Al-Slbi v C1 Formwork Group Pty Ltd [2025] ACTSC 530

1. The plaintiff seeks a variation to the directions made previously for the service of medical evidence in these proceedings.

2. The plaintiff is a 31-year-old man. He says that on 4 March 2021 he injured his back while working as a formwork labourer on a construction site near the Canberra Airport. His injuries are described in his statement of claim as: (a) Injury to the thoracolumbar spine. (b) Psychological injury. (c) Chronic pain syndrome.

3. He was employed at the time of his injury by the first defendant. That entity has taken no part in the proceedings and was uninsured for workers compensation purposes at the time of the plaintiff’s accident.

4. For that reason, he sues the workers compensation default insurance fund manager as an entity that may be required to respond to his claim in the place of the uninsured employer. The plaintiff also sues the second defendant insurer as an entity prospectively required to meet the liabilities of the deregistered company previously known as Xmplar Formwork Pty Limited. It seems that Xmplar Formwork Pty Limited had entered into an arrangement with the first defendant for the provision of formwork labourers at the site where the plaintiff was injured.

Status of proceedings and previous directions

5. The plaintiff’s claim was first filed in March 2024 and the proceedings are well advanced. They are listed for hearing in the week commencing 2 June 2026 with a four-day estimate.

6. The directions that are currently in place concerning the service of the plaintiff’s expert evidence were made on 29 November 2024. The plaintiff was required to serve the expert evidence on which he intended to rely by 13 December 2024. That order was of itself an extension to the timetable previously in place and the circumstances in which it was made are relevant. At an earlier directions hearing, an order was made requiring service of the plaintiff’s expert evidence by 30 August 2024. The plaintiff had failed to comply with that order and thus brought an application in proceeding seeking to extend the time for service of his expert evidence. In support of that application, the plaintiff read an affidavit of Michael Petricevic sworn on 13 November 2024. Mr Petricevic is the plaintiff’s solicitor. In his affidavit of 13 November 2024 he attested, amongst other things, to the following matters: (a) That he had assumed day-to-day carriage of the matter from a former solicitor on 25 September 2024. (b) That he had received no handover from the previous solicitor and, “[i]t took me a number of weeks to get on top of the file”. (c) That he had mistakenly formed the belief that the reports of Dr Davis, occupational physician, and Dr Giblin, orthopaedic surgeon, obtained in the plaintiff’s case, had already been served. (d) He was only alerted to his mistake when the second defendant objected to his reliance on the reports, having seen reference to them in the plaintiff’s list of discovered documents. The mistake was corrected by the subsequent service of the reports, but as the time for service had by then expired, it was necessary to file an application extending time. (e) The previous solicitor had not taken steps to obtain an occupational and vocational expert opinion (presumably from an occupational therapist) and immediate steps were taken by Mr Petricevic to arrange for such an expert.

7. It is surprising for reasons that are developed further below that Mr Petricevic’s review of the evidence over a number of weeks did not then lead him to recognise that there was an absence of expert medico-legal evidence in the plaintiff’s case from either a psychiatrist, psychologist, or a pain physician.

The present application

8. The plaintiff now seeks the following orders: (a) The time for the plaintiff to serve primary evidence from a psychiatrist and a pain medicine specialist be extended to 30 January 2025. (b) Time for the plaintiff to serve fresh evidence from an occupational physician be extended to 24 December 2025. (c) The matter be listed for further directions on 6 February 2026, or a similar date as pleases the Court. (d) The costs of the application be paid by the plaintiff, with such costs not to be assessed or payable until final orders are made in the proceeding. (e) Any other orders the Court considers appropriate (including as to directions to enable the defendants a reasonable opportunity to obtain expert evidence in reply).

9. The second defendant opposes the application in its entirety. The third defendant does not consent to the first order but consents to the other orders.

10. The following affidavits are read: (a) Affidavit of Michael Petricevic sworn on 7 November 2025. (b) Affidavit of Jeanine Wong sworn on 21 November 2025. (c) Affidavit of Michael Petricevic sworn on 26 November 2025.

The plaintiff’s submissions

11. The plaintiff relies upon r 1205 of the Court Procedures Rules 2006 (ACT) which states: 1205 Court may give directions in relation to expert evidence (1) The court may, on its own initiative or on a party’s application, give 1 or more of the following directions in relation to expert evidence: (a) a direction about the time for service of an expert report; (b) a direction that expert evidence— (i) may not be adduced on an issue; or (ii) may not be adduced on an issue without the leave of the court; or (iii) may be adduced only in relation to a stated issue; (c) a direction limiting the number of expert witnesses who may be called to give evidence on an issue; (d) a direction providing for the appointment and instruction of 1 expert witness for the parties in relation to a stated issue; (e) a direction providing for the appointment and instruction of a court-appointed expert witness in relation to a stated issue; (f) a direction requiring an expert witness who has prepared 2 or more expert reports in relation to a proceeding to prepare a single report that reflects the witness’s evidence in chief; (g) any other direction in relation to expert evidence that the court considers appropriate. (2) If the court gives a direction under subrule (1) (e), it may also give a direction about the payment of costs, including— (a) the remuneration of the court-appointed expert witness; and (b) by which party or parties, and in what proportion, the remuneration is to be paid. (3) The court may— (a) order a party to give security for the remuneration of the court-appointed expert witness; and (b) order a stay of the proceeding until the security is given.

12. In terms of the delay in bringing this application, reliance is placed on the explanation provided by Mr Petricevic in his affidavit of 7 November 2025 at [15] to [27]. Counsel for the plaintiff highlights the following matters: (a) The fault in relation to the delay rests entirely with the plaintiff’s solicitor and there is no suggestion that it is due to any act or omission of the plaintiff. (b) In the circumstances of the various administrative failures that have been disclosed, the solicitor for the plaintiff is prepared to bear the costs of and incidental to the application and undertakes that any costs awarded to the other parties will be met by the solicitor’s firm rather than the plaintiff. (c) The evidence that is sought to be relied upon will be critical to the questions of causation and quantum, and without that evidence the plaintiff is exposed to real prejudice in the further conduct of his proceedings. (d) The strong likelihood is that all of the reports that the plaintiff now seeks to rely upon will be available before the end of the calendar year and the defendant should therefore have ample time to obtain evidence in reply before the scheduled hearing date. It follows that there should be no prejudice to the defendant in proceeding to hearing on the presently listed date in June 2026. (e) The defendant’s enquiries in terms of securing appropriate experts to provide opinions in response have been quite limited, based on the affidavit of Ms Wong. (f) The defendants have been on notice of the opinion of Dr Davis since December 2024.

13. The Plaintiff relies upon the decision of Baker J in Milhem v Sam’s Carpentry Pty Ltd (in liquidation) & IC Formwork Services Pty Ltd [2023] ACTSC 51 in support of the proposition that the application of an interests of justice test in these circumstances ought to lead to the conclusion that it is appropriate to allow the plaintiff to serve and rely upon the reports now being obtained.

The defendant’s submissions

14. The second defendant raises three primary grounds in its opposition to the plaintiff’s application: (a) The history of the matter. In particular, the previous application to extend the timetable in December 2024, at which time there was an opportunity for any or all of these matters to be ventilated. (b) The quality of the explanation for delay. While the second defendant acknowledges some degree of candour in the more recent affidavit evidence on which the plaintiff relies, particular inconsistencies within the affidavit material are highlighted as casting some doubt upon the explanation that is offered. (c) The hearing date will be placed in jeopardy. The second defendant relies upon the affidavit evidence of Ms Wong, that identifies a significant number of practitioners in the relevant categories of expertise who indicate either a lack of availability, or availability that will see their reports unavailable until relatively close to the scheduled hearing date. The defendant also points to the difficulty created by the timing of the plaintiff’s application in that it is notoriously difficult to secure expert appointments over the Christmas break.

15. The third defendant is content to rely upon the submissions of the second defendant (noting also their different position on consent).

The evidence of Mr Petricevic

16. Mr Petricevic relies primarily on the following matters in explaining the delay in securing the expert evidence now sought: (a) When he assumed conduct of the matter In September 2024, the file was in a disorganised state, both in its physical and electronic forms. (b) The advice of counsel from June 2023 was not saved in the electronic matter nor contained in the physical file. (c) He did not turn his mind to the need to obtain expert opinion from a psychiatrist or pain expert and was unaware of the June 2023 advice until October 2025. (d) He discovered at that time, that Dr Davis is no longer providing medico-legal assessments. (e) On 15 and 17 October 2025 efforts were made to secure appointments with Associate Professor Boesel, a pain medicine specialist, and Dr Reutens, a psychiatrist, respectively. (f) On 20 October 2025, he became aware for the first time of Counsel’s advice of June 2023 because Counsel drew it to his attention.

The pleadings and the current state of the medical evidence

17. As I have identified above, the original form of pleading described the plaintiff’s injury in terms that included both a psychological injury and a pain syndrome. Presumably that pleading was prepared by the plaintiff’s solicitor on the basis of instructions from the plaintiff that he was in fact suffering from those conditions. Alternatively, it may have been on the basis of medical evidence that indicated it was appropriate to include those conditions in the pleaded claim. Either way, the plaintiff contended and the defendant was on notice from the outset that his injury arising out of the subject accident included a psychological injury and a pain syndrome.

18. As an additional matter, the opinion of Dr Davis, upon which the plaintiff relies, included under the heading of diagnosis at Q8: Although outside of my area of expertise I consider there is a considerable psychological overlay present.

19. Under the heading “Recommended treatment and Estimated costs” at Q16, Dr Davis recommended referral of the plaintiff to a multidisciplinary pain management team such as the ADAPT program conducted at Royal North Shore Hospital in Sydney. That organisation’s website describes its program as “an intensive outpatient treatment and rehabilitation program for people with disabling or troubling chronic pain”.

20. It seems that each of the parties needed to go no further than the statement of claim, or the report of Dr Davis dated 3 November 2022, to have an appreciation of the likelihood that evidence from relevant experts as to the plaintiff’s psychological state and in respect of the pain condition that he suffered was likely to feature in the disposition of the case.

What are the relevant principles

21. The plaintiff relies upon the summary of relevant principles set out in the decision of Baker J in Milhem. At [25] her Honour identified the following matters as being of particular significance in determining whether to grant leave to extend time for service of expert evidence under r 1205, noting that the list is not exhaustive: (i) Whether there will be prejudice to the respondent if leave is granted to permit late service of the expert report; (ii) Whether there will be prejudice to the applicant if leave is not granted to permit late service of the expert report; (iii) Whether there has been a reasonable explanation for the failure to comply with prior directions of the Court: Hinchcliffe v Carters Transport Australia Pty Ltd [2017] ACTSC 223 at [14] – [15] (Mossop J). The Court “must be fully informed of the reasons for any change in position, even if this requires an admission that some of those reasons are the applicant’s fault”: Glover v Fuller at [9]; and (iv) Whether the grant of leave will jeopardise a listed hearing date. Where an application is brought at a time that is “likely to kybosh the hearing, the Court should be slow to grant leave having regard to the clear purpose of the special rules about the service of expert reports”: McCloskey v Nexis Accountants Pty Ltd [2023] ACTSC 41 at [14] (McCallum CJ).

22. The overriding consideration remains that which will achieve a just resolution of the dispute as quickly, inexpensively, and efficiently as possible. In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 the majority observed at 213: Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. Application of principles

23. There are some significant shortcomings in the explanation for delay the plaintiff proffers. First, a review of their own pleadings ought to have alerted the plaintiff’s legal advisors to the shortcomings in the medical evidence upon which they presently rely. Secondly, the opinion of Dr Davis raised not only psychological overlay, but the prospect of an inpatient chronic pain programme. In the circumstances, it is entirely unclear why the plaintiff’s solicitor was only alerted to those evidentiary shortcomings, upon becoming aware of Counsel’s advice on 20 October 2025. That assertion is inconsistent with the factual history that reveals steps were taken to arrange appointments with the experts now sought to be relied on in the days prior to the solicitor becoming aware of the existence of counsel's advice. The chronological history suggests that the attempt to arrange further expert examinations was related in time to being made aware that Dr Davis was not available to provide a refresher report. What is clear from that which has been disclosed is that the fault in relation to the delay lies not with the plaintiff, but entirely with his legal advisors.

24. I accept that in a case where the plaintiff asserts psychological injury and a chronic pain condition, and has support from an expert occupational physician to the effect that the plaintiff’s complaints are substantially attributable to psychological overlay, there is a real prospect of prejudice to the plaintiff in the event that he is prevented from relying upon expert evidence directed towards his psychological state, and its relationship to the subject injury. I have reached a similar view as to the prejudicial nature of an inability to rely upon evidence from a pain physician where a pain condition is clearly alleged.

25. As far as the occupational evidence is concerned, I accept that Dr Davis is no longer available to provide a refresher opinion and, in circumstances where his last report is based on an examination that took place more than three years ago, there is a proper basis for the plaintiff to seek an up-to-date report from an occupational physician.

26. The second defendant contends that if an order is made extending the time for service of the plaintiff’s expert evidence, it will inevitably suffer prejudice both as a consequence of the need to secure expert evidence in reply, and also because it faces real difficulty in obtaining such evidence in a timely manner, when the hearing date is set for early June 2026. The second defendant therefore contends that there is a real risk that the hearing will not be able to proceed at that time.

27. There is little doubt that if the Plaintiff is afforded an opportunity to rely upon additional medical evidence there will be at least some inconvenience for the defendants in organising evidence in response. I am not satisfied that the evidence tendered is sufficient to demonstrate to me that the defendants will be unable to secure responsive evidence prior to the hearing, necessitating vacation of the hearing date. It would have been a matter of much greater concern had the defendants demonstrated by evidence that all of the available expert witness service providers had indicated that there was no expert availability in the identified categories in a time frame that will enable the service of evidence prior to the hearing. It seems likely that a generous order in terms of time frame for service of evidence in reply is likely to significantly allay any prejudice otherwise suffered by the defendants. If, as a consequence of the service of defence expert evidence close to the hearing, the plaintiff was to assert a need to vacate the hearing date, it is the plaintiff (or his legal advisors), and not the defendant, who would likely be exposed to an adverse costs order.

28. I am satisfied that a refusal of the order seeking to extend the time for service of expert evidence by the plaintiff is likely to result in some real prejudice to the plaintiff in circumstances where the medical evidence presently available to him does not extend to addressing all of the substantive injuries of which he complains in his pleaded claim. I am also satisfied that the fault in that regard rests entirely with the plaintiff’s solicitor and not the plaintiff himself. That is a matter of relevance when considering the interests of justice.

29. As for the defendants, whilst I accept that there is the possibility of some prejudice to them in being prevented from securing their experts of choice in the time available, I am mindful that the expert witness code of conduct highlights the paramount duty of experts to assist the court impartially on matters relevant to the expert’s area of expertise, rendering choice of expert less critical. I am not satisfied on the evidence before me that the defendants will now be prevented from securing appropriate expert evidence in reply prior to the hearing date. Having said that, I consider it appropriate to make a generous order for the service of such evidence to reduce the prospect of any unfairness to the defendants.

30. In terms of the explanation for delay I accept that there has been real candour as to where the fault lies, but I am left to speculate as to why the shortcomings in the expert evidence were not recognised at an earlier time. In assessing that which is in the interests of justice, the explanation may be reasonable even where the conduct is not, and I therefore accept that a reasonable explanation for delay on the part of the plaintiff has been given in this case.

31. I also accept, as the second defendant contends, that there is at least some prospect of the hearing date being jeopardised as a consequence of the late flurry of expert activity that will necessarily follow the making of the order that the plaintiff seeks. For the reasons given above, I do not accept that vacation of the hearing date is likely. The Plaintiff anticipates being in a position to serve the additional evidence upon which he seeks to rely within the next few weeks, and the hearing date is presently still some seven months away. Even allowing for the intervention of the Christmas shut down there remains a reasonably good prospect that responsive evidence will be secured in the time available.

32. In all of the circumstances, I consider it necessary and appropriate to give all of the parties the opportunity to rely upon additional medical evidence that addresses the real issues in the proceedings as they are exposed by the pleaded claim. I have taken into account the challenges likely to be faced by the defendants in securing evidence in reply, and the consequent possibility that the hearing date will be vacated.

33. Given the disclosures that have been made by the plaintiff’s solicitors as to where the fault lies this is an entirely appropriate matter in which to make a costs order in favour of the defendants, noting the undertaking of the plaintiff’s solicitor to meet any costs order made. The history of the matter is such that those costs should be made payable forthwith.

Orders

34. I therefore make the following orders. (1) The time for service by the plaintiff of the expert reports of Dr Sharon Reutens, A/Prof Tillman Boesel and Dr Evan Dryson is extended to the earlier of the day which is three days from the date of receipt of the report in each case, or 31 December 2025. (2) The time for service by the defendants of their expert evidence is extended to the earlier of the day which is three days from the date of receipt of the report in each case, or 30 April 2025. (3) The plaintiff is to pay the defendants costs of and incidental to the application on the basis that: (a) the costs are to be paid forthwith; (b) the plaintiff’s solicitor has undertaken that the liability for the costs will not be passed on to the plaintiff. (4) The matter is listed for directions before me on 6 February 2026 at 9:30am, to ascertain progress with expert witness arrangements.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: 4 December 2025