Solicitors:
Di Lizio & Associates (Plaintiff)
BBW Lawyers (First Defendant)
HBA Legal - Sydney (Third Defendant)
File Number(s): 2021/225076
[2]
EX TEMPORE REVISED Judgment
The first defendant's Notice of Motion filed on 9 August 2023 arises in proceedings commenced on 6 August 2021 by which the plaintiff sued the first defendant, Savills (NSW) Pty Ltd, alleging negligence arising out of a slip and fall near the Coles Pyrmont store on 6 August 2018. A second defendant was joined to the proceedings on 8 March 2022, but the plaintiff no longer wishes to proceed against that second defendant as the first defendant nominated an incorrect cleaning company in relation to the cleaning of the area where the plaintiff allegedly fell. By a Further Amended Statement of Claim filed on 2 September 2022, the third defendant was joined, the third defendant being a cleaner engaged in relation to cleaning the area where the plaintiff allegedly fell. Cross-claims have been filed between the first defendant and the third defendant.
The Notice of Motion filed by the first defendant on 9 August 2023 seeks an order pursuant to s 192A of the Evidence Act 1995 (NSW) that the reports of Mr Ian Burn dated 31 March 2023 and 19 April 2023 are inadmissible at the trial due to start on 28 August 2023 and listed for three days of hearing. Section 192A of the Evidence Act is as follows:
"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."
Mammo v Savills [2023] NSWDC 332 | Case summary | Zoe
Section 192A is headed "Advance rulings and findings". That provision was inserted into the Evidence Act after the decision of the High Court in TKWJ v The Queen [2002] HCA 42; (2002) 212 CLR 124 which cast doubt upon the ability of any Court to give an advance ruling about the admissibility of evidence. It has been said that the provision confers an open-ended discretion on the court to give a ruling or make a finding in relation to evidence before the evidence in question is adduced in the proceedings, and general considerations supporting the making of an advance ruling would include serving the interests of justice by adding to the overall efficiency of the trial.
It has been held that an advance ruling will allow a party to know if it is prevented from adducing the evidence, which is a matter of obvious relevance to the trial preparation and an assessment of the strength of the case. The reference for that proposition is Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCA 124 at [29].
The two reports of Mr Burn, the subject of the motion, are expert reports in relation to the characteristics of the area where the plaintiff alleges he fell and in relation to the overall question of whether there was a breach of duty of care by either or both remaining defendants. The evidence in support of the motion is found in the affidavit of Michael Connelly, solicitor, which I have marked as DX1.
Mr Connelly sets out the procedural history of the matter and identifies five previous directions of the court requiring the plaintiff to serve expert evidence by a certain date. Each of those directions has been breached. The first direction concerning the service of expert evidence was made on 29 September 2021 by the Judicial Registrar who required the plaintiff to serve expert liability evidence by 23 December 2021. The second direction the subject of a breach was made by the Judicial Registrar on 8 March 2022 when the Judicial Registrar required the plaintiff to serve liability expert reports by 15 April 2022. The third breached direction was made on 17 May 2022 when the Judicial Registrar required the plaintiff to serve liability reports by 15 June 2022.
After that direction was made, the solicitor for the plaintiff provided in an affidavit an explanation about the difficulties of obtaining a liability report from Mr Burn. That solicitor said:
"I have requisitioned a liability report from Mr Ian Burn. The release of this report has been delayed as Mr Burn informed me on 18 August 2022 that he has had to take some leave in order to care for his brother-in-law who had recently been diagnosed with cancer. However, he also advised me that he would have no difficulty providing this report by 30 September 2022."
The fourth direction for the provision of expert evidence was made by the Judicial Registrar on 28 June 2022 when the Judicial Registrar required the plaintiff to serve liability reports by 11 August 2022. The fifth direction was made on 11 October 2022 by the Judicial Registrar who made this order:
"Plaintiff to complete service of expert medical and expert liability evidence by 11 November 2022, after which the plaintiff may not rely on any further evidence without leave of the Court."
That direction has been breached and no leave has been sought to rely upon the two reports of Mr Burn which were obtained and served well after that time expired. The order made by the Judicial Registrar on 11 October 2022 is commonly known as a "guillotine order".
Writing extrajudicially, Black J of the Supreme Court of New South Wales, in a paper entitled "Case management: Innovations and Obstacles" delivered at the Sixth Judicial Seminar on Commercial Litigation held between 14 and 16 February 2019, said this:
"Whether the Court should permit late evidence involves weighing, on the one hand, of the claims of individualised justice in a particular matter, having regard to the detriment to the party in breach if evidence is excluded, and the detriment to the innocent party if it is admitted. There may be a question as to the weight which ought to be given to the demands of integrity in case management orders generally, lest the utility of qualified guillotine orders is lost if parties believe leave for late evidence is always available. The Court may well decline leave to read a later affidavit where doing so would cause prejudice to the other party, particularly if that prejudice cannot readily be accommodated by an order for costs or an adjournment, for example, where allowing that affidavit to be read would require an adjournment of the final hearing where a matter involves any degree of urgency."
In this matter, the detriment to the plaintiff if the plaintiff cannot rely upon the Burn reports has to be assessed having regard to the content of those reports. They are both annexed to the affidavit of Mr Connelly, DX1. The first report expresses its conclusions on p 45 of DX1.
The conclusions of Mr Burn are these, based on instructions provided:
"(a) The plaintiff slipped and fell suffering injury due to slipping after encountering debris lying on the wet common area floor when he inadvertently stepped on debris (a confection wrapper) as he approached the entrance to the Pyrmont Coles store."
That conclusion is not a matter of expert evidence or expertise, but, rather, is a summary of the instructions about what evidence the plaintiff will give at trial. The next conclusion is:
"(b) The floor area was wet as it was open to the weather during building works."
That too is not a matter of expertise but is a recitation of evidence which the plaintiff could give at the trial. The third conclusion is:
"(c) The debris had been present for a significant period of time having not been removed by either contracted cleaning service ES or a of Coles works".
I am not at all sure what that phrase "ES or a of Coles works" means, but I fail to see how Mr Burn could say that the debris had been present for a significant period of time. On p 44 of DX1, Mr Burn deals with the cleaning regime and he annexes as figure 9 a cleaning specification for retail mall areas. Mr Burn says no details have been instructed on any system in place used to monitor the frequency of cleaning inspections, stated as 30 minutes non-peak time and 15 minutes during lunch peak time. Nor were any details provided to indicate the opening hours of the common area where the plaintiff slipped, or whether after hours cleaning inspections were still maintained at 30 minute intervals.
Evidence would be required to determine the specific cleaning regime practised at the time and whether the building works instructed as occurring at the time impacted on the effectiveness of the cleaning services provided. Those matters could well be matters of evidence which could be called at the trial either from the plaintiff or from other lay witnesses to establish matters of fact. Mr Burn has never been provided with any subsequent instructions on those matters and in the light of that, I fail to see how he could offer the opinion that the debris had been present for a significant period of time. That may still be established by other evidence at the trial even if the reports of Mr Burn are excluded.
The matter of expertise upon which Mr Burn does offer an opinion is this:
"The floor finish used in the common area of ground concrete surface with exposed aggregate would, if clean and free from debris/rubbish, be considered to be safe for pedestrians even if wet."
Thus, this is not a case where there was inherent characteristic of the floor which made it unsafe for shoppers to traverse the common area. This case turns upon what the evidence will be on a lay matter, not an expert matter, which is how long this debris was on the floor or is likely to have been on the floor. I therefore cannot see any great detriment to the plaintiff if the Burn reports are excluded.
I turn to consider detriment to the first defendant and, as it would be logical, the third defendant. If the Burn evidence is admitted, it leaves the defendants in a difficult position. The Judicial Registrar made a later direction that the defendants serve any expert liability material by a particular date. The defendants, for obvious forensic reasons, have chosen not to serve any expert evidence because there is no liability evidence which the plaintiff will be entitled to tender at trial. The direction to which I refer was made on 6 April 2023 by the Judicial Registrar, who directed the defendants to serve expert liability reports by 19 May 2023.
It stands to reason that the decision of the defendants not to obtain or serve expert liability reports was one made against the background of the plaintiff not having leave to rely upon the Burn reports and not having sought such leave. If I were to give an advance ruling that the plaintiff could rely upon the Burn reports, that would mean the defendants would face a trial in a matter of two weeks time where they had made a deliberate and considered decision not to obtain liability expert evidence. One cannot predict the course of any trial and it could well be the defendants were disadvantaged by their common sense decision not to obtain expert liability reports.
As Mr Lee has put it this morning, there could well be the need to apply to vacate the trial date if the Burn reports are now allowed or if I do not give an advance ruling forbidding their use at the trial, and that would mean that court time had been wasted, three days being set aside, but more importantly would mean that the costs of both defendants of setting aside time for the trial, retaining witnesses to attend at trial and retaining lawyers to prepare for trial would be largely wasted. The detriment to the defendants if I do not give the ruling sought by the first defendant is obvious.
I am not convinced that the plaintiff would have to show exceptional circumstances in order to obtain leave but that is a moot question as the plaintiff has not sought leave to rely upon the Burn reports.
I do think it appropriate that I make orders under s 192A of the Evidence Act with a view to ensuring the trial can go ahead so that costs are not wasted and the defendants, who are ready, can proceed to trial. On my analysis of the Burn reports, there may be little if any disadvantage to the plaintiff anyway in proceeding to trial.
There is another reason why it is appropriate to consider the making of an advance ruling. Putting aside the guillotine order and the non-compliance with it, as Mr Lee has pointed out in his written submissions, r 31.28 of the Uniform Civil Procedure Rules applies in the circumstances. That requires each party to serve expert reports in accordance with any order of the Court and it says that: "Except by leave of the court, an expert's report is not admissible unless it has been served in accordance with this rule". No leave has been sought to this point under that rule to rely upon the late served expert reports. It is not a satisfactory approach to turn up to the hearing and seek leave from the trial judge.
Again, I think it is appropriate, no leave having been sought, to give an advance ruling right now about whether or not the plaintiff can use the Burn reports at the trial.
For the reasons that I have already given in relation to the competing detriments to each party, I propose to make orders which I will now formulate. My orders are as follows:
1. Order pursuant to s 192A of the Evidence Act 1995 (NSW) that the plaintiff cannot tender or otherwise rely upon the reports of Mr Ian Burn dated 31 March 2023 or 19 April 2023 at the trial of these proceedings listed to commence on 28 August 2023.
2. Order the plaintiff to pay the first defendant's costs of and incidental to the notice of motion filed on 9 August 2023.
3. Reserve for later determination the question of whether those costs should ultimately be borne by the plaintiff's solicitor personally.
[3]
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Decision last updated: 22 August 2023