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 the application seeking to prevent the plaintiff from relying on Mr Joy’s report.

11.  Between May and August 2018, the defendants were not advised that the plaintiff was obtaining a further expert report upon which it may seek to rely.  The plaintiff did not advise the defendants because the plaintiff wished to examine the report of Mr Joy before deciding whether it wished to rely upon the report.

The CPR

12. Rule 1241 of the CPR provides:

1241 Service of expert reports

(1) Each party must serve on each other active party to a proceeding a copy of each expert report obtained by the party in accordance with any direction made by the court.

(2)If—

(a) a party obtains an expert report after serving reports under subrule (1); and

(b) either—

(i)    the report is only responding to another report served under this rule; or

(ii)    the report updates another report served under this rule;

the party must serve a copy of the report on each other active party not later than 3 days after the day the party obtains the report.

(3) An expert report must not be tendered, and is not admissible, in the proceeding unless it has been served in accordance with this rule, except with—

(a) the court’s leave; or

(b) the agreement of all active parties to the proceeding.

Note    Pt 6.2 (Applications in proceedings) applies to an application for leave or an order under this rule.

(4) The court must not give leave under subrule (3)(a) unless satisfied that—

(a) there are exceptional circumstances that justify giving leave; or

(b) the expert report only updates an earlier version of an expert report that has been served in accordance with this rule.

(5) This rule applies subject to any order of the court.

13. Rule 1401 provides:

1401 Directions generally

(1) The court may, at any stage of a proceeding, give any direction about the conduct of the proceeding it considers appropriate, even though the direction may be inconsistent with another provision of these rules.

(2) The court may give a direction about the conduct of the proceeding on application by a party or on its own initiative.

Note    Pt 6.2 (Applications in proceedings) applies to an application for directions.

(3) In deciding whether to give a direction under this rule, the interests of justice are paramount.

…

14.  Sub-rule (4) sets out a non-exhaustive range of matters to which sub-rule (1) may be applied.  Sub-rule (5) provides that:

(5) In addition to the principle mentioned in subrule (3), in deciding whether to give a direction of a kind mentioned in subrule (4), the court may have regard to the following matters:

(a) that each party is entitled to a fair hearing;

(b) that the time allowed for taking a step in the proceeding or for the hearing must be reasonable;

(c) the complexity or simplicity of the case;

(d) the importance of the issues and the case as a whole;

(e) the volume and character of the evidence to be led;

(f) the time expected to be taken by the hearing;

(g) the number of witnesses to be called by the parties;

(h)that each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses;

(i) the state of the court lists;

(j) any other relevant matter.

Consideration

15.  In relation to any proceeding before it, the Court will endeavour, so far as possible, to ensure that the outcome satisfies the interests of justice.

16. Rule 1401 is a general provision that is, no doubt, designed to articulate the Court’s broad discretion to make orders in relation to case management and other matters that promote the interests of justice. On the other hand, r 1241, is a specific provision dealing with the situation with which I am concerned. That is not to say that it is not subject to the general principle that the Court will make whatever order is most appropriate to serve the interests of justice.

17. Rule 1241 recognises that the interests of justice encompass not only the interests of a party that is seeking to rely upon an expert report, but also the interests of other parties and the Court’s interest in the efficient case management of matters, ensuring that matters are dealt with expeditiously from a public perspective. Sub-rule (4) of r 1241 enables all interests to be considered by providing that “[t]he court must not give leave to rely upon an expert report in circumstances [such as have occurred in this case] unless satisfied that … there are exceptional circumstances that justify giving leave”. That is because in the ordinary course of events the parties have adequate opportunity to obtain and serve expert reports at an early stage of proceedings.

18.  To the extent that it might be necessary to refer to case law to understand the meaning of “exceptional circumstances”, the matter was dealt with in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, referred to recently in El Azzi v Maglis [2017] NSWDC 149 at [42]:

[42] Learned Senior Counsel referred to the construction of the expression “exceptional circumstances” given by Campbell JA (Tobias JA and Handley AJA agreeing) in Yacoub v Pilkington (Australia) Limited [2007] NSWCA 290 as follows:

“(a) Exceptional circumstances are out of the ordinary course or unusual, or special or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered. …

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors. …

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. …

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision. …

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case”. (Authorities and citations omitted).

19. There is nothing exceptional about the current circumstances. The issue in question – the opportunity for either party to avoid the collision – was identified very early in the proceedings. Both parties had an opportunity to obtain expert reports and they did so. Had the plaintiff formed the view, as it apparently did, that Mr Jamieson’s report was insufficiently focused on a particular matter, then the plaintiff could have sought clarification without breaching r 1241.

20.  The plaintiff submitted that there was an evidentiary onus on the defendant to identify any actual prejudice that would flow from granting the plaintiff’s application and the defendant did not do so.

21.  I accept that submission, but the failure to show actual prejudice does not establish exceptional circumstances. Nor does it address the prejudice that would be suffered by the justice system generally if the application was granted and, as a consequence, the hearing was adjourned.

22. No other circumstances were identified as of particular significance to a determination of the issue under r 1241.

23. I accept that I could proceed under r 1401 and vary the timetable. However, the interests of justice, which are the paramount consideration under that provision, are in this case served by compliance with r 1241: by refusing the application in the absence of exceptional circumstances being identified.

24.  Consequently, the plaintiff’s application is refused.  The defendants’ application is granted.  I order that the plaintiff pay the defendants’ costs of the applications. The assessment and payment of costs are deferred until the conclusion of the proceedings.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: