Mark Anthony CHITTS v Dr Sadek HAMIED

1. It occurs to me that there is no practical utility in the parties attending mediation while the issue to which this Notice of Motion relates is resolved. There are civil sittings at of the Court at Wagga Wagga in August 2023 and in November 2023.

Relevant Rules and Legislation

1. Part 31.17 of the Uniform Civil Procedure Rules 2005 (UCPR) provides: 31.17 Main purposes of Division The main purposes of this Division are as follows - (a) to ensure that the court has control over the giving of expert evidence, (b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings, (c) to avoid unnecessary costs associated with parties to proceedings retaining different experts, (d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court, (e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings, (f) to declare the duty of an expert witness in relation to the court and the parties to proceedings.
2. Part 31 rule 28 provides: 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).
3. Rule 31.28(4) is in mandatory terms. Leave is not to be granted unless the Court is of the opinion that there are exceptional circumstances.
4. Both counsel in their oral submissions referred to sections 56 to 58 inclusive of the Civil Procedure Act, 2005. It occurs to me that s 59 is also relevant. For the sake of completeness those provisions are: 56 Overriding purpose (1) The overriding purpose of this Act and of 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. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3) - (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person - (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. Note - Examples of persons who may have a relevant interest are insurers and persons who fund litigation. (7) (Repealed) 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). 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. 59 Elimination of delay 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.

Evidence

1. Mr Hogan on behalf of the applicant defendant read an affidavit of Michael Swan, a solicitor at Avant Law, the solicitors acting for the defendant, which was sworn or affirmed on 17 March 2023, the same date as the Notice of Motion. That affidavit (exhibit 1 on the hearing of the Notice of Motion) sets out in detail the procedural history of the matter. Consent orders were made on 24 November 2021, 6 April 2022, 17 August 2022, 23 January 2023, and 1 March 2023. Paragraph 17 of that affidavit sets out the history of non-compliance by the parties. It appears that apart from the matters to which this Notice of Motion relates the defendant has largely complied with the timetable and orders.
2. Mr Swan sets out at paragraph 24 of his affidavit that the plaintiff filed a breach report from a Dr Alan Hopcroft, a general surgeon of orthopaedics. He goes on (para 25 and continuing) to set out that from October 2021, Michelle Graham of Avant Law had the day-to-day conduct of the matter. She organised a liability expert report from Dr Diedre O'Dea. On 27 June 2022 the plaintiff served a further report in reply to Dr O'Dea from Dr Hopcroft. The plaintiff was to serve liability evidence in reply by 6 May 2022.
3. It then appears (para 27) that Ms Graham went on maternity leave and "…due to capacity issues in our team unfortunately the matter was not attended to closely until the new year". With respect to the deponent that statement appears to a euphemism for "no-one quite got around to doing anything with the file until the new year". It occurs to me that a member of staff going on maternity leave is something that would not take an employer by surprise as it would have been organised in advance.
4. A little later at para 35 of his affidavit Mr Swan sets out: "Ms Muscio was employed to cover Ms Graham's maternity leave and commenced work in December 2022. I was supervising Ms Muscio's files during this hand over and continue to be the supervising solicitor on the file but unfortunately due to file load I did get behind on some tasks".
5. In any event on 27 January 2023 Ms Muscio of Avant Law, who had taken over day to day carriage of the matter, sent a further letter of instruction to Dr O'Dea requesting clarification on comments made in her initial report. What is described by the deponent as a supplementary report was provided on 7 February and served on 17 February 2023. The reason for the delay of 10 days between receipt and service is not explained.
6. Paragraph 34 of the affidavit notes that on 28 November 2022 Ms Graham received instructions to serve Dr Dalton's report and she commenced maternity leave on that same day.
7. Copies of the correspondence and reports referred to within the body of the affidavit are annexed as exhibits to the affidavit.
8. Mr Inglis on behalf of the plaintiff read two affidavits of Tonya Longmore, his instructing solicitor. The affidavits were sworn or affirmed on 1 June 2023 and 5 June 2023 (exhibits 2 and 3 respectively on the hearing of the Notice of Motion). Essentially the earlier affidavit repeats the procedural history of the matter. The later affidavit does not appear to advance the matter.
9. However at paragraph 19 of that affidavit Ms Longmore sets out that the report of Dr Dalton was served 12 weeks after the expiry of the extension for service of the defendant's quantum evidence. Further, she sets out that at no time was her office advised that the defendant intended to serve a further report on quantum after the expiry of an order made on 17 August 2022. She maintains that the evidence of the opposing party does not amount to "exceptional circumstances".
10. A similar complaint is made a paragraph 23 relating to the second report of Dr O'Dea. Ms Longmore maintains that at no time prior to the service of the report nor in correspondence prior to the status conference on 1 February 2023 did the defendant notify the plaintiff's solicitors that they were intending to serve a further liability report.
11. At paragraph 24 of exhibit 2 Ms Longmore maintains that the second report of Dr O'Dea raised new issues not previously raised in the defendant's evidence. The affidavit goes on to say (para 25) that the second report introduces significant new material including a meta-analysis carried out by the American Association of Orthopaedic Surgeons in relation to compression fracture. The study post-dates the plaintiff's injury by 4 years. Ms Longmore maintains (para 26) that the second report raises additional opinions in relation to the actions of the defendant and other medical practitioners.
12. Ms Longmore maintains, correctly it seems to me, that if the "new" evidence is admitted the plaintiff will be required to obtain significant additional evidence concerning the matters not contained in the initial report.

Submissions

1. I do not have a transcript of the oral submissions. Given the issues, it occurred to me that there was some urgency to this decision. I took submissions on the same morning as I commenced presiding over a criminal trial involving allegations of sexual assault. These reasons have been prepared while that matter was proceeding.
2. Mr Hogan on behalf of the applicant defendant put that the disputed reports are critical to the defendant's case. It occurs to me that there is some real substance to this submission, particularly so far as the report of Dr Dalton is concerned. Without that report the defendant would essentially be left without any evidence as to the issue of quantum.
3. The submissions continued that the chronology illustrates two important matters namely that the defendant has been compliant with timetables set for the filing and service of material and secondly the matter has not been set down for hearing.
4. It was further put by Mr Hogan that the report of Dr Dalton was served three months out of time but it goes to the issue of rehabilitation. This submission continued that the plaintiff's expert could quite easily respond if given additional time. A similar submission was made in respect of Dr O'Dea's second report. Noting the matter has not been yet listed for hearing there is also some substance in these submissions. Mr Hogan went on to submit that the opinions expressed by Dr O'Dea in the two reports are not different in substance.
5. Mr Hogan emphasised in his oral submissions, or at least as I understood the submission, that so far as Dr O'Dea's second report is concerned it merely updates an earlier report it was earlier served. In this regard the second report is not merely an update of an early report but does include new material.
6. The reason for delay in service of the report was then addressed by Mr Hogan with him emphasising the change of solicitor, with the initial solicitor who had carriage of the matter going on maternity leave and the backlog of work. As I indicated earlier, a member of a firm or organisation going on maternity leave would not come as any surprise to the management of that firm or organisation as it is something that is organised in advance. In this regard I note what was said by my colleague Judge Wilson SC in Gershowitz v Kaye [2021] NSWDC 128 at [24], namely: "In applying the rules, whether it be UCPR 1.12 or UCPR 31.28 the Court must have regard to the overriding purpose set out in s 56 of the Civil Procedure Act 2005 (NSW) (CPA) that is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. By reason of s 56(4) the solicitor and barrister for the Plaintiff had an obligation to ensure that, by their conduct, the proceedings do not breach the overriding purpose".
7. Mr Hogan then took me to another decision by another colleague, namely the decision by his Honour Judge Mahony SC in Gulab Khan v Matthew Rathjen (No. 2) [2016] NSWDC 140. A distinguishing factor in that case is that the disputed report, which his Honour ultimately admitted, was served after the matter had been set down for hearing. The matter presently under consideration the matter has not been set down for hearing.
8. Counsel for the applicant defendant submitted that the dictates of justice favour the grant of leave noting the following matters: 1. The reports are essential to the defence case on both liability and quantum; 2. The plaintiff has already engaged a rehabilitation physician who can expand on the report of the plaintiff's expert, Dr Balla, which has been served. Further, the plaintiff has his own liability expert who can reply to the second report of Dr O'Dea; 3. The defendant has otherwise been compliant with timetable directions; 4. The granting of leave will not lead to any significant forensic disadvantage given the matter has not been set down for hearing; 5. To the extent that there is any prejudice that can be remedied by a slight amendment to the existing timetable; and 6. The matter could be listed for hearing in the August or November 2023 civil sittings of the District Court at Wagga Wagga.
9. I will initially deal with that last submission. Reading the report of Dr Dalton it occurred to me that there may be some issues with the plaintiff travelling from Narrandera to Wagga Wagga, a distance of approximately 100 kms, to give evidence. It also occurs to me that given the contents of the medical reports I have read for the purpose of these reasons, that it is not beyond the realm of possibility that special arrangements will need to be made for the plaintiff to give evidence by audio visual link or alternatively the court sit in Narrandera for the purpose of taking the plaintiff's evidence. The suggestion that the matter could be ready for final hearing in the August 2023 civil sittings is utterly unrealistic.
10. Further, I note from Dr Dalton's report that he attended upon the plaintiff at the plaintiff's residence in Narrandera. The plaintiff in particular but also his legal advisers would have been well aware of that attendance and moreover that a report would be forthcoming.
11. I accept that the remaining five matters have some substance and they are not submissions that can be readily dismissed, particularly noting that the matter has not yet been listed for hearing.
12. Mr Inglis also made comprehensive and helpful submissions. The opening submission by counsel for the respondent plaintiff (at least as I understood the submissions) was that the applicant defendant had to demonstrate exceptional circumstances and further, that the matters raised by his opponent neither individually nor in combination amounted to exceptional circumstances.
13. Although the matter was not fixed for hearing, Mr Inglis submitted, correctly, that the matter had been set down for mediation. My note and memory is to the effect that the submission continued that the defendant should have been focussed on progressing the matter to mediation. A little later counsel emphasised that the mediation had been delayed because the issue to which this Motion relates.
14. Further, Mr Inglis submitted that the solicitors acting for the applicant defendant have had ample opportunity to attend to the delay that occurred as a result of the solicitor who initially had carriage of the matter going on maternity leave.
15. Mr Inglis then went into some detail of the reports demonstrating that the second report of Dr O'Dea is more than an update report in that it contains new material and material not contained in her earlier report.
16. Counsel for the respondent plaintiff went on to emphasise s 56 of the Uniform Civil Procedure Act and in doing so emphasised the words, "just, quick and cheap". Referring me to the decision of Gershowitz v Kaye to which I earlier referred, counsel submitted that the law is quite clear: The Rules require exceptional circumstances to be shown if a party is to be permitted to rely on an expert's report that is served out of time. I note, however, in that decision the Motion was argued before his Honour Judge Wilson SC of this court on 1 April 2021 and the matter was listed for hearing on 31 May 2021.
17. The submissions continued that the plaintiff has already been delayed and if the disputed reports are allowed into evidence the plaintiff will be further delayed as further enquiries will need to be made. Further, if the disputed reports are admitted, clearly the respondent plaintiff will require further experts' reports. I accept both of those submissions.
18. Mr Inglis submitted that so far as the applicant defendant relied on the second leg and the general provision of the interests of justice, it was put that the circumstances of this case do not support that. Further, to allow the applicant defendant to rely on the disputed reports would create an injustice to the plaintiff. In this regard I accept that at present without the admission of the disputed reports the plaintiff is in a superior forensic position.

Further consideration

1. I have made the heading "Further consideration" as I have dealt with the submissions made by the parties when summarising those submissions.
2. "Exceptional circumstance"s is a concept I recently had cause to consider in a criminal matter involving Commonwealth legislation. In DPP (Cth) v French [2023] NSWDC 174 at [79] I set out: "In the Crown appeal of R v Tootell; ex parte The Attorney General [2012] QCA 273 at [18]-[20] the Court (Holmes & Fraser JJA, Henry J) said: '[18] The Penalties and Sentences Act does not attempt to define or confine what amounts to "exceptional circumstances". This statement of what the adjective means, taken from R v Kelly (Edward), (which has been applied in decisions of this Court dealing with the expression as it appears in the Dangerous Prisoners (Sexual Offenders) Act 2003) is helpful: 'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.''"
3. I note that his Honour Judge Mahony SC in Gulab Khan v Matthew Rathjen (No 2) to which I have earlier referred also (at [10]) referred to the decision of R v Kelly [2000] 1 QB 198.
4. I have carefully considered the comprehensive submissions by Mr Hogan for the applicant defendant. I have also considered the comprehensive submissions by Mr Inglis for the respondent plaintiff. I accept that reasonable minds may differ as to whether what is relied upon by the applicant defendant amounts to exceptional circumstances. I note and have regard to all of the matters raised by and relied on by the applicant defendant (see [24] of these reasons) but two matters in particular occur to me. Firstly, without the disputed reports the defendant is left with little or no case on the issue of quantum. As best as I can determine there are very live issues with liability as well as quantum. Both parties should be in a position to have the real issues determined as best as possible. The second matter is that the matter has not been listed for hearing. It seems to me that if both parties give this matter the appropriate attention there is no reason the matter could not be listed for final hearing at the civil sittings in November 2023 at Wagga Wagga. In all of these circumstances I am satisfied that there are exceptional circumstances and accordingly the defendant should be permitted to rely on the disputed reports. I indicate that although I have found exceptional circumstances it was in my view a borderline case. I suspect my decision would have been different had the matter been listed for hearing.
5. I must also consider the interests of justice noting the statutory provisions of s 56ff of the Civil Procedure Act.
6. I have also had regard to the decision of Cavanagh J in Addison v BHP Biliton Iron Ore Pty Limited [2019] NSWSC 1433. His Honour dealt with an issue similar to the one in the matter presently under consideration. His Honour said at [18]: "The next critical factor is that any order I made should be made consistently with ss 56, 57 and 58 of the Civil Procedure Act 2005. Specifically, the Court must follow the dictates of justice in making any orders. I accept that the defendant may be put to the trouble of obtaining a new report but at least in my experience that is not an unusual occurrence in these types of matters and there is ample opportunity for the defendant to do so before any hearing date".
7. Without the report of Dr Dalton, which the plaintiff and his legal advisers must have been expecting, noting the visit by Dr Dalton to the plaintiff's residence, the applicant defendant would be left with little if any case on the issue of quantum. It seems to me that the admission of the disputed reports is necessary to ensure that there is fair hearing on the relevant issues in accordance with the overriding purpose and objects set out in s 56ff of the CPA. There is some substance to the submission that the defendant has been otherwise compliant with the timetable orders. It follows that the applicant defendant should be given leave to rely on the disputed reports.
8. Although the applicant defendant has been successful, I am firmly of the opinion that the defendant should bear the costs of this motion. The motion was necessary because of inadequate file management and supervision in the office of the defendant's solicitors. Some personnel at Avant Law should engage in some introspection as to the manner in which this matter was managed. In the circumstances of this matter it is difficult to be critical of the respondent plaintiff opposing the Motion. I have no note or memory of either counsel making any submission as to the costs of this Motion.
9. Mr Hogan handed up draft Short Minutes of Order. Those orders provided for the following: 1. Pursuant to Rule 31.28(4) the defendant is granted leave to rely on the reports of Dr Deidre O'Dea dated 7 February 2023 and Dr Seamus Dalton dated 31 October 2022; 2. The plaintiff is to serve any reports in reply to those referred to in order (1) by 10 July 2023; 3. Time for the parties to participate in a mediation is extended to 31 July 2023; and 4. If it is not resolved at mediation the matter to be listed for a hearing in the District Court of NSW sittings at Wagga Wagga commencing 14 August 2023 with an estimate of 3-4 days.
10. I do not resile from what I said earlier about the prospect of this matter being ready for final hearing by 14 August 2023 being utterly unrealistic. With respect to Mr Hogan the time allowed for the plaintiff to reply to the disputed reports is also unrealistic.
11. I propose the following: 1. Pursuant to Rule 31.28(4) the defendant is granted leave to rely on the reports of Dr Deidre O'Dea dated 7 February 2023 and Dr Seamus Dalton dated 31 October 2022. 2. The plaintiff is to serve any reports in reply to those referred to in order 1 by 31 July 2023; 3. Time for the parties to participate in mediation is extended to 31 August 2023; 4. If the matter is not resolved at mediation the matter is to be listed for hearing at the civil sittings of the District Court of New South Wales at Wagga Wagga on 20 November 2023 with an estimate of 3 to 4 days; 5. The applicant defendant to pay the costs of and incidental to this Notice of Motion.
12. I will not make final orders in the event that the parties wish to be heard on the proposed timetable. I wish to make it clear to parties that I will not countenance any further argument on the subject of this Motion beyond the proposed timetable i.e. proposed orders 2, 3 and 4.
13. If the parties do not contact my Associate by 4 pm on Tuesday 13 June 2023 the orders will be as I propose.

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: 28 November 2023