The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd

Case •

[2022] NSWSC 1382

•

14 October 2022

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: The Owners – Strata Plan No 90189 v Parkview Constructions Pty Ltd [2022] NSWSC 1382
Hearing dates: 10 October 2022
Date of orders: 14 October 2022
Decision date: 14 October 2022
Jurisdiction:Equity - Technology and Construction List
Before: Rees J
Decision:

Dismiss motion for advance ruling with costs.

Catchwords:

EVIDENCE – application for advance ruling – section 192A, Evidence Act 1995 (NSW) – builder seeks ruling that expert reports are inadmissible as irrelevant – case law review and principles regarding advance rulings at [40]-[50] – premature to make rulings sought where builder yet to serve evidence and trial date not allocated.

CIVIL PROCEDURE – pleadings in Technology and Construction List – plaintiff’s pleadings initially defective – parties agree to provision of further particulars of defects through Scott Schedule – builder now insists on amendment to List Statement.

Legislation Cited:

Design and Building Practitioners Act 2020 (NSW)

Evidence Act 1995 (NSW), s 192A

Home Building Act 1989 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 14.8, 15.1, 15.2

Cases Cited:

Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075; (2009) 259 ALR 541

Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324

B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64; (2019) 134 ACSR 404

BCEG International (Australia) Pty Ltd v Xiao [2022] NSWSC 972

Coastal Service Centres Pty Ltd v United Petroleum Pty Ltd [2020] NSWSC 1870

Davaria v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473

Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423

Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370

Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; (2012) 127 ALD 288

Icon Co (NSW) Pty Ltd v The Owners – Strata Plan No. 97315 [2022] NSWCA 114

Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953

NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 4) [2012] NSWLEC 120

Searle v Commonwealth [2022] NSWSC 119

Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349

Swiss Re International SE v Simpson [2018] NSWSC 233; (2018) 354 ALR 607

Sydney Attractions Group Pty Ltd v Schulman [2012] NSWSC 951

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Trusted Cloud Pty Ltd v Core Desktop Pty Ltd [2015] FCA 33

Wadsworth v Hamilton [2022] NSWSC 396

Texts Cited:

Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth)

Practice Note SC Eq 3

Category:Procedural rulings
Parties: The Owners – Strata Plan No 90189 (Plaintiff/Respondent)
Parkview Constructions Pty Ltd (First Defendant/Applicant)
Representation:

Counsel:
Mr M Pesman SC / Mr P Horobin (Plaintiff/Respondent)
Mr MA Ashhurst SC / Mr L Corbett (First Defendant/Applicant)

Solicitors:
Chambers Russell Lawyers (Plaintiff/Respondent)
Mills Oakley (First Defendant/Applicant)
File Number(s): 2020/348227

Judgment

  1. HER HONOUR: The first defendant, Parkview Constructions Pty Ltd, seeks a ruling under section 192A of the Evidence Act 1995 (NSW) that eight expert reports served by the plaintiff, The Owners – Strata Plan No 90189, are inadmissible. The plaintiff is the owners’ corporation of Tower C Residential Tower of a property in Australia Avenue at Sydney Olympic Park. The first defendant was the builder and the second defendant, Sydney Olympic Park Authority, was the developer of Tower C (but not a party to the present application). In short, this was a pleadings dispute about whether the defects the subject of the expert reports went beyond the plaintiff’s pleaded case.

  2. The first defendant’s solicitor, Sindri Bergsson, and the plaintiff’s solicitor, Paul Jurdeczka, both gave evidence as to the history of these proceedings. There was no cross-examination.

FACTS

  1. In 2013 and 2014, the first defendant carried out building works resulting in the construction of a 25-storey residential building with four levels of basement carparking (referred to by the parties as the Work). Amongst the subcontractors engaged to carry out the Work, the first defendant engaged:

  1. Westform Formwork Contractors Pty Ltd on 16 November 2012 to install pre-formed stairs;

  2. DA Design Pty Ltd on 23 March 2013 to supply and install fire protection systems;

  3. Orion Mechanical Services Pty Ltd on 30 April 2013 to install a stair pressurisation system;

  4. Foxville Project Groups (NSW) Pty Ltd on 17 February 2014 to install boxed out services in fire stairs; and

  5. ACM Group Pty Ltd on 17 November 2014 to install podium balustrades.

These proceedings

  1. On 8 December 2014, the strata plan was registered, comprising 288 residential apartments together with car spaces and common property. The Work was completed on about 22 December 2014 upon the issuing of an interim occupation certificate.

  2. In late 2019, the plaintiff retained solicitors and began corresponding with the first defendant. On 23 December 2019, the plaintiff’s solicitors accepted a fee proposal from Matthew Harriman, who is the author of several of the disputed expert reports. In February 2020, the first defendant began to undertake repair work (referred to by the parties as the Repair Work).

  3. On 18 June 2020, the plaintiff’s solicitors sent a letter of instruction to Mr Harriman. On 9 November 2020, the plaintiff’s solicitors advised the first defendant’s solicitors that the owners corporation had “engaged experts to investigate and identify any general fire & life safety defects in the Strata Scheme.” On 27 November 2020, Mr Harriman completed his inspection of the building.

  4. On 8 December 2020, the plaintiff commenced these proceedings by summons in the Technology and Construction List. The plaintiff sued the first defendant for breach of statutory warranties provided by Part 2C of the Home Building Act 1989 (NSW) and breach of a duty of care owed to the plaintiff on the basis that the Work was “construction work” for the purposes of the Design and Building Practitioners Act 2020 (NSW).

  5. According to Mr Bergsson, the limitation period under the Home Building Act with respect to the Work was 21 December 2020 for major defects. Mr Jurdeczka said the limitation period under the Design and Building Practitioners Act may have expired as early as 8 December 2020, being six years after registration of the strata plan. Either way, it appears that the proceedings were commenced shortly before the expiry of the relevant limitation periods. The quality of the pleading appears to have reflected the haste with which it was prepared, as was later acknowledged by the plaintiff’s legal representatives: see [18].

  6. Related proceedings were also commenced by the owners’ corporation of the other residential tower in the same complex, referred to as the Tower D proceedings. (The Owners – Strata Plan 91684 v Parkview Constructions Pty Ltd, File No. 2020/353796). These proceedings and the Tower D proceedings have been case managed together. Mr Jurdeczka expects that both proceedings will be heard together; an order that evidence in one proceedings will be evidence in the other proceedings will likely be sought in due course.

The pleading

  1. Of central importance, paragraph 51 of the Technology and Construction List Statement pleads:

The Defects

51.   The Work, and to the extent relevant the Repair Work, contains and/or contained defects and non-complying work (“the Defects”).

Particulars of the Breaches

(a)   Defects as set out in:

(i)   In respect of the [external cladding containing aluminium composite panels (ACP)]:

…

(ii)   Further, as set out in Annexure A to this List Statement.

(b)   Defects and non-complying work to be particularised in reports and evidence, and a Scott Schedule, to be provided in due course.

  1. The pleading was certainly brief, perhaps consistently with rule 14.8 of the Uniform Civil Procedure Rules 2005 (NSW). Such a pleading may also be consistent with the fact that the plaintiff has only one cause of action for breach of the statutory warranties, no matter how many breaches there may be: The Owners–Strata Plan No 90018 v Parkview Constructions Pty Ltd [2022] NSWSC 1123 at [62] (per Stevenson J).

  2. The first defendant takes no issue with the adequacy of the pleading in respect the external cladding but, rather, in respect of the defects set out in Annexure A. Annexure A to the Technology and Construction List Statement stated:

Particulars of Breaches and Defective Work

Defects and non-complying work in the Common Property, to be fully and properly particularised in expert evidence to be served in due course, including without limitation: …

A list of 22 defects followed. It is not in dispute that the defects the subject of the eight experts’ reports do not fall within the 22 defects in Annexure A.

  1. As is apparent from the heading following paragraph 51 of the Technology and Construction List Statement under which Annexure A was introduced – “Particulars of the Breaches” – as well as the heading of Annexure A, the details set out in Annexure A were particulars. That is, paragraph 51 contained the material fact on which the plaintiff relied: the Work contained defects and non-complying work. The particulars, including Annexure A, were directed to providing additional detail of the claim to enable the first defendant to identify the case it was required to meet, essentially observing the demarcation between pleadings and particulars described in rule 14.7 and rule 15.1 of Uniform Civil Procedure Rules. Particular (b) also anticipated, as is common in building matters, the preparation of a “Scott Schedule”: Uniform Civil Procedure Rules, rule 15.2.

  2. The Technology and Construction List Statement proceeded to plead that, by reason of the Defects, the statutory warranties were breached, causing loss and damage. The same Defects were relied upon in support of the alleged breach of a duty of care under the Design and Building Practitioners Act, said to had led to the same loss and damage. The pleadings have not since been amended.

Particulars

  1. On 12 February 2021, Hammerschlag J (as his Honour then was) made orders by consent for the first defendant to request particulars of the plaintiff’s claim. On 25 February 2021, the first defendant requested further and better particulars of the plaintiff’s claim, including in respect of each of the defects identified in Annexure A. The plaintiff responded that this was not a proper request for particulars but a matter for evidence. On 22 March 2021, the first defendant pressed its request for particulars. The same day, the plaintiff served seven expert reports, of which Mr Bergsson said two reports addressed the alleged defects described in Annexure A.

  2. On 15 April 2021, the first defendant’s solicitors circulated proposed short minutes of order and a position paper in advance of a directions hearing, proposing to file a motion seeking adequate particulars. The plaintiff opposed such orders, submitting that it had provided particulars to the extent it was able and, if such a motion was agitated, “it would only result in the same replies”. Further, the plaintiff submitted that, if the first defendant seriously maintained its position, then it ought file a motion to strike out relevant parts of the pleading, which motion appeared doomed to fail and a waste of time and cost having regard to Practice Note SC Eq 3 at [62].

  3. On 16 April 2021, Hammerschlag J made orders noting that he did not consider that the foreshadowed motion to compel further particulars, nor a strike out motion, was desirable and fixed the matter for telephone directions on 20 April 2021.

  4. On 20 April 2021, the transcript records that Hammerschlag J advised the parties that he did not want to have a fight about further particulars and nor did he wish to encourage a strike out application. Rather, his Honour had listed the matter for directions to work out a way forward. His Honour proposed that the first defendant file a List Response, which he did not apprehend would make any admissions, and that directions be made for the plaintiff to serve a Scott Schedule in accordance with rule 15.2 of the Uniform Civil Procedure Rules 2005. The transcript records:

HIS HONOUR: What I’ll do in this case, Mr Ashhurst, even though the Rules here don’t really allow a non-admission, I’ll give you leave to make a non-admission, to file your response with a non-admission, and then I’ll put Mr Horobin on terms to give us a properly articulated Scott Schedule.

Mr ASHHURST: Your Honour, that fixes the pleading point. …

MR HOROBIN: … Part of the issue is because these List Statements are put on sort of towards the end of the limitation period, they’re not as detailed as one would like. We’re still getting expert evidence, which would formulate the basis for the Scott schedule.

HIS HONOUR: Well, you can’t have it both ways. You can’t start a case that doesn’t particularise it and then say you can’t particularise it. They’re going to have to get on their bicycle. I’ll strike it out otherwise, Mr Horobin. Mr Ashhurst’s complaint is absolutely well-founded. It’s just that I don’t think there’s anything practical to be gained by having an argument. So you’re going to have to put on a Scott schedule. If you can’t do it, if you can’t particularise the defects, then I’m going to strike it out.

… So I’m giving you this leeway now to do it even though your pleading is no good. We’re not a court of strict pleading but we’re also not one of no pleading. So this is a practical solution. …

  1. That is, whilst his Honour acknowledged the deficiencies in the plaintiff’s pleading, Hammerschlag J proposed a way forward which avoided the need for unproductive interlocutory applications: the plaintiff would provide further details of the Defects by populating a Scott Schedule; if there was any difficulty with the level of detail so provided, the first defendant could apply to strike out the claim. Hammerschlag J directed the first defendant to file its Technology and Construction List Response, noting that the first defendant may, in light of the non-particularity of the defects, plead a non-admission. Further, the plaintiff was to file and serve a Scott Schedule by 4 June 2021.

  2. In accordance with his Honour’s directions, on 30 April 2021, the first defendant filed its Technology and Construction List Response. In respect of paragraph 51, the first defendant pleaded that “in the absence of proper particulars, the first defendant does not admit the contentions …”.

  3. On 4 June 2021, the plaintiff served a “Preliminary Scott Schedule”. A portion of the Preliminary Scott Schedule is extracted by Mr Bergsson and included the following items (Items 920 to 925):

●   Non-compliant sealing of service penetrations through fire rated elements recurring in various locations in the strata scheme.

●   Non-compliant fire doors recurring in various locations in the strata scheme.

●   PEX pipes, conduits, uPVC pipework, A/C lagging, general lagging and insulation are combustible materials recurring in various locations in the strata scheme.

●   Non-compliant fire stopping system recurring in various locations in the strata scheme.

●   No SSISEP speaker as required recurring in various locations in the strata scheme.

●   Inadequate sprinkler coverage recurring in various locations in the strata scheme.

Each item noted that it was “To be further particularised in a fire and life safety defect report to be served in due course.”

  1. On 22 June 2021, Hammerschlag J made further directions, noting that the plaintiff accepted the inadequacy of the Scott Schedule which it had served but put that it was not yet in a position to provide a compliant Scott Schedule, apparently because it had not yet obtained all of its expert liability evidence. His Honour made orders for the plaintiff to file its lay and expert liability evidence by 2 August 2021. In the event that the plaintiff was unable to comply with this direction, it was to provide an affidavit setting out its progress and, if it was in a position to do so, to also provide an updated Scott Schedule.

  2. On 8 July 2021, the plaintiff served a report of Mr Harriman. In addition to various defects already described in Annexure A to the Technology and Construction List Statement, Mr Harriman’s report described fire and life safety defects in respect of the sealing of service penetrations through fire rated elements in the building, boxed out services in fire stairs, the smoke sealing of cupboards, stair goings and rises, fire stair landings, sprinkler coverage, sprinkler protection within ceiling cavities and excessive displacement to level 2 podium balustrades. That is, Mr Harriman’s report provided evidence in support of the fire and life safety defects referred to in the Preliminary Scott Schedule served on 4 June 2021.

  3. Mr Harriman recommended that further investigations be undertaken and, on 30 July 2021, the plaintiff’s solicitors wrote to the first defendant’s solicitors advising that these investigations would be undertaken later in August 2021 but not within time to comply with the Court’s orders. On 2 August 2021, the plaintiff served an affidavit by Mr Jurdeczka indicating that it intended to serve further lay and expert liability evidence in chief.

  4. On 3 August 2021, the first defendant’s solicitors complained that the plaintiff’s evidence remained incomplete and that Mr Harriman’s recently served report raised additional defects for the first time, being defects not referred to in Annexure A (albeit, as I have noted, the defects were referred to in the Preliminary Scott Schedule served on 4 June 2021, as appears to have been anticipated in the exchanges between the parties on 20 April 2021 and the orders made by Hammerschlag J at the conclusion of that directions hearing). Further, the first defendant did not agree to the plaintiff having additional time to complete its evidence.

  5. On 11 August 2021, the plaintiff served a second Preliminary Scott Schedule. Working backwards from the amendments made to the third Preliminary Scott Schedule (see [30]), it appears that this Scott Schedule expanded significantly on items 920 to 925, detailing the defects identified by Mr Harriman in his report of 8 July 2021 and now numbered items 920 to 2040.

  6. On 13 August 2021, Hammerschlag J extended the time for the plaintiff to complete the service of its evidence until 26 November 2021, with evidence not served in accordance with this order not to be relied upon without leave. The plaintiff was also directed to serve an updated Scott Schedule by 3 December 2021.

  7. On 19 August 2021, the first defendant issued a cross-summons to five subcontractors, which I was informed related to the plaintiff’s claim in respect of external cladding. The first defendant sought indemnity and/or contribution and damages. The accompanying Statement of Cross-Claim pleaded claims in contract and tort. The subcontractors relevant to the fire and life safety defects (see [3]) were not sued.

  8. On 22 November 2021, the plaintiff obtained an expert report from Nicholas Joannides on structural engineering building defects. On 25 November 2021, the plaintiff obtained a report from Duncan Baxter on mechanical engineering defects. On 26 November 2021, the plaintiff obtained a report from Deane Fraser, assessing the fire sprinkler protection provided to the basement areas. A supplementary report was also obtained from Mr Harriman. These reports were served on 26 November 2021.

  9. On 9 December 2021, Ball J made orders by consent, extending the time for the plaintiff to “serve an updated preliminary Scott Schedule by way of particulars of defects” until 10 December 2021. The form of the consent orders rather confirmed the consensual regime implemented by Hammerschlag J on 20 April 2021 that, rather than waylay the proceedings by interlocutory applications for further particulars or strike out, the plaintiff would provide particulars of the Defects on receipt of the necessary expert evidence, by supplementing the Scott Schedule. On 10 December 2021, the plaintiff served a third Preliminary Scott Schedule, adding the defects described in the reports of Mr Baxter, Mr Joannides, Mr Fraser and Mr Harriman’s supplementary report. Additional items 2041 to 2504 were added.

  1. On 19 January 2022, the plaintiff’s solicitor instructed Mr Harriman to further investigate the stair pressurisation defect raised by Mr Baxter in his report of 25 November 2021. Mr Harriman provided his report on 21 February 2022, which effectively superseded his first report of 8 July 2021. On 2 March 2022, Hammerschlag J gave leave to the plaintiff to serve a motion seeking leave to rely on further evidence.

  2. On 1 April 2022, the plaintiff obtained further reports from Mr Harriman and Mr Fraser, concerning defects in the stair pressurisation system, the absence of fire dampers within a fire rated doorway and the fire sprinkler protection provided to the tower areas. The plaintiff also filed a motion seeking leave to rely on evidence served after 26 November 2021. In response, the first defendant served an affidavit of Mr Bergsson, who stated that the first defendant may be prejudiced if leave were granted, including that any contractual claim that it may have been able to bring against DA Design (the fire contractor) in respect of the alleged defects would be statute barred.

  3. On 4 May 2022, the plaintiff was directed to serve a Scott Schedule by 17 June 2022. On 19 May 2022, the first defendant’s solicitors wrote to the plaintiff’s solicitors suggesting that the evidence served included alleged defects not referred to in the Technology and Construction List Statement such that the plaintiff could not maintain a claim in respect of the defects without amending its pleading. However, in the event that leave was sought to amend the pleading, the first defendant reserved its right to object to leave being granted on the basis that the alleged defects were claimed out of time.

  4. On 20 May 2022, Ball J granted leave to the plaintiff to rely on evidence served after 26 November 2021, including the reports of Mr Harriman and Mr Fraser. Ball J noted that the order was without prejudice to the first defendant’s right to argue that the evidence, or some part of it, was not relevant to any issue in the case and should not be admitted. The plaintiff was ordered to pay the defendants’ costs of the motion.

  5. On 26 May 2022, the first defendant’s solicitors wrote again, seeking confirmation as to whether the plaintiff intended to amend its pleading, failing with the first defendant intended to file a motion seeking an advance ruling under section 192A of the Evidence Act that the plaintiff’s evidence which did not relate to the defects pleaded or particularised in the Technology and Construction List Statement was inadmissible. The plaintiff disputed that the pleadings needed to be amended as the Scott Schedule served to provide detailed particulars of its claim.

  6. On 17 June 2022, the plaintiff served a Scott Schedule which amended the third Preliminary Scott Schedule, including by adding the amount claimed in respect of each defect. The items the subject of the contentious experts’ reports were re-numbered as items 929 to 2573.

  7. On 11 July 2022, the first defendant filed the motion which is presently before the Court. In support of the application, Mr Bergsson deposed that the defects identified in the eight expert reports were not the subject of the Technology and Construction List Statement, including Annexure A. Further, any contractual claim that the first defendant may have been able to bring against DA Design, Foxville, Westform, ACM or Orion in respect of the alleged defects would be statute barred. The evidence relied upon by the first defendant in this regard was scant. Noting that the Work was completed in December 2014 (see [4]), it seems likely that any contractual claim against these subcontractors was statute-barred at, or soon after, the commencement of these proceedings. Any cause of action in negligence may have accrued somewhat later; there was no evidence on the issue.

  8. In response, Mr Jurdeczka observed that the first defendant had not filed a similar motion in the Tower D proceedings, where the reports and defects being objected to on this motion are much the same as in the Tower D proceedings, where both proceedings are likely to be heard together, with evidence in one to be evidence in the other. Perhaps the time-bar issues are different in the Tower D proceedings; there was no evidence before the Court to explain the difference in approach.

SECTION 192A

  1. Section 192A of the Evidence Act provides:

192A    Advance rulings and findings

Where a question arises in any proceedings, being a question about—

(a)   the admissibility or use of evidence proposed to be adduced,

…

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

  1. The section was introduced to promote efficiency of trials. The explanatory memorandum to the Commonwealth legislation introducing the provision stated, “The power to give advance rulings carries significant benefits in promoting the efficiency of trials. It allows counsel to select witnesses and prepare for trial with greater certainty. Without such a power, tactical decisions, particularly in relation to character evidence, are based on speculation”: Explanatory Memorandum to the Evidence Amendment Bill 2008 (Cth).

  2. As Stevenson J observed in Sydney Attractions Group Pty Ltd v Schulman [2012] NSWSC 951 at [5]-[6]:

5   The section specifies only one test for the court to exercise its power, namely that it "considers it appropriate to do so". I agree with the observations of Biscoe J in NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 4) [2012] NSWLEC 120 at [40]: -

"Whether the court should make advance rulings under s 192A is a discretionary case management decision to be made in accordance with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute."

6 It appears to me that some good reason should be advanced in order that the court exercise jurisdiction under s 192A but that it is not necessary to show "special circumstances" or to show that the circumstances are "out of the ordinary".

  1. It is useful to consider the circumstances in which courts have acceded to an application to make a ruling under section 192A, and where courts have declined to do so. A review of the cases indicates that it may be considered appropriate to give an advance ruling where:

  1. it is apparent that there is a problem with the admissibility of the evidence in question: Sydney Attractions Group at [27], [31] (Stevenson J);

  2. it is inevitable that a ruling will need to be made in respect of that evidence, such that the Court’s time will not be wasted in doing so: Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349 at [15] (Gzell J);

  3. the material necessary to make a ruling has been or can then be ascertained: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [42] (per Gaudron J); and

  4. such a ruling will assist with the efficient conduct of the final hearing, including by giving the party whose evidence is the subject of an adverse advance ruling the opportunity to marshall evidence in proper form, avoiding the need to call witnesses or to require other witnesses for cross-examination, or where there is an objection to the trial judge considering the evidentiary material: Coastal Service Centres Pty Ltd v United Petroleum Pty Ltd [2020] NSWSC 1870 at [53] (per Ward CJ in Eq).

  1. Particular difficulties may be encountered where the objection to the admissibility of the evidence is on the grounds of relevance. As Kenny J observed in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185; (2012) 127 ALD 288, the Court may refuse to make such a ruling where the Court cannot, in advance of trial, determine whether the evidence is inadmissible as irrelevant as the position may be nuanced and an advanced ruling may result in an error and consequent unfairness; “Much will depend on the way the case unfolds at trial”: at [23]-[29], [41]. Likewise, in Davaria v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473, Middleton J refused to make an advance ruling where the objection was on the grounds of relevance, being “a concept that relates to the interrelationship of all the material that is before the Court – without the benefit, even, of all the evidence that may be adduced in the proceedings”: at [5].

  2. An advance ruling will more likely be appropriate when the matter has been fixed for trial. In Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 3) [2009] FCA 1075; (2009) 259 ALR 541, three sets of proceedings had been listed for hearing together in six months time, with evidence in each proceeding to be evidence in the other. While Foster J considered that the ACCC’s application for rulings on the admissibility of documents was unusual, “a considerable amount of time, effort and money might be saved if the documents were ruled to be admissible now”: at [12]. Similarly, in Icon Co (NSW) Pty Ltd v The Owners – Strata Plan No. 97315 [2022] NSWCA 114, Brereton JA, with whom Kirk JA agreed, observed that Black J had determined the admissibility of an expert report under section 192A where the report was tendered in proceedings which, together with two other sets of proceedings, were set down for hearing for eight weeks commencing the following month: at [1]. Their Honours observed that the making of the ruling under section 192A did not preclude the parties from revisiting the admissibility of the disputed evidence, if the course of the trial so warranted it, for example, if the pleadings were amended: at [15].

  3. In NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 4) [2012] NSWLEC 120, although the matter had not been listed for hearing, Biscoe J made an advance ruling on lay evidence in circumstances where a substantial amount of lay and expert evidence had been served, and the admissibility of that evidence was “in sufficient doubt to justify the making of advanced rulings”, and where the advance ruling would lead to a substantial saving of time and cost if some of the lay evidence was ruled to be inadmissible, as it may be no longer necessary to require the lay witnesses for cross-examination: at [45]. In Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953, Stevenson J considered that there was good reason to make advance rulings in relation to a foreign law expert’s report. If rulings as to admissibility were deferred to the hearing, it may be necessary for the expert to reformulate his report whilst in Sydney and remote from his research facilities in the United States; “it is likely that inconvenience and delay will occur it were to prove necessary for [the foreign law experts] to reformulate their reports on the run during the hearing” at [16]. In Searle v Commonwealth [2022] NSWSC 119, Garling J made rulings on the basis of “cost and efficiency benefits”, as doing so could potentially result in the plaintiff not having to call an additional 12 witnesses, nine of whom lived outside of Sydney: at [43]-[49].

  4. The corollary is that the courts have demonstrated a clear reluctance to make rulings under section 192A where the proceedings are in their infancy, not all the pleadings have been filed or not all of the evidence has been served, such that the issues to be tried are not fully exposed or completely defined or it is uncertain whether the evidence sought to be the subject of the advance ruling will be relied upon at final hearing: Trusted Cloud Pty Ltd v Core Desktop Pty Ltd [2015] FCA 33 at [56]-[57], [60]-[61] (per Katzmann J); Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324 at [24] (per Gleeson J).

  5. For example, in B&K Holdings (Qld) Pty Ltd v Garmin Australasia Pty Ltd [2019] FCA 64; (2019) 134 ACSR 404, Derrington J declined to make a ruling under section 192A where it was apparent that additional evidence was probably available to the applicant and the need for such evidence had been identified in the course of an application for summary judgment; “the time is not quite ripe for the exercise of power under s 192A … if after [the applicant’s] evidence is truly and finally completed its admissibility is wanting, it would then be appropriate to make such an application”: at [76]. Likewise, in Davaria v 7-Eleven Stores, Middleton J refused to make an advance ruling in circumstances where the rulings were sought over a large amount of affidavit material 13 weeks prior to trial and before completion of the applicants’ lay evidence. Further, the time necessary to deal with the objections would not be reduced if the Court undertook the exercise in advance of the trial: at [6].

  6. In Wadsworth v Hamilton [2022] NSWSC 396, N Adams J refused to make section 192A rulings in relation to an expert report filed by the plaintiff in circumstances where the matter did not yet have a trial date, had not been allocated a judge for the final hearing, and where the defendant had not yet filed its expert evidence: at [32], [52]. Relevantly, her Honour considered that the making of the application well in advance of a hearing was a “discretionary factor weighing against any advance ruling being made”: at [51].

  7. Here, the first defendant says that it needs to know whether the evidence is admissible because expert investigations need to occur and cross claims may need to be brought.

  8. The plaintiff has served the evidence on which it relies. The first defendant is yet to serve its evidence. Neither a hearing date nor a trial judge has been allocated. The objection is on the grounds of relevance, being an issue which may be particularly difficult to decide in the absence of all of the evidence that may be adduced in the proceedings, including any expert evidence on which the first defendant may rely. Further, it is apparent that an advance ruling is sought in an effort to compel the plaintiff to seek leave to amend its pleading, which the first defendant intends to oppose on the basis of statute of limitation issues.

  9. Given the manner in which the plaintiff has proceeded to particularise the Defects by amending the Scott Schedule, as described at [16]-[34], that is, in accordance with a regime ordered by Hammerschlag J on 20 April 2021, I do not consider that it is an appropriate use of section 192A of the Evidence Act to, effectively, seek to vary this regime. Nor is it clear how giving such a ruling will promote the efficient conduct of the trial. Rather, were I to accede to the first defendant’s application and give the ruling it seeks, a further interlocutory application is in view. In these circumstances, including those referred to at [50], I do not consider that this is an appropriate case to give a ruling under section 192A.

PLEADINGS AND PARTICULARS

  1. If I am wrong about this, then I would not give the first defendant the ruling it seeks under section 192A in any event.

  2. Evidence is relevant if it can rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: Evidence Act. section 55(1). As the first defendant submitted, the facts in issue emerge from the pleadings; the function of particulars is not to expand the issues defined by the pleadings but to provide sufficiently detailed information to put the defendant on notice of the case it has to meet: Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370 at [2] (per Gleeson CJ); Uniform Civil Procedure Rules, rule 15.1. Although the Technology and Construction List is not a Court of strict pleading, similar principles apply. As Ward J observed in Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423 at [26]:

In Ingot [Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 3) [2005] NSWSC 255], McDougall J observed (at [44]) that, insofar as one of the functions of pleadings (in the proper sense of the word) is to enable the party against whom the pleading is propounded to understand the nature of the claim that it is required to meet (and hence part of the process by which procedural fairness is afforded to litigants), the same function is served by the “quasi-pleadings” utilised in the Commercial List. His Honour there also noted that in this List, the parties' contentions are required, among other things, to avoid formality “whilst, at the same time, identifying the material facts relied upon and giving adequate particulars and the legal grounds for relief” (at [45]). In that context, his Honour approached the question for leave to amend that was there before him expressly bearing in mind what had been said by Lander J (albeit in a context of proper pleadings) in Arthur Young v Tieco International (1995) 182 LSJS 367 at 370:

… A court ought to approach a consideration of the adequacy of a pleading seeking to answer the ultimate question; does the pleading give fair notice of the case to be made against the other party at trial, thereby minimising the risk of injustice resulting from surprise.

See also BCEG International (Australia) Pty Ltd v Xiao [2022] NSWSC 972 at [368]-[369] (per Rees J); Swiss Re International SE v Simpson [2018] NSWSC 233; (2018) 354 ALR 607 at [34] (per Hammerschlag J).

  1. The first defendant submitted that the plaintiff could not simply amend its case by revising the Scott Schedule. The first defendant submitted that the issue was not whether the first defendant knows the case it has to meet, from which I infer that the first defendant accepts that it does know the case it has to meet as a consequence of the service of the contentious experts’ reports and the various iterations of the Scott Schedule that had been served from time to time, setting out the defects identified by those experts. Rather, the first defendant submits that the plaintiff must seek leave to amend its particulars; to proceed otherwise would deny the first defendant of the opportunity to oppose leave being granted to expand the case on the basis of prejudice.

  2. Whatever may be the conventional course of pleading a building defects case, it is tolerably clear from the procedural history that the parties agreed that the plaintiff would provide further particulars of Defects by supplementing the Scott Schedule as and when expert reports came to hand. As the first defendant’s senior counsel informed Hammerschlag J when this way forward was proposed by his Honour on 20 April 2021, “that fixes the pleading point.” The plaintiff served experts reports and updated the Scott Schedule from time to time. The first defendant was amenable to this course and gave its consent to the filing of the third Preliminary Scott Schedule “by way of particulars of defects”. The first defendant does not suggest that the particulars now included in the Scott Schedule are deficient. The plaintiff sought the leave of the Court to rely on late-served evidence and leave was granted on 20 May 2022.

  3. True it is that, in May 2022, the first defendant insisted that the plaintiff formally amend its pleading to incorporate the Defects now particularised in the Scott Schedule. This was, however, a year after the orders made by Hammerschlag J, which permitted the plaintiff to provide details of further Defects by way of a Scott Schedule. It is not entirely clear why the first defendant now considers that a more traditional pleading should be insisted upon, beyond creating an opportunity to strike out some of the expert evidence by reference to prejudice said to by suffered by reason of late amendments, albeit any additional prejudice beyond that suffered if the Defects had been fully articulated earlier in the proceedings is less than obvious: see [37]. Where the parties have conducted the proceedings in accordance with the regime proposed by Hammerschlag J on 20 April 2021, and accepted by the parties, I do not consider that the first defendant is entitled to now insist upon a different course.

ORDERS

  1. For these reasons, I make the following orders:

  1. Dismiss the first defendant’s amended motion dated 15 August 2022 with costs.

  2. List the matter for directions before the Technology and Construction List Judge on 21 October 2022.

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Amendments

18 October 2022 - Coversheet amended to Technology and Construction List.


Orders amended to Technology and Construction List Judge.

Decision last updated: 18 October 2022

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