Wild v McKay

[2018] NSWSC 1400

Supreme Court

New South Wales

Medium Neutral Citation:	Wild v McKay [2018] NSWSC 1400
Hearing dates:	6 September 2018
Decision date:	06 September 2018
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	1. The defendants produce the documents sought in the notice to produce dated 6 July 2018 to the Court within seven days. 2. Access to the documents be restricted to the legal representatives of the parties and their expert witnesses until further order of the Court. 3. The defendants are to make any application to limit access on a basis different to the usual implied undertaking within 14 days. 4. If no application is filed within the Court within 14 days, the parties are to have general access to the documents and order 2 is vacated. 5. The defendants are to pay the plaintiffs' costs of the motion. 6. There is liberty to apply on three days' notice.
Catchwords:	CIVIL PROCEDURE – discovery – objection to inspection – expert report – where expert report referred to undiscovered documents – where expert claimed confidentiality over documents – parties agree documents should be produced – costs – where problem all within defendants’ side of the matter – fairness dictates defendants should pay plaintiffs’ costs
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 68 Uniform Civil Procedure Rules 2005 (NSW) Sch 7
Category:	Procedural and other rulings
Parties:	John Donald Wild (First plaintiff) Vicky Wild by her tutor John Donald Wild (Second plaintiff) J K T B Pty Ltd (Third plaintiff) Douglass James Suttor McKay (First defendant) BBSO Pty Limited (Second defendant)
Representation:	Counsel: Mr D Macfarlane (Plaintiff) Ms L Schumacher (Defendants)   Solicitors: Nelson Keane & Hemingway Gilchrist Connell
File Number(s):	2016/171067

Judgment

1. HIS HONOUR: This is a matter that has come before the Court by way of a notice of motion filed on 22 August 2018 by the plaintiffs. Orders were sought for the production of documents pursuant to s 68 of the Civil Procedure Act 2005 (NSW); alternatively, for discovery; alternatively, for leave to issue a subpoena for production.

2. The matter involves a dispute in which expert evidence is relevant to the question of economic loss. The plaintiffs have served their expert report. In May 2018 the defendants did likewise, serving a report by a Mr McCormack who is from a company called Agronomic Business Solutions Pty Ltd.

3. Mr McCormack disagrees with the opinions expressed in the plaintiffs' expert report and provides an alternative calculation of loss. He refers in the report to other information that he has reviewed, and it includes something that is described as "ABS/Agripath client comparative analysis data". That data was not otherwise described or provided to the plaintiffs and that is the material that is the subject of the orders that are sought by the plaintiffs.

4. There has been a series of communications between the solicitors on both sides, leading to the point where the plaintiffs became, it seems, so frustrated with the lack of response to their attempts to obtain the material that they brought the matter to a head by filing the notice of motion. There is an affidavit by Ms Schumacher, the solicitor having carriage of the matter on behalf of the defendants, the broad effect of which is that it is accepted by the solicitors that the material should be produced but the problem lies with the expert claiming that it is subject to confidentiality.

5. On the face of it, Mr McCormack has resisted disclosure of material upon which, at least in part, he has expressed an opinion set out in his report. It would appear that he may not have fully comprehended his obligations under clause 3(e) and, perhaps, (g) of the Expert witness code of conduct in Sch 7 of the Uniform Civil Procedure Rules 2005 (NSW).

6. Today, the defendants' solicitors have indicated that there is agreement for orders to be made requiring production of the material but with ancillary orders providing for any claim of confidentiality to be determined. The only issue outstanding is as to who should pay the costs of the motion.

7. There is no personal fault on behalf of the solicitors acting for the defendants, but the problem has been all within their side of the matter. What has happened today should have happened well prior to this. It is understandable that the plaintiffs felt frustrated in their desire to progress the matter and filed the notice of motion. The plaintiffs' attempts to obtain this material had been quite legitimate. It is material that should have been provided without request pursuant to the Expert witness code. In these circumstances, fairness dictates that the defendants should pay the plaintiffs' costs of the motion.

8. The orders I make are these:

1.   The defendants produce the documents sought in the notice to produce dated 6 July 2018 to the Court within seven days.

2.   Access to the documents be restricted to the legal representatives of the parties and their expert witnesses until further order of the Court.

3.   The defendants are to make any application to limit access on a basis different to the usual implied undertaking within 14 days.

4.   If no application is filed within the Court within 14 days, the parties are to have general access to the documents and order 2 is vacated.

5.   The defendants are to pay the plaintiffs' costs of the motion.

6.   There is liberty to apply on three days' notice.

**********

Decision last updated: 11 September 2018