Hudson v NSW Rural Fire Service

Catchwords: TORTS – Compensation to relatives – case management orders made

Legislation Cited: Compensation to Relatives Act 1897 (NSW)

Cases Cited: Nil

Category: Procedural rulings

Parties: Noreen Miles Hudson (First Plaintiff)
Bowdoin Elizabeth McBeth (Second Plaintiff)
Abigail Catherine McBeth (Third Plaintiff)
Ella Marie McBeth bht Bowdoin Elizabeth McBeth (Fourth Plaintiff)
Calvin James Mcbeth bht Bowdoin Elizabeth McBeth (Fifth Plaintiff)
NSW Rural Fire Service (First Defendant)
Coulson Aviation (Australia) Pty Ltd (Second Defendant)

Representation: Counsel:
T Hickey (First Plaintiff)
A Campbell (Second, Third, Fourth and Fifth Plaintiffs)
N Newton (First Defendant)
G O’Mahoney / A Flick (Second Defendant)
Solicitors:
Law Advice Compensation Lawyers (First Plaintiff)
Robert Bryden Lawyers (Second, Third, Fourth and Fifth Plaintiffs)
McCabes Lawyers (First Defendant)
Norton White (Second Defendant)

File Number(s): 2023/00021307
2023/00021334
2023/00021368
2023/00021392
2023/00021423
2023/00021441

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. This matter came before me today pursuant to the motions filed by the plaintiff, Ms Hudson, in her matter and on behalf of each of the McBeth plaintiffs. The proceedings relate to a plane crash, which occurred on 23 January 2020 whilst the operator of the plane was engaged in aerial firefighting operations during the severe 2020 Australian bushfire season.

2. Sadly, while the particular Lockheed aircraft was involved in aerial firefighting, the plane crashed, leading to the tragic loss of life of all three members, Rick DeMorgan Jr, Paul Hudson and Ian McBeth.

3. Ms Hudson, an American citizen, is pursuing proceedings in this Court for damages under the Compensation to Relatives Act 1897 (NSW); as is Ms McBeth, who is pursuing a Compensation to Relatives Act claim and a nervous shock claim. Each of her children are also pursuing nervous shock claims.

4. The matter has a lengthy history. It is obviously one of significant complexity, difficulty and gives rise to important issues. In any event, there has been a significant delay in the preparation of the case for hearing resulting in the Common Law Registrar making orders for the service of expert evidence by the plaintiffs and requiring the plaintiffs to obtain leave of the Court should they not serve their reports in time.

5. As it turns out they did not serve their reports in time and in fact they have not finalised the service of their expert reports. The reason for this is said to be mainly that, as a result of a conflict between the Hudson party and the McBeth parties, there needed to be new solicitors appointed so that the Hudson party and the McBeth parties have now gone their separate ways and have retained different sets of solicitors.

6. Those solicitors say independently of each other that, firstly, they have had difficulty getting the former solicitor's file; secondly, certain steps have been taken to obtain expert reports but they have not yet come to fruition; and, thirdly, at least on behalf of the McBeth parties, further documents are needed before their expert reports can be finalised.

7. The defendants candidly take the position they do not oppose the late service of the reports but are concerned that appropriate directions be put in place to ensure the matters move forward efficiently and the plaintiffs serve their reports as soon as possible. Of course, the reason they do not oppose is because the plaintiffs, as yet, do not have any expert reports and everyone acknowledges that unless the plaintiffs be granted leave to serve expert reports then the case is essentially over.

8. In all these circumstances, I am satisfied that leave should be granted to the plaintiffs to serve their expert reports on liability.

9. I anticipate that each plaintiff will only have one expert report but, as already articulated by Mr Hickey on behalf of the Hudson party, it may be necessary to have two; one as against each defendant. However, I emphasise that I will need to be convinced as to the need for two reports rather than just one expert report.

10. In the circumstances the orders sought in both motions are granted, and leave is granted to both plaintiffs to serve expert reports on liability.

11. I will make case management orders to ensure the matter proceeds efficiently. I will list the matter for hearing. I will reserve costs of today. I formally set aside the subpoenas served by the McBeth parties on the first defendant and a notice to produce served.

12. I have regard to the fact that I have directed the plaintiff simply write to the defendant seeking copies of documents. There is now a procedure in place for the parties to provide documents.

13. I make the following orders:

14. The orders made by the Registrar on 6 December 2024 are vacated.

15. The plaintiffs are granted leave to serve any expert reports on liability on which they seek to rely by 12 September 2025.

16. Should any defendant object to those reports (on any grounds other than admissibility grounds), that defendant is to write to the plaintiffs by 26 September 2025 informing them of their objections.

17. The plaintiffs are to serve any additional lay statements on which they intend to rely by 26 September 2025.

18. The plaintiffs are to serve any additional quantum evidence on which they intend to rely by 26 September 2025.

19. List the matter for case management before Cavanagh J on 3 October 2025.

20. The defendants are to serve any expert evidence on which they seek to rely by 23 December 2025.

21. If the defendants ascertain that they will be incapable of complying with that order, they should say so on 3 October 2025.

22. List the matter for hearing on 22 June 2026 with an estimate of 10 days.

23. Set aside the subpoenas and notice to produce served on the first defendant.

24. The plaintiffs are to write to the solicitors for each defendant itemising and requesting copies of any documents they say they do not have and maintain they should be in the possession of each defendant by 4 July 2025.

25. Each defendant is to respond to that letter by 5pm on 11 July 2025 either by:

(a) providing copies of the documents in hard or digital form; or (b) indicating why they will not produce the documents; or (c) serving a copy of the brief of evidence and indicating where they are in the brief.

13. The costs of today are reserved.

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