Cave v Allen Jack and Cottier Pty Ltd

EX TEMPORE Judgment (rEVISED) 1The plaintiff applies for the reference out of the whole of these proceedings under r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW). Sub-rule (1) is in the following terms. At any stage of the proceedings, the court may make orders for reference to a referee appointed by the court for inquiry and report by the referee on the whole of the proceedings or on any question arising in the proceedings. 2The application of the rule has given rise to significant case law but I think as the argument has been presented to me, counsel all accept the accuracy of the commentary in Ritchie's Uniform Civil Procedure New South Wales, that the rule confers a general discretion to refer matters to a referee whenever the Court is satisfied that doing so will best achieve the overriding purpose of the rules. That is to say the just, quick and cheap resolution of the real issues in the proceedings. 3Although the matter is in the general list of the Common Law Division, involving as it does actions for breach of contract and in negligence, it is essentially a building and technology matter. The plaintiff is a homeowner who sues the architect who designed her home, the structural engineer who certified as to critical structural aspects as required and the builder who constructed it. 4Each of the three defendants opposes the referral out of the whole of the proceedings. However, each of them concedes the advantages in referring the questions of the scope of the works required and the cost of the performance of those works to a referee. 5I am told the premises are on the Central Coast and that the architect, who is the first defendant, was first retained in relation to the construction of the dwelling as long ago as 1996. The work was done around the turn of the century. Mr Lloyd of counsel, for the first defendant, identified the issues as being encompassed by the following broad categories: (1)a limitation issue having regard to when the contracts were made and when the work was done. (2) a serious question about the identity of the parties to the contract retaining the second defendant, who is the structural engineer; and the terms of that contract as to limitation, and exclusion, of liability. These are described as legally complex questions. (3)inevitably, the question of the apportionment of liability amongst any liable defendants, if more than one, involving questions of fact and law. (4)quantum issues relating to the scope of the necessary rectifying works, the utility of actually performing them and the cost of them. 6I did not understand Mr Rogers of counsel for the plaintiff to demur from Mr Lloyd's pithy summary of the issues, likewise Mr McManus of counsel for the second defendant and Mr Stevens of counsel for the third. 7I am also informed that the ambit of the claim is between about $1.3 million on the plaintiff's estimate in round terms - when I say "estimate" I mean on the basis of the plaintiff's evidence - and around $600,000 on the basis of the estimates provided by experts on behalf of the defendants. In that regard Mr McManus made clear the defendants do not accept the plaintiff's definition of the necessary scope of works and potentially the cost of rectification therefore could be less than $600,000 on the defendants case. 8I am informed by Mr Rogers that the estimate of the necessary hearing time to have the matter determined in this division is six weeks. Again, from the arguments addressed to me, all counsel seem to accept that. Because of the flexibility and relative informality of the procedures likely to be available to a referee, it is thought that the hearing ought to be concluded in four weeks. That is Mr Rogers' estimate but again I did not understand other counsel to be in violent disagreement with the accuracy of it. 9I record that all counsel accept that the necessary preparations for hearing are complete with the exception of the necessity for experts to conferring and producing joint reports where necessary. The matter is not being currently judicially case managed. I am informed that when the matter is next before the registrar for directions the plaintiff intends seeking a hearing date but it is not expected the Court can allocate six weeks of hearing time until the second half of next year. That effectively means that the commencement of the hearing could be as long as 12 months away in a matter which has its origins in contracts made nearly 20 years ago. 10It is to be expected that if the whole of the proceedings were referred to a referee that the hearing could commence much sooner subject to the availability of counsel and expert witnesses. 11Mr Rogers is against fragmenting the case by referring part of it out and he points out that no-one has made formal application in that regard and would prefer, if his application for referral of the whole of the proceedings fails, that the matter takes its turn in this list. 12As I have said, the defendants are in favour of a partial referral but resist the referral of the whole proceedings. Part of the argument in that regard is that the efficiencies that might be available with referral out would, generally speaking, be because the referee might be a building professional with experience in dispute resolution techniques. However, such a person may lack the necessary legal skills and experience to resolve the type of legal issues that have been identified. When I say "legal issues" I mean the legal-fact matrix as outlined above. 13Mr Rogers argues that an experienced retired judicial officer with significant background in construction and technology cases could deal with the factual and legal issues and would be sufficiently familiar with the type of expert issues which arise in litigation of this type to efficiently decide those questions. 14The attitude of the parties to reference out, of course, is not determinative of the question although naturally in an adversarial system the Court will give weight to the position of each of the parties. 15There is a potential draw-back that reference out does not always bring finality and the generation of arguments about adoption of reports can take on a litigious life of their own. One of the significant factors in this case is bringing the matter to a head sooner rather than later even after all this time. That, it seems to me, is the best way of facilitating, to the overriding purpose in this case. 16It would be counter-productive if reference out only generated the type of actions I have referred to by way of arguments in relation to adoption and the like. It seems to me that on the whole, although there is much to be said for the position adopted on either side of the record, that the overriding purpose will be better advanced in this case by reference out of the whole proceedings. And despite the persuasive arguments put against this proposition, I have in the end been persuaded by Mr Rogers that an experienced retired judge like, for example, the former Mr Justice Hunter, would be in a position to deal with all of the complexities of the case, legal, factual and technical and indeed deal with them sooner than a judge of this division, given the likely time span before obtaining a hearing date. 17Essentially the factors I have had regard to are as follows: First, the relative speed with which a referee could hear the case; secondly, the relative flexibility and informality of procedure would better define the issues; and thirdly, that second factor will lead to a hearing that is materially shorter, saving all parties significant legal costs, even accepting that there yet might be scope for argument about adoption. 18It seems to me that an order in the form of the usual order for reference out appearing in annexure 2 to Equity Practice Note 3 is the appropriate order to make in the whole of the circumstances and that the order should provide for the referral of the whole of the proceedings. It may well be that the parties ought to confer about the identity of the relevant retired judicial officer who should be appointed and I suppose inquiries ought to be made in relation to that person's availability before orders are pronounced. 19I propose simply then to direct counsel to bring in short minutes of order largely conforming with the form of order in annexure 2 to Equity Practice Note 3. If counsel are unable to agree, on the identity of the referee, then I will hear some short argument about the competing contentions.