Stewart v. Fehlberg & Anor - [2008] QSC 203

SUPREME COURT OF QUEENSLAND

CITATION:

Stewart v Fehlberg & Anor [2008] QSC 203

PARTIES:

GENE SCOTT AIDEN BRETT STEWART
(plaintiff)
v
GARRY ALAN FEHLBERG
(first defendant)
and
PERSAL & CO CONSTRUCTION PTY LTD
(second defendant)

FILE NO:

S 373 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

02 September 2008

DELIVERED AT:

Rockhampton

HEARING DATE:

27 August 2008

JUDGE:

McMeekin J

ORDER:

1.   That the plaintiff be permitted to call the following persons as expert witnesses in these proceedings:

(i)   Dr C Andrews;
(ii) Dr D Todman;
(iii) Dr C Cantor.

2.   That the first and second defendants be permitted to call the following persons as expert witnesses in these proceedings:

(i)   Dr Maureen Field;
(ii) Dr Peter Boys;
(iii) Dr Edward Ringrose;
(iv) Dr Alison Reid;

(v)   Dr Michael Likely.

3.   That within seven days the parties agree on an appropriate form of orders directing:

(i) Mr Eadie and Mr Andrews to meet and identify the matters on which they agree, disagree (and the reasons why) and attempt to resolve any disagreement in accordance with Rule 429B UCPR;

(ii) Dr Todman and Dr Reid to meet and identify the matters on which they agree, disagree (and the reasons why) in respect of the diagnosis of Parkinson’s disease and attempt to resolve any disagreement in accordance with Rule 429B UCPR;

         and failing agreement between the parties as to the appropriate form of orders, that the matter be re-listed for hearing forthwith for further direction.

4.   That the parties be at liberty to call Messrs Eadie and Andrews to provide expert opinion evidence as they may be advised in the event that there is disagreement between them;

5.   That the defendants have leave to amend their defence as they may be advised to assert the allegation that the plaintiff is now suffering from Parkinson’s disease and any consequential amendments thereby required.

6.   That the parties have leave to call expert witnesses to give evidence by way of telephone.

7.   That the parties have liberty to apply on the giving of two days notice.

8.   Costs of each application reserved

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS BEFORE TRIAL – where the parties seek to call expert evidence close to the trial – where the parties seek to call multiple expert witnesses – whether the court has the power to prevent the calling of a witness

UCPR, r 367(3)(d), r 423, 429G, 429I, r 429J, r 429N(1), r429N(2)

King v Nolan [1992] 2 Qd R 498, referred to

COUNSEL:

R Morton for the Plaintiff

G O’Driscoll for the Defendants

SOLICITORS:

Suthers Lawyers for the Plaintiff

Gadens Lawyers for the Defendants

cMEEKIN JM: There are two applications before me in which each of the parties seek directions principally as to the calling of expert witnesses. The directions sought are that the respective parties ‘be permitted to call’ those witnesses who it is proposed will…

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.

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Details

Case: [2008] QSC 203
Decision Date: 2 September 2008

CaseChat Overview and Summary

In the case of Stewart v. Fehlberg & Anor, the dispute involved multiple parties and a series of complex legal issues surrounding the admissibility of expert evidence in a civil case. The matter was before the Supreme Court of Queensland, which had to determine whether the parties could call multiple expert witnesses close to the trial and if the court had the power to prevent the calling of a witness.

The court was required to decide several legal issues. Firstly, it needed to assess the appropriateness of permitting the plaintiff and the defendants to call their respective experts, including Dr. C Andrews, Dr. D Todman, Dr. C Cantor, Dr. Maureen Field, Dr. Peter Boys, Dr. Edward Ringrose, Dr. Alison Reid, and Dr. Michael Likely. Secondly, the court had to consider the implementation of specific orders under Rule 429B UCPR, which pertains to the resolution of disagreements between experts. Additionally, the court needed to decide on the defendants' leave to amend their defence to include the allegation that the plaintiff was suffering from Parkinson’s disease.

The court ruled that the plaintiff and the defendants could call their respective experts, as outlined in the orders. The court also directed the experts to meet and attempt to resolve any disagreements in accordance with Rule 429B UCPR. Furthermore, the defendants were granted leave to amend their defence to include the allegation regarding the plaintiff's Parkinson's disease. The court also permitted the parties to call expert witnesses to give evidence by way of telephone and allowed them to apply on two days' notice. The costs of each application were reserved for a later determination.

The court issued several orders to manage the expert evidence and the proceedings. The orders allowed the parties to call their chosen experts and mandated that certain experts meet to resolve any disagreements. Additionally, the court granted leave for the defendants to amend their defence and permitted the use of telephone evidence for expert witnesses. The court also reserved the costs of each application for later determination.

Orders

Orders of the court

1. That the plaintiff be permitted to call the following persons as expert witnesses in these proceedings:

(i) Dr C Andrews;

(ii) Dr D Todman;

(iii) Dr C Cantor.

2. That the first and second defendants be permitted to call the following persons as expert witnesses in these proceedings:

(i) Dr Maureen Field;

(ii) Dr Peter Boys;

(iii) Dr Edward Ringrose;

(iv) Dr Alison Reid;

(v) Dr Michael Likely.

3. That within seven days the parties agree on an appropriate form of orders directing:

(i) Mr Eadie and Mr Andrews to meet and identify the matters on which they agree, disagree (and the reasons why) and attempt to resolve any disagreement in accordance with Rule 429B UCPR;

(ii) Dr Todman and Dr Reid to meet and identify the matters on which they agree, disagree (and the reasons why) in respect of the diagnosis of Parkinson’s disease and attempt to resolve any disagreement in accordance with Rule 429B UCPR;

and failing agreement between the parties as to the appropriate form of orders, that the matter be re-listed for hearing forthwith for further direction.

4. That the parties be at liberty to call Messrs Eadie and Andrews to provide expert opinion evidence as they may be advised in the event that there is disagreement between them;

5. That the defendants have leave to amend their defence as they may be advised to assert the allegation that the plaintiff is now suffering from Parkinson’s disease and any consequential amendments thereby required.

6. That the parties have leave to call expert witnesses to give evidence by way of telephone.

7. That the parties have liberty to apply on the giving of two days notice.

8. Costs of each application reserved

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Stewart v Fehlberg & Anor [2008] QSC 203
PARTIES:	GENE SCOTT AIDEN BRETT STEWART (plaintiff) v GARRY ALAN FEHLBERG (first defendant) and PERSAL & CO CONSTRUCTION PTY LTD (second defendant)
FILE NO:	S 373 of 2007
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	02 September 2008
DELIVERED AT:	Rockhampton
HEARING DATE:	27 August 2008
JUDGE:	McMeekin J
ORDER:	1. That the plaintiff be permitted to call the following persons as expert witnesses in these proceedings: (i) Dr C Andrews; (ii) Dr D Todman; (iii) Dr C Cantor. 2. That the first and second defendants be permitted to call the following persons as expert witnesses in these proceedings: (i) Dr Maureen Field; (ii) Dr Peter Boys; (iii) Dr Edward Ringrose; (iv) Dr Alison Reid; (v) Dr Michael Likely. 3. That within seven days the parties agree on an appropriate form of orders directing: (i) Mr Eadie and Mr Andrews to meet and identify the matters on which they agree, disagree (and the reasons why) and attempt to resolve any disagreement in accordance with Rule 429B UCPR; (ii) Dr Todman and Dr Reid to meet and identify the matters on which they agree, disagree (and the reasons why) in respect of the diagnosis of Parkinson’s disease and attempt to resolve any disagreement in accordance with Rule 429B UCPR; and failing agreement between the parties as to the appropriate form of orders, that the matter be re-listed for hearing forthwith for further direction. 4. That the parties be at liberty to call Messrs Eadie and Andrews to provide expert opinion evidence as they may be advised in the event that there is disagreement between them; 5. That the defendants have leave to amend their defence as they may be advised to assert the allegation that the plaintiff is now suffering from Parkinson’s disease and any consequential amendments thereby required. 6. That the parties have leave to call expert witnesses to give evidence by way of telephone. 7. That the parties have liberty to apply on the giving of two days notice. 8. Costs of each application reserved
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – OTHER MATTERS BEFORE TRIAL – where the parties seek to call expert evidence close to the trial – where the parties seek to call multiple expert witnesses – whether the court has the power to prevent the calling of a witness UCPR, r 367(3)(d), r 423, 429G, 429I, r 429J, r 429N(1), r429N(2) King v Nolan [1992] 2 Qd R 498, referred to
COUNSEL:	R Morton for the Plaintiff G O’Driscoll for the Defendants
SOLICITORS:	Suthers Lawyers for the Plaintiff Gadens Lawyers for the Defendants