Hannam v State of New South Wales

A brief chronology of events relevant to the application

1. The proceedings were commenced by statement of claim on 15 February 2019. While this matter has a long procedural history, I propose to summarise only the events relevant to the present motions.
2. On 31 May 2021, Bellew J made an order, amongst others, for the plaintiff to serve any remaining expert reports and witness statements by 25 June 2021, and for the defendant to serve any expert report and witness statements by 27 August 2021.
3. On 1 June 2021, the defendant's previous solicitor at Sparke Helmore Lawyers contacted Professor Kroll regarding the prospect of obtaining an expert opinion.
4. Meanwhile, the defendant's current solicitors at Wotton + Kearney took over the matter from Sparke Helmore Lawyers. On 6 July 2021, James Francis Clohesy of Wotton + Kearney filed a notice of change of solicitor to that effect.
5. On 14 July 2021, Bellew J varied the orders made on 31 May 2021 by extending the deadline for the plaintiff to 19 July 2021, and for the defendant to 20 September 2021.
6. On 2 August 2021, Ms Pereira of Wotton + Kearney sent an email to Professor Kroll requesting confirmation regarding his capacity to prepare a report.
7. On 12 August 2021, the plaintiff's solicitors wrote to the defendant's solicitors in response to the defendant's enquiry, to inform them that all of the plaintiff's witness statements with the exception of one outstanding statement had been served on the defendant. That final statement was served on 26 August 2021. No expert reports relating to the use of the device were served.
8. On 13 October 2021, Ms Pereira sent a letter of instruction to Professor Kroll to prepare a report.
9. On 7 and 14 February 2022, Ms Pereira sent further letters of instruction to Professor Kroll providing additional witness statements.
10. On 24 February 2022, Mr Clohesy served the Kroll Report on the plaintiff.
11. On 28 February 2022, Mr Samuel Tierney, a solicitor representing the plaintiff, sent a letter to Mr Clohesy raising objections to the defendant's reliance upon the report of Professor Kroll.
12. On 2 March 2022, Ms Pereira sent an email to Professor Kroll requesting that Professor Kroll prepare a supplementary report addressing several of the objections raised by the plaintiff.
13. On 4 March 2022, Mr Clohesy served the Supplementary Kroll Report on the plaintiff. It might be noted that this is the date of the extension sought by the defendant for service of the reports.
14. The hearing is set to commence on 9 May 2022 with an estimate of 30 days (although the plaintiff says this is an overestimate of the time required).

Legal principles

1. It is convenient to deal first with the notice of motion seeking an extension of time for the service of Professor Kroll's expert reports, in order to satisfy r 31.28 of the UCPR. This rule provides: 31.28 Disclosure of experts' reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3) (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).
2. In this motion, the fundamental issue is whether the Court is satisfied there are exceptional circumstances within the meaning of r 31.28. The determination of that issue requires careful consideration of the facts of the particular case. Each case is, of course, unique to its own facts.
3. In determining the question and the manner in which this particular rule applies, I must have regard to the provisions of the Civil Procedure Act 2005 (NSW) itself and, in particular, ss 56 to 60.
4. Section 56(1) provides that the overriding purpose of this 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. Subsection (2) provides that I must seek to give effect to the overriding purpose when exercising any power under the Act or the rules of court, and when I interpret any provision of the Act or of any such rule.
5. Section 57 provides: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
6. Section 58 provides: 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
7. Section 59 provides: 59 Elimination of delay (cf Western Australia Supreme Court Rules, Order 1, rule 4A) In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
8. Section 60 provides: 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
9. Consistent with the manner in which the various provisions interact is the idea that "case management is not an end in itself and cannot be used to supplant the aim of attainment of justice": ASIC v Rich [2005] NSWSC 706 at [58] per Austin J.
10. Clearly, a case such as this involves, as is common, balancing the various considerations of delay, cost and the facilitation of the just resolution of the issues. In the present case, the rules provide a requirement to establish exceptional circumstances. Exceptional circumstances might be established by one significant matter, or may be established by a combination of matters none of which, in isolation is exceptional or even unusual. The application of the test will be informed by the overarching objectives of the Act and rules.

Evidence at hearing

1. The defendant relied on an affidavit of its solicitor, Mr Clohesy, which set out the various steps taken on behalf of the defendant, and annexed relevant correspondence including the letters serving the reports of Professor Kroll. Those reports are discussed below.
2. Mr Clohesy was required by the plaintiff for cross-examination. The cross-examination did not significantly add to the evidence in documentary form. Mr Clohesy did accept that, while he ascribed the delay in the service of Professor Kroll's reports as, in part due to "difficulties in arranging conferences with police witnesses in order to finalise their evidence", statements of attending police officers setting out their recollection of events were in existence a short time after the incident, and were followed by an official report with respect to the incident.
3. The plaintiff relied on an affidavit from a solicitor acting on his behalf to the effect that, while enquiries were made, he had not been successful in obtaining an expert that could respond to Professor Kroll's report.

The expert evidence

1. Professor Kroll describes himself as a "biomedical scientist with a primary specialty in bioelectricity or the interaction of electricity and the body".
2. There are essentially three aspects to Professor Kroll's report relevant to the issues in the matter that the defendant would conceivably rely upon, namely: 1. To explain the apparent absence of the beginning of the audio visual recording taken by the Taser device; 2. To establish whether the device was successfully discharged so as to cause an electric shock to the plaintiff; and 3. To explain the effect of the successful discharge of the device upon the movement of the plaintiff.
3. As to the first issue, above, there was correspondence from the plaintiff's solicitor to the defendant's solicitor regarding the footage provided to the plaintiff being incomplete, it being less than the minimum 5 seconds that would be expected. Professor Kroll in his report states that he was able to analyse only 3.51 seconds of the recording "which is less than the programmed 5-second trigger pull" for the type of device used. I do not know whether that "programmed 5-second trigger pull" is a factory setting which can be modified and if so, how. Professor Kroll, however, explains what appears to be a discrepancy on the basis that the device "can require up to 2 seconds to boot up (after the weapon is enabled by turning the safety OFF"[)]. He says that the duration of the recording is "consistent with the typical boot up time for the camera" (emphasis added). It is, from this, not clear whether, according to Professor Kroll, it is the camera boot up which is delayed, allowing the possibility that up to 2 seconds is not captured while the device is actually operating, or whether the operation of the device itself is delayed, with the result that the recording commences on discharge of the device.
4. As to the second issue, Professor Kroll expressed the opinion that no electrical current was delivered to the plaintiff by operation of the Taser. His opinion is based, firstly on the sound recording of the incident (captured by the device itself as discussed above). Professor Kroll says the audio recording is more consistent with the sound signature produced in a situation where there is no electrical connection with the target. Professor Kroll provides a footnote to his own paper published on a website called researchgate.net. It is not clear how the potential absence of the first part of the recording affects this opinion.
5. Professor Kroll, additionally, relies on evidence that the paramedics did not find probe markings on the plaintiff's body. This is a reference to the probes discharged by the device on depression of the trigger. Two probes are released in the direction of the target in order to deliver the electric shock. Professor Kroll provides an opinion on when there will be delivery of electrical current to the target based on the landing position of the probes (ie, both on skin, both on clothing and one on skin, one on clothing). In the present case, he rules out either probe making contact with the plaintiff's skin based on the absence of evidence of marks on the plaintiff's skin. He does, however, acknowledge that a current is delivered where neither probe makes skin contact but the total gap between the probes and skin is less than 22.7 mm. He also states that this requires that both gaps are stable within about 11-12mm averaged between the two probes (consistent with a total gap of 22.7mm), but does not explain what is meant by "stable" in this context. He then further states, without reference to any foundation for the opinion, that this is "rarely occurring".
6. The combination of the "sound signature analysis" and the absence of evidence of probe markings led Professor Kroll to conclude there had been "no electrical current delivered" to the plaintiff and therefore no neuromuscular incapacitation of the plaintiff, as would typically result from a good connection.
7. Finally, Professor Kroll expressed the opinion that, even if a connection was made, the device would not have caused the plaintiff to involuntarily launch over the balcony. In relation to this issue Professor Kroll considered various potential positions of the plaintiff and expressed the opinion that the effect of the Taser device on the plaintiff's muscles would not have caused him to go over the balcony in any of the postulated scenarios.
8. Professor Kroll's supplementary report was provided to address his failure to include an acknowledgment of, or agreement to be bound by, the Expert Witness Code of Conduct. Professor Kroll expressly adopted the Code in the Supplementary Kroll Report and indicated that his earlier opinions did not change.

The defendant's conduct based on the issues apparent from the pleadings

1. Viewed from the perspective of the defendant's conduct of its case alone in the context of the pleadings, and putting to one side the extent to which the defendant's conduct was informed by its understanding of the plaintiff's reliance on expert evidence, the reasons for the defendant's delay are, in my view, far from exceptional.

The missing footage

1. It is convenient to deal first with the opinion as to the discrepancy between the programmed 5 second trigger pull and the length of the video and audio recorded by the device. The defendant has been appraised of this issue for some time. In a letter from the plaintiff's solicitor to the defendant's solicitor, dated 9 July 2020, he states: "We understand the Commissioner has taken steps to investigate whether the Taser footage produced to the Supreme Court of New South Wales in response to the subpoena is complete. Noting this matter is back before the Court on 15 July 2020 for directions, would you please advise us of the findings, if any, of those investigations?"
2. The letter attached a letter sent to the plaintiff's solicitor from a Mr Scott Taylor of Praesidium Risk and Resilience Pty Ltd, requesting the full video file from the device. The letter stated: "The current footage file provided does not appear to be complete as it does not include, at a minimum, one full 5 second cycle. Any additional footage from the Taser Unit, and potentially any Body Worn Camera footage should one of the Officer's attending have been issued with one, would greatly assist in the complete situational review."
3. It is clear from the above that the defendant was aware of the issue with respect to potentially missing footage from at least July 2020. Despite this, Professor Kroll was not approached until 2 August 2021, and no letter of instruction was sent to him until 13 October 2021.
4. Further, the foundation for Professor Kroll's opinion is not stated. If it is simply a matter of the manner in which the device operates, it can reasonably be expected that this will be set out in operational manuals for the device. These can also be presumed to have been in the hands of the defendant from the time of the relevant events given that the devices are provided to police officers. In this regard, I was told that the defendant has served a statement annexing the "product manual" for the device, although I was not told whether it specifically addresses any delay in the audio visual recording.
5. If Professor Kroll's opinion involves something more than the ordinary operation of the device, it is unclear on what basis Professor Kroll is able to give that opinion. Professor Kroll describes his primary specialty as bioelectricity (the interaction of electricity and the body). It is also, however, apparent from his report that he has significant experience with Taser type devices including experience with the particular model device used in the course of the event leading to these proceedings. Nonetheless, it remains necessary for him to provide a foundation for his opinion, which he has not done.
6. Ultimately, whether footage is missing, and if so the reason for it, is a somewhat peripheral issue. It is unlikely to be of significant assistance in determining what actually occurred leading to the plaintiff's fall from the balcony.

The effect of the discharge of the device

1. It is convenient to deal with the second and third aspects of Professor Kroll's opinion together given that both go to the issue of causation. Having regard to the issues identified in the plaintiff's statement of claim and further amended statement of claim, the defendant was well aware that causation was an issue in the proceedings. On 4 November 2019, the defendant served a statement of issues in dispute which indicated the following: " … (b) causation - whether the conduct of the police officers caused the plaintiff to go over the balcony …"
2. If the defendant wished to call expert evidence to prove either that the device did not administer an electrical charge to the plaintiff, or that, if it did, that electrical charge would not (or was not likely to) cause the plaintiff to fall from the balcony, steps could have been taken at this time.
3. The defendant attempts to explain the delay in obtaining a report from Professor Kroll on the following basis (as set out in the affidavit of the defendant's solicitor): "70.1 I considered that it was necessary for the Plaintiff to complete service of his expert and lay witness evidence prior to the State preparing and finalising and serving its lay witness and expert evidence. The delay by the Plaintiff in serving his lay and expert evidence hampered the State's ability to serve its evidence. 70.2 Difficulties in arranging conferences with police witnesses in order to finalise their evidence. In this respect, the police witnesses conferred with Counsel briefed for the State. Arrangements for these conferences needed to be made cognisant of the operational impact on serving police officers. The police officers could only be conferred with when they were rostered on to perform policing duties. The arrangements for conferences needed to also be made with regard to the operational impact of taking police officers away from their active duties. 70.3 The state-imposed lockdowns arising from the COVID-19 pandemic not only caused difficulty in meeting with witnesses, but also meant that police officers operational demands meant that they were deployed to enforcing the various COVID-19 related orders. 70.4 Counsel for the State needed to settle the witness statements, delays in that respect arose from the busy lead up to the Christmas break and Counsel's leave over the January period. 70.5 The State's expert evidence, particularly that of Professor Kroll, could not be finalised until such time as the State. had finalised its lay evidence. I considered it necessary that the State's experts have regard to the lay evidence in order to form their opinions based on the evidence that would be led for the State at trial. 70.6 The Plaintiff's vaccination status has meant delays in the State's finalisation of its medical evidence."
4. I do not accept that, as submitted by the defendant, it was necessary for the plaintiff to complete service of his lay and expert evidence before the defendant could obtain an expert. While the plaintiff was in the order of one month late in serving his evidence (based on the amended timetable) this cannot explain the extent of the defendant's delay. Waiting for the plaintiff to serve his evidence made it almost inevitable that the defendant would not be able to comply with the timetable set. The current solicitors' first contact with Professor Kroll, in fact, occurred on 2 August 2021, which was shortly prior to finalisation of the plaintiff's evidence. As it transpired, there was a delay of over six months between the first contact with Professor Kroll and the provision of his first report. It is plain that it would have been necessary to at least have matters in train far earlier, with a view to finalising any report after service of the plaintiff's evidence in order to comply with the timetable that had been set. These matters are to be seen in the context of the defendant's awareness from at least November 2019, noted above, that causation was in issue.
5. Nor do I accept that delays in relation to finalising statements from police witnesses justify the delay in obtaining the expert report. It is true that the statements to be relied upon in these proceedings were not, in fact, finalised until earlier this year. Whether delays in finalising those statements can be justified is not a matter I need to consider. I would, however, note that a simple assertion that delays were inevitably caused as a result of the COVID-19 pandemic is not easily accepted. While clearly, face-to-face meetings were not possible at various points in time, it is not at all clear that preparation of a case such as this would necessarily be hampered. While police may have had other duties, complying with requirements to provide statements was presumably part of their duties. Further, the interruptions to litigation resulting from the pandemic, if anything, added to the availability of lawyers for the purposes of case preparation.
6. The reality is, with respect to this issue, the defendant had access to a significant amount of information about relevant events very soon after the events themselves. As might be expected in the context of an incident such as the present, various police officers involved made statements or participated in interviews shortly after the event. A report of the investigation was prepared. While it appears that some of those interviews were protected and not necessarily available to the defendant in this litigation, it is difficult to accept that the State, with access to this material did not have a clear sense of what its case was likely to be. Even if, as the defendant states, the expert report could not be finalised until the lay evidence was finalised, this does not explain the delay. Had steps been taken earlier, Professor Kroll may have been in a position to finalise his report within a fairly short time on receipt of the final statements. Alternatively, a report could have been obtained, and supplementary report provided based on any material differences between factual assumptions provided for the first report and the finalised lay evidence.

Exceptional circumstances based on the conduct of the plaintiff

1. The real issue raised in this matter is, to my mind, whether the circumstances are exceptional on the basis that the defendant's failure to comply with the timetable can be properly understood, and justified, by the conduct of the plaintiff. In this regard, the defendant contends that it had at all times understood that the plaintiff would be obtaining expert evidence with respect to the issue of causation. The defendant maintains that it was in effect, taken by surprise, by the absence of such expert evidence in the plaintiff's case, and this change in the plaintiff's expected position caused it to act late.
2. The defendant in this regard stresses that it was only on, or relatively shortly after 12 August 2021 that it learned the plaintiff was not intending to call an expert in this area. The defendant further stresses that that understanding only came about as a result of an email sent by the defendant on 10 August 2021 enquiring whether the plaintiff had completed service of his evidence. In response to that enquiry, the plaintiff's solicitor advised on 12 August 2021 that the plaintiff was waiting on one further witness statement expected to be signed by the end of the following week, and that there were otherwise "no other witness statements or expert evidence to be served". While not entirely clear, the inference is that the one remaining statement was not that of an expert. In any event, the final statement was provided on 26 August 2021, and was not an expert statement.
3. I accept that the plaintiff had suggested to the defendant, at least the possibility if not the probability, that he would rely on expert evidence in relation to the event. As to the basis for this understanding, the defendant pointed to an affidavit of the plaintiff's solicitor, Mr Tierney, filed 21 October 2020 in support of two unrelated notices of motion, which provided at [44]: "Before the plaintiff's case on liability is complete the plaintiff wishes to obtain a report from Mr Taylor of Praesidium Risk Services as to the use of force by police during the Incident. As I understand that enquiries in relation to the missing TASER footage have now been completed, I intend to have that report commissioned on that basis."
4. The defendant further pointed to the plaintiff's outline of submissions filed 22 October 2020 in respect of one of these unrelated notices of motion which provided at [38]: "The plaintiff is not yet in a position to take a date for hearing on liability. Whilst it might suit the interests of the defendant to limit the scope of a hearing on liability, for example by ignoring the stated intention of the plaintiff to seek to adduce expert evidence on liability and nominating the number of witnesses likely to be called, it could hardly be said that circumscribing the case that the plaintiff seeks to advance on that basis meets the imperative of a just resolution of the case imposed by s. 56 of the Civil Procedure Act." (footnote omitted; emphasis added)
5. While indicating an intention to obtain expert evidence, little can be gleaned from the above as to the type of expert evidence the plaintiff might have been expected to call. Further, as set out above, the plaintiff had earlier sent a letter (on 9 July 2020) in relation to the missing video footage, attaching a letter from Mr Taylor of Praesidium Risk Services in which he said the footage "would greatly assist in the complete situational review". This, and perhaps the inclusion of "risk services" in the company name, is not suggestive of a deployment of expertise with respect to technical operational aspects of the Taser, or the impact of the discharge of such a device on the human body.
6. The expertise of Professor Kroll is very particular. It was perhaps accurately described by the plaintiff's senior counsel as "arcane". There is no basis to conclude that the defendant expected it to be directly responsive to any expert the defendant could have reasonably anticipated the plaintiff would call. The lateness of the report cannot be justified on the basis that the defendant expected it would be responding to the plaintiff's expert, either as to causation generally, or the functionality of the device, or the operation of the device on the night in question.

Prejudice to the plaintiff arising from the late service

1. By the time the first report was served it was approximately five months late. More importantly, there was, by that time only approximately two and a half months remaining before the hearing date, with a significant amount of time having been set aside for that hearing.
2. The plaintiff adduced evidence that enquiries were made with a view to obtaining a suitable expert to respond to the evidence sought to be led by the defendant, but without success. Further, while Professor Kroll would be available for cross-examination, that is of limited utility in ameliorating the prejudice to the plaintiff. This is particularly so in circumstances where the report is deficient in spelling out the assumptions or material facts on which (at least some of) the opinions were based and as to how the specialised knowledge was applied to those facts so as to produce those opinions: see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85], cited with approval by the majority in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37]. This, of course, casts doubt on the admissibility of some of the opinions expressed by Professor Kroll. Assuming the evidence were to be admitted, the plaintiff will be hampered by the absence of his own expert not only to give evidence responding to Professor Kroll, but to inform the plaintiff's cross-examination of Professor Kroll. In the event the plaintiff were to find himself cross-examining the expert to draw out further evidence of the reasoning process, he is likely to find himself ambushed by technical evidence he has little hope of properly analysing on the run. In such circumstances, there is considerable prejudice to the plaintiff.

Prejudice to the defendant

1. A denial of the defendant's motion will have the effect of preventing it from relying on the evidence of Professor Kroll. It is not clear that Professor Kroll is the sole source of information with respect to the operation of the video and audio recording of the Taser device. In any event, as I have observed above, this aspect of Professor Kroll's report goes to a somewhat peripheral issue. In contrast, the opinion of Professor Kroll as to whether the device discharged a current to the plaintiff and the manner in which the plaintiff's body would have responded had a current been discharged go to the central issue of causation. As became apparent in argument however, the plaintiff's case on causation is not based solely on the discharge of current to the plaintiff, or the discharge of current and a subsequent involuntary response in the plaintiff's body causing him to fall from the balcony. The plaintiff also relies on an alleged assault, without battery, or alternatively a battery without effective discharge of electrical current, as causative of the plaintiff's fall. In these circumstances, Professor Kroll's opinion would not be determinative of the issue of causation.
2. Further, the deficiencies in Professor Kroll's report with respect to a clear articulation of his reasoning process from his assumptions, make it difficult to determine the value of his evidence. In these circumstances, it is in turn difficult, to determine the prejudice to the defendant in excluding the report.
3. Ultimately, the plaintiff seeks to prove that his injuries were caused as a result of acts by police for which the defendant is liable. It is the plaintiff that bears the onus to prove causation. The defendant sought to obtain Professor Kroll's evidence on the understanding it may be required to counter expert evidence relied on by the plaintiff. In the event the plaintiff does not rely on expert evidence. If there is, resultantly, a gap in the plaintiff's case as to whether he was affected by the Taser, and as to the capacity of the Taser device to cause the type of involuntary movement that could have resulted in him going over the balcony balustrade, so be it. While it may be of advantage to the defendant to have Professor Kroll's evidence, the prejudice to the defendant, having regard to the issues and the onus of proof, does not rise to the level of exceptional circumstances, when weighed against the various competing considerations.
4. An alternative solution that potentially balances the interests of both parties, and accommodates the uncertainties as to the value of any evidence Professor Kroll would ultimately be able to give, would be to vacate the trial. This would allow for the deficiencies in Professor Kroll's report to be addressed, and give the plaintiff time to meet (or at least attempt to meet) the evidence. The defendant did not advance this as a fallback position. Rather, counsel for the defendant, very fairly, advised the Court that if it were a choice between keeping the trial date and the report, the preference was to keep the trial date.

Conclusion as to the first notice of motion

1. Having regard to the various matters set out above, I am not satisfied that the defendant has established exceptional circumstances within the meaning of r 31.28(4)(a) of the UCPR, as understood in the context of the objectives of the Act and the rules.

The Second Notice of Motion

1. The second notice of motion seeks an order pursuant to s 192A of the Evidence Act that the Kroll Report and Supplementary Kroll Report are admissible. The defendant's written submissions, while referring to both motions and providing some explanation for its delay, focused exclusively on the reasons I would give an advance ruling as to the admissibility of the report pursuant to s 192A. This appears to have been predicated on an assumption that if I were to make a favourable ruling under s 192A, the issue with respect to an extension of time under the UCPR would fall away.
2. Section 192A provides: 192A Advance rulings and findings Where a question arises in any proceedings, being a question about - (a) the admissibility or use of evidence proposed to be adduced, or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or (c) the giving of leave, permission or direction under section 192, the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.
3. Section 192A of the Evidence Act was enacted in response to the High Court's decision in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46. A majority of the High Court in that case held that neither the uniform Evidence Acts nor the criminal rules in the District Court Rules 1973 (NSW) conferred power to give an advance ruling as to how a discretion to exclude evidence will be exercised.
4. Section 192A was subsequently inserted by the Evidence Amendment Act 2007 (NSW) based on the recommendations of Australian, Victorian and NSW Law Reform Commissions. The legislative context of the provision suggests that its purpose is to allow courts to rule in advance on the admissibility of the content of the evidence sought to be adduced, and not to allow parties to, in essence, circumvent the UCPR by seeking a ruling for evidence to be admitted where procedural requirements under the UCPR have not been met: see also [16.97]-[16.109] of Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005). This is so notwithstanding that the discretion to make an advance ruling should be exercised having regard to the same case management principles outlined above: see Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473 at [9].
5. My determination in relation to the first motion has the result that it is unnecessary to consider the second motion. I pause to note that, for reasons referred to above, even if I were to determine the admissibility of Professor Kroll's opinions there is significant room for doubt as to whether the expressed opinions would be admissible within the exception to s 76 of the Evidence Act provided with respect to opinions based on specialised knowledge by s 79 of the Evidence Act.
6. In fairness to the defendant, I should note that counsel's oral submissions were properly directed on the extension of time, and in that regard focussed on the strongest argument available, that being the extent to which the defendant's conduct could be understood as responsive to the plaintiff's conduct of the litigation.
7. The second notice of motion should be dismissed.

Issue of costs

1. The plaintiff submits that costs should be awarded against the defendant on an indemnity basis. He relied on Hopeshore Pty Ltd v Melroad Equipment Pty Ltd (2004) 212 ALR 6; [2004] FCA 1445 at [35] in support of this submission. In Hopeshore, Branson J found that the respondent's solicitors had formed a view that an early mediation was not in their client's interests and "acted in a way calculated to defer the mediation that had been ordered by the Court". While the defendant did not inform either the plaintiff or the Court, prior to service, of its intended reliance on a report that had not been served in accordance with the timetable, I do not find that the defendant here deliberately acted in a way calculated to breach court orders in order to obtain an advantage. The reasoning in Hopeshore is not applicable.
2. The defendant in engaging Professor Kroll at the time it did, put itself in a position where it was almost inevitable that the report would be significantly late. Far from providing an advantage, the defendant put itself at significant risk that it would not be able to rely on Professor Kroll's reports. That risk has eventuated. I do not, however, find that the defendant has conducted itself in a way such that I should exercise my discretion to award costs on an indemnity basis.
3. The defendant submits that costs should be reserved, regardless of the outcome of this motion. The defendant contends in a supplementary submission filed with leave of the Court that the defendant's lateness should be viewed in the context of the overall proceedings and the plaintiff's lateness in the service of his evidence. However, the fact is the plaintiff has been required to expend funds to contest this motion, brought by the defendant as a result of its lateness in serving Professor Kroll's reports. The ordinary rule is that costs follow the event. That is the order that should be made in this case.

Orders

1. I make the following orders: 1. The motion filed by the defendant on 7 March 2022 seeking an extension of time pursuant to r 31.28(1) of the Uniform Civil Procedure Rules 2005 (NSW) in which to serve the report of Professor Mark W Kroll dated 20 February 2022 and the supplementary report of Professor Mark W Kroll dated 2 March 2022, is dismissed. 2. The motion filed by the defendant on 7 March 2022 seeking rulings pursuant to s 192A of the Evidence Act 1995 (NSW) that the report of Professor Mark W Kroll dated 20 February 2022 and the supplementary report of Professor Mark W Kroll dated 2 March 2022 is admissible in the proceedings, is dismissed. 3. The defendant is to pay the plaintiff's costs of the motions on the ordinary basis as agreed or assessed.

Amendments 14 April 2022 - Amendment to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2022