SUPREME COURT OF QUEENSLAND
CITATION:
Thomson v Mount Isa City Council [2010] QSC 148
PARTIES:
VALERIE GINA THOMSON
(respondent/plaintiff)v
MOUNT ISA CITY COUNCIL
(applicant/defendant)FILE NO/S:
CLS7 of 2006
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Mount Isa
DELIVERED ON:
23 April 2010
DELIVERED AT:
Brisbane
HEARING DATE:
23 April 2010
JUDGE:
Fryberg J
ORDERS:
1. The parties have leave to call expert witnesses to give evidence by telephone.
2. The plaintiff deliver an amended statement of loss or damage on or before 14 June 2010.
3. The defendant submit a request for allocation of trial dates to the Brisbane Registry requesting the allocation of trial dates in the period 14, 15, 16 July 2010 or the period 21, 22, 23 July 2010.
4. That the costs of and incidental to this application be the defendant’s costs in the proceedings
5. That either party be at liberty to apply on the giving of two clear days notice.
CATCHWORDS:
Procedure – Supreme Court procedure – Queensland – Procedure under Rules of court – Other matters before trial – Application for court’s approval on which expert witnesses to be called – Uniform Civil Procedure Rules 1999 (Qld), r 429 – “may” is not “must”
Uniform Civil Procedure Rules 1999 (Qld), r 429, r 429G
Stewart v Fehlberg & Anor [2008] QSC 203, considered
COUNSEL:
B Charrington for the applicant/defendant
No appearance for the plaintiff/defendantSOLICITORS:
Gadens Lawyers for the applicant/defendant
No appearance for the plaintiff/defendant
HIS HONOUR: I have before me what started as an attempted consent order for a number of directions regarding the conduct of the proceedings.
Most of the orders are orders which properly could and should be made. However, the first two of the orders are in the form that the plaintiff and the defendant respectively be permitted to call named persons as expert witnesses. In my judgment the making of such an order is unnecessary. There is no rule which prohibits the parties from calling the experts as witnesses.
There is in Practice Direction 2 of 2005 a requirement that as soon as it is apparent to a party that expert evidence on a substantial issue in a proceeding will be called at the trial that party must file an application for directions. That paragraph further provides that on the hearing of that application the party must inform the Court of the steps taken or to be taken to comply with the rules.
The material before the Court satisfies me that this is an application for directions which is a sufficient compliance with para 5 of the Practice Direction. There is nothing in what has been put before me to suggest a non-compliance with the rules.
Paragraph 6 of the Practice Direction exempts certain expert evidence from para 5. The defendant's witnesses are covered by that exemption and, therefore, for that reason alone, it is unnecessary to make any order in relation to those witnesses. That, however, should not detract from the fact…
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- Case
- [2010] QSC 148
- Decision Date
CaseChat Overview and Summary
The court examined the language of rule 429, which states that the court "may" allow expert evidence to be given by telephone, rather than "must". The court found that the rule does not impose a mandatory requirement on the court to approve such evidence, but rather grants a discretion. The court exercised its discretion in favour of allowing the expert witnesses to testify by telephone, considering the potential benefits of reducing costs and inconvenience for the witnesses. The court also addressed the plaintiff's need to deliver an amended statement of loss or damage, setting a deadline for this task. Furthermore, the court directed the defendant to request specific trial dates from the Brisbane Registry, providing options for the allocation of trial dates in July 2010.
The court ordered that the parties have leave to call expert witnesses via telephone, and that the plaintiff deliver an amended statement of loss or damage by a specified date. The defendant was instructed to request trial dates from the Brisbane Registry within certain periods in July 2010. The court also determined that the costs of and incidental to this application be borne by the defendant, while allowing either party the liberty to apply for further orders with two clear days' notice.
In conclusion, the court granted the plaintiff's request to call expert witnesses by telephone, provided an amended statement of loss or damage, and set specific trial date requests for the defendant. The costs of the application were awarded to the defendant, with either party retaining the right to apply for further orders with appropriate notice.
Orders
Orders of the court
1. The parties have leave to call expert witnesses to give evidence by telephone.
2. The plaintiff deliver an amended statement of loss or damage on or before 14 June 2010.
3. The defendant submit a request for allocation of trial dates to the Brisbane Registry requesting the allocation of trial dates in the period 14, 15, 16 July 2010 or the period 21, 22, 23 July 2010.
4. That the costs of and incidental to this application be the defendant’s costs in the proceedings
5. That either party be at liberty to apply on the giving of two clear days notice.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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