Noelene Jean Martin v Toowoomba Regional Council [2025] QSC 197

• [1] The plaintiff's claim in this matter is based upon her assertions that on 3 September 2020:

(a) she was walking along the grass footpath on Browne Street, Yarraman

(b) with the intention of continuing onto the concrete pathway and kerb ramp on the corner of Browne Street and D'Aguilar Highway, and

(c) when she did so, the unexpectedly steep slope of the eastern wing of the kerb ramp caused her to overbalance, and

(d) she fell and suffered personal injuries.

• [2] Ms Martin claims, among other things, that the pathway and kerb ramp were the responsibility of the Toowoomba Regional Council (the Council) and that they had been constructed contrary to accepted engineering practice and that various specifications or other requirements had not been observed. As a result, a tripping hazard for pedestrians was created.

• [3] In October 2022 the parties took part in a compulsory conference pursuant to the Personal Injuries Proceedings Act 2002. For the purposes of that conference, the solicitor for the Council certified (s 37 PIPA) that "medical or other expert reports or memos have been obtained from all persons the party proposes to call as expert witnesses at the trial ...".
• [4] Ms Martin had disclosed an engineering report from Mr Roger Kahler before these proceedings commenced.
• [5] Pleadings closed on 24 February 2023 when Ms Martin filed her Reply.
• [6] A Case Flow Management order was made on 23 August 2024. It provided, among other things, that "any further disclosure (including expert evidence ... ) must be concluded by 31 October 2024."
• [7] On 1 May 2025 the Council's solicitors wrote to Ms Martin's solicitors about a proposed consent order. The Council's solicitor said: "Another issue which has arisen is the potential need for further expert engineering evidence from my client." That was the first time that the Council had said anything about a "potential need".
• [8] On 7 May 2025 the Acting Resolution Registrar made orders with respect to the further conduct of the matter. Those orders included:

"(1) Without limiting the Plaintiff's rights of objection, if the Defendant intends to rely upon expert evidence of any kind (whether from an agent or servant of the Defendant or alternatively from an independent expert) at trial from a witness who has not yet produced a report then a report from any such expert must be disclosed by 13 June 2025.

(2) Unless otherwise agreed between the parties, the parties must bring an application for directions, pursuant to Rules 426, 427 & 429I UCPR, about the permitted use of expert engineering evidence in the proceeding, with any such application to be listed for hearing before 11 July 2025 at a time mutually convenient to the legal representatives for both parties.

(6) If the Plaintiff intends to seek further expert opinion from the engineer, Mr Roger Kahler, in response to any further expert evidence disclosed by the Defendant, then any such report must be disclosed by 8 August 2025."

• [9] In its application, the Council seeks leave under r 427(1) of the Uniform Civil Procedure Rules 1999 to adduce an expert engineering report by John Postlethwaite. It also seeks leave, pursuant to r 429G(2)(b), to tender at trial the expert report of Mr Postlethwaite.
• [10] Rule 427(1) provides that: "The court may, at any time, give the directions it considers appropriate about the use of expert evidence in a proceeding."
• [11] At the hearing the Council sought leave to rely upon the Postlethwaite report because, as it acknowledged, the report had not been disclosed within the time provided for in r 429I.
• [12] Rule 429I provides:

A party intending to rely on a report prepared by the expert must, unless the court orders otherwise, disclose the report as soon as practicable and, in any case -

(a) if the party is a plaintiff - within 90 days after the close of pleadings; or

(b) if the party is a defendant - within 120 days after the close of pleadings; or

(c) if the party is neither a plaintiff nor a defendant - within 90 days after the close of pleadings for the party.

• [13] Thus, the Council was required to disclose expert reports by 24 June 2023.
• [14] So far as is relevant, r 429G provides:

(1) Subject to subrule (5), the expert may give evidence-in-chief in the proceeding only by a report.

(2) The report may be tendered as evidence in the proceeding only if -

(a) the report has been disclosed under this part; or

• [15] The disposition of this matter is complicated by the order made on 7 May. It was made after the Council advised that it intended to rely upon expert evidence and appears to be a consequence of that. The orders are not particularly clear but they are the orders which the parties then sought.
• [16] The Council's argument was based on the general proposition that the court's overarching obligation is to ensure that a trial is fair, that the proposed evidence is important and its reception would conduce to the resolution of the real issues.
• [17] Ms Martin opposes the grant of leave on several bases. First, it is argued that, given the history of this case, the lateness of the disclosure of the Postlethwaite report must be due to a deliberate decision on the part of the Council and not through any inadvertence. Secondly, to grant leave would be to sanction what should be regarded as a gross breach of the UCPR including the implied undertaking in r 5. Thirdly, the grant of leave would be likely to occasion significant further delay, cost and potential prejudice to Ms Martin securing a fair trial of her claim.

• [18] In an affidavit filed by leave at the hearing Mr Isaacs - the solicitor responsible for the Council's case - gave, for the first time, an explanation for the substantial delay in disclosing the Postlethwaite report. In summary, he said:

(a) There was delay by the plaintiff which led him to think that the matter might not progress to a hearing.

(b) In December 2024 he briefed counsel to advise and, after initial discussions with counsel, formed the view that it would be preferable to obtain an opinion from an expert civil engineer in relation to the construction of the footpath ramp.

(c) Soon after that he sent instructions to a firm of civil engineering experts asking them to prepare a report.

(d) On 1 May 2025 he was notified that the matter had been listed for a Case flow Conference. It was at that time that he notified the plaintiff's solicitors of the Council's intention to obtain a report from an expert engineer and he proposed that certain draft orders be sought.

• [19] Mr Isaac's evidence is not consistent with the Certificate of Readiness signed by the Council's solicitors on 13 October 2022 which stated that "medical or other expert reports have been obtained from all persons our client intends to call has expert witnesses at the trial." It was argued for the Council that the awareness of the need for a report did not arise until after advice from counsel.
• [20] Ms Martin argued that a technical or forensic decision to take or not take a particular course may be a strong factor weighing against the grant of leave in cases of this nature, especially where such a grant would have the effect of sanctioning a gross breach of a party's implied undertakings contained in r 5(3).
• [21] I accept that a late change in legal advice may not be a sufficient excuse - see Zabusky v Virgtel Limited[1]. It is a matter to be taken into account. I do not find that there was a deliberate ploy engaged in on behalf of the Council.

• [22] While the delay by the Council is lengthy, the mere granting of leave does not act to sanction a breach where to do so recognises the overriding requirement for a fair trial. The grant of leave can be accompanied by other orders, such as with respect to costs, which indicate that the breach is not being sanctioned unconditionally.

• [23] A grant of leave will lead to a delay but the effect of such a delay can be ameliorated, to some extent, by making directions designed to bring this matter to trial as soon as possible.

• [24] The nature and extent of the power to grant leave in these types of situations was considered in Allianz Australia Insurance Ltd v Mashaghati[2] where Sofronoff P observed:

"[55] ... relevant expert evidence which has not been dealt with in accordance with the Rules may still be admitted in evidence if the interests of justice in ensuring a fair trial require it. The power of the Court to grant leave to a party to tender a non-compliant report or to permit oral evidence to be given by an expert is unfettered by any express provision of the rules. However, the discretion is informed by the purpose of the Rules set out in rule 5, namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The discretion is also informed by rule 5(2) which obliges the Court to apply the Rules with the objective of avoiding undue delay, expense and technicality.

[56] Of course, these express provisions which guide the Court in the exercise of discretion are subject to the overarching obligation of the Court to ensure that a trial is fair." (emphasis added)

• [25] The matters which should be considered in this type of application were enumerated by Bond J in Sunras Pty Ltd v Monto Coal 2 Pty Ltd[3] and I have referred to those of particular importance in this case above. The fact that the parties were content that the order of 7 May 2025 should be made and that it envisaged the provision of further expert reports is relevant. Although the orders purported to preserve some right of objection it must follow that those orders were based on some acceptance that further material would be forthcoming. In all the circumstances, I find that this is a matter in which leave should be granted.
• [26] Ms Martin also sought leave with respect to a further report from Mr Kahler. I will also grant leave with respect to that report.

• [27] The defendant has leave to adduce expert evidence from Mr John Postlethwaite.
• [28] The defendant has leave to tender at trial the report of Mr John Postlethwaite dated 13 June 2025.
• [29] The plaintiff has leave to tender at trial the report of Mr Roger Kahler dated 11 July 2023.
• [30] I will hear the parties on costs and on further directions.

[1] [2024] QCA 2 at [37]- [41].

[2] [2017] QCA 127; [2018] 1 Qd R 429.

[3] [2019] QSC 162 at [15].