In these proceedings, the plaintiff sues the defendants for damages arising out of an incident in 2010 when he was employed as a security guard and was confronted and chased by an intruder in premises over which he was maintaining security. The plaintiff alleges that he suffered significant psychological injury as a consequence of the incident, and his case is that the sequelae he has suffered prevents him from undertaking employment at any time in the future.
The proceedings are currently in day 9 and the majority of the evidence has been given. A number of issues have arisen in respect of a report of Dr Elizabeth Carter, psychologist, of 18 June 2013. In support of the position taken by each of the defendants, an affidavit of Elizabeth Jane Patrick, sworn 26 September 2017, has been read. The issues surrounding the report of Dr Carter arise in the following way.
In 2013 Dr Carter was engaged by the solicitor for the plaintiff to provide a medico‑legal report for use in the current proceedings. Dr Carter assessed the plaintiff on 5 June 2013 and provided a report of 18 June 2013 in which she concluded, amongst other things, that the plaintiff had no realistic job options on the open labour market, and that he would very likely remain unemployed in the foreseeable future. That report was served by the plaintiff's solicitors on the respective defendants. The evidence does not disclose precisely when that occurred, but nothing turns on that. The report was not "re-served" by any of the defendants on the plaintiff.
At one point in the period leading up to the commencement of these proceedings, it was proposed that an expert conclave take place between Dr Lewin and Dr Phillips, both of whom are psychiatrists. For that purpose, the parties exchanged a list of documents to be used by the experts for the purposes of the conclave. The affidavit of Ms Patrick establishes that the list in its final form included the report of Dr Carter.
It appears that at some stage in the course of the hearing senior counsel for the plaintiff made a decision that he would not rely on Dr Carter's report. That decision was communicated to the defendants although precisely when that occurred is not completely clear. It appears to have been since the hearing commenced, and perhaps within the last few days.
Subsequent to receiving that indication, senior counsel for the first defendant indicated that he wished to rely on Dr Carter's report and has now sought to tender it. The first defendant's position has been adopted by the second and third defendants. The tender is objected to by senior counsel for the plaintiff. It is not clear when notice was given to those representing the plaintiff that the defendants sought to tender the report. It may have been as recent as today but in any event, I infer that it was within the last day or two.
There are two legislative provisions which bear upon the issue that I am required to determine. The first is r. 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) ("the Rules") which is in the following terms:
31.28 Disclosure of experts' reports and hospital reports
(1) Each party must serve experts' reports and hospital reports on each other active party:
(a) in accordance with any order of the court, or
(b) if no such order is in force, in accordance with any relevant practice note, or
(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.
(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.
(3) Except by leave of the court, or by consent of the parties:
(a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and
(b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995 , is not admissible unless it has been served in accordance with this rule, and
(c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.
(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:
(a) that there are exceptional circumstances that warrant the granting of leave, or
(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).
The second is s. 14 of the Civil Procedure Act 2005 (NSW) ("the CPA"), which is in the following terms:
14 COURT MAY DISPENSE WITH RULES IN PARTICULAR CASES
In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.
The circumstances as I have outlined them, and the legislative provisions to which I have referred, raise three issues. The first is whether or not the report of Dr Carter has been served by the defendants pursuant to r. 31.28. In the event that I determine that service has not been so effected, the second issue is whether I should exercise my discretion pursuant to s. 14 of the CPA to dispense with the operation of r. 31.28. In the event that I determine that the operation of that rule should not be dispensed with, the third issue is whether, in terms of r. 31.28, there are exceptional circumstances which justify leave being granted to the defendants to allow the report to be tendered.
I turn firstly to the issue of service. It was the submission of senior counsel for the first defendant (such submission being adopted by the second and third defendants) that service of Dr Carter's report was effected by its inclusion in the schedule of the material that was to be provided to the experts for the purposes of the conclave (which I note ultimately did not take place).
It was submitted that the correspondence annexed to Ms Patrick's affidavit, the majority (or perhaps even all) of which was directed to settling the contents of the list of documents, made it clear to all parties that the report of Dr Carter was to be included as part of the material relied upon for the purposes of the conclave. It was submitted that in the circumstances of this case, the issue of the plaintiff's vocational capacity to which the report of Dr Carter was directed was inextricably linked to the principal psychiatric issue in the proceedings, to which the proposed conclave was directed. It was submitted that in those circumstances I should conclude that service had been effected. In that event, the remaining issues that I have identified would not arise for consideration.
Senior counsel for the plaintiff submitted that none of the matters relied upon by the first defendant constituted service. He also relied on the fact that the proposed conclave did not take place. More generally, senior counsel for the plaintiff submitted that a fundamental purpose of service of a medical report is to put a party on notice that the party serving the report may rely upon the evidence so served. He submitted that none of the circumstances relied upon by the defendants as constituting service achieved that fundamental purpose.
It is clear that r. 31.28 applies to the procedure commonly referred to as "back service" of export reports: Cummins Generator Technologies Germany v Johnson Controls Australia Pty Ltd [2015] NSWCA 264 at [163]. It is also clear on the evidence that the solicitors acting for the respective defendants did not "back serve" Dr Carter's report on the plaintiff. This leads to a position where the defendants must rely on other matters as constituting service. The words "serve" and "service" are not defined in the rules. However, the purpose for which service of material of this nature is mandated provides some guidance as to how those terms ought be interpreted. In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, Campbell JA (at [64]) observed that the practice of back serving reports provided a means of warning party A of the possibility that party B might tender the report at the hearing, and that when so warned, party A was then able to take steps under r. 31.19(2) to have the person who prepared the report available for cross-examination. Accepting that to be part of the underlying purpose of service, it has not been met in the present case. The inclusion of a reference to the report in a list of documents proposed to be provided to two experts for the purposes of a conclave does not, in my view, constitute service for the purposes of the rule.
As I have already observed, there was some notification given within the last few days by one or other of the defendants to the plaintiff of an intention to seek to rely on the report. I have considerable doubt, for the reasons that I have already expressed, whether such a notification could amount to service for the purposes of the rule. But in any event, it was well outside the 28‑day period which is mandated by r. 31.28(1)(c).
For all of these reasons, I am not satisfied that the report has been served on the plaintiff by any of the defendants in accordance with r. 31.28.
I turn then to the provisions of s. 14 of the CPA. The defendants bear the onus of establishing that the exercise of my discretion under s. 14 is appropriate in the circumstances of the present case. As a general proposition, that requires that there be some proper reason advanced for the non‑compliance with r. 31.28: Iovanescu v McDermott [2004] NSWCA 106 at [5]. There is certainly no affidavit evidence before me which advances any such reason. The affidavit of Ms Patrick is completely silent on the issue.
Moreover, the provisions of s. 56 of the CPA necessarily impact upon the exercise of the discretion under s. 14. That section is in the following terms:
56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
(6) For the purposes of this section, a person has a
"relevant interest" in civil proceedings if the person:
(a) provides financial assistance or other assistance to any party to the proceedings, and
(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings.
In my view, to dispense with the operation of r. 31.18, in circumstances where the matter has been raised for the first time on day 9 of a trial, and where no explanation has been forthcoming as to why it was that the report was not re‑served by the defendants, would be at odds with the just, quick and cheap resolution of the issues in the proceedings. For those reasons, I decline to exercise my discretion pursuant to s. 14 of the CPA and dispense with the operation of r. 31.28.
In those circumstances I come to the third issue, namely whether or not there are exceptional circumstances within the meaning of r. 31.28(4)(a) (noting that the provisions of para (b) have no application to the present circumstances).
In respect of this issue, the defendants submitted that the plaintiff's representatives had served the report some time ago, and that it was only within the last short while that those representing the plaintiff had indicated that the report would not be relied upon. It was submitted that this amounted to exceptional circumstances for the purposes of my determination. In support of that proposition, I was taken to a decision of Stevenson J in The Owners - Strata Plan 84741 v Nazero Constructions Pty Ltd [2017] NSWSC 1134, which was said to support the defendants' position.
Senior counsel for the plaintiffs submitted that the decision not to rely on Dr Carter's report was not exceptional. He submitted that it was a decision of a kind which was routine in any litigation. He pointed to the decision of Campbell JA in Yacoub as support for that proposition. Senior counsel's essential submission was that in the course of a case such as this, forensic decisions are necessarily made by counsel from time to time having regard to the way in which the case evolves. He submitted that the decision not to rely upon Dr Carter's report was routine and unexceptional.
In Yacoub commencing (at [66]) Campbell JA, by reference to an earlier decision in San v Rumble (No 2) [2007] NSWCA 259, explored the issue of what is meant by the expression "exceptional circumstances". In particular his Honour said the following:
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.
The last observation made by his Honour highlights the fact that determinations of whether circumstances are exceptional must necessarily be made on a case by case basis. This is for the simple reason that the facts of cases, and their circumstances, necessarily differ.
I have already noted that in the course of submissions, I was taken to the decision of Stevenson J in The Owners - Strata Plan 84741 v Nazero Constructions. That decision, it was submitted, provided support to the defendants' position in the present case. There were, however, some distinguishing features in that case which are not present here, not the least of which was that the parties seeking to rely on the report in question had in fact served it.
In my view there is merit in the proposition advanced by senior counsel for the plaintiff as to the making of forensic decisions in the course of a trial. It is not unusual for counsel, having regard to the way in which a case proceeds, to make a forensic decision that certain evidence is not to be relied upon. Such decisions are routinely made in the course of a trial, depending upon how the evidence emerges. Rule 31.28 is obviously there for a reason. It was clearly open to those representing the defendants to re‑serve the report when it was served by the plaintiffs. As I have pointed out, they did not do so.
I am not satisfied that exceptional circumstances have been established for the purposes of r. 31.28. Accordingly, the tender of the report of Dr Carter by the defendants will be rejected.
[2]
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Decision last updated: 13 November 2017
Parties
Applicant/Plaintiff:
Capar
Respondent/Defendant:
SPG Investments Pty Limited t/a Lidcombe Power Centre