Steed v McDougall

[2018] ACTSC 233

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Steed v McDougall and Anor

Citation:

[2018] ACTSC 233

Hearing Date(s):

20 August 2018

DecisionDate:

20 August 2018

Before:

Murrell CJ

Decision:

See [24]

Catchwords:

PRACTICE AND PROCEDURES – PERSONAL INJURY PROCEEDINGS – Service of expert reports – Application to serve additional expert report after date permitted by prior directions – Rule 1241 of Court Procedures Rules 2006 (ACT) – Application to adjourn substantive hearing – Rule 1401 of Court Procedures Rules 2006 (ACT) – “exceptional circumstances” – interests of justice

Legislation Cited:

Court Procedures Rules 2006 (ACT) rr 1241, 1401

Cases Cited:

El Azzi v Maglis [2017] NSWDC 149

Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

Parties:

Trevor Ross Steed (Plaintiff)

Joshua David McDougall (First Defendant)

Insurance Australia Ltd t/as NRMA Insurance (Second Defendant)

Representation:

Counsel

Mr D Crowe (Plaintiff)

Mr K Rewell SC (First and Second Defendant)

Solicitors

Maurice Blackburn (Plaintiff)

Moray and Agnew (First and Second Defendant)

File Number(s):

SC 260 of 2017

Murrell CJ

Background

1. The two applications before the Court arise out of a personal injury proceeding listed for hearing on 10 September 2018.  The applications concern whether, in the proceeding, the plaintiff should be permitted to rely upon an expert report of Mr Joy dated 10 August 2018. 

1. Pursuant to r 1401 of the Court Procedures Rules 2006 (ACT) (CPR), the plaintiff asks that he be permitted to serve Mr Joy’s report.  Alternatively, the plaintiff asks that the hearing be adjourned to remedy any prejudice suffered by the defendants through the late service of the report. 

1. Pursuant to r 1241 of the CPR the defendants ask that the plaintiff not be permitted to rely upon the report of Mr Joy.

1. On 24 July 2014, the first defendant was the driver of a vehicle that was reversing out of a driveway and the plaintiff was riding a motorcycle along the footpath in the course of his employment with Australia Post.  The vehicles collided and the plaintiff sustained personal injury. 

1. On 21 July 2017, the plaintiff commenced proceeding in the Supreme Court.  Both parties obtained expert reports on the issue of the opportunity that each party had to avoid the collision.  As directed, the reports were served by 4 May 2018. 

1. On 1 May 2018, Senior Deputy Registrar Kennealy allocated the hearing date of 10 September 2018. 

1. On 23 May 2018, there was a conference at which the adequacy of the report obtained from the plaintiff’s expert, Mr Jamieson, was discussed.  Counsel for the plaintiff suggested that it may be appropriate to obtain a report from another expert; a Mr Joy was identified.

1. A few days later a mediation failed to resolve the matter. 

1. The plaintiff approached Mr Joy. On 10 August 2018, Mr Joy furnished a report to the plaintiff’s solicitor. On 15 August 2018, the plaintiff filed the application seeking to vary the timetable concerning the service of expert reports under r 1401.

10.  On 20 August 2018, the defendants filed…