Russell v Glenn - [2020] ACTSC 81

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Russell v Glenn

Details

AGLC: Russell v Glenn [2020] ACTSC 81
Case: [2020] ACTSC 81
Decision Date: 1 April 2020

CaseChat Overview and Summary

The matter of Russell v Glenn involved a legal application by the first and second plaintiffs to serve an expert report on the defendant. The dispute centred on whether the court should grant leave for the service of the expert report and whether there were exceptional circumstances justifying the extension of the usual time frames. The case was heard in the relevant Australian court, where the plaintiffs sought to present their case with the assistance of an expert witness.

The primary legal issue before the court was whether the plaintiffs had demonstrated exceptional circumstances that warranted an extension of the time limit for serving the expert report. The court considered the criteria for exceptional circumstances, including the nature of the delay, the reasons for the delay, and whether the delay would cause injustice to either party. The plaintiffs argued that unforeseen delays in obtaining the expert's availability had necessitated the extension. The defendant, on the other hand, opposed the application, contending that the delay was not attributable to exceptional circumstances and that the plaintiffs had not acted diligently in obtaining the expert report.

The court examined the evidence presented by both parties and assessed whether the plaintiffs had met the threshold for demonstrating exceptional circumstances. The court found that the plaintiffs had provided sufficient evidence to support their claim of unforeseen delays and that the delay did not result from any lack of diligence on their part. Consequently, the court granted the application, allowing the plaintiffs to serve the expert report within the extended timeframe. The court also ordered that the plaintiffs bear the costs associated with the application.

Orders

Orders of the court

The application is granted. The applicant is to meet the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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