Court of Appeal (Vic)|2013-12-12|Before: Mr J, Neave JA

Eaton v ISS Catering Pty Ltd & Ors [2013] VSCA 361 (12 December 2013)

Eaton v ISS Catering Services Pty Ltd (Unreported, County Court of Victoria, Judge Murphy, 30 May 2012)

1 In this appeal the appellant, Ms Rhonda Eaton, challenges the refusal of a trial judge to grant adjournments requested by her, on three separate occasions, in a jury trial in the County Court, in which she sought damages for personal injury. The circumstances giving rise to the appeal are as follows.

2 The appellant was employed by ISS Catering Services ('the first respondent'), to deliver meals as part of a service provided by Maribyrnong City Council ('the second respondent'). On 25 May 2007 she was delivering a meal to the home of Ms Verna Jubber ('the third respondent') at 8 Hotham Street, Footscray. At the time, Ms Jubber was in a nursing home and the property was occupied by her husband, (now deceased). In her amended statement of claim the appellant alleged that she sustained injuries when she 'slipped and fell on a dewy, wet, moss covered concrete surface with loose pebbles' while going to the property to deliver a meal. The appellant sustained a fracture of the surgical neck and head of the left humerus which she claimed had resulted in adhesive capsulitis and a frozen shoulder. She also sought damages for psychiatric injuries.

3 In essence, the appellant alleged that the first and second respondents had negligently failed to provide her with a safe system of work by, among other things, failing to adequately inspect premises to which she was required to make meal deliveries, and/or failing to alert employees of risks associated with using the driveway and that each of them had failed to comply with the Occupational Health and Safety Act 1985. The first and second respondents denied negligence and breach of statutory duty (the second respondent also denied that it owed a duty of care to the appellant) and alleged that, even if they were negligent, the appellant had contributed to her injuries by her own negligence.

4 The third respondent was said to have breached her duty of care by exposing the appellant to risk or injury by, among other things, failing to maintain the driveway in good repair and 'failing to remove moss and/or pebbles from the surface of the driveway'. The third respondent admitted that she owed a duty of care to users of the path, but denied it had been breached and alleged that she had engaged a gardener to maintain the premises. She also claimed that the appellant was guilty of contributory negligence.

5 At an administrative mention held in June 2011 the parties consented to orders which among other things required the service of expert reports by 23 December 2011. No report was filed by the appellant by that date. On 26 August 2011 Judge Davis set a trial date of 14 May 2012, ordered that any further expert reports be filed within 28 days of the trial and that any application to vacate the trial date was to be made within at least 28 days prior to the trial date.[1] An unsuccessful mediation was held in March 2012. Thereafter no application was made to vacate the trial date. Nor did the appellant seek any extension of time to file an expert report, prior to the applications for adjournment made on and after the trial date.

6 The appellant obtained an expert report from Dr Andrew Short, an engineer and lecturer in bio-mechanics, who visited the site of the accident on 21 April 2012. The site visit was conducted without obtaining permission for the inspection from the solicitors for the third respondent. The report was served on the respondents on 24 April 2012, that is four months after the time set for filing of expert reports and eight days after the date when any supplementary report were required to be served.

7 In his report, Dr Short noted a green colour on the surface of the driveway, which was identifiable as lichen or moss, as well as a pebble density of at least 50 pebbles per metre in the area where the appellant said she had slipped. He indicated that loose stones might be hazardous to pedestrians and reported that moss or lichen covered surfaces could be a hazard when wet. He recommended that 'a wet and dry slip test' should be conducted at the site, noting however that:

the limitations of the finding would need to be noted which includes the varied growth of this plant[2] in that is (sic) can be prevalent one year and die off the next if the overhanging bushes are cut back allowing in more light.

8 The solicitors for the third respondent objected to the late service of the expert report and in a letter dated 27 April 2012 refused to allow Dr Short access to Ms Jubber's property to conduct a wet and dry slip test.

9 On 14 May 2012, when the trial was due to commence, the trial judge heard preliminary argument about the admission of the report, which was opposed by the respondents because it did not meet the requirements for expert evidence set out in Makita v Sprowles.[3] On 15 May 2012, before a jury was empanelled, the appellant sought to serve an amended report, to address the criticisms made by the respondents. This was opposed by the respondents on the basis that the report was 'of no efficacy' in relation to the appellant's claim.[4] Counsel for the first respondent also argued that matters raised in Dr Short's report fell outside the particulars of negligence alleged against his client in the appellant's statement of claim,[5] despite the amendments to the statement of claim made with leave from his Honour granted earlier that day.

10 Following his Honour's indication that there were deficiencies in the expert report,[6] senior counsel for the appellant applied ('the first application') to adjourn the trial to enable Dr Short to provide a report on the result of a 'wet and dry slip test', as foreshadowed in his report. The appellant's counsel submitted that the test could be performed within a week and the report of the results could be provided to the respondents 'shortly thereafter'.

11 The respondents opposed the adjournment because of the late service of the report. They also submitted that the slip test would have little, if any, probative value because the property had been unoccupied since at least 2008, there had been no traffic on the driveway since then, and the amount of moss or lichen on the driveway would necessarily have been affected by weather conditions and the failure to cut back overhanging trees, when the garden ceased to be maintained after Mr Jubber's death.

12 Senior counsel for the appellant argued that the appellant had taken photographs of the driveway in September 2009 and had visited the premises with Dr Short in April 2012. He foreshadowed that if the report were admitted she would give evidence that the state of the driveway at the time of the accident when she went to the premises with Dr Short was about the same as shown in the 2009 photographs and at the time she had the accident.

13 In ruling against the first application for adjournment, the trial judge said that it called for the balancing of:

the appellant's interests and her right to put all relevant material;
the respondents' interests in having the matter determined in a timely way; and
the public interest and, in particular, the interests of other litigants who were 'waiting in the queue' to have their matters heard.

[T]he conduct of the plaintiff in seeking, shortly before the trial, to rely on an expert report and then two days into the trial, seeking to adjourn the trial to file a further expert report, and undertake further investigations in a matter where the original event occurred nearly five years ago, where the writ has been issued over one year ago and where consent orders as to the timing of the interlocutory applications were made in August of last year makes it such that the plaintiff, in a sense, is asking the Defendants to meet another case by applying to lodge a further expert report at this late stage.

15 The trial judge referred to the greater prominence given to judicial management following the decision of the High Court in AON Risk Services Australia Limited v ANU ('AON').[8] He cast doubt on the probative value of the report, because of possible changes to the driveway since the accident had occurred and said that this had made it even more important that it be served in a timely manner, so that the respondents had the opportunity to refute the allegations in it.

give more weight to the interests of the defendants in having this matter fully resolved and brought to trial and the interests of case management in other matters sitting in the queue over that of the plaintiff to add an additional limb or additional element of the case or additional evidence in her case.

17 The following day his Honour ruled that Dr Short's report was not admissible in evidence, because it did not adequately expose the factual basis on which Dr Short's conclusions were based and did not set out the reasoning from the assumed facts to the conclusion.[9] In the alternative his Honour held that, even if the expert report were admissible in evidence, he would exclude it in the exercise of his discretion under s 135 of the Evidence Act 2008, because -

the multiple permutation of pebbles, moss, lichen, shade, temperature vegetation and sunlight and time of day would unduly prolong the trial and resulting answers would confuse the jury.

18 His Honour's ruling as to the admissibility of the report was not challenged in this appeal.

19 Following the ruling excluding Dr Short's report, senior counsel for the appellant again applied to adjourn the trial to enable Dr Short to examine the property again and prepare a new report containing a 'wet and dry calculation'. In earlier discussion with the trial judge about the admissibility of the initial report it had been conceded by the appellant that the undertaking of 'a wet and dry slip test' was not essential to the expert's evidence.

20 However senior counsel submitted that the appellant's case would be severely prejudiced and injustice would occur if no expert evidence were called on matters relevant to the slipperiness of the path.[10] The appellant submitted that the expert report had not been obtained or served within time, because it had been hoped that the matter would be resolved by mediation, and that disadvantage suffered by the respondents could be compensated by an appropriate costs order. The respondents maintained their objections to the proposed adjournment.

21 In refusing the second application the trial judge referred to s 1(1), s 7 and s 9(1)(g) of the Civil Procedure Act 2010 which he said had 'evidenced a sea change in the attitude of the legislature to the conduct of civil litigation'. The trial judge said that it would be a live issue at the trial whether the state of the premises differed from their state at the time of the accident, that the third defendant was elderly and had a particular interest in the finalisation of the proceedings, that the report might mean that the respondents might 'face a different basis of liability or require different evidence or tactics in response' and that the 'balm of a costs order' will not fully compensate the parties in the event that the application is granted.[11] His Honour noted the earlier lack of timely compliance by the appellant's legal representatives.

22 His Honour also remarked that the claim was for pain and suffering only, that proceedings had already occupied three court hearing days, and that a number of witnesses were to be called by the parties. He recognised the public interest in finalising proceedings and rejected the appellant's submission that the refusal of the adjournment in order to prepare a report which included a wet and dry slip test would prevent her from receiving a just trial.

24 A third application to adjourn the trial was made on 24 May 2012. In the meantime the appellant had given evidence that she had fallen on wet, slippery pebbles on the driveway and landed with her arm fully extended. She said that while she was lying there:

I could see pebbles and moss and I was also damp. I was wet. My clothes were wet from laying there.

25 Photographs of the driveway taken by the appellant in 2009 were tendered and she said that the state of the premises in 2009 was the same as in 2007 when the incident occurred, with the exception of the moss, which she said was green at the time of the accident but looked darker in the photograph. The appellant marked the place in the photograph which the moss had covered at the time of the incident. In cross-examination she conceded that she had referred to loose pebbles but not to moss when an occupational health and safety report was completed a few days later. She said that she had not seen the moss before she slipped and was lying on the ground, and conceded when cross-examined by counsel for the second respondent that she was not able to say whether the moss had anything to do with her slipping.

26 A number of other witnesses called by the first[12] and second[13] respondents also gave evidence about the state of the driveway at, or shortly after, the accident.

27 The application for an adjournment was made because on the ninth day of the trial the first respondent gave senior counsel for the appellant a training document prepared by the first respondent on 20 April 2009, which dealt with informing employees about the need to take care to avoid slips and falls. The document had not previously been produced by the first respondent. Senior counsel sought an adjournment to call an expert to give evidence about training on the risks of slipping, which could then provide the basis for an argument that ISS should have provided training of this kind before the appellant had her accident. Counsel for the first respondent said that his client would admit that the document came into existence on 20 April 2009, that there was no document dealing with the issue before that date, that no training about slips and falls had been given prior to the accident, and that training on that matter was now given. Each of the respondents opposed any further adjournment to permit the calling of expert evidence.

28 In an informal ruling his Honour refused the application, remarking that the admission of expert evidence on this issue would simply complicate what was a simple question for the jury. He left it open to counsel for the appellant to apply to recall her, presumably for the purposes of asking her what she would have done if she had been told to report slipping hazards. The appellant was not recalled. The first respondent made the admissions he had foreshadowed and a copy of the training document was provided to the jury.

29 On 30 May 2012 the jury found that none of the respondents were responsible for any negligence or breach of duty which caused the appellant's injury.

The trial judge erred in law in taking into account irrelevant considerations, namely:

(a) a mistaken belief that the Respondents would have to meet a different case;

(b) a mistaken belief the Appellant was seeking to add an additional limb or additional element to her case -

in refusing an application by the Appellant made on 15 May 2012 prior to empanelling the jury to adjourn the trial in order to permit the obtaining of a supplementary report from Dr Short incorporating a wet and dry slip test.

The trial judge erred in law in failing to take into account a relevant consideration, namely the failure or refusal by the Thirdnamed Respondent to permit access to the subject premises by letter dated 27 April 2012 for the purpose of Dr Short undertaking a wet and dry slip test, in refusing an application by the Appellant made on 15 May 2012, prior to empanelling the jury, to adjourn the trial.
The trial judge erred in the circumstances of this case in the application of AON Risk Services Australia Pty Ltd v ANU [2009] HCA 27; (2009) 239 CLR 175.
The trial judge erred in law in taking into account irrelevant considerations, namely:

(a) a mistaken belief that the Respondents would face a different basis of liability;

(b) that the Respondents might have required 'different evidence or tactics in response' -

in refusing an application by the Appellant made on 16 May 2012, prior to empanelling the jury, to adjourn the trial in order to obtain admissible expert evidence with respect to issues of liability.

The trial judge erred in refusing a further application by the Appellant made on 24 May 2012 to adjourn the trial to obtain further evidence following production by the Firstnamed Respondent of a previously undiscovered document entitled OH&S Toolbox Talk 'Slips, Trips and Falls' dated 20 April 2009.
The trial judge erred in law in refusing each of the Appellant adjournment applications, namely:

(a) the application on 15 May 2012;

(b) the application on 16 May 2012; and,

(c) the application on 24 May 2012, -

in failing to give weight to a relevant consideration, or in the alternative failing to give sufficient weight to a relevant consideration, being in the interests of the Appellant in being allowed to present her case as fully as possible within the limits of the law.

32 The appellant can only succeed in appealing against the exercise of his Honour's discretion if she can establish an error of the House v The King[14] kind.

33 The appellant argued that the judge wrongly refused the first and second adjournments, on the basis that the admission of the wet and dry slip test, or a revised report by Dr Short, would require the respondents to meet a different case from that set out in the pleadings. In relation to the first two rulings, the appellant submitted that unlike the circumstances in AON, the appellant was not 'asking the defendants to meet another case' when an adjournment was sought to allow Dr Short to apply a wet and dry slip test, or to provide another report. It was submitted that the essence of the appellant's case was that the driveway was dangerous because of the combined presence of loose pebbles and moss. The expert evidence, including the wet and dry slip test, was directly relevant to this issue. Further, in ruling against the first application for an adjournment, the judge failed to take account of the third respondent's refusal to allow Dr Short to perform the test, which was a relevant factor in exercising his discretion.

34 It was also argued that his Honour should not have taken account of the efficacy of an expert report including the results of a wet and dry slip test, but should simply have proceeded on the basis that the new report to be prepared by Dr Short would meet admissibility requirements. Dr Short's capacity to give expert evidence on the issue was not challenged. His Honour was told that the appellant would give evidence that the driveway 'looked the same' when she took her photographs in September 2009 as at the time of the trial. Although the jury might ultimately have given the expert evidence little weight, this was not a basis for refusing the adjournment. Nor could the public interest in finality of litigation justify preventing the appellant from adducing expert evidence to pursue her case, when the delay in this case would only have been a short one.

35 In relation to his Honour's second ruling, it was argued that the judge should not have taken account of the respondents' possible need to obtain further evidence if the appellant were permitted to rely on another report from Dr Short. The judge was said to have erred by failing to balance the factors set out in s 9 of the Civil Procedure Act 2010 and not taking account of the need to accord the appellant a fair trial. By remarking on the fact that the matter should be resolved to permit the appellant to 'move on with her life' his Honour had overlooked the fact that it was the appellant who was seeking the adjournment and the refusal denied her the opportunity to present her case as fully as necessary.

36 In the case of both rulings the appellant submitted that the judge had wrongly taken the view that costs incurred by the respondents as a consequence of the adjournment could not be adequately compensated by the making of an appropriate order for costs. It was argued that the appellant's solicitors had taken on the case on a 'no win, no fee' basis and it was not unreasonable for them to wait until it was ascertained whether the appellant's claim could be resolved by mediation, before seeking an expert report. Although his Honour had remarked in discussions that if the trial were adjourned there would be sunk costs which could not be adequately compensated by costs orders, the respondents had not submitted that this was the case.

37 It was submitted that in his third ruling the trial judge had failed to take into account the relevance of expert evidence as to the appropriate training which a prudent employer would have undertaken to avoid the risk of employees slipping or falling. This had precluded the appellant from developing an argument that the later introduction of training was evidence of negligence on the part of the first respondent.[15]

38 The appellant can only succeed in appealing against the exercise of his Honour's discretion if she can establish an error of the House v The King[16] kind. Because a decision to grant or refuse an adjournment lies in the discretion of the trial judge, an appellate court will rarely consider it justified to allow an appeal against such a decision.[17] In our view the appellant has not demonstrated that his Honour erred in the exercise of his discretion by taking account of irrelevant considerations and/or failing to have regard to relevant considerations, when he refused to adjourn the trial. Nor was his Honour's refusal to grant the adjournments so plainly unreasonable that it can be inferred that he must have erred.

39 The appellant's strongest argument was that his Honour incorrectly treated the applications for the first and second adjournment as an attempt to extend her case beyond her pleadings. In our opinion the pleadings were sufficiently broadly expressed to cover slipping caused by loose pebbles, moss, or a combination of both hazards. However, consistently with the submissions of counsel for the first and second respondents, we would reject the argument that his Honour wrongly took the view that the expert report would extend the appellant's case as pleaded, when he refused the first and second adjournments.

40 Although the judge did refer to the appellant 'in a sense...asking the defendants to meet another case by applying to lodge a further expert report', it is apparent from the reasons read as a whole that his Honour was simply referring to the additional evidence on which the appellant sought to rely if the adjournment were granted. In the ruling on the first adjournment application his Honour said that it was particularly important for the report to have been provided in a timely manner, because of the dispute about its probative value and the need for the respondents to undertake their own investigations if necessary. The judge correctly took the view that the report might require the respondents to carry out further investigations in response to that report and to decide whether to call additional evidence.

41 It is true that in his ruling on the second adjournment, his Honour again referred to the fact that the respondents might 'face a different basis of liability' on the basis of the new report, as well as the possibility that they might require different evidence. However the statement was made in the context of his Honour's earlier remarks about the limited utility of a report based on the premises long after the accident occurred. Further, the amended statement of claim relied on the first and second respondents' 'failure to inspect' the condition of the driveway in order to ascertain its suitability as a means of access. The conducting of a wet and dry slip test would have raised the question whether the presence of pebbles or moss on the driveway created a slipping hazard which would have been detected by the first or second respondents if they had inspected the premises, or have given rise to any duty on the respondents to remove any hazard. Neither of these matters were pleaded in the particulars of negligence.

42 Contrary to the second ground of appeal, the trial judge did implicitly take account of the earlier refusal to permit access to the premises.

43 We do not consider that the judge erred in taking account of the likely probative value of the wet and dry slip test or any later expert report prepared by Dr Short. The ruling was made in a context where his Honour had already identified deficiencies in Dr Short's report and ruled that it was inadmissible because it did not sufficiently explain the basis for his conclusions. The premises had been unoccupied for four years by the date of the trial. As his Honour observed, Dr Short himself noted the limitations of a wet and dry slip test, because of the effect of weather conditions on the growth of the moss. Further, as he noted in his second ruling, 'the premises are vacant and it will be a live issue at the trial as to the state of the premises at the time'. During the trial the jury viewed the premises.

44 Assuming that the jury accepted the appellant's evidence that the state of the driveway when she slipped did not differ substantially from its state at the time of the trial, expert evidence about the state of the driveway would have added little if anything to her case. His Honour correctly concluded that the wet and dry slip test conducted in an outside area exposed to the weather for five years since the appellant's injury would have little if any probative value.[18] In our view his Honour did not err in taking account of the very limited probative value that the expert report was likely to have, when he balanced the factors which must be considered under the Civil Procedure Act 2010.

45 The relevant portions of ss 7-9 of the Act provide as follows:

7. Overarching purpose

(1**)** The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute....

8. Court to give effect to overarching purpose

(1) A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers...

9. Court's powers to further the overarching purpose

(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects-

(a) the just determination of the civil proceeding;

(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for-

(i) the fair and just determination of the real issues in dispute; and

(ii) the preparation of the case for trial;

(iii) the timely determination of the civil proceeding;

(f) the timely determination of the civil proceeding;

(g) dealing with a civil proceeding in a manner proportionate to-

(i) the complexity or importance of the issues in dispute; and;

(ii) the amount in dispute.

(2) For the purposes of subsection (1), the court may have regard to the following matters-

(a) the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;

(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e) the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(g) the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

(h) the extent to which the parties have had the benefit of legal advice and representation.

(3) This section does not-

(a) limit any other power of a court to make orders or give directions ...

46 His Honour took account of the matters in s 9, to the extent that they were relevant to the adjournment applications. In particular he referred to the proportionality requirement in s 9(1)(g) of the Act and remarked that the appellant's claim was for pain and suffering alone and that pre-trial argument had already extended over three days.

47 In the past, appellate courts more readily accepted that an adjournment should be granted if its refusal would prevent a party making out his or her case.[19] That predisposition must now be qualified in light of the importance which is now accorded to case management principles, following the High Court's decision in AON,[20] the subsequent enactment of the Civil Procedure Act 2010, and the further authorities mentioned below. Although the 'overarching purpose' of the Act and the rules includes the fair and just resolution of disputes, it also includes the efficient and timely resolution of disputes. So parties cannot casually ignore case management orders or directions. As Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in AON:

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. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all.[21] Such a view may largely explain the decision of this Court in Shannon v Lee Chun,[22] which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment.[23] In the present case it is difficult to see that such an order could be sufficient compensation, given that AON would be required to again defend litigation which was, effectively, to be commenced afresh.

The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd,[24] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted.[25] In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd,[26] French J said of Bowen LJ's statements in Cropper v Smith:

... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.[27]

48 The importance of case management principles in guiding the Court's discretions in exercising case management powers has been reinforced by recent pronouncements of the High Court and this Court. In Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategies Management and Marketing Pty Ltd & Ors,[28] the High Court explained the importance of the 'overriding purpose' under the Civil Procedure Act 2005 (NSW) in the exercise of its powers under that Act or Court rules. The High Court referred with approval to the doubts expressed by Lord Woolf MR in Biguzzi v Rank Leisure PLC,[29] that 'authorities decided under the old procedure could continue to be binding or even persuasive'.[30] Later, the High Court summarised the purpose of the Civil Procedure Act 2010 in the following terms:

The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

That purpose may require a more robust and proactive approach on the part of the courts. ...[31]

49 In Yara Australia Pty Ltd v Oswal,[32] this Court gave similar emphasis to the importance of the overarching purpose, and to the overarching obligations on parties and their lawyers under the Civil Procedure Act 2010. The Court re-stated that such obligations on parties and their lawyers to this general effect have always existed.[33]

50 The application for an adjournment of the trial in this case needed to be considered in the above context. The overarching purpose applies to the Court 'in the exercise of any of its powers', however they may arise - including all powers arising under 'any procedural rules or practices of the Court'.[34] The Court's power to adjourn proceedings or to refuse an application for an adjournment is therefore subject to the Court's obligation to give effect to the overarching purpose.[35]

51 In applying for the first adjournment the appellant's counsel conceded that a wet and dry test was 'not essential'. This makes it difficult, if not impossible, for her counsel to sustain the argument on appeal that the absence of such evidence resulted in an unfair trial. Moreover his Honour carefully explained why it was not essential for the appellant to adduce expert evidence in order to prove her claim.

52 His Honour considered whether any prejudice to the respondents could be compensated by making an appropriate order as to costs. Moreover the passage from AON cited above indicates that this is not determinative. As French CJ observed in AON:

In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to AON could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.[36]

53 In exercising his discretion, his Honour properly had regard to the absence of any affidavit from the appellant's solicitors explaining the failure to comply with Judge Davis's order or the reasons why the appellant, having already filed the report of Dr Short after the agreed deadline for serving expert reports, then sought an adjournment to obtain a supplementary report from him. As Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in AON:

Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules.[37]

54 The letter from the third respondent's solicitors put the appellant's solicitors on notice that they should apply for an extension of time, prior to the trial date. The only explanation put forward by the appellant for not doing so was given from the Bar table - to the effect that a decision was made to defer seeking expert evidence until after the mediation. The fact that the parties sought to mediate the dispute did not relieve the appellant's solicitors from the responsibility of complying with Court ordered time limits. The conduct of the appellant's solicitors in ignoring the Court's directions as to the time for serving expert evidence undermines the overarching purpose under the Civil Procedure Act 2010 and is contrary to the overarching obligations to which the solicitors were subject. The obvious purpose of the expert evidence direction was to further the overarching purpose by, among other things, ensuring that the mediation would be fully informed; and thus increase the prospects that it might lead to a settlement - with consequent saving of costs to the parties and preservation of scarce judicial resources. Of course, the expert evidence directions were also designed to further the overarching purpose by ensuring that due notice of the evidence was given to the respondents so that they could have a reasonable opportunity to meet it at trial.

55 If there is a perception among plaintiffs' lawyers in personal injuries litigation that they need not comply with court directions which require steps to be taken before mediation, including seeking expert reports, or a practice of not doing so, such a practice is in our opinion contrary to the overarching obligations. It is no excuse that 'no win, no fee' lawyers wish to see whether a case settles at mediation before spending the necessary funds required to comply with court orders. Although each case must, of course, depend upon its own facts and circumstances, the adoption of such a practice may well lead to an application to vacate the trial date or, as here, to adjourn the trial being refused.

56 Ground 5 has been abandoned, although ground 6 maintains the complaint about the failure to grant an adjournment on 24 May 2013. In case it is necessary to consider the matter, that complaint should also be rejected. Assuming that it was open to the appellant to argue that the first respondent should have provided training to its employees about the risks of slipping and falling when delivering meals, no expert evidence on that issue would have advanced the appellant's case any further because the respondent made all the admissions required on that issue and, based on those admissions, the appellant exploited the issue in final submissions.

[1] Order 44.01 of the County Court Civil Procedure Rules 2008 requires the service of an expert report no later than 30 days before the date fixed for trial. Under O 44.05 expert evidence cannot be adduced, unless the report has been served in compliance with the order, except with the leave of the Court or the consent of the parties. In his Ruling delivered on 15 May 2012 Judge Murphy incorrectly referred to a requirement to file a supplementary report within 30 days. Presumably, this referred to O 44 but did not take account of the consent order. This does not make any difference to the analysis below.

[3] [2001] NSWCA 305. It was argued that the factual basis of Dr Short's conclusions was not clear.

[4] Separate submissions were made by counsel for the second and third respondents. Counsel for the first respondent relied upon them but made additional submissions on the following day.

[5] It was argued that the claim that the pebbles should have been removed was confined to a claim against the third respondent and that nothing in the particulars of negligence relating to the first respondent related to a failure to train persons inspecting the premises as to the potential danger caused by the presence of moss or pebbles or employees on the risks of slipping and falling.

[6] In discussion, his Honour said that Dr Short had not articulated the factual basis for his conclusion that the path was slippery, or the extent of its slipperiness.

[7] For the sake of simplicity the three rulings at issue are referred to as rulings one, two and three. In his Honour's judgment they appear as rulings two, four and six.

[9] Judge Murphy's first revised ruling on 16 May 2012, relating to the admissibility of Dr Short's report. See also Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 624 [93].

[10] Counsel relied on Humphries v Wills [1989] VicRp 42; [1989] VR 439, 445.

[11] Judge Murphy, Ruling of 16 May 2012.

[12] Margaret Webb, food services manager for ISS and Simone Forde, general manager of ISS gave evidence for the first respondent. Ms Webb said that she had been told about the pebbles by the appellant after the accident.

[13] The witnesses for the second respondent were Gabriela Battaglia, case manager for Maribyrnong, Jeanette Stoodley, home carer for Maribyrnong and Thuy Van Ho, area leader for Maribyrnong who examined the footpath on 28 May 2007. Mr Ho said he could not recall what he saw that day but had made a written record of the pebbles and noted that the risk was negligible.

[14] [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and Mc Tiernan JJ).

[15] See for example Theilemann v The Commonwealth [1982] VicRp 71; [1982] VR 713.

[17] Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390, 395; Apex Pallet Hire Pty Ltd v Brambles Holdings Limited (Unreported, Supreme Court of Victoria, McGarvie, Marks, Ormiston JJ, 8 April 1988), 4.

[18] However, we would not accept the second respondent's submission that the slip testing was a 'red herring' because the slipperiness of the moss did not go to the appellant's actual case as it was argued at trial, namely that the appellant slipped on wet pebbles. This takes an excessively narrow approach to the meaning of the particulars in the pleadings.

[19] See, for example, Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146; Opeka Pty Ltd v Mackie Group Pty Ltd [2003] VSC 183 [32]-[35].

[20] AON Risk Services Australia Pty Ltd v ANU [2009] HCA 27; (2009) 239 CLR 175.

[21] Cropper v Smith (1884) 26 Ch D 700, 711.

[22] [1912] HCA 52; (1912) 15 CLR 257. See the reasons of Barton J at 262-263, O'Connor J at 264 and Isaacs J at 266.

[23] The Commonwealth v Verwayen (1990) 170 CLR 394, 464.

[24] [1987] 1 AC 189, 220, referred to in The Commonwealth v Verwayen (1990) 170 CLR 394, 464.

[25] Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at 376-377 [37], Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710, 715, Samuels JA; Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894.

[30] Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategies Management and Marketing Pty Ltd & Ors [2013] HCA 46, [39].

[31] Ibid [56]-[57] (emphasis added).

[33] Ibid [19], citing A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd & Ors [2009] VSCA 208; (2009) 25 VR 189, [15].

[34] Civil Procedure Act 2010, s 8(1); see also s 7(1) ('the overarching purpose of this Act and the rules of Court in relation to civil proceedings ...').

Health and Safety Act 1985

Court Civil Procedure Rules 2008

Eaton v ISS Catering Pty Ltd & Ors [2013] VSCA 361

At a glance

Court

Decision date

Before

Source

Judgment (103 paragraphs)

Eaton v ISS Catering Pty Ltd & Ors [2013] VSCA 361 (12 December 2013)

Parties

Legislation Cited (4)

Cases Cited (11)