Steven Jelic v Edward Bader and Gerardina Bader (No 2)

[2010] NSWDC 167

CITATION:	Steven Jelic v Edward Bader and Gerardina Bader (No 2) [2010] NSWDC 167
JUDGMENT DATE:	16 February 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	There are exceptional circumstances warranting the granting of leave to admit the report.
CATCHWORDS:	CIVIL LAW - admissibility of expert report - report not served in accordance with r 31.28 of Uniform Civil Procedure Rules 2005 - request for leave to tender report based on exceptional circumstance - history of matter relevant - time for service occurred over Christmas break
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 r 31.28
PARTIES:	Steven Jelic Edward Bader Gerardina Bader
FILE NUMBER(S):	08/599
COUNSEL:	Mr Lidden SC and Ms Welsh for the plaintiff Mr Gambi for the defendant

JUDGMENT

1. I am asked to rule on a preliminary issue in these proceedings and it is this. The defendant served an expert report on the plaintiff’s solicitors yesterday afternoon, not long after two o’clock. The plaintiff through its counsel, Mr Lidden SC, who appears with Ms Welsh, takes a number of objections but the one I am asked to rule on is taken under Rule 31.28 of the Uniform Civil Procedure Rules 2005.

2 The relevant Rule provides that parties must serve experts’ reports on each other in accordance with any order of the court. In this case there was a court order. Mr Lidden SC argues that the defendant’s expert report which is dated yesterday and, as I said, was served yesterday afternoon, was not served in accordance with that order. Mr Gambi of counsel who appears for the defendant acknowledges that the report was not served in accordance with the court order but, in accordance with Part 31.28(3) asks for leave for the report to be admissible.

3. Both counsel have addressed the criteria by which I determine leave which is provided for in Part 31.28(4) which provides that leave is not to be given unless I am satisfied that there are exceptional circumstances that warrant the granting of the leave. Mr Gambi argues that there are such exceptional circumstances in this case and Mr Lidden argues that there are no such exceptional circumstances.

4. Both parties have drawn my attention to the history of the matter. The accident which the plaintiff alleges occurred as a result of the defendant’s negligence is said to have occurred on 1 March 2005. The statement of claim was filed on 25 March 2008.

5. The matter was fixed for hearing on 26 November 2008. On that day his Honour Judge Levy SC was met by an adjournment application on the part of the plaintiff. It was based upon the recent emergence of a psychiatric condition requiring investigation. His Honour granted the adjournment and directed that the matter be placed in the Judicial Registrar’s list. In the Judicial Registrar’s list on 10 December 2008 the Judicial Registrar noted the diagnosis of a psychiatric condition and required the plaintiff to tell the court whether treatment had commenced or not on the next occasion. The next occasion was 3 February 2009 when it was noted that the plaintiff was undergoing psychiatric treatment and reports were to be served by 30 April 2009.

6. On 16 June 2009 the matter was fixed for hearing on 8 October 2009. On that day the matter came before his Honour Judge Garling. Once again the plaintiff applied to vacate the hearing day. The basis of that application was that the relationship between the plaintiff and his solicitor had broken down and the solicitor was asking to cease to act. The defendant opposed the adjournment. One of the bases of the opposition to the adjournment was that the defendants were elderly. His Honour vacated the hearing date, reserving the question of costs, and stood the matter over for two weeks before his Honour. His Honour noted that the plaintiff or his new legal representative should be in a position to satisfy the court that the matter should be allowed to continue.

7. When the case came on back before Judge Garling on 22 October 2009 his Honour listed the matter for further directions. Those further directions were given by the Judicial Registrar on 10 November 2009 and are the directions which form the basis of the orders of court which have been argued before me today to be relevant to the service of the expert’s report which is objected to. On that day the Judicial Registrar ordered the plaintiff to serve any further expert’s liability report by no later than 11 December 2009. The Judicial Registrar noted that thereafter Rule 38.28 will apply and the matter will proceed to trial on the evidence already served. A second order was that the defendant serve any expert reports in reply by 29 January 2010. The Judicial Registrar fixed the matter for hearing for today.

8. Mr Lidden argues that there was service of a report on the part of the plaintiff in compliance with that order. Exhibit VD 2 in proceedings before me comprises a facsimile from the plaintiff’s solicitors to the defendant’s solicitors, dated 11 December 2009, the last day provided for by the Judicial Registrar for service of the plaintiff’s report. Attached to that was a report of a Neil Adams dated 9 December 2009. Annexures were referred to but not attached but Mr Gambi takes no issue about the annexures. However there were included in Mr Adams’ report a number of colour photographs. I know that, because the original of the report which was later served by the plaintiff’s solicitors is before me as exhibit VD A, and I can clearly see those colour photographs. Mr Gambi argues that the quality of the photographs contained in the facsimile of the report served on his solicitors on 11 December 2009 were not of adequate quality. It was also noted that the report had not been signed by its author.

9. There followed some correspondence - I should add that I was informed by Mr Gambi from the bar table without objection from Mr Lidden, that the defendant’s solicitor’s offices closed for the Christmas break on 23 December 2009, and re-opened on 14 January 2010.

GAMBI: I’m sorry to interrupt, your Honour, but there was something I should have alerted you to. My instructing solicitor informs me that the correct date when the office re-opened was the 11th, which was a Monday. I just assumed the 14th was a Monday.

HIS HONOUR: No.

GAMBI: He checked over lunch.

HIS HONOUR: That explains the letter on the 12th.

GAMBI: It does. I gave him too much credit, I think, for coming in before the office opened, but he was there on the 11th. Sorry about that, your Honour.

HIS HONOUR: Yeah - good - thanks.

The office closed on 23 December 2009, and re-opened on 11 January 2010, although Mr Gambi had noted that his solicitor appeared to take judgment in a matter on 24 December 2009.

10. The day after his office re-opened, the defendant’s solicitor wrote to the plaintiff’s solicitors, pointing out that the report served on 11 December 2009 was unsigned and did not contain the colour photographs and asked for the original or, in the alternative, an extension of time. The plaintiff’s solicitors wrote back indicating that the report served was not a draft, and that it would be relied upon. They went on to say a “signed copy containing photographs will be forwarded shortly”.

11. The original report of the plaintiff’s expert was served on 18 January 2010, with an apology for the delay in forwarding it, pointing out that they “only received the original report today”. The plaintiff’s solicitors accorded the defendant’s solicitors a reasonable extension of time for their expert report to be served.

12. On the Friday following his return to the office, namely 15 January 2010, the defendant’s solicitors sought instructions from their client concerning the obtaining of a report. Those instructions were forthcoming nearly a week later, because the relevant person looking after the matter with the client was on annual leave. On the same day that the instructions were forthcoming, the defendant’s solicitor wrote to an organisation seeking to engage an expert. That organisation made attempts to engage the services of an expert, but informed the defendant’s solicitor on 8 February 2010 that none was available, but there was an exception who could be available, and that person was engaged. That person was obviously the author of the report which is the subject of objection, namely Dr Thomas Gibson.

13. Mr Lidden argues that I cannot be satisfied that there are exceptional circumstances to warrant granting the leave, because there is no explanation for the delay offered by the defendant. He points out in his argument that nothing was done in the four weeks between 11 December 2009 and 12 January 2010 and, after that, further time elapsed. Action should have been taken before their office closed.

14. Mr Gambi, on the other hand, draws my attention to the history of the matter, which includes two adjournments at the request of the plaintiff and the fact that his instructing solicitor’s offices were closed over the period of the Christmas vacation and that the action taken by his instructing solicitor was as expeditious as could be expected in the circumstances. Although taking no formal point about the annexures to the plaintiff’s solicitors expert’s report, he did draw attention, as I said earlier, to the inadequacy of the photographs which were reproduced in the original facsimile which was served on 11 December 2009.

15. I have determined that the report VD1, tendered on the part of the defendant, is not inadmissible by virtue of Rule 38.21. I propose to grant leave for it to be admitted, despite its service not being in compliance with the order of the Judicial Registrar on 10 November 2009.

16. I am satisfied that there are exceptional circumstances warranting the granting of that leave. Those exceptional circumstances are these. In my opinion, the plaintiff’s compliance with the Judicial Registrar’s order was inadequate. It was not, in my view, an adequate compliance to serve a report containing a number of colour photographs which were not properly reproduced by the facsimile. That is particularly so in the context of an argument which is now presented that the defendants ought to have acted expeditiously in retaining an expert in response to that report. The colour photographs which are included in the original, VDA, are very helpful and assist in understanding the points being made by the author of the report. In one instance, for example, the author has marked a small circle in the area where the plaintiff believes he started the movement which resulted in the accident. The service of the report, without the recipient being able to clearly see those photographs, or any expert retained by it being able to see them, was not, in my view, adequate compliance with the direction. That is particularly so since the Judicial Registrar obviously had in mind the history of the matter and the adjournments which were granted at the plaintiff’s request, in providing that the report had to be served by 11 December 2009 and that, thereafter, the Rule would be applied.

17. I also regarded as relevant the time of year. It is not uncommon for solicitors’ offices to close down over the vacation. So, effectively, the defendant’s solicitors had a period of some two weeks after service of the report which is, as I have found, adequate service, and before its office closed. Thereafter, the defendant’s solicitor acted the day after his office re-opened in order to try to take the matter further so far as his client was concerned. That was frustrated by, once again, people being on leave at that time of the year, and experts not being available. It is not, in my opinion, for the plaintiff to rely upon an almost strict compliance with the directions, when it complied inadequately with the Court’s directions and at a time of year in which it is common knowledge that resources are scarce. And it effectively compressed the defendant’s actions into too small a period of time for it, in my view, to be able to comply with the Court’s direction.

18. For those reasons, I am of the view that there are exceptional circumstances which warrant the granting of leave to admit the report of Dr Thomas Gibson, dated 15 February 2010 in accordance with Part 31 Rule 28 of the Uniform Civil Procedure Rules 2005.

**********