Russell v Glenn
[2020] ACTSC 81
•1 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Russell v Glenn |
Citation: | [2020] ACTSC 81 |
Hearing Date(s): | 1 April 2020 |
DecisionDate: | 1 April 2020 |
Before: | Walker AJ |
Decision: | The application is granted. The applicant is to meet the respondent’s costs. |
Catchwords: | DUTY APPLICATION – Application by the first and second plaintiffs to serve expert report on the defendant – whether leave should be granted – whether exceptional circumstances exist |
Legislation Cited: | Court Procedure Rules 2006 (ACT) r 1241, 1401 |
Cases Cited: | Cobanov v Josifovski [2019] ACTSC 269 Steed v McDougall [2018] ACTSC 233 Pryce v Dunlop [2016] ACTSC 338 |
Parties: | Matthew Russell (Applicant) Anthony Glenn (Respondent) Insurance Australia Limited Trading as NRMA Insurance (Respondent) |
Representation: | Counsel A Muller (Applicant) A Allan (Respondent) |
| Solicitors United Legal (Applicant) HWL Ebsworth (Respondent) | |
File Number(s): | SC 421 of 2018 |
WALKER AJ
Application
This application by the applicant commenced as one for leave to rely on the report of Mr Michael Lee, forensic accountant, pursuant to r 1241 of the Court Procedure Rules 2006 (ACT). Orally, it was amended to an application for directions allowing service of the report of Mr Lee by 5 March 2020, pursuant to r 1401.
It is supported by the affidavit of Peter Glover, dated 5 March 2020. Both forms of the application were opposed.
The relevant chronology of this matter is as follows:
23 October 2013, the applicant was injured.
September 2018, the applicant's current lawyers were instructed.
15 November 2018, the applicant was granted leave to commence proceedings, with the matter stayed until chapter 4 of the Road Transport (Third Party Insurance) Act 2008 (ACT) was complied with.
18 February 2019, a draft letter of instruction to Mr Lee was sent to the applicant.
14 March 2019, a compulsory conference was held, and mandatory final offers made.
11 April 2019, the Associate Judge made orders, including that the now applicant was to serve evidence by 3 May 2019 and with liberty to apply on three days' notice.
12 April 2019, the applicant's lawyers sent the briefing letter to Mr Lee.
24 April 2019, a list of the applicant's experts was sent to the respondent, including a reference to Mr Lee but with no report from him.
1 May 2019, Mr Lee requested further documents, which were sent by the applicant's lawyers the same day.
June 2019 the applicant moved to China.
24 October 2019, the applicant's solicitor realised that no report had been received from Mr Lee, and staff were instructed to follow up urgently.
20 December 2019, the applicant's lawyer was able to speak to his client.
9 January 2020, the Deputy Registrar listed this matter for directions on 10 February 2020.
7 February 2020, Mr Lee's report was prepared.
10 February 2020, further directions were made in the matter, including that the applicant was to file an application regarding service of any additional reports on or before 2 March 2020.
11 February 2020, the applicant's solicitors received Mr Lee's report.
5 March 2020, Mr Glover made his affidavit in support of the current application and Mr Lee's report was served on the respondent.
6 March 2020, the current application was filed in court. I note that on 12 May 2020 this matter is listed for mediation and on 20 July 2020 the matter is listed for hearing, with an estimate of three to four days.
Relevant rules
Rule 1241, service of expert reports. I will not read the full rule.
Rule 1401, directions generally. I will not read the full rule.
Applicant's submissions
The applicant submitted that the application as originally drafted was misconceived because it relates to the obligation to establish exceptional circumstances to obtain leave from the court for the tender of a report, pursuant to r 1241, an issue which does not arise at this stage of the proceedings.
The applicant conceded that instructing solicitors ought to have made an application to vary directions on 10 February 2020 to allow the service of Mr Lee's report, rather than agreeing to a direction to make an application for leave pursuant to r 1241. The real issue, according to the applicant at this point in the proceedings, is whether the court is prepared to make a further direction amending the allowed date for service of Mr Lee's report, having regard to the requirements of r 1401.
To that end, the application was amended orally to invite the court to amend paragraph 5 of the ‘Directions for personal injuries matters’, as incorporated by paragraph 4(b) of the 10 February directions by adding, 'save that in respect to the report of Michael Lee, it is to be served by 5 March 2020'. The effect of this order, if granted, would be to retrospectively authorise the earlier attempted service of Mr Lee's report. This would render r 1241 redundant, as the report would then have been served in accordance with a direction made by the court, obviating the need for leave to tender it.
The applicant submits that such a direction should be made because there is no real prejudice to the respondent. Firstly, the respondent has been on notice of the need for a forensic accountant, and indeed the identity of the person whom the applicant sought to brief, since April 2019. Whilst conceding that the matter was inappropriately addressed at the last directions hearing, when no mediation or hearing dates had been set, nonetheless the hearing was still three and a half months away and the mediation not until 12 May 2020, which I note is over five weeks away. In the applicant's submission, the respondent has time to respond to Mr Lee's report and has not to date indicated that they would have difficulty doing so. The applicant relied on the decision of Mossop J in Pryce v Dunlop [2016] ACTSC 338.
The respondent's submissions
The respondent submitted that, as the applicant sought to rely on the report of Mr Lee, albeit that tender would not occur until the hearing, r 1241 applied. Consequently, the applicant needed to establish exceptional circumstances before the court could grant leave. The plaintiff is unable to point to any exceptional circumstances and, therefore, leave should be refused. This was so even if the report were not presently being tendered, as the rule could be read so as to require effectively an advance determination by the court as to whether the report could be ultimately tendered. The respondent relied upon the approach adopted by Elkaim J in Cobanov v Josifovski [2019] ACTSC 269. In the alternative, the respondent submitted that if the operation of r 1241 could be avoided or did not arise then the court should not make a new direction allowing service of Mr Lee's report.
The respondent proffered a number of reasons that the court should not exercise its discretion in favour of the applicant on either basis, summarised as follows:
(1) the oral application did not accord with the written application;
(2) the matter was old;
(3) notice had been given to the respondent of the intention to obtain the report from Mr Lee, but it was not forthcoming by the date directed;
(4) the respondent was not told that the report was still being sought until just before directions on 10 February 2020;
(5) at that directions hearing, the respondent indicated that they opposed service of any further report and the applicant agreed that an application could be made for leave;
(6) at the same time, directions were given to allow the parties to apply for a hearing date;
(7) there are no exceptional circumstances; and
(8) if directions are amended to allow service of Mr Lee's report, the respondent would need to obtain a forensic report in response, which was productive of prejudice in that it would need to be sought in haste and the mediation date would be put in jeopardy.
Consideration
In addition to those authorities to which the court's attention was drawn, the parties were invited to consider the decision of Steed v McDougall [2018] ACTSC 233, a decision of Murrell CJ. No further time was sought, nor differing submissions proffered.
In Cobanov v Josifovski [2019] ACTSC 269, an application had been made for the court's leave to serve an expert report. Directions had been made that reports to be relied upon were to be served by December 2018. The defendant's consent had been sought to tender of the document on 9 September 2019. The hearing was listed for 21 October 2019. Elkaim J observed at [10]
‘Rule 1241 says that an expert report must not be served other than in compliance with a direction made by the court, unless there are exceptional circumstances.’
His Honour went on to consider those circumstances, which he found were not exceptional. The respondent relied upon this decision as authority for the proposition that the only course available when service is sought, other than in compliance with existing directions, is to seek leave pursuant to r 1241. In Josifovski his Honour was not invited to consider whether fresh directions could be made in respect to service of the report. Given the proximity to the hearing, it is likely that such an application would have been poorly received. I am not satisfied, however, that the issue arose for his Honour's consideration.
In Steed v McDougall leave was sought pursuant to r 1241 to serve an additional expert report after the date permitted by prior directions. In that matter, a hearing was listed to commence on 10 September 2018. Following a mediation conference on 23 May 2018, there was discussion about the plaintiff obtaining a report from another expert. The identified expert provided a report on 10 August 2018 and on 15 August 2018 the plaintiff filed an application seeking to vary the timetable concerning the service of expert reports under r 1401; effectively, an application for amended directions. The defendants replied with an application seeking to prevent the plaintiff relying on this report, having regard to r 1241. The Chief Justice noted that the overriding consideration was the interests of justice. She noted that these encompass the interests not only of the parties, but also of the court and the public. Her Honour noted the general provision in r 1401 and the broad discretion it conferred upon the court. She noted also the more specific operation of r 1241, which she concluded was a specific provision dealing with the situation with which I am concerned. That matter was being heard on 20 August, when the hearing was listed for 10 September. That is, 21 days prior to the commencement of the hearing. Her Honour concluded that she could proceed under r 1401 to vary the timetable. That is, she could exercise a discretion to make fresh directions. However, she refused to do so, applying the provision of r 1241, refusing the application in the absence of exceptional circumstances.
In Pryce, Mossop AsJ, as he then was, faced with an application for leave to tender reports at hearing pursuant to r 1241, stated at [6]:
‘I observe that the scope of the circumstances where the “exceptional circumstances” requirement applies appears to be limited to the point where the expert report is sought to be tendered.’
His Honour went on to observe at [7]:
‘The constraint in the rule is subject to orders of the court, r 1241(5). In any event, if a direction is made, for example under r 1401, then that will mean that an expert report served in accordance with such a direction is served in accordance with directions referred to in r 1241(1) and hence r 1241(3) is not triggered.
He noted that:
It would have been by this means that the issue would have been addressed if the present application had been made at a substantially earlier time.
His Honour went on to consider the issue of exceptional circumstances.
Rule 1241 limits a party's entitlement to tender a document not provided in accordance with directions. The court has power to make and amend directions, including of its own initiative, in accordance with r 1401. A different set of considerations apply in relation to the exercise of discretion under that rule than those which arise under r 1241.
I do not consider it appropriate for a court to make a predetermination as to whether a document may be tendered months out from a listed hearing. Circumstances may change which would influence the propriety of the tender at hearing. It may be that proximate to, whilst not actually during a hearing, a different approach is appropriate. That is not the present circumstance. I am satisfied that the proper application was made by the applicant orally and will consider it on its merits, pursuant to r 1401.
In doing so, I am cognisant of r 1401(1) which provides that the court may give a direction about the conduct of proceedings at any stage of a proceeding, even though the direction may be inconsistent with another provision of the rules. The overarching consideration is what is in the interests of justice. In addition to this principle, the court may have regard to a number of other matters, detailed at subparagraph (5) as follows:
'(a) That each party is entitled to a fair hearing'. This would ordinarily entitle a party to put what evidence it considers appropriate in its case before the court, unless there is some overriding reason why that should not be allowed to occur.
'(b) That the time allowed for taking a step in the proceeding on or before the hearing must be reasonable'. Clearly, more than sufficient time had been allowed for the applicant to obtain the report he now seeks to serve. The concern is whether this late service will impact upon the respondent's ability to prepare its defence accordingly; including, if necessary, obtaining a report in response. That matter could be addressed by an application to vary the current mediation date, if that proves necessary. The hearing date is still over three months hence and is unlikely to be affected. If it transpires that vacation of that date and relisting is required, there is plenty of time for an appropriate application to be made.
'(c) The complexity or simplicity of the case'. The issue to which the report goes is one of economic loss. The applicant appears to have had a somewhat complex employment history, with a number of different roles and employers, as well as receiving both direct salary and commission. This raises the potential complexity with which the court would no doubt be assisted by an accounting report.
'(d) The importance of the issues in the case as a whole'. In a personal injury matter, economic loss is likely to be a very significant head of damage and, therefore, of central importance to the case.
'(e) The volume and character of the evidence to be led'. It appears that the forensic accounting report has brought together what was otherwise a moderately voluminous bundle of evidence as to economic loss.
'(f) The time expected to be taken by the hearing'. One might reasonably anticipate that the availability of a forensic accounting report would most likely reduce, rather than extend, the time of the hearing. Even if a report in reply is not in agreement, the issues are likely to be narrowed as a result of the availability of expert evidence.
'(g) The number of witnesses to be called by the parties'. Whilst the provision of a forensic report may require one or, if there is a reply, two additional witnesses, this must be offset against the time saved in presenting evidence of loss of income to the court.
'(h) Each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses'. This goes to the essence of the applicant being able to establish loss. The author of the report will of course be available for cross-examination if required.
'(i) The state of the court lists'. This is a particularly poignant consideration, given the impact that the COVID-19 pandemic is having on court operations at this point in time. There can be no certainty that the matter listed for hearing in July will be able to go ahead as currently planned. The provision of expert evidence which narrows the issues and, therefore, may assist the settlement process as between the parties becomes particularly desirable.
'(j) Any other relevant matter'. The prejudice to the respondent is of course a relevant consideration. I note that the applicant's explanation for delay in obtaining Mr Lee's report are not particularly compelling. Further, the respondent will be put to the need to consider whether a report is required in reply. It is, however, preferable that this issue arise before hearing, rather than after the giving of evidence at a hearing, as may be the case if there were no expert report on the issue for the applicant.
Having considered these matters, I am satisfied that it is appropriate to grant the application. I therefore direct that paragraph (5) of the directions for personal injury matters, as incorporated by paragraph (4)(b) of the 10 February directions be amended by adding, 'save that in respect of the report of Michael Lee, it is to be served by 5 March 2020'.
The respondent applied for costs of the application. Properly, that is not opposed by the applicant, given the need for the application arose as a result of the failure of the applicant to address the issue at the February directions hearing, and noting also that the applicant succeeded on the amended oral application today, not the original application as filed. Accordingly, the applicant shall meet the respondent's costs of and incidental to the application.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Walker. Associate: Date: 15 April 2020 |
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