Fulton v Surfing Australia Limited

Category: Procedural rulings

Parties: Sophia Rachelle Fulton (Plaintiff)
Surfing Australia Limited (First Defendant)
Joanna Rachel Parsonage (Second Defendant)

Representation: Counsel:
K Andrews (Plaintiff)
S J Walsh (Defendants)
Solicitors:
Slater & Gordon Lawyers (Plaintiff)
Wotton + Kearney (Defendants)

File Number(s): 2023/00436217

Publication restriction: No

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed on 24 March 2025 by the first and second defendants seeking orders that the time for service of the first and second defendants’ expert liability evidence be abridged to 21 March 2025 and, alternatively, that the first and second defendants have leave to serve the report of Dr Clare Walsh dated 21 March 2025.

2. The background to the matter is important. The plaintiff, it seems, was an elite surfer and had been identified as a highly talented and skilled surfer. She was introduced in 2018 by the first defendant, Surfing Australia Ltd, to the second defendant, Ms Parsonage. Ms Parsonage was identified as being a person who could give the plaintiff an appropriate training program and assist her in strengthening her body for the purposes of elite surfing competition.

3. The Statement of Claim, which was filed on 1 December 2023, sets out a lengthy background history of the interactions between the plaintiff and, in particular, the second defendant. Those details indicate that the plaintiff reported to the second defendant on occasions, from 2018, some pain and discomfort while performing exercises which had been provided to the plaintiff by the second defendant.

4. This pain and discomfort, it is pleaded, continued. It is pleaded that on 27 August 2018, whilst the plaintiff was surfing, she sustained pain and discomfort in her right knee when she felt a “pop out” of the knee socket. It is alleged that there were omissions by the second defendant to refer the plaintiff to a medical practitioner for advice regarding the injury to her right knee. The plaintiff continued to follow the advice and recommendations of the second defendant as to strength and conditioning exercises. This continued into 2019.

5. As a result of an experience on 1 January 2019, when the plaintiff felt her right knee “move out of place, buckle and give way, experiencing immediate excruciating pain”, according to the Statement of Claim, the plaintiff contacted the first defendant who instructed the plaintiff, it is alleged, to travel to Queensland to see the second defendant. A physiotherapist and, ultimately, an orthopaedic surgeon were consulted.

6. It is alleged by the plaintiff that since that time she continues to suffer from injuries and disabilities, giving rise to the proceedings.

7. Defences were filed by the defendants on 6 December 2024.

8. Various orders have been made by the Judicial Registrar relating to the filing of Defences and the filing of expert medical and liability evidence by the defendants.

9. On 2 July 2024, the Judicial Registrar ordered that the defendants file their expert medical and expert liability evidence by 16 October 2024. On 17 September 2024, the Judicial Registrar set the matter down for hearing on 7 April 2025 with an estimate of four days, ordered that the Defences be filed by 9 October 2024 (as I indicated above, they were ultimately filed on 6 December 2024) and extended the time for the defendants’ medical and liability evidence to be filed to 8 November 2024. A mediation was ordered.

10. It seems that following the holding of that mediation, which was unsuccessful, the defendants formed the view that it was necessary to obtain expert liability evidence. The expert was briefed by letter dated 7 March 2025 and a report was received. On 21 March 2025, the report of Dr Clare Walsh was served.

11. An issue arises as to the reason for the delay in service of that report. The plaintiff’s evidence was served a long time ago, on 24 January 2024, with the relevant liability opinion being that of Rodney Diamond dated 7 March 2022.

12. In paragraph 31 of the affidavit of Mr Molloy, it is frankly stated that the first and second defendants’ failure to comply with the Court orders for service of expert liability evidence was an “error” on Mr Molloy’s behalf and arose as a result of a “strategic decision to delay obtaining expert liability evidence on the hope that the matter would resolve at mediation and such evidence would not have been required”.

13. The Court can understand why that decision, upon its face, would be superficially attractive. I note that a well‑known and regarded insurance law firm is acting for the first and second defendants.

14. In essence, leave is sought by the defendants for the reasons set out in written submissions of Mr Walsh of counsel, dated 31 March 2025.

15. Mr Walsh expanded those submissions orally to point to:

(a) The potential for there to be a conclave of experts before the hearing; (b) The fact that Mr Diamond had been subpoenaed to be available for cross‑examination at the trial; (c) That the first and second defendants would be severely prejudiced absent being able to rely on the report; (d) The fact, in particular, that the second defendant would be prejudiced by a trial without any liability evidence.

16. I have taken into account those written submissions and the affidavit of Mr Molloy.

17. Mr Andrews of counsel, who opposes the application on behalf of the plaintiff, points to:

(a) The various orders made at directions hearings by the Judicial Registrar, which were ignored by the defendants as to the filing of liability evidence; (b) The decision not to obtain liability evidence being said to be “strategic” and thus on its face deliberate; (c) The lack of knowledge in the plaintiff of the availability of Mr Diamond for a conclave; (d) The absence of what are said to be “exceptional circumstances” for the leave sought.

18. The latter reference refers to Part 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) which provides as follows:

**“**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).”

19. Mr Walsh in his submissions refers to the various lines of authority relating to that rule. It is fair to say that there appears to be a division of views between some judges in the Equity Division of the Supreme Court of New South Wales, some judges in the District Court and some judges in the Common Law Division of the Supreme Court of New South Wales. The authorities are referred to by Mr Walsh in some detail in his submissions.

20. In my view, and in the absence of binding authority from the New South Wales Court of Appeal, I find the reasoning of the judges in the Common Law Division of the Supreme Court to be more persuasive. I note that the application in the present case does not refer to a specific rule in the Uniform Civil Procedure Rules. In a number of the cases, parties seeking an extension relied on Part 1.12 of the Uniform Civil Procedure Rules, which permits a court to extend time under the rules.

21. In Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433, Cavanagh J in the Supreme Court concluded that Part 31.28 was not applicable in certain circumstances. His Honour held that on its proper construction, Part 31.28 went to admissibility of expert evidence, which was a matter for the trial judge at [27]-[29]. It is noted, however, that in Addison no hearing date had been fixed, and some judges in this Court have used that as a factor to distinguish Addison: see Gershowitz v Kaye [2021] NSWDC 128 at [35].

22. The matter was considered in some detail by Harrison CJ at CL in Irfan v Western Sydney Local Health District [2023] NSWSC 845. At paragraph 40, Harrison J stated:

“The rules, including UCPR 31.28, should be our servants, not our masters. They are designed to promote fairness, or more particularly so as to avoid unfairness, to all parties in the conduct of litigation.”

23. In Soma*‑Devan v SCentre Shopping Management Pty Ltd trading as Westfield* Hurstville (No 2) [2024] NSWSC 95, Dhanji J went through the authorities and held, that whatever the correct position was, Part 31.28 is “at least” informative of the approach which a Court should take: at [28]. His Honour at paragraph 29 quoted Harrison CJ at CL in Irfan at [40] with approval. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 was also referred to.

24. As I indicated, I prefer the approach to Part 31.28 of Harrison CJ at CL and Dhanji J.

25. I take into account the various matters which have been referred to by Mr Walsh in his written submissions and in his oral submissions, and also the matters that have been submitted by Mr Andrews.

26. It seems to me that, in particular, the following matters are relevant:

(a) That the plaintiff’s expert evidence of Mr Diamond is dated some years ago and was served by the plaintiff last year; (b) That the defendants have failed to comply with a number of orders made by the Judicial Registrar. Orders, of course, are matters which should be complied with. If, for whatever reason, there is difficulty in complying with an order, the best practice is to relist the matter or to file a Notice of Motion; (c) That the report relied upon of Dr Walsh was served on 21 March 2025, only a few weeks before the trial; (d) That the matter is listed for final hearing on 7 April 2025; (e) That the reason for failing to obtain the report was a “tactical one” by the relevant solicitor; (f) That there is prejudice to the defendants by being unable to rely on the Walsh report.

27. However, there is also the position of the plaintiff to take into account, who, it appears, would reasonably have been of the view that no expert evidence was going to be relied upon by the defendants as none had been served.

28. It is important for orders of this Court to be complied with. That is particularly the case where there is a time stated by which to comply with those orders. I take into account that there was some delay in the provision of particulars by the plaintiff, but in my view that does not fully explain the decision taken in the present case. I have sympathy in relation to the position that the defendants are in.

29. I refer to my analysis in SA (a pseudonym) v Hatfield [2025] NSWDC 56 where I considered in detail discretionary matters relating to the vacation of a hearing date. Of course, as in that case, I take into account ss 56 to 59 of the Civil Procedure Act 2005 (NSW), and, in particular, the statutory requirement in s 56 that the overriding purpose of that Act and the 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. I note the obligation on practitioners in s 56(4) of that Act.

30. I also note that, in relation to orders of a procedural nature, s 58 requires the Court to act in accordance with the dictates of justice.

31. Taking all of the matters that I have referred to into account, I am not persuaded that it is in the interests of justice on the evidence to extend the time in relation to the report of Dr Walsh.

32. The orders I make are:

In relation to the Notice of Motion filed on 24 March 2025:

1. The defendants have leave to rely on the report of Associate Professor Paul Miniter dated 13 November 2024.
2. Paragraphs 1 and 2 of the Notice of Motion are otherwise dismissed.
3. The defendants are to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed.
4. The hearing commencing on 7 April 2025 is confirmed.

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[Note: In the course of submissions counsel for the plaintiff had not opposed an extension of time for the report of Associate Professor Miniter but did oppose an extension for Dr Walsh's report.]

Amendments

07 April 2025

Updated with a note at the end of the judgment on 7 April 2025.