This is the first day of the three-day trial of these proceedings. The plaintiff has opened its case and read the evidence of its lay witnesses and an expert electrical engineer.
As part of its evidence in the proceedings, the plaintiff now seeks to rely on the report dated 19 July 2024 of another expert, David Madden (Madden report). The Madden report was obtained pursuant to a letter of instruction dated 2 July 2024 from the plaintiff's solicitor to Mr Madden. The Madden report is relevant to the issue of the costs of the plaintiff in carrying out rectification works.
In the circumstances outlined below, the plaintiff requires leave from the court pursuant to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
[2]
SALIENT FACTS
On 9 August 2022, the proceedings were commenced.
On 10 November 2022, Ball J made consent orders in the proceedings, including that the plaintiff serve its lay and expert evidence in chief by 3 March 2023.
On 10 March 2023, Ball J made consent orders in the proceedings, including that the plaintiff serve its lay and expert evidence in chief by 7 April 2023.
On 19 April 2023, Ball J made consent orders in the proceedings, including that the plaintiff serve the entirety of its lay and expert evidence by 19 May 2023, and also ordered that if the plaintiff failed to comply with that order, then the plaintiff could not serve or rely upon any further lay or expert evidence in chief, without leave of the court.
On 13 October 2023, Ball J made consent orders in the proceedings, including that the plaintiff serve its evidence in reply by 10 November 2023.
On 17 November 2023, Ball J made orders in the proceedings, including that the plaintiff may not rely on any evidence served after 1 December 2023, except with leave of the court.
On 16 February 2024, Ball J made orders in the proceedings, including listing the proceedings for a three-day hearing commencing on 7 August 2024, the usual order for hearing and that the parties' experts attend a conclave and prepare a joint expert report by 30 April 2024.
There is absolutely no explanation by the plaintiff as to why the Madden report has been served late, nearly 15 months after it was due to be served on 15 May 2023.
The Madden report is substantial. It is clear to me that the defendants are in no position to be able to respond to it during the trial, having only received it two and half weeks ago.
[3]
LEGAL PRINCIPLES
Rule 31.28 of the UCPR is in the following form:
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).
It is clear that I cannot grant leave to the plaintiff to rely on the Madden report unless I am satisfied that there are exceptional circumstances. In exercising my discretion I must also have regard to the requirements of ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) (CPA).
The overriding purpose of the CPA and the UCPR in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.
In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA.
The principles relevant to the exercise of the discretion in r 31.28 of the UCPR are conveniently summarised in Dolores Correa and The Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham [2012] NSWSC 266, Black J at [10]-[13] saying as follows:
[10] I turn now to r 31.28(3) of the Uniform Civil Procedure Rules which provides that, except by leave of the Court or by the parties' consent, an expert's report is not admissible unless it has been served in accordance with the rule. Rule 31.28(4) in turn provides that leave is not to be given unless the Court is satisfied that:
(a) there are exceptional circumstances that warrant the grant of leave; or
(b) the report merely updates an earlier version of a report that has been served in accordance with sub-rule (1).
[11] It is not suggested that Mr Lloyd's report is an updating of any earlier expert evidence report. The plaintiffs therefore seek to establish "exceptional circumstances" within the scope of r 31.28(4). That concept was considered in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]-[67] where Campbell JA referred to his judgment in San v Rumble (No 2) [2007] NSWCA 259 at [59]-[69] and observed that, inter alia, exceptional circumstances are out of the ordinary course or unusual, special or uncommon and cannot be circumstances that are regularly, routinely or normally encountered, and can exist by reference to quantitative or qualitative factors. His Honour noted that whether circumstances are exceptional for the purposes of a particular provision depended on the rationale of that provision and required consideration of the particular facts. His Honour also observed that:
"In the context of r 31.18(4) [the predecessor of UCPR r 31.28(4)], any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a Court in the management of litigation contained in ss 56-59 Civil Procedure Act 2005."
[12] In State of New South Wales v Tyszyk [2008] NSWCA 107, to which Mr Gray referred in submissions, Campbell JA quoted that passage and held that exceptional circumstances were in that case established where the reports had already been cross-examined on, had been in the plaintiff's possession for over a year, a reasonable time for the plaintiff to deal with the tender of the reports had elapsed and there was a lack of any identifiable prejudice to the plaintiff. It does not seem to me that the present case is comparable to State of New South Wales v Tyszyk. Mr Lloyd's expert report has not been cross-examined on and had been in the defendant's possession for a week, not a year, prior to the commencement of the hearing, and there seems to me to be a real prejudice in placing the defendant in a position where it has no practical alternative to leading expert evidence in response with insufficient time to prepare it, or seeking to vacate the hearing date.
[13] There also seems to me to be a lack of exceptionality in the present circumstances which are, in substance, a case of late retainer of an expert and late service of his report. That is, regrettably, not out of the ordinary course or special, although it is perhaps less common in recent years than in earlier years where the Courts and the parties were less conscious of the need of the parties and the community for the just, quick and cheap resolution of matters in dispute.
Correa was cited with approval in Commonwealth Bank v Iinvest (No 7) [2017] NSWSC 440 by Campbell J at [10].
[4]
CONSIDERATION
Applying those principles in this case, I consider that leave to rely on the Madden report should be refused because:
1. The plaintiff has given no explanation of any sort as to why it was delayed in serving the Madden report.
2. If the Madden report was allowed into evidence the defendants would be significantly prejudiced by not having a report in reply unless the trial was to be aborted to enable it to prepare such a report.
3. There are no exceptional circumstances demonstrated by the plaintiff in its application for leave short of saying that it may be left without any evidence as to quantum. That situation has been brought about by the plaintiff alone.
4. These proceedings were set down for trial nearly six months ago in circumstances in which the plaintiff knew it could not rely on any further evidence without seeking leave. The plaintiff must also have been cognisant that it would have to meet the requirements of r 31.28 of the UCPR to rely on a further expert report and yet no attempt was made until the first day of the hearing to do so.
5. The court cannot countenance parties ignoring orders that are made for the service of evidence and for the setting down of a matter for trial without consequence. While I am conscious that the failure of the plaintiff to obtain leave to rely on the Madden report may cause it an injustice, I do not consider that it has demonstrated any exceptional circumstances as to why the consequences of that injustice should not be visited upon it rather than on the defendants and the resources of the court which have been devoted to the hearing of these proceedings. I must put weight on the quick and cheap resolution of matters in dispute, not simply the justice of the circumstances.
6. As Black J said in Correa, in substance this is a case of a late retainer of an expert and the late service of that expert's report, which is not out of the ordinary course or special.
[5]
ORDERS
For the above reasons, I refuse to grant the plaintiff leave to rely on the report of David Madden dated 19 July 2024 as evidence in these proceedings.
[6]
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Decision last updated: 07 August 2024