CHRISTINA THEODORELOS v NEXUS PROJECTS PTY LIMITED [2009] ACTSC 149 (6 November 2009)
APPEALS – appeal from interlocutory decision of the Master – nature of appeal to be determined by reference to statute, Supreme Court Act 1933 (ACT), s 9 – appeal by way of rehearing – where no fresh evidence called, real question is whether court should substitute its view of the facts below – appeal based on facts and law at time of appeal.
PRACTICE AND PROCEDURE – application to serve expert reports out of time, Court Procedures Rules 2006 (ACT), r 1241 – a report which identifies an entirely novel aspect of damage cannot be an “update”, r 1241(5)(b) – need to identify “extraordinary circumstances”, r 1241(5)(a) – prolonged failure of expert to provide report despite repeated enquires “extraordinary” – failure by the Master and applicant to identify extraordinary circumstances with respect to certain reports – leave to provide further submissions – failure by the Master to properly analyse prejudice to defendant – relisting of hearing defeats any prejudice.
COSTS – where a party by application seeks an indulgence of the court, that party ordinarily pays the costs of that application – leave to provide further submissions in the circumstances.
[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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AGLC
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Case
[2009] ACTSC 149
Decision Date
CaseChat Overview and Summary
In the case of Theodorelos v Nexus Projects Pty Ltd, the plaintiff sought to serve expert reports out of time, an application that was ultimately the subject of an appeal. The plaintiff's application involved three reports, one by Dr Alexandra Viketos, and two others by Ms Judith Davidson and Ms Emily Knight. The dispute before the court was whether the plaintiff should be allowed to serve these reports outside of the prescribed time and, if so, whether the Master's decision to allow or disallow them was correct.
The legal issues addressed by the court included whether the reports constituted updates as permitted by the Court Procedures Rules 2006 (ACT), r 1241, and whether the Master had correctly exercised his discretion in granting leave for the reports to be served out of time. The court had to determine whether the Master properly identified any "extraordinary circumstances" that justified the delay, and if there was sufficient prejudice to the defendant that would warrant a refusal of the application.
The court found that the Master had correctly refused leave for the report of Dr Viketos to be served out of time because it did not qualify as an update under the rules. Regarding the reports by Ms Davidson and Ms Knight, the court held that the Master had failed to properly consider the prejudice to the defendant and that the circumstances did warrant granting leave for these reports to be served out of time. The court also noted that the failure to provide further submissions in light of the new evidence did not prejudice the defendant, as the hearing would be relisted.
The court's final orders included dismissing the appeal concerning Dr Viketos' report and upholding the appeal regarding the reports by Ms Davidson and Ms Knight. The plaintiff was directed to file an amended application to include Ms Davidson's report, and the defendant was to file a notice of appeal in a related proceeding. The appeal was adjourned for further submissions.
Orders
Orders of the court
1. The appeal, so far as it relates to the report of Dr Alexandra Viketos dated 30 June 2009, be dismissed.
2. The appeal, so far as it relates to the whole of the report of Ms Judith Davidson dated 30 May 2009 and the report of Ms Emily Knight, architect, dated 13 August 2009, be upheld and the order of the learned Master be set aside.
3. The plaintiff file and serve an amended Application in Proceedings seeking in addition to the orders presently sought leave to rely on the whole of the report of Ms Judith Davidson dated 30 May 2009.
4. The defendant file and serve a Notice of Appeal in proceedings No. SC 354 of 2007 in the same terms as that filed in proceedings No. SC 355 of 2007.
5. The appeal be adjourned to a date to be fixed for further submissions.