Plaintiff v Defendant

(d) Mr Browning, a registered building practitioner engaged by Dura as an expert.

I gave directions for the exchange of written submissions for this application and heard oral submissions on the second day of the trial, following the plaintiff's opening. This was the first opportunity to hear the application. I announced that, for reasons I would later publish, the application was rejected. What follows are my reasons.

2 The issue to be determined is whether the wholesale rejection of this evidence will facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in this proceeding.

3 The proceeding is a construction dispute of some complexity. At the risk of oversimplification, I can briefly note what appear to be the key allegations to be resolved. Following the service by Hue, as proprietor, on Dura, as builder, of four notices to show cause (NTSC) under the contract asserting substantial breaches of the contract, Hue alleged that Dura failed to show reasonable cause why Hue should not exercise its contractual rights. Thereafter, Hue took possession of the works from Dura and appointed another builder to complete the construction. Audits by the proprietor after taking possession of the works are alleged to have revealed further, and more extensive, defects than were referred to in the notices. Hue alleges that when the works were stripped back, many further substantial defects were identified.

4 Around about this time, Hue changed or enhanced the design of the project, such that the completed building is now significantly different from the completed project as specified under the contract.

5 Briefly, Dura claims that the NTSC were defective, or infected with a want of good faith on the part of the superintendent when assessing rectification work, largely due to unresolved claims for extension of time, 'sign-offs' by the superintendent's representative, and claims for variations. Alternatively, Hue has shown cause. Hue's conduct in taking possession of the project from Dura was a repudiation of the contract, which it accepted. Dura claims damages for wrongful repudiation of the contract, alternatively on a quantum meruit.

6 Hue counterclaims that it did not breach the contract. Rather it acted in accordance with its contractual rights and Dura is liable to it under the contract on the final certificate and in damages for breach. Hue contends that its audit of Dura's work after it took possession of the project revealed an extensive spread of defective work, particularly in relation to services behind plasterboard and in a failure to follow specifications and good practice to achieve necessary fire ratings. Hue contends it was necessary to strip out much of the finishing work of Dura, as it was valueless.

7 The proceeding was admitted into the Building Cases List (now the Technology, Engineering and Construction List) for specialist management. Since that time, the parties have been bound to comply with the objectives of the TEC List,[1] which are to provide for the just and efficient determination of the proceeding by early identification of the substantial questions in controversy, and the flexible adoption of appropriate and timely procedures for the future conduct of the proceeding, which are best suited to the particular case. The parties have been obliged at directions hearings held throughout the proceeding to co-operate with the court to achieve the objective of the List, including a final directions hearing at which the plaintiff had an obligation to advise the court whether the case was ready for trial.

8 From the brief description of the issues in the proceeding, it can readily be appreciated that, if pleaded in the traditional way, the pleadings were likely to require very substantial particularisation, especially with respect to defects, variations, directions of the superintendent, extension of time claims and quantum. The particulars that have been served largely deal with quantum. At a directions hearing in June 2009, how further particulars of defects and liability issues would be provided was the subject of directions that expert reports be exchanged. Hue was directed to provide to Dura 'any expert report on which it would rely in support of its allegations of breach of contract, breach of warranty, and entitlement to give notices under cl 44.2 of the contract'. It was in this manner that further particulars of defects and liability issues were to be provided.

9 Hue did not comply with this direction within the time permitted. By February 2010, Hue had served two experts' reports (Atchison and Bonaldi) dealing with alleged defects and a third expert report (Andrews) dealing with programming and delays.

10 Dura contends that it has proceeded, since February 2010 when Hue finally served expert reports in compliance with the June 2009 direction, on the basis that Hue's allegations of breach of contract, breach of warranty and its alleged entitlement to serve notices under cl 44.2 of the contract, were to be supported only by the evidence in the experts' reports of Mr Atchison, Mr Bonaldi and Mr Andrews.

11 Hue contends that in this respect, Dura overstates its position. Hue points to a number of written reports, referred to in the pleadings and available for inspection. The following reports were available prior to the direction given in June 2009:

(c) electrical inspection report - WGE, 2 February 2007;

(d) mechanical inspection report - WGE, 7 February 2007;

(e) hydraulic services inspection report - WGE, 12 February 2007; and

(f) hydraulic services inspection report - WGE, 27 February 2007.

12 Shortly after that direction, Hue made available the following:

(a) structural defects - Farrugia, 3 November 2006; and

(b) structural defects - Farrugia, 16 February 2007.

13 At a further directions hearing in November 2010, I ordered witness statements as follows:

I informed the parties at that directions hearing that the matter would be listed for trial in late 2011 and an order fixing the proceeding for trial on an estimate of seven weeks was made on 15 December 2010.

14 Dura was late in serving its statements, as was Hue. Neither party has been able to comply generally with directions within the permitted time, at least in respect of issues relevant to this ruling. Each party has, until recently, tolerated, or accommodated, the failure of the other party to comply with the court's orders and directions. In the absence of a satisfactory explanation from either party of its failures to comply with the court's directions, I infer that neither party has a satisfactory excuse. There is no evidence of any deliberate or contumelious disregard for the court's directions, rather, the parties appear to have chosen to progress the proceeding on a different timetable, an attitude familiar to courts. Be that as it may, on several occasions during interlocutory directions hearings I have conveyed to the parties my intention to hear and determine the proceeding as scheduled, impressing upon both parties the need to be prepared for the trial.

15 The parties agreed to the preparation of Scott Schedules and that process has narrowed the focus on the detail in the evidence. During the course of the trial, use will be made of four Scott schedules:

(a) Scott schedule 1 addresses more than 1,000 items in NTSC 2 and NTSC 4;

(b) Scott schedule 2 addresses variations in dispute between the parties;

(c) Scott schedule 3 addresses extension of time; and

(d) Scott schedule 4 addresses defects in Dura's works after Hue took possession.

In one sense, preparation of these substantial Scott schedules appears to have emphasised for the parties in preparation for trial, the particulars (or their absence) of the allegations requiring proof at trial. This process may have played a role in the late preparation of further evidence for trial.

16 Plainly, at some considerable expense to the litigants, this proceeding has been managed in a specialist list, over several years, to ensure that if it was not resolved by alternative means the case management objectives and purposes, discussed above at [7], will be met at trial.[2]

17 Hue submits that Dura should not now be permitted to rely on witness statements, purportedly as reply statements, to deal with issues that it has failed to deal with in its primary statements. Dura has been afforded ample opportunity to file its evidence and it has known precisely what it needs to deal with. Further, Dura should not be permitted to respond to the expert evidence of Mr Holman of Wood & Grieve Pty Ltd at this late stage.

18 Hue contends that although Dura knew what the issues were - the issues had been fairly and squarely raised on the pleadings - Dura, apparently consciously, chose not to address them through its witnesses when primary statements were filed and where the evidence sought to be led would appear to have been available to Dura when its evidence was originally due. Dura is effectively splitting its case in an impermissible manner.[3] Further, Dura has provided no explanation for its failure to deliver the evidence in compliance with the orders made when Hue had served expert statements addressing the issues more than a year before Dura had been directed to file its statements.

19 Hue contends it will be prejudiced. In assessing Hue's contentions, I should record that the trial is being conducted, by consent, on a limited time basis. The parties agreed at the commencement of the trial to split the agreed trial time, 34 days until 18 November 2011, equally between them.[4] Hue contends the complexity of the reply evidence and the lateness of its delivery will prejudice a fair trial in circumstances where Hue cannot avoid that prejudice by seeking an adjournment of the action without thereby suffering considerable (and possibly unrecoverable) costs. To deal with the new evidence, if admitted, will require Hue obtaining instructions from a series of witnesses at a time when its counsel will be fully taxed in running a complex case under the time pressures of a time-limited hearing. Moreover, Hue's counsel need those instructions almost immediately for cross-examination. Hue contends that, in a time-limited trial, oral evidence-in-chief from Hue's witnesses to rebut the late-served evidence must occupy time already fully allocated by Hue to necessary cross-examination of Dura's witnesses.

20 Hue contends an adjournment at this time would inevitably delay the trial by 6-12 months, if not more. Costs orders are likely to be futile in alleviating prejudice. An adjournment will cause substantial non-recoverable costs to be incurred by Hue as it, its lawyers and witnesses work to prepare the matter for a further trial after that long period of delay. These additional costs are estimated in the vicinity of $400,000 to $500,000, assuming no further interlocutory applications and the continuing availability of trial counsel. Further, approximately 40-50% of these costs would not be recovered were Hue to succeed at trial. There are presently outstanding costs orders between the parties, with a net position in Hue's favour of $120,693.57. Recovery on costs orders cannot be assumed.

21 Hue draws attention to a further aspect of prejudice through delay. The witnesses for both parties were already facing the difficult task of cross examination in relation to events that occurred in 2006 and 2007. An adjournment of the hearing would only exacerbate that difficulty.

22 Hue submits it should not be compelled to seek an adjournment contrary to its interests, relying on Consolidated Credit Network Pty Ltd v Illawarra Retirement Trust Ltd,[5] Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2],[6] Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd[7] and Chameleon Mining NL v Murchison Metals Ltd.[8]

23 Dura contends that the reports exchanged earlier did not properly serve the function of giving notice of the particulars of the defects and other claims to be advanced at trial. Proper notice of such matters was received only when Hue filed its evidence, which was done outside the limits of the case management directions and without prior leave.

24 Dura contends it was not obliged to put on evidence in response to the early reports referenced in the pleadings, but not filed in proper form pursuant to court direction of June 2009. The issue was, it contended, that those reports did not distinctly and sufficiently identify the allegations Hue was making in the proceeding, a problem recognised at the June 2009 directions hearing. These earlier reports did not contain the expert observations, what counsel referred to as the 'editorial comment', about photographs or line descriptions of non-compliant items of work or materials. Thus, the precise nature of whether or why an observation reported on was a defect, a matter not compliant with the contract or good workmanship, was not always evident - at least not in a form that permitted Dura to obtain expert opinion for the trial. The direction for any expert report on which Hue would rely in support of its allegations of breach of contract, breach of warranty, and entitlement to give notices under cl 44.2 of the contract, was made in June 2009 to deal with such inadequacies in the pleadings. It was not then intended that Dura needed to trawl through other referenced reports to try to determine what was a defect being relied on by Hue that it ought to deal with by evidence. It was only when Hue, outside of the time allowed by the court's directions, filed its evidence, that Dura was in a position to know with what precise allegations it needed to deal.

25 Dura also contended that Hue had no excuse for failing put on its expert evidence, of the defects discovered after Hue took possession of the project, well before trial. These issues arose on Hue's counterclaim, and Dura's reply evidence by the challenged statements was defensive in responding to that evidence now that it had finally been revealed. Dura had been entitled to infer that Hue was not putting on any evidence about these matters beyond the evidence of Mr Atchison, Mr Bonaldi and Mr Andrews. Further, the evidence now filed by Hue is directed to establishing that it was entitled to substantially gut or strip out Dura's works in order to remove much of the finishing work done by Dura and do it again correctly. This is a central issue in the trial. Dura will contend Hue needs to prove such items because the final certificate of the superintendent can be re-opened by the court in the circumstances of this contract.

26 Dura contended that its claim could not be fairly presented without the evidence under challenge; Dura would be shut out from contesting the real issues in dispute between the parties. Focussing on the defects alleged after it lost possession of the site, Dura submits that it needs to explain why such matters are not defects, or how the defects that did exist could have been rectified without a wholesale stripping out of the internal finishing or was work that had been 'signed-off' on behalf of the superintendent. Further, Dura urged me to reject a contention that the various Hue witnesses, who had inspected the project and had available numerous photographs, would not be readily able to deal with the matters raised in the reply statements.

27 Dura contended it had no notice prior to in late August 2011, of the evidence to which Ove Arup will respond, being Messrs Holman, Edwards and Tompkins. It is not to the point that earlier reports were available or had been discovered. It is, Dura contended, Hue's positive case, not responsive evidence. Hue was overstating the need to obtain extensive instructions and prepare further evidence or cross-examination if the evidence is allowed. Hue was acting unreasonably by refusing to permit its expert, Mr Holman, to confer with Mr Barber of Arup, because the content of Mr Barber's evidence was not yet known. As directed by me prior to trial, a draft of the Ove Arup report had been made available to Hue.

28 Dura submitted that if any prejudice was being suffered by Hue, it was self-induced by Hue's failure to disclose its expert reports as directed. Had Hue delivered its reports as directed, Dura's reply evidence would have been served on it at least 30 days prior to the commencement of trial. Further, Dura submitted that if the court accepted there was prejudice for Hue in not being able to continue with the trial, it was not necessary to inflict on the parties the delay and cost to which Hue points. A short adjournment, no more than a few days, would allow instructions to be taken and preparation to be completed, and the trial could continue. On the other hand, Hue was attempting to shut Dura out from contesting on its merits a major factual dispute between the parties.

29 It is convenient to start with the overarching purpose of the Civil Procedure Act 2010 (Vic) in civil proceedings, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. I agree with Vickery J,[9] who recently observed of the evident tension in this statement of purpose, that the court must strike a 'balance between case management considerations and the dictates of a fair trial'. The court cannot lose sight of the fundamental requirement that a trial must be conducted fairly and in accordance with the principles of natural justice and procedural fairness. I also agree with Finkelstein J[10] that if, in some instances, the preparation of the case is not perfect, so be it. A case that is reasonably well prepared is just as likely to be decided correctly as a perfectly prepared case. The parties to commercial litigation expect courts to determine disputes quickly and fairly.

30 The court must seek to give effect to the overarching purpose under the Act in the exercise of any of its powers. Section 9 provides that in making any order or giving any direction in a civil proceeding, a court shall further the Act's overarching purpose by having regard to the following objects -

(a) the just determination of the civil proceeding;

(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for -

(i) the fair and just determination of the real issues in dispute; and

(f) the timely determination of the civil proceeding; and

(g) dealing with a civil proceeding in a manner proportionate to -

(i) the complexity or importance of the issues in dispute; and

31 In having regard to those objects, further statutory direction can be drawn from s 9(2) of the Act. Relevant in this context is:

(a) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(b) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(c) the degree to which each person, to whom the overarching obligations apply, has complied with the overarching obligations in relation to the proceeding; and

(d) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court.

32 Section 49 of the Act empowers the court, in its discretion, to give any direction or make any order considered appropriate to further the overarching purpose in relation to the conduct of a hearing. Section 49(3), without intending any limitation on that discretion, provides an extensive list of the kinds of directions or orders that may be made, including of potential relevance to this trial:

• limiting the time to be taken by a trial, including the time a party may take to present the party's case;
• limiting the number of witnesses, including expert witnesses, that a party may call;
• limiting the time to be taken in examining, cross-examining or re-examining witnesses;
• limiting the issues or matters that may be the subject of examination or cross-examination; and
• evidence, including, but not limited to, whether evidence-in-chief should be given orally, by affidavit or by witness statement.

33 If a party fails to comply with directions or orders given under s 49 of the Act, the court may disallow or reject any evidence that the person has adduced or seeks to adduce.

34 Regrettably, it is true that, as observed by Lord Justice Jackson about enforcing case management directions in his report, Review of Civil Litigation Costs[11] in the United Kingdom:

Courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed.

Undoubtedly, redressing the balance is an objective of the Civil Procedure Act 2010 (Vic).[12]

35 In Aon Risk Services Australia Ltd v Australian National University,[13] the High Court identified the priority of doing justice between the parties while recognising the increased contemporary importance of active case management. The Chief Justice said it might be thought a truism that case management principles should not supplant the objective of doing justice between the parties according to law. His Honour acknowledged the qualification of the adversarial system by:

changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resource.[14]

The High Court also affirms the need to exercise a discretion on a proper basis. The factors to be weighed in exercising a discretion need to be appropriately identified in context. The plurality observed:

Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules.

The observation is apposite in the exercise of discretions under Part 4.2 of the Act_._

36 There is much to be said for the early disclosure of evidence in complex litigation. The process of particularisation of allegations in pleadings has, like discovery, the propensity to become burdensome. In Boyes v Colins,[15] Ipp JA agreed with Kirby J's observation in Commissioner of Australian Federal Police v Propend Finance Pty Ltd,[16] that 'increasingly, in recent years, including, to some extent, in criminal proceedings, the Australian legal system has moved away from trial by ambush'. Ipp JA noted the trend throughout the common law world for greater disclosure by a party of its case and an open trial system. Ipp JA described the general policy in civil litigation as, save in most exceptional circumstances, a 'cards on the table' approach. That is the approach in this court.[17]

37 I do not consider that Dura is splitting its case in an impermissible sense as Hue contends. Both the primary and the reply statements will be received as evidence-in-chief before Hue cross-examines, and in a context where the parties have agreed to limitations on the operation of the rule in Browne v Dunn.

38 It is not possible to attribute fault to one party, but not the other, about each party's lack of compliance with directions made for efficient case management in this proceeding. Each party fell in default at a time when there was ample time for preparation. Dura was about a month late. Hue, which could have commenced and largely completed the bulk of its witness statements before it received those of Dura, was about two months late. It did not need to wait for Dura before it started that task. Neither party complained at the time. Section 20 of the Act obliges parties to civil proceedings to cooperate with each other and the court in connection with the conduct of the proceeding. At or about the time of the first default, cooperation might have taken the form of agreement to a revised timetable to put trial preparation back on track between the parties. The need for this interlocutory application at trial might have been alleviated.

39 There is much to be said for Hue's contentions that Dura had been afforded ample opportunity to file its evidence. There is merit in Dura's countervailing contention that it had not known precisely what it needed to deal with until Hue's evidence was finally served. It was clear that Hue had not instructed some of its experts until after the date for filing of that evidence had passed. I am satisfied that neither party took the opportunity to properly prepare its case within the times directed by the court, nor to co-operatively agree a timetable to get back on track nor, effectively, to apply for enforcement of directions in a timely manner.

40 The want of attention to the agreed timetable affected the timely preparation of the Scott schedules and the proper management of the expert evidence. The joint expert conclaves, that the court required to be held prior to the trial, did not occur. As a result, such processes have not informed alternative dispute resolution and the dispute has spilled into trial. For its part, the court has allocated resources, on the parties' trial estimate,[18] to enable the trial to be completed in 2011. It was once thought, I might infer from the application for an interlocutory injunction in October 2006, that there was some genuine urgency in the resolution of this dispute. Irrespective of any specific direction given by the court, the parties, each of whom makes a very substantial money claim against the other, have had and taken, five years to prepare for this trial.

41 As tempting as it is to impose firm sanctions to deal with non-compliance with court directions and seek to enhance a culture of expeditious preparation of disputes for trial, I am satisfied that the real issues in dispute between the parties cannot be properly and appropriately evaluated if Dura is denied reliance upon the filed evidence now challenged. I may have been persuaded to accept that there would be a real and un-compensable prejudice to Hue had the matter been adjourned for 12 months, which would be the likely delay. Bearing in mind the considerations under s 9 of the Act, particularly those matters having bearing on the efficient conduct of the business of the court, the efficient use of judicial and administrative resources, and the timely determination of the civil proceeding, adjournment of the trial for 6-12 months is not the appropriate option.

42 The 'reply' statements and the foreshadowed Ove Arup evidence do not appear to deal with fresh issues with which the experts may be unfamiliar. If that circumstance arises, it may be met by standing the trial down for a short time in order to evaluate the circumstances then prevailing. It is not suggested that new experts will need to be instructed or that a fresh investigation is required. The crux of the complaint of prejudice was about preparing for the conduct of the trial in court, cross-examination, instructions for joint expert conclaves and like matters. The gravamen of Hue's complaint was the extent of the delay that it anticipated and, as I have said, a delay for 12 months would likely carry that prejudice for Hue. However, when I suggested that the appropriate balancing of all of these matters could be achieved by having a short adjournment at Dura's expense so Hue could complete preparations, I was informed that it did not suit Hue to adjourn the matter at all. Hue's position was stark. Either its application succeeds for the reasons it advances or it will press ahead with the trial. That is a litigant's choice, but such choices do dot dictate how my discretion should properly be exercised in all of the circumstances. The trial of a long and complex dispute of this type must be properly programmed and managed. In reality, given the commercial activities of the parties, that proposition could not possibly be disputed.

43 Hue relied on Consolidated Credit Network Pty Ltd v Illawarra Retirement Trust Ltd,[19] where Campbell J (as he then was), considered the scope of s 51(3)(e) of the Civil Procedure Act 2005 (NSW) (an equivalent provision to s 51(e) of the Civil Procedure Act 2010 (Vic)). On the second day of a hearing for specific performance, the plaintiff sought to have read an affidavit, filed in court that morning, going to the issue of whether it was ready, willing and able to perform the contract. The trial had been expedited. At a pre-trial directions hearing the defendant had sought, and obtained, leave to file evidence on 'very isolated and specific topics', however the possibility of the plaintiff seeking leave to rely on the affidavit in question was not mentioned until the first day of hearing. The defendant submitted, and the court accepted, that the accuracy of the affidavit could not be tested without an adjournment to obtain (by way of subpoena) bank documents.

44 The court refused to allow the affidavit to be read, and refused an alternative submission from the plaintiff that an adjournment be granted to enable the defendant to make the necessary inquiries in order to be able to test the affidavit material. Though the plaintiff had agreed to pay into court a sum of money representing the costs thrown away by virtue of an adjournment, there was doubt as to whether that sum would necessarily cover all the prejudice that the defendant might suffer if there were to be an adjournment. In particular, it was not known whether the defendant would face a claim for damages by the purchasers in the event of late completion.

45 Campbell J refused leave to rely on the affidavit, identifying that the objectives to be achieved through the directions are, fundamentally, that the proceedings be disposed of in a way that is just, quick and cheap.[20] The opportunities presented at earlier procedural directions can be taken into account, as well as the use that could have been made of any opportunity available to a party in the course of proceedings. Campbell J also refused the adjournment[21] in light of the history of the proceeding: that the matter had come to trial in the expedition list on the basis that it was ready for trial and having established the need for an urgent hearing. Pre-trial directions had been given in that context, and the plaintiff's late realisation that more evidence was needed gave rise to the application. Campbell J considered that in such a circumstance it could be appropriate for the court to refuse an adjournment.[22] His Honour's consideration that this was a strong case for refusing the adjournment was strengthened by the uncertainty of whether damages or costs arising from the adjournment could be paid.

46 Whether to deny a party the opportunity to rely on late served evidence, or to extend time for its exchange, or to grant an adjournment to the recipient party are plainly all matters of discretion to be exercised on the considerations raised in each case. It can readily be seen that the circumstances of this trial are far removed from the circumstances of the application in Consolidated Credit Network.[23] This is a substantial and complex trial. It has not received an expedited hearing. Rather, the court has had to press both parties to be ready to use the resources being made available to resolve their disputes.

47 While I have reservations about whether Dura's filing of this evidence as evidence in reply is properly warranted in the circumstances, and I consider that both parties have been dilatory in assembling their experts, I do not propose to further delay the hearing and determination of the substantive issues in the trial. I am not satisfied that the parties will be unfairly dealt with if they are pressed to contend with the material issues in this dispute over the course of the next seven weeks. I am not satisfied that Hue will be prejudiced by the admission of this further evidence in a manner that cannot not be properly managed with the allocated court resources during trial. In consideration of the court's clear obligation to other litigants who are waiting patiently for trial dates, I will not permit the waste of the court's resources that would be occasioned by a substantial adjournment when I am not satisfied that the just determination of this proceeding is prejudiced.

48 In the circumstances I am not satisfied that the just determination of this proceeding will be compromised if I permit Dura to rely upon the challenged evidence. I consider the extent of the prejudice occasioned through truncated preparation in response to this evidence to be overstated and suspect that Hue's legal team will be able to deal with this further evidence. Perhaps Hue will not be perfectly prepared but I am not satisfied that they would not be reasonably well prepared. I am not satisfied that there is any risk that the real issues in dispute between the parties cannot be correctly decided.

49 The efficient conduct of the business of the court and the problems associated with prejudice through delay and cost should not be exacerbated by choices made by individual litigants. The issues of possible prejudice raised on this application are all capable of being alleviated by a short adjournment. A short adjournment would best promote the efficient conduct of the business of the court and the efficient use of judicial and administrative resources. It is not appropriate to adjourn a matter of this magnitude and complexity for a year when it can be adjourned for a week. That Hue was not in a position to progress the proceeding in this manner cannot be, and is not, a paramount consideration.

50 Accordingly, the application is dismissed. I will permit Dura to rely on the reply statements of Mr Maaser, Mr Brunner and Mr Browning as part of the evidence-in-chief of those witnesses. I will reserve further consideration of the expert evidence from Ove Arup until the substance of that evidence is before the court, as considerations drawn from the content of that evidence, including the instructions given to such experts, may be relevant in the exercise of my discretion in respect of that evidence.

HUE BOUTIQUE LIVING PTY LTD (FORMERLY SC LAND RICHMOND PTY LTD) (ACN 106 117 506)

[1] Supreme Court of Victoria, Practice Notice 2 of 2009 - The Technology, Engineering and Construction List (TEC List), June 2009, [5].

[2] Since the commencement of 2011, like objectives and purposes have been expressed by parliament in the Civil Procedure Act 2010 (Vic).

[3] Williams, Supreme Court Practice - Victoria [149.01.70]. The plaintiff is required to call in-chief evidence that goes to rebut evidence that the defendant might adduce: Portelli v Port Waratah Stevedoring Co Pty Ltd [1959] VicRp 31; [1959] VR 195.

[4] However, 34 days is not the full extent of the resources made available by the court to conclude this dispute.

[5] [2005] NSWSC 1004 (29 September 2005).

[6] [2009] WASC 301 (8 October 2009).

[7] [2007] FCA 1623 (26 October 2007).

[8] [2009] FCA 137 (5 February 2009).

[9] Hodgson v Amcor Ltd [2011] VSC 272 (2 June 2011) [28], [35].

[10] Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623 (26 October 2007) [3]-[5].

[11] Lord Justice Jackson, Review of Civil Litigation Costs Final Report - Implementation of Recommendation 29 (7 February 2011) Judiciary of England and Wales .

[12] Victoria, Parliamentary Debates, Legislative Assembly, 24 June 2010, 2606-7, 2611 (Robb Hulls, Attorney-General). See also Explanatory Memorandum to the Act.

[13] [2009] HCA 27; (2009) 239 CLR 175.

[14] Ibid 188-189 [23], 211 [92] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[15] [2000] WASCA 344; (2000) 23 WAR 123.

[16] (1997) 188 CLR 501, 581.

[17] Li v Herald & Weekly Times Ltd [2005] VSC 304 (10 August 2005); Hodgson v Amcor Ltd [2011] VSC 63 (4 March 2011) [82]; Woodcroft-Brown v Timbercorp Securities Limited (in liq) [2011] VSC 427 (1 September 2011) [256] citing the NSW cases - refer ASIC v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 (18 November 2009) [169] and the cases cited there.

[18] Being realistically assessed as a 'barrister's estimate', the need for some further trial time following the seven-week block was allowed for.

[19] [2005] NSWSC 1004.

[22] State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710.

[23] These same observations are apposite about Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301 (8 October 2009), cited by Hue, which is another example of the particular application of the principles by Murphy J in the WA Supreme Court. See also Chameleon Mining NL v Murchison Metals Ltd [2009] FCA 137 (5 February 2009) [10] (Jacobson J). Each of these cases is an instance of a discretion exercised in particular circumstances.