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Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Capic v Ford Motor Company of Australia Limited (Late Evidence) [2020] FCA 1117
Exploration NL (1988) 165 CLR 268; [1988] HCA 13
FAI General Insurance Co Ltd v Southern
Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130
Lam v Liu [2025] NSWCA 254
Pell v Hodges [2007] NSWCA 234

Category: Procedural rulings

Parties: John Graham Martin (plaintiff)
STBAUS Pty Ltd (defendant)

Representation: Counsel:
Mr G Smith (plaintiff)
Mr S Walsh (defendant)
Solicitors:
Lough & Wells Lawyers (plaintiff)
Barry Nilsson (defendant)

File Number(s): 2022/00180766

Publication restriction: Nil

JUDGMENT EX TEMPORE

Introduction

1. These reasons deal with a contested application brought by the defendant to rely upon late-served expert evidence in personal injury proceedings that are listed for hearing on 10 August 2026.

2. The application has generated a surprisingly large amount of material. It is unnecessary to address much of it.

3. Ultimately, the critical issue was whether the plaintiff could fairly deal with the late-served evidence before the hearing. On this issue, the parties adopted strongly opposing positions: for the defendant, it was submitted that the plaintiff had, and has, more than sufficient time to respond to those reports notwithstanding their recent service; for the plaintiff, it was submitted that, despite considerable effort to deal with the reports, he has been unable to do so and should not be forced to trial without being provided with a reasonable opportunity to obtain responsive expert (and, if necessary, other) evidence.

Background

4. The material background facts are covered across three parts: first, a summary of the plaintiff’s claim; secondly, the procedural and case management history; and thirdly, an overview of the late-served expert evidence.

The plaintiff’s claim: a short summary

5. The following summary is drawn from the plaintiff’s statement of claim filed 21 June 2022 (‘SOC’).

6. The plaintiff was employed as a parachuting/skydiving instructor by JG Martin Pty Ltd (‘JGM’) and was the sole director of that entity: SOC at [4].

7. JGM subcontracted with the defendant for the plaintiff to provide parachute/skydive instructing services to them: SOC at [5]. The plaintiff’s claim for damages arises out of that work. He alleges that the various activities he was required to perform − in the period between July 2014 and June 2019 − caused him to suffer injury, loss and damage: SOC at [5]-[7] and [15]. Put simply, those duties included the heavy work associated with parachuting/skydiving instructing as well as the parachuting/skydiving activity itself: SOC at [6].

8. The plaintiff alleges that the defendant breached a duty of care owed to him, and extensive particulars of negligence are provided detailing those shortcomings in the system and place of work: SOC at [20]-[21].

The (relevant) procedural and case management history

9. The plaintiff commenced proceedings by statement of claim filed 21 June 2022 in the District Court.

10. On 15 May 2025, the proceedings were transferred to this Court. When they were, the matter was case managed by the Common Law Registrar. Since 8 August 2025, the matter has been judicially case managed. At that listing, the parties were ordered to participate in a mediation – which took place on 22 September 2025.

11. The matter returned for directions on 31 October 2025. On that occasion, it was listed for hearing for five days commencing 10 August 2026.

12. Given the dispute arises out of the late service of the defendant’s expert liability evidence, it is sufficient to note the following orders that were made in this Court dealing with evidence of that kind:

13. On 19 June 2025, the Common Law Registrar made the following order:

“(1) Time for service of the defendant’s expert evidence be extended to 16 May 2025.”

2. On 31 October 2025, I made the following order:

“(5) Order the defendant to serve all evidentiary statements and expert liability and medical and quantum evidence by 13 April 2026.”

3. More recently, on 13 April 2026, I made the following order:

“(2) Extend the time for the defendant to serve all evidentiary statements and expert liability and medical and quantum evidence to 8 May 2026, 4pm.”

13. In relation to the above order, it is necessary to note that, whilst it was made by consent, counsel for the plaintiff, Mr Smith, advised that the plaintiff had only just become aware that the defendant intended “to adduce a new expert”. The plaintiff, with admirable co-operation, sought to accommodate this development by proposing the following order – which was made at the directions hearing on 13 April 2026:

“(3) Order the plaintiff to serve any expert liability and medical and quantum evidence in reply by 12 June 2026, 4pm.”

14. Further, Mr Smith indicated that he had a “concern” that the plaintiff would need to secure “another expert”. As I made clear at that time, until the defendant served that evidence, the plaintiff was not placed to determine whether the anticipated evidence would necessarily cause any concerns. Accordingly, I listed the matter for further directions on 26 June 2026 to allow the defendant to serve the evidence and for the plaintiff to have the time it (initially) sought to prepare any evidence in reply – to the extent he was able to.

15. As it happens, the defendant did not comply with the order for service of its expert liability evidence made on 13 April 2026.

16. Before addressing the late-served expert evidence, it is important to note that the orders for service of the defendant’s expert evidence were not confined to orders made once the proceedings were transferred to this Court. In the District Court, numerous orders were made for the defendant to serve expert liability evidence. By way of example only, an order was made on 19 December 2022 which required the defendant “to serve expert liability evidence by 30 April 2023” (order 4); and, by of further example, an order was made on 2 May 2023 which required the defendant to “serve expert medical and liability evidence by 30 June 2023” (order 2).

The late-served expert evidence

17. The defendant seeks leave to rely upon expert evidence contained in two reports from Brett Newman – described as a “Master Rigger, Parachute Technician and Tandem Instructor” – dated 2 June and 10 July 2026.

18. It appears that the 2 June report was served in draft form on 22 May 2026 and in a final form on 10 June 2026. The supplementary report, dated 10 July 2026, was served on 13 July 2026.

19. It is not straightforward to summarise the reports, but, broadly, the evidence is directed to the following issues: the nature of the forces involved in various forms of skydiving – in particular, their impact on those body parts allegedly injured by the plaintiff in the course of him undertaking work for the defendant; and the physiological effect of hard openings (essentially, the forces exerted upon the spine caused by the opening of a parachute after a period of freefall) and hard landings (essentially, the compressive forces exerted upon the spine caused by the impact of a parachutist landing feet first on the ground). It is sufficient, on the present application, to accept and find that evidence of this broad kind is likely to have some materiality to the issues at trial.

The application for leave

20. The defendant’s notice of motion, filed 30 June 2026, sought leave “to serve and rely” on the expert report from Mr Newman dated 2 June 2026 (and, by extension, the supplementary report dated 10 July 2026).

21. As clarified during submissions by Mr Walsh, the defendant relied upon r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) to extend the time for it to serve, and thus rely upon, Mr Newman’s reports. The plaintiff accepted that approach, and argued the matter on that basis.

22. Rule 1.12 of the UCPR provides:

“1.12 Extension and abridgment of time

(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.”

23. Three matters should be noted about this rule. First, it confers “a broad power to relieve against injustice”: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283; [1988] HCA 13; Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130 at [22]. Secondly, it is recognised that, at least ordinarily, a party seeking an extension of time “must establish a proper or adequate reason for this being granted”: Pell v Hodges [2007] NSWCA 234 at [30]. And, thirdly, the exercise of the power is conditioned on the observance of the overriding purpose of the Civil Procedure Act 2005 (NSW) (‘CPA’) and the dictates of justice: ss 56-58 of the CPA.

Discussion and consideration

24. By way of summary, the competing arguments were as follows.

25. For the defendant, it was argued that this is an appropriate case for the grant of leave for three overlapping reasons: first, because there is an appropriate explanation for the delay – namely, difficulties securing an expert and delays on the part of the expert once one was secured – and, in respect of the most recent order for service of expert liability evidence, the degree of non-compliance is, contextually, modest; secondly, the expert evidence relied upon is material and denying the defendant the opportunity to adduce it at trial would cause prejudice to it; and, thirdly, there would be no corresponding disadvantage, or prejudice, to the plaintiff if the order sought was made.

26. For the plaintiff, each step in the defendant’s argument was contested, but it was ultimately submitted that the issue created by the late-served evidence is that, despite his efforts to deal with those reports, he is unable to do so – fairly – in the time before the hearing: he therefore opposes the application and submits that, if it is granted, the hearing date would inevitably need to be vacated.

27. I have already found that the evidence contained in the reports from Mr Newman is likely to be material to the issues at trial (see [19], above), and I accept that, given that finding, denying the defendant the opportunity to adduce the evidence at trial would cause it a degree of prejudice. In what follows, I will deal with the defendant’s remaining arguments and the plaintiff’s responses to them.

28. The defendant argued that there was a reasonable explanation for the delay. Put simply, the argument was that, having determined to secure a “skydiving” expert such as Mr Newman, steps were taken to locate such an expert – which involved some delay – and further delay was occasioned by the expert once retained.

29. To expand upon the defendant’s “explanation” for the delay, it involved the following.

30. A mediation was held on 22 September 2025. At that point, the defendant had not retained an expert in the field of parachuting. The matter was listed for directions on 31 October 2025, and I was advised by the defendant’s solicitor that it wished to qualify an expert of that kind but had not done so, to that point, “to save costs” (Tcpt, 31 October 2025, p 2(40)). There is no evidence identifying when that forensic decision was made, but I infer well prior to the mediation. Having secured an order at that directions hearing requiring the service of expert liability evidence by 13 April 2026, “[o]n or about 31 October 2025”, the defendant’s solicitor contacted Nationwide Experts – essentially a body that sources experts in various disciplines and makes them available for use in litigation – “to identify a proposed expert who may be able to assist in preparing a report” (defendant’s solicitor’s 30 June 2026 affidavit at [21]). The defendant’s solicitor was contacted by Nationwide Experts on or around 4 December 2025 and advised that the proposed skydiving expert was away and uncontactable (defendant’s solicitor’s 30 June 2026 affidavit at [22]).

31. On or about 12 December 2025, the defendant’s solicitor “commenced searches to obtain alternative options for a skydiving expert” (defendant’s solicitor’s 30 June 2026 affidavit at [23]). The evidence did not identify what those “searches” involved, nor the results of them.

32. On around 14 and 29 January 2026, the defendant’s solicitor contacted Nationwide Experts to follow-up about the availability of the proposed skydiving expert. They responded on 13 February 2026, indicating “that they were waiting to hear from the proposed expert” (defendant’s solicitor’s 30 June 2026 affidavit at [26]). The solicitor made further contact with Nationwide Experts on 2 and 5 March 2026, and on 7 April 2026 she received a response which identified Mr Newman “as an appropriate expert” (defendant’s solicitor’s 30 June 2026 affidavit at [27]-[29], [32]).

33. On 8 April 2026, Nationwide Experts advised the defendant’s solicitor that “Mr Newman was able to assist in providing a report” and could provide it by 1 May 2026 (defendant’s solicitor’s 30 June 2026 affidavit at [34]). At this point, it is worth observing that the time for service of any report was 13 April 2026.

34. Despite receiving that confirmation, in circumstances where service of any report was required in a short period (viz., 5 days), further delay occurred: “[a] draft letter of instruction was prepared and settled by counsel” and then sent “to the legal representatives for the co-insurers on 21 April 2026”, who “approved the draft letter of instruction on 28 April 2026” (defendant’s solicitor’s 30 June 2026 affidavit at [35]-[36]). The letter of instruction was sent to Mr Newman on 29 April 2026 (defendant’s solicitor’s 30 June 2026 affidavit at [37]).

35. On 8 May 2026, the defendant’s solicitor was advised by Nationwide Experts that Mr Newman “was overseas with limited accessibility. He was able to access his emails, however he had not yet finalised his report” (defendant’s solicitor’s 30 June 2026 affidavit at [38]).

36. On 22 May 2026, a draft report was received from Mr Newman by the defendant’s solicitor and served on the plaintiff’s solicitor on a “without prejudice” basis, given a mediation was scheduled to occur on 25 May 2026 (defendant’s solicitor’s 30 June 2026 affidavit at [46]). The final report was received by the defendant’s solicitor on 3 June 2026 and served on the plaintiff’s solicitors on 10 June 2026 (defendant’s solicitor’s 30 June 2026 affidavit at [53]-[54]).

37. The defendant’s essential submission was that the above satisfactorily explains the delay. I disagree. The explanation only goes so far, as Mr Walsh very fairly accepted. Generally speaking, there is a need to explain “both ends” of the delay. As was said in Capic v Ford Motor Company of Australia Limited (Late Evidence) [2020] FCA 1117 at [22]:

“In cases where such an indulgence is sought it is incumbent upon the party seeking the indulgence to explain how the delay in its actions has come about. But a delay is a finite period of time and hence, like many things, has both a beginning and an end. Any explanation for the delay must generally wrestle with both of these ends, or at the very least acknowledge them. It must lay bare both why it is only now that the action is sought to be taken but also, and perhaps more importantly, why it was not taken when it should have been. Often the former will be reasonably obvious. Usually it is the latter which is of most discretionary significance. But both are important.”

38. Here, the explanation proffered only explains some of the delay (and, even then, only in a fairly limited way).

39. As I have pointed out, orders were made for the defendant to serve expert liability evidence over many years. Despite it being readily apparent that the “ordinary” forces involved in skydiving would be an issue in the proceedings, and the multiple orders made for service of its expert liability evidence, the defendant chose to defer retaining a skydiving expert “to save costs”. Whilst minimising legal costs is an admirable objective, competing ones include the efficient conduct of litigation in this Court. Further, compliance with orders of the Court and the duties imposed upon parties to civil proceedings remain fundamental obligations, notwithstanding the fiscal choices made.

40. Having charted this course, and having made contact with Nationwide Experts, months went by. I do not regard this as a satisfactory explanation at all, nor anything remotely approaching it. It is merely a chronology of the fairly minimal steps taken to secure an expert of the required kind. As I have earlier pointed out, although the defendant’s solicitor said that some efforts were made on 12 December 2025 to obtain alternative options for a skydiving expert, the evidence did not identify what those searches involved, nor their results. To be clear, I do not accept that the problems encountered are attributable to circumstances beyond the control of the defendant. On the contrary, I consider them to be the result of the defendant’s forensic decision about when to retain the expert and its failure to promptly undertake the steps necessary to do so and to secure a report once having done so.

41. Then, having been advised on 8 April 2026 by Nationwide Experts that Mr Newman could provide a report by 1 May 2026 (I emphasise: the order made on 31 October 2025 required service of any expert evidence by 13 April 2026), somewhat remarkably, no letter of instruction was provided to Mr Newman until 29 April 2026. The defendant sought to argue that there was a proper explanation for this: some time was needed to prepare the letter of instruction and, further, the defendant’s insurance position involved multiple co-insurers who needed to be involved in the finalisation of any letter of instruction.

42. Whilst I accept that it was important to have the sign-off from those insurers prior to finalising any letter of instruction, I do not accept that this, nor the time taken to prepare a letter of instruction more generally, provides a justifiable explanation for the further delay in instructing Mr Newman, or anything approaching this. Given the content of the letter of instruction and the issues raised by the report, there is no reason why that letter could not have been prepared, settled and approved by all concerned months before 8 April 2026 and sent to Mr Newman on the day that the defendant’s solicitor was advised of his availability. No difficulty or complexity would have arisen if the matter was approached in that way, as it should have been.

43. To the extent that the defendant relied upon the fact that, contextually, the delay was relatively modest, given that the order made on 13 April 2026 required service of the report by 8 May 2026, I do not accept the submission. First, it overlooks – entirely – the fact that the defendant had been ordered to serve expert evidence on multiple occasions prior to the making of that order (see [12], above). Secondly, it also overlooks – entirely – the fact that the order made on 13 April 2026 extending the time for the defendant to serve expert liability evidence was made in full recognition that the plaintiff may encounter difficulties in responding to that evidence. That is apparent not only from the order made permitting the plaintiff to reply to the evidence, but in the exchange had with counsel for the plaintiff, Mr Smith, at the directions hearing on that date. By adopting the stance that the plaintiff did, Mr Smith endeavoured to co-operate with the defendant and the Court. That is something that stands very much in the plaintiff’s favour in the present situation, not against it.

44. The defendant’s submission that it would be prejudiced if the order extending time was not made must be understood in the context of the findings that I have made; importantly, the forensic decision that it made about when to retain the expert.

45. The defendant’s remaining argument was that the plaintiff has had sufficient time to address the reports and could deal with them before the hearing. I do not accept this submission. There is no reason to doubt that genuine and realistic attempts have been made by those representing the plaintiff to do this (and I accept and find they have), and to the extent the submission sought to suggest otherwise, I do not accept it. In any event, the defendant’s submission is, in my view, unrealistic. It seeks to hold the plaintiff to distinctly different standards, given the defendant’s failure to comply with orders with a hearing date looming and the unacceptable delay in retaining and briefing the expert required.

46. In my view, it would work considerable unfairness upon the plaintiff to require him to deal with this case more or less on the run. I am satisfied that proper attempts have been made to respond to and investigate the issues raised by the reports, but, given the impending hearing date, the plaintiff’s counsel and solicitor have, responsibly, taken the view that, as things stand, any reply evidence will not be ready.

47. There was a considerable body of material tendered on the application which, it seems, was directed to establishing that, otherwise, the matter is ready to proceed. Whether the matter “is otherwise ready to proceed” in some respects is not really the point. The fact remains that, in a critical respect, it is not.

48. The matter is very finely balanced. Having made the forensic decision to defer securing all necessary expert evidence on the issue of liability “to save costs”, somewhat perfunctory efforts were made to locate an appropriate expert. Once one was located, rather than promptly briefing them to ensure compliance with orders made for service of that evidence, further delays arose for no satisfactory reason, as I have earlier found (s 58(2)(b)(i)-(iii) of the CPA). These matters significantly tell against the order sought by the defendant.

49. I have also had regard to “case management” considerations (s 57 of the CPA). The matter has been relisted on multiple occasions in order to deal with the problems created by the late service of Mr Newman’s reports. An adjournment of the hearing to provide the plaintiff with a proper opportunity to investigate and respond to Mr Newman’s reports inevitably involves a disruption to the Court and other litigants: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [30], [93], [95] and [114].

50. In the end, what I regard as the most significant consideration is the fact that a further hearing of the matter can be accommodated by the Court in 2026. That means that the delay, inconvenience and disadvantage to the plaintiff can be ameliorated to that degree.

51. There is a final matter. The defendant’s non-compliance with the Court’s orders is highly unsatisfactory. Compliance with them is a matter of obligation, not discretion. Given what has occurred, it is necessary to repeat what Bell CJ recently said in this context in Lam v Liu [2025] NSWCA 254 at [1]:

“… Procedural directions, whether made, as in the present case, as part of case management, or made in applicable Practice Notes or rules of court, such as, for example, prescribing page limits for written submissions on appeal or the preparation of a chronology, are not optional and must be strictly adhered to. If a party seeks to depart from such directions, leave may be sought timeously and will be considered on the merits of the application. Otherwise, the Court expects compliance with its directions, procedural rules and the requirements of its Practice Notes. So much is necessary for the efficient and expeditious disposition of litigation in this Court. Compliance with procedural directions, court rules and Practice Notes is not only part of a practitioner’s professional obligations but also his or her statutory duty…”

Orders

52. For the above reasons, I make the following orders:

53. Vacate the hearing commencing 10 August 2026.

54. Extend the time for the defendant to serve the reports from Brett Newman, dated 2 June and 10 July 2026, to 14 July 2026 and otherwise dismiss the defendant’s notice of motion filed 30 June 2026.

55. Order the defendant to pay the plaintiff’s costs of the notice of motion filed 30 June 2026, including the listings on 10 and 14 July 2026, and costs thrown away by reason of the vacation of the hearing date.

56. List the matter for hearing commencing 7 December 2026 for 7 days.

57. The usual order for hearing in Annexure A to Practice Note SC CL 1 is made. Order (c) in the usual order for hearing in Annexure A to Practice Note SC CL 1 is extended to apply to all expert evidence.

58. List the matter for further directions on 7 August 2026.

59. Grant liberty to apply on 48 hours’ notice.

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