Teale v Archicentre Ltd

[2006] QDC 137

[2006] QDC 137

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3161 of 2004

SARAH JANE TEALE and BRADLEY JOHN RUBEN	Plaintiffs
and
ARCHICENTRE LTD (ACN 001 866 520)	Respondent

BRISBANE

..DATE 24/04/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 320, r 321, r 429 and r 469 - extension of time granted for defendant's disclosure of report by expert - r 429 construed as assuming completion of disclosure, so that the defendant could expect three months after the plaintiffs delayed disclosure - practical course in the circumstances was to allow a similar additional period given delay that characterised the proceeding and the expert's availability.

HIS HONOUR:  There is the common pair of cross-applications before the Court, one by the plaintiffs pursuant to rule 469 seeking that the defendant's signature on the request for trial date be dispensed with, the other by the defendant seeking orders that will secure protection for steps that it says ought to be completed before the matter can be seen as ready for trial.  Those are the provision of expert reports, and a desired referral of the subject matter of the proceeding to mediation.

The proceeding against the defendant complains of its deficient performance of an obligation to report to the plaintiffs on the soundness of a house property they had agreed to purchase.  The defendant apparently inspected the property for the purposes of its report on the 22nd of August 2002.  The report was sufficiently encouraging that settlement of the contract occurred the month following. 

In August 2004, shortly before the proceeding commenced, the plaintiffs provided expert reports describing problems with the house which the defendant had supposedly failed to report on.  It remains to be seen whether its condition had altered for some reason or reasons after the 22nd of August 2002. 

The proceeding faces no problems under the Limitation of Actions legislation but has advanced at what might be called a traditional pace rather than in accordance with the fast tracking that many expect of modern litigation.

The statement of claim originally was filed on 2nd of September 2004, then amended on the 5th of June 2005.
That can be regarded on the face of it as delay attributable to the plaintiffs.  I say that without descending into the detail of the matter, aware that Mr O'Sullivan for the plaintiffs has suggested the changes were minor.  It is not the only instance of delay which could be laid at the plaintiffs' door.

Although the amended defence was filed on the 25th of July 2005, the plaintiffs took until the 6th of October 2005 to file a reply.  There were further delays involving the plaintiffs and probably the defendant too in relation to disclosure which was ongoing until the plaintiffs' list of documents of the 9th of January 2006.  Mr Faulkner has complained of a report of the Building Services Authority regarding the building which he described as adverse to the plaintiffs - I suppose he means by comparison with their experts' reports - that the document apparently did not surface as early as others.  The point of all of this is less to castigate the plaintiffs than to explain the justification for Mr Faulkner's argument for the defendant that it ought to be allowed an indulgence in respect of rule 429 which would require it to provide any expert reports it wished to rely on within 120 days of the close of pleading.  That would indicate a date a few days before the plaintiffs' list of documents became available.

I agree with Mr Faulkner's submission that section 429 must be based on an assumption that disclosure has been made in accordance with times in the Rules, meaning well before a defendant's expert report is required to be disclosed.

In this case the rule 429 deadline had passed even before the plaintiffs made their disclosure.  I would say that the intention of rule 429(b) is that a defendant ought to have about three months from completion of disclosure to provide its experts' reports.  That three months would be expiring about now.  The defendant requires much more time than that, indeed until the 15th of July when the report of the geotechnical expert found by the defendant to provide a report (after some initial difficulties encountered when others were approached) should be available.

I sympathise with Mr O'Sullivan's response that this seems a very long time and that it would be reasonable to allow something like 21 days, particularly in the light of the defendant having been urged by the plaintiffs, even if it had not expressed an intention itself, years ago to engage an expert.  Unsatisfactory as this is, experience suggests to me that it is simply impractical for the Court to seek to place experts, who are no doubt busy if they are any good, under time limits shorter than those they volunteer.

Although the plaintiffs' contention is that it is more important to hurry the proceeding along to trial than for the defendant to have expert evidence available to meet the plaintiffs' expert evidence, I think the interests of justice dictate that the defendant ought to have the opportunity sought today to get the geotechnical expert's evidence and indeed any other expert evidence may be needed.  It is simply not practical, in my experience, to attempt to shorten the time they say they want.  They can hardly complain if, as circumstances develop, they find that is inadequate.

So far as ADR is concerned, Mr O'Sullivan says his clients have been faced with the possibility of ADR only very recently and have not had time to consider it.  He indicates his clients are not averse to mediation.  The defendant's proposal is the standard one whereby the parties would jointly pay the mediator's fee.

My view is that in the first instance, in circumstances like the present ones, the fee ought to be paid by the party seeking mediation although of course that can be changed by agreement and it may well be that in the proceeding, assuming that costs of the mediation are regarded as part of the costs of the proceeding, a different order is made about how the costs of mediation should be borne ultimately.  The Court should certainly otherwise order for purposes of rule 321 - I do not think Mr Faulkner disputed that - the progress of the proceeding should not be further delayed by any ADR process in present circumstances.

The Court will order pursuant to rule 469 that the defendant's signature on a request for trial date be dispensed with.  The Court will extend until the 15th of July 2006 the time under rule 429 for provision of the defendant's expert reports.

The Court will order that the subject matter of the proceeding be referred to mediation as proposed by the defendant on the basis of the defendant's, in the absence of other arrangements being consented to, paying the mediator's fee in the first instance, rule 321 not to apply.

Although the proceeding may appear on the callover list, it is not to be set down in the absence of the defendant's agreement for trial dates before the 15th of July 2006.

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HIS HONOUR:  Costs to be costs in the cause.

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