HIS HONOUR: The matter comes before the Court today pursuant to a motion filed by the plaintiff on 25 September 2019 seeking a number of orders relating to the conduct of the case, and in particular, that the plaintiff have leave to rely on the report of Dohrmann Consulting dated 4 April 2019. The plaintiff originally sought a number of other orders relating to particulars and the matter being referred to mediation, but I have been informed that those matters or issues have been resolved.
There was an earlier motion filed by the defendant seeking leave to the defendant to file an amended defence. That motion was filed on 23 September 2019. That motion was not listed for hearing today because the parties were able to reach agreement on that issue.
The sole issue for determination today is whether the Court should grant leave to the plaintiff to rely on the report of Dohrmann Consulting dated 4 April 2019. Mr J C Lee appears on behalf of the plaintiff and Mr R Perla appears on behalf of the defendant. Both counsel have provided helpful written submissions as well as oral submissions.
These proceedings were commenced by way of a statement of claim filed on 19 May 2017. The plaintiff alleges that he sustained injuries on 27 January 2016 whilst working as a fuel tanker driver delivering fuel to the defendant's premises. He says that whilst driving along an access road, he says in accordance with safe work procedures, he unexpectedly came across a washed away section of the roadway which caused him to be thrown forcibly about the cabin of the truck. He says that as a result of this incident he sustained injuries. He pursues causes of action in negligence and for breach of statutory duty against the defendant who is said to have owned, maintained and occupied the access roadway.
The matter has been before the Court on a number of occasions, in particular, relating to an earlier interlocutory application. On 6 December 2017 the plaintiff was ordered to complete service of any expert liability evidence by 21 February 2018. On 27 February 2018, the plaintiff served a report of a Mr Mark Byrnes dated 20 February 2018. On 25 July 2018, Registrar Bradford made an order that the parties conduct expert conclaves by 23 November 2018. On 30 August 2018, the defendant served its expert report from a Dr Gibson. Mr Byrnes and Dr Gibson participated in a conclave on 26 March 2019. A report was finalised on 28 March 2019. As it turns out, six days prior to that conclave, the plaintiff had instructed another expert being Mr Tom Dohrmann. Mr Dohrmann ultimately produced a report dated 4 April 2019. That report was served by the plaintiff on the defendant on 1 August 2019.
Plainly, the report was not served in accordance with the orders made by the Court on 6 December 2017. Further, the report has been served after the conclave between Mr Byrnes and Dr Gibson. The defendant objects to the late service of the report. It objects to the plaintiff obtaining leave to serve the report out of time and objects to the plaintiff being able to rely on the report at all.
In the circumstances it is necessary for the plaintiff to seek leave to rely on the report or more specifically to serve the report out of time.
As the defendant submits, the evidence of the plaintiff as to the delay in the obtaining and service of this report is, to say the least, limited. I am uncertain as to why there has been such a delay, particularly bearing in mind that the plaintiff must have been aware that there was a conclave proposed and that the defendant might wish to know if the plaintiff was intending to rely on any further expert liability evidence. However, there is some evidence as to the explanation for the delay contained in the affidavit of Donald Stewart Cameron dated 25 September 2019.
Mr Cameron says in para 8 that the plaintiff has been forced to obtain a second expert report which addresses matters separate to those reported on by the original liability experts and discussed in conclave because the defendant refuses to admit material facts which are ascertained by evidence provided by the defendant's employees.
Mr Cameron says that he served upon the defendant a notice to admit facts and that the defendant has denied every fact. Of course, the defendant is, entitled to deny every fact if there is a proper basis for doing so. It might also be said that if there is not a proper basis for doing so, then no doubt that will become an issue of costs when this matter is ultimately determined.
I agree with Mr Perla's submission that it is difficult to understand how a refusal to admit facts could cause a need to obtain a further expert report. However, it seems plain from Mr Cameron's affidavit that he, as the solicitor for the plaintiff, formed a view that in the interests of his client it would be necessary to obtain a further expert report to deal with matters which he had hoped would be the subject of admissions. Whether that belief is right or wrong does not really matter for the purposes of this application.
I accept Mr Cameron's explanation as to why he believed at the time that it was necessary to obtain a further report and why he sought to obtain one when he did. However, that does not really explain why the defendant was not given notice at a somewhat earlier stage.
Mr Lee submits that I should have regard to the following relevant matters in granting leave to the plaintiff to serve the report of Mr Dohrmann contrary to the earlier orders of the Court:
1. The matter has not yet been listed for hearing. Having regard to current delays in having a hearing date allocated, the matter will not be listed for hearing until sometime next year.
2. No party is seeking an advance ruling on evidence pursuant to s 192A of the Evidence Act 1995 (NSW), such that the Court is determining a case management issue rather than an admissibility issue.
3. There is no principle or rule which prevents a party relying on two experts in relation to liability. See Practice Note SC CL1 para 46, and Kuypers v Ashton Coal Operations Pty Ltd & Anor [2015] NSWSC 1122 at [11].
4. The disciplines of the experts are not the same, such that there is limited overlap between these two experts. Mr Byrnes is a senior forensic investigator and Mr Dohrmann is a professional consulting mechanical engineer with expertise relating to ergonomics. Mr Lee says that the experts who participated in the conclave being Mr Byrnes and Dr Gibson are traffic and crash investigation experts. Mr Dohrmann is an expert in workplace safety. As such, Mr Lee submits that Mr Dohrmann would not have been able to participate in the conclave with the other two experts in any event.
5. Finally, Mr Lee submits more generally that having regard to ordinary case management principles and the dictates of justice the plaintiff should be given leave to serve the expert report out of time, particularly in circumstances in which the plaintiff is not seeking any order as to admissibility and any objections the defendant has to admissibility will be dealt with by the trial judge in due course. In other words, the plaintiff is not in any way seeking to fetter the defendant's right to object to the admissibility of the report in due course.
Mr Perla on behalf of the defendant emphasised the following points:
1. The delay has been extensive bearing in mind the original orders were made on 6 December 2017.
2. There is no explanation for the delay and in those circumstances I would not be persuaded to exercise my discretion because the plaintiff fails at the first hurdle, that is, by not offering a proper explanation for the delay.
3. The defendant will be prejudiced by the late service of the report because there has already been a conclave, a conclave report has already been produced, and the defendant may now have to obtain a further report in response to the report of Mr Dohrmann.
4. More specifically, Mr Perla submits that in order to obtain leave, the plaintiff must establish exceptional circumstances having regard to r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), and that the plaintiff has not demonstrated exceptional circumstances.
At the outset, I should say that if the plaintiff was merely seeking to rely on another expert with exactly the same discipline as Mr Byrnes, there would be different considerations. However, I consider that there is an arguable difference in expertise between the plaintiff's two experts, such that there may be, on the evidence before me, a good reason for the plaintiff to require the assistance of Mr Dohrmann.
I am not intending to fetter the discretion of the trial judge or preclude the defendant from making any objections to Mr Dohrmann's report in due course. It seems to me that that factor is critical to my decision.
The second matter of significance is that by merely granting leave to serve the report out of time contrary to the orders of the Registrar made in 2017, I am not making any order in respect of its admissibility. Indeed Mr Lee specifically couched his submissions along the lines that he was not seeking any order or ruling in respect of its admissibility. There may be reasons why the report is not admissible, but that will be a matter for the parties in due course.
The next critical factor is that any order I make should be made consistently with ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW). Specifically, the Court must follow the dictates of justice in making any orders. I accept that the defendant may be put to the trouble of obtaining a new report but at least in my experience that is not an unusual occurrence in these types of matters and there is ample opportunity for the defendant to do so before any hearing date.
There being no hearing date which is to be vacated or any other timing issue it does not seem to me that any of those cases dealing with the risk of a hearing date being vacated are relevant. It is the plaintiff's position that the plaintiff needs to rely on this expert report for the proper presentation of his case. I am satisfied that the plaintiff has provided an explanation for the delay in obtaining and serving the report, as limited as it might be.
I am not satisfied that the defendant suffers any real prejudice other than that it will have to obtain a further report which is often part of the usual course of these sorts of matters.
There is another issue which is important in the determination of this matter which, as emphasised by Mr Perla, is the proper construction of r 31.28 of the UCPR.
Mr Perla submits that leave should not be granted unless there are exceptional circumstances that warrant the granting of leave. He submits that exceptional circumstances have not been established and therefore, irrespective of the other matters to which I have referred, leave should not be granted. Mr Lee submits that r 31.28(4) has no application, as that is really only a reference back to sub-r (3). In any event, he submits that the plaintiff has demonstrated exceptional circumstances.
The proper interpretation of r 31.28(4) has been the subject of some earlier consideration although in different circumstances and contexts. None of the decisions relied upon by either party necessarily determines the outcome. The defendant referred to Cummins Generator Technologies Germany GMBH v Johnson Controls Australia Pty Ltd [2015] NSWCA 264, in which r 31.28 of the UCPR is mentioned. However, that case is on a different point.
Similarly in DJ Singh v DH Singh & Ors [2018] NSWCA 30, there is reference to r 31.28. The real issue in that matter appears to have been whether there were exceptional circumstances. At [92], Gleeson JA observed the onus to satisfy the Court that the grant of leave is warranted under r 31.28(4) lies on the non-complying party. There is no issue about that. Again, the Court was concerned with applying r 31.28(4) rather than considering whether it would operate in the circumstances of this matter.
The plaintiff referred the Court to Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 ("Tim Barr"), and in particular to [16] and [17] in that judgment. Mr Lee appropriately suggested initially that [16] and [17] might be against his position. I am not sure that is necessarily so. The question of r 31.28 was dealt with in two paragraphs by Barrett J. Specifically his Honour held that the plaintiff had not put forward a sufficient case for application under r 31.28(3), and also failed to show exceptional circumstances contemplated by r 31.28(4)(a). The issue as developed by the parties related to sub-rr (3) and (4).
There is a further decision being a decision of Judge P Taylor SC of the District Court in Byers v Frith [2016] NSWDC 209 at [6]. In referring to Tim Barr his Honour notes that the reference to an extension of time in sub-r (2) of r 31.28 is not a matter mentioned by Barrett J. His Honour refers to rule 1.12 of the UCPR on which the plaintiff relies today.
Mr Perla submits that sub-r (4) applies to the orders sought by the plaintiff today. Mr Lee submits that sub-r (4) applies only to the admissibility question referred to in sub-r (3). I agree with Mr Lee's submission. The purpose of r 31.28 is to require parties to serve expert and hospital reports on each other as directed by the Court or in accordance with the Practice Note to ensure that each party is aware of the relevant expert and hospital reports which will be relied on by the other party well before the hearing. It is hardly necessary to say more about why such a rule is necessary. However, r 31.28(3)(a)-(c) refers specifically to admissibility questions. Except by leave of the Court or by consent of the parties, an expert report or hospital report is not admissible unless it has been served in accordance with the rule.
The opening words of r 31.28(4) of the UCPR are:
"Leave is not to be given as referred to in subrule (3)...".
That is a reference back to the opening words of sub-r (3) which commence "Except by leave of the Court...". In my view sub-r (4) and the reference to exceptional circumstances applies to an application for leave under sub-r (3), not an application for leave to serve a report contrary to the orders of the Court or an application for an extension of time to serve a report after the Court has so ordered but before any hearing. It may be surprising if a party was required to demonstrate exceptional circumstances to obtain leave to serve an expert's report when the case has not even been listed for hearing. I thus do not consider that the plaintiff was required to demonstrate exceptional circumstances to obtain the leave of the Court for an extension of time to serve the report. It is not necessary for me to further consider whether there were exceptional circumstances.
I propose to grant leave to the plaintiff to serve the report of Dohrmann Consulting dated 4 April 2019. I am thus extending the time up to 4 August 2019 for the proper service of the report and I note that report has now been served.
I am not granting leave to rely on the report in terms of its admissibility. I am merely extending the time for service of the report so that no issue can be taken from here on in as to late service of the report.
I order that the plaintiff pay the defendant's costs limited to the costs of the plaintiff's motion filed 25 September 2019, including the appearance today.
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Decision last updated: 21 October 2019