr Harrison’s report as: “he had the noise being slightly louder [than Mr Koikas]”. It appears, as Mr Higgs submitted, that the plaintiff’s solicitors first appreciated, when reading these reports, that the plaintiff’s case that the noise was excessive would, or at least might, depend on whether the plaintiff could challenge the evidence of the defendant’s lay witnesses that the doors and windows to the laboratory were closed while the work was being done, this being the basis on which Mr Koikas’ opinion rested. Further, the opinions of the acoustic engineers were likely to be accorded greater weight at the substantive hearing than the report of Mr Williams on which the plaintiff’s claim had originally been based.

54. It appears that this led not only to further lay evidence being obtained but also to lay evidence which had already been served no longer being relied upon as to whether the doors and windows were opened or closed. It also appears to have led to the plaintiff wanting to expand her case from one which relied on noise coming into the classroom, to one which included noise coming into the staffroom, which would require the pleading to be amended.

55. In effect, what the plaintiff was seeking to do, in the week and a half before the hearing was due to commence, was to radically change her case to meet unfavourable opinion evidence to the service of which she had consented, at a time when she was on notice as to its contents. Her previous case, up until that time, was that the noise emitted from the works conducted in the laboratories was constant, which required her to raise her voice when she was teaching in her classroom. There was, on the plaintiff’s previous case, no issue about whether the door to the laboratories was closed or open when the works were being done, the defendant’s unchallenged evidence being that it was closed. The real question is whether she ought be permitted to change her case as to the constancy of the noise; introduce an issue about the doors; and expand the locations where she was required to raise her voice as a result of the noise.

56. I am not persuaded that she ought be permitted to do so. The unchallenged evidence of Mr Moroney was that the defendant’s case was prepared on the basis of the pleadings and the particulars, together with, principally, the plaintiff’s first statement. On this basis, the defendant did not seek to interview any of the other people engaged on the site to ask them questions about doors and windows being open or closed, which would have occurred had Mr Moroney understood the plaintiff’s case to be on that basis.

57. I reject Mr Higgs’ submission that the only person who is susceptible to irremediable prejudice is the plaintiff. This submission is at odds with what the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [111]–[114]. The defendant will suffer prejudice by the delay occasioned by the adjournment, but the administration of justice will also suffer prejudice. The other persons working on the site who are asked in 2020 about something that happened in 2013 are unlikely to have as good a recollection as if they had been asked earlier, thereby impacting on the quality of their evidence. It cannot be assumed that such persons are still available or that they can be located. The dates which this Court, on 5 April 2019, allocated for the hearing of the plaintiff’s case, cannot readily be reallocated to another a litigant at short notice. There are delays in obtaining a further hearing date which will inevitably cause the parties to incur costs and occupy the resources of the court. Had the matters sought to be raised by the plaintiff now been raised earlier, the defendant might have been able to deal with them and retain the hearing date. However, it is common ground that the “new” case will require an adjournment. Mr Higgs accepted at the hearing of the adjournment application that the plaintiff would also require leave to amend the statement of claim although no application was made and no draft amendment supplied. Effectively, the plaintiff wishes to begin again and recast her case in a new way. In the circumstances outlined above, and having regard to the purpose of, and factors set out in, Part 6 of the Civil Procedure Act she ought not be permitted to do so.

50. At the conclusion of the hearing on 6 April 2020 I refused the plaintiff’s application to adjourn the proceedings. I also indicated that I would refuse leave to the plaintiff to rely on further witness statements served outside the time provided by the Court’s directions in so far as they relate to the proposed new case. I expect that the parties will discuss among themselves the details of the parts of the statements that can be relied upon. If necessary I will adjudicate on any disputed portions.

Orders

59. For the reasons given above, I made the following order on 6 April 2020:

1. Refuse the plaintiff’s application to adjourn the hearing of this matter which was listed to commence on 6 April 2020 and will now commence at 10am on 7 April 2020.

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Decision last updated: 07 April 2020