Supreme Court of the ACT|2009-11-06

Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149 (6 November 2009)

CHRISTINA THEODORELOS v NEXUS PROJECTS PTY LIMITED

[2009] ACTSC 149 (6 November 2009)

PRACTICE AND PROCEDURE - application to serve expert reports out of time, Court Procedures Rules 2006 (ACT), r 1241 - a report which identifies an entirely novel aspect of damage cannot be an "update", r 1241(5)(b) - need to identify "extraordinary circumstances", r 1241(5)(a) - prolonged failure of expert to provide report despite repeated enquires "extraordinary" - failure by the Master and applicant to identify extraordinary circumstances with respect to certain reports - leave to provide further submissions - failure by the Master to properly analyse prejudice to defendant - relisting of hearing defeats any prejudice.

COSTS - where a party by application seeks an indulgence of the court, that party ordinarily pays the costs of that application - leave to provide further submissions in the circumstances.

Civil Law (Wrongs) Act 2002 (ACT), Div 3.1.2

Court Procedures Rules 2006 (ACT), rr 6, 21, 53, 270, 1241, 1304, 1305, 1306, 1309, 6250

Union Bank of Australia v Harrison, Jones and Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951

O'Sullivan v Farrer and Anor [1989] HCA 61; (1989) 168 CLR 210

Salido v Nominal Defendant (1993) 32 NSWLR 524

Davern v Messel [1984] HCA 34; (1984) 155 CLR 21

Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd and Anor [1976] HCA 62; (1976) 135 CLR 616

Traut v Faustmann Bros Pty Ltd [1983] FCA 137; (1983) 48 ALR 313

Parer v John Fairfax Publications Pty Ltd [1998] ACTSC 138

White v Minister for Immigration and Multicultural Affairs [2000] FCA 232; (2000) 96 FCR 511

Duralla Pty Ltd v Plant [1984] FCA 146; (1984) 2 FCR 342

Petreski v Cargill (1987) 18 FCR 68

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1

State of Western Australia v Ward & Ors [2002] HCA 28; (2002) 213 CLR 1

Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VicRp 23; [1980] VR 187

Southwell v Specialised Engineering Services Pty Ltd [1990] NTSC 27; (1990) 101 FLR 175

Rothwells Ltd (in liq) v Entity Group Ltd and Ors (1990) 101 FLR 460

Quirk v Bawden (1992) 107 FLR 455

Protonotarios v Zapasnik (1992) 106 FLR 243

Stelmag Pty Ltd v Tifferley Manufacturing Pty Ltd and Ors [2003] ACTSC 49

Re Milosevic (1996) 134 FLR 429

Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

House v The King [1936] HCA 40; (1936) 55 CLR 499

Campbell v Fortey (1987) 85 FLR 462

Anutech Pty Ltd v Latent Energy Systems Pty Ltd (unreported, ACTSC, Gallop J, 3 February 1987)

In the Matter of an Application for Bail by Rebecca Massey [2008] ACTSC 145

Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

Director of Public Prosecutions (Vic) v Cozzi [2005] VSC 195; (2005) 12 VR 211

Cox v Mosman and Anor [1908] St R Qd 210

Golski v Kirk (1987) 14 FCR 143

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appeal, so far as it relates to the report of Dr Alexandra Viketos dated 30 June 2009, be dismissed.

2. The appeal, so far as it relates to the whole of the report of Ms Judith Davidson dated 30 May 2009 and the report of Ms Emily Knight, architect, dated 13 August 2009, be upheld and the order of the learned Master be set aside.

3. The plaintiff file and serve an amended Application in Proceedings seeking in addition to the orders presently sought leave to rely on the whole of the report of Ms Judith Davidson dated 30 May 2009.

4. The defendant file and serve a Notice of Appeal in proceedings No. SC 354 of 2007 in the same terms as that filed in proceedings No. SC 355 of 2007.

5. The appeal be adjourned to a date to be fixed for further submissions.

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appeal, so far as it relates to the report of Dr Alexandra Viketos dated 30 June 2009, be dismissed.

3. The plaintiff file a copy of the application and affidavit of Gregory Steve Masselos sworn 31 August 2009 for inclusion in file No: SC 355 of 2007.

4. The plaintiff file and serve an amended Application in Proceedings seeking in addition to the orders presently sought leave to rely on the whole of the report of Ms Judith Davidson dated 30 May 2009.

5. The appeal be adjourned to a date to be fixed for further submissions.

1. In 1910, Griffith CJ opined in Union Bank of Australia v Harrison, Jones and Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492 (at 504):

Rules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice.

2. In this, his Honour was echoing the well-known dictum of long ago:

The rules must be the servant, not the master of the Court: Clune v Watson [1882] Tarl 75.

See also WJD v TEK (1998) 72 ALJR 1323 (at [8]).

3. That is not to say, however, that the rules of court are to be ignored or set aside readily, for clearly the intention of the rules is to assist in the attainment of justice by providing a known and understood basis on which litigation is conducted and to see that fairness and equality is provided to all litigants.

4. Thus, the rules assist in ensuring that the resources of the court are used efficiently and, by providing an appropriate degree of certainty to the parties, and others, to maintain public confidence in the judicial system: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951 (at 956). These are important aspects of the attainment of justice.

5. This is the context in which this matter needs to be considered.

6. On 4 June 2004, Dimitrios Theodorelos, the husband of Christina Theodorelos, was working for Nexus Projects Pty Limited on a construction site at the Canberra Airport when he fell from the shipping container on which he was working, sustained serious injuries and died the next day.

7. On 12 June 2007, Mrs Theodorelos as plaintiff commenced proceedings numbered SC 354 of 2007 claiming damages under Div 3.1.2 of the Civil Law (Wrongs) Act 2002 (ACT) (the compensation to relatives claim) against Nexus Projects Pty Limited as defendant and on the same day also as plaintiff commenced a second proceeding in this Court numbered SC 355 of 2007 claiming damages from the same defendant, Nexus Projects Pty Limited, for the injuries she suffered when her husband died within her sight and hearing or, alternatively, when she was advised of it (the nervous shock claim). It appears that these two proceedings, for good and obvious reasons, are being heard together, though no order of the Court under r 270(2)(b) of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) appears to have formally been made.

8. In the nervous shock claim, Mrs Theodorelos seeks damages for the compensable injuries she suffered, including, as particularised in the Statement of Claim (in the form permitted under r 53 of the Court Procedures Rules) attached to the Originating Claim:

(l) Severe interference with social activities;

(m) Severe interference with pre-injury capacity to perform domestic duties and maintain her dwelling;

(n) Loss of independence.

9. In the compensation to relatives claim, Mrs Theodorelos pleaded, as well as similar allegations to those in the nervous shock claim:

The deceased had an intention and the capacity to continue working until at least 75 years of age.

10. The usual pre-trial proceedings were conducted: discovery was given by Nexus Projects Pty Limited, notices for non-party production were issued and subpoenas issued.

11. Both proceedings were listed for hearing before the Master on 21 September 2009. A certificate of readiness had been signed by both parties and filed in each case. Curiously they each bear two date stamps for lodgement: 2 December 2008 (the plaintiff's solicitors having signed each on 28 November 2008 and the defendant's solicitors on 2 December 2008) and 2 March 2009. It appears that they may have been lodged on the earlier date and requisitioned because no statement of particulars had been filed, as required by r 1306(3)(b) of the Court Procedures Rules. A statement of particulars in each action was actually lodged on 27 February 2009.

12. It appears from the files that at a listing hearing (r 1309 of the Court Procedures Rules) on 15 April 2009, both proceedings were listed for hearing to commence before the Master on 21 September 2009.

13. By Application in Proceedings filed on 2 September 2009, Mrs Theodorelos made application under r 1241(4)(a) of the Court Procedures Rules for leave for three reports which had not been served in accordance with r 1241(1) to be tendered and admissible.

14. Ultimately, the application as conducted was only concerned with two of these reports but also the challenged portion of a fourth report.

15. One Application in Proceedings was apparently filed which bore the court numbers of both proceedings, the parties being, of course, identical in both, and was made returnable on 4 September 2009 but apparently adjourned to 11 September 2009 when it was heard. At that hearing the learned Master granted that leave for the two reports and the challenged portion of the fourth report to be tendered and to be admissible at the hearing of the claims.

16. At the hearing, the fact that there were two claims was not expressly identified and neither counsel nor the learned Master addressed the question of whether the application and orders were being made in both or only one of the actions.

17. The reports were not necessarily relevant to both actions, though one (that of the general practitioner) was clearly relevant to the compensation to relatives claim and probably not to the nervous shock claim while the report of the architect and the challenged portion of the court report were clearly relevant to the nervous shock claim and probably not to the other. Thus, at least it appears to me, the application had to be made in both actions and apparently was.

18. The defendant appeals from the order of the learned Master giving the leave sought.

19. As I have noted, the paperwork is a little unclear, unfortunately, perhaps because while the two proceedings were being heard together that issue was not clearly addressed. I did not myself appreciate it completely until I came to prepare these reasons. As noted, the application before the Master was made by an Application in Proceedings which bore the court file numbers of both actions. This is not appropriate unless the two proceedings had been consolidated. In particular, only one copy of the Application has been filed and one copy of the supporting affidavit, thus only one file had the record of the application. I shall make appropriate directions to regularise this inadequacy.

20. As it happens, the Notice of Appeal only bears one number (correctly) but there is only one Notice of Appeal and it happens to be on the file which does not contain the filed Application in Proceedings and Supporting Affidavit. I shall make appropriate directions also about this.

21. The reports initially the subject of the application before the learned Master consisted of two reports from the general practitioner for Mr and Mrs Theodorelos and one from an architect who provided a report on the modification needed to the home in which Mrs Theodorelos lives to allow one of her sons to live with her as a response to the chronic severe grief reaction from which she is alleged to suffer.

22. I shall deal first with the reports from the general practitioner. There were, in fact, two reports from the general practitioner, one in respect of Mrs Theodorelos (relevant to the nervous shock claim) and one in respect of Mr Theodorelos (relevant to the compensation to relatives claim), clearly one for each of the two proceedings. In the event, no challenge was made to the tender or admissibility of the report relating to Mrs Theodorelos and I need say no more about it.

23. The report from the general practitioner in respect of Mr Theodorelos (the general practitioner's report), however, is significant because of the assertion in it that:

I consider that there was no impediment preventing [Mr Theodorelos] from remaining in his pre-accident employment until the age of 75 years.

24. The circumstances of the general practitioner's report coming to be served was set out in the affidavit of Mr Gregory Steven Masselos, solicitor for Mrs Theodorelos, filed in support of the Application in Proceedings before the Master.

25. Mr Masselos deposes that he sent a letter to the general practitioner on 22 April 2008 requesting a report about the medical history of Mr Theodorelos including a request, explicitly, for an answer to the following question:

Had our client [sic - presumably meaning Mr Theodorelos, though Mrs Theodorelos was referred to as "our client" in the letter] not been injured in the accident, do you consider that there was no impediment preventing him from remaining in his pre-accident employment until the age of 75 years.

26. The solicitors for Nexus Projects Pty Limited wrote to Mr Masselos on 25 June 2008 advising that the allegation that Mr Theodorelos had intended to work until he was 75 was "an issue in the proceedings". That follows from the defence which specifically denied the pleaded allegation set out above (at [9]).

Between the period April 2008 and 27 February 2009, I was advised and verily believe that my secretaries, Ms Jayme Burrows and Ms Lauren Best, telephoned Dr Viketos' surgery on numerous occasions in an effort to obtain her responses to our requests for reports. On 27 February 2009, I caused a further letter to be forwarded to Dr Viketos, again seeking her response to my requests for reports.
I am advised by my secretary Ms Lauren Best and verily believe that in the period 27 February 2009 to 2 April 2009, she made further numerous telephone calls to Dr Viketos' surgery in attempts to elicit responses to our request for reports.
On 2 April 2009 I caused a further letter to be forwarded to Dr Viketos ...
The matters were listed for Listing Hearings on 15 April 2009. As at 15 April 2009, I still had not received the reports I had requested from Dr Viketos and it seemed to me that the doctor would not provide us with reports in the matters. As a consequence, I took the view that the allocation of a hearing date should not be further delayed and the matter was accordingly set down for trial at the Listing Hearing.
Notwithstanding the above, I continued to seek the reports from Dr Viketos. On 16 April 009, Dr Viketos forwarded to me by facsimile, two tax invoices for the requested reports.
On 16 April 2009 I caused a letter to be forwarded to Dr Viketos enclosing payment for the requested reports.

Having still not received Dr Viketos' reports by 22 June 2009, I caused a letter to be forwarded to the doctor on that date ...
On 30 June 2009 I received by facsimile two reports from Dr Viketos.
On 1 July 2009 I caused two letters to be forwarded to the Defendant's solicitors enclosing by way of service the reports of Dr Viketos dated 30 June 2009.

28. The letters referred to in pars 11, 13 and 18 were annexed to the affidavit but it is not necessary to refer to them in more detail.

29. On 17 August 2009, the solicitors for Nexus Projects Pty Limited wrote to Mr Masselos noting that a report from the general practitioner and the architect's report had been served after the time limited in the Court Procedures Rules and that objection would be taken to their tender and admissibility.

30. Mr Masselos, by letter dated 21 August 2009, responded, setting out briefly the history of his attempts to obtain the reports from the general practitioner and noting that no circumstances of prejudice had been referred to by the defendant's solicitors.

31. There appears to have been some confusion about service of the reports. Mr Masselos, in his affidavit, refers to the two reports of the general practitioner; Mr Masselos deposed (paragraph 20 quoted above) that he sent two letters, presumably one in each proceeding, each with the relevant report. Unfortunately, I did not see either letter so I cannot comment further. The defendant's solicitors, in their letter of 17 August 2009, refer to only one report of the general practitioner.

32. On 25 August 2009, the defendant's solicitors queried references to two reports in the letter from Mr Masselos dated 21 August 2009 (see above at [30]) because they had only received one of them and by letter dated the same day, namely 25 August 2009, sent by facsimile transmission, Mr Masselos forwarded a copy of the other report. It was the general practitioner's report, namely the one relating to Mr Theodorelos, and it is that one which is challenged by the defendants. The learned Master found, and that has not been challenged, that this, namely 25 August 2009, was the date of receipt of the report by the defendant's solicitors.

33. At the time of actual service of the general practitioner's report, namely 25 August 2009, the date of trial was a day less than four weeks away. The passage of time between the letter of 1 July 2009, and the response of the defendant's solicitors on 17 August 2009, just under seven weeks, is unexplained. It was the response by Mr Masselos to that letter which triggered the realisation that only one of the two reports which were supposed to have been served, had actually been served.

34. The second relevant report was from Ms Emily Knight, an architect. The report was dated 13 August 2009. The need for this report was said by Mr Masselos to have arisen from an updated report of Ms Judith Davidson, Occupational Therapist. Ms Davidson visited the home of Mrs Theodorelos on 2 May 2009 and produced her report on 30 May 2009 and it was served on the defendant's solicitors on 25 June 2009. The passage of time between receipt and service was unexplained.

35. It is arguable that, save for a passage on the seventh page of the report of Ms Davidson about options to modify the current dwelling of Mrs Theodorelos her report itself is admissible under the Court Procedures Rules.

36. Ms Davidson's report was clearly produced after a visit (or visits) by Ms Davidson so that she could obtain an updated view of the position of Mrs Theodorelos. As such, it would appear to be admissible under s 1241(5)(b) of the Court Procedures Rules as it "only updates an earlier version of an expert report". In any event, with the exception of the one section, entitled "Option to modify the current dwelling", there is no challenge to the report's admissibility, which would amount to agreement under r 1241(4)(b) of the Court Procedures Rules.

37. That section of Ms Davidson's report was clearly not merely bringing the report up-to-date in the relevant sense for it raised an entirely new matter which apparently had not been mentioned in Ms Davidson's earlier report. It was prepared because the son of Mrs Theodorelos who was then living with her was proposing to marry and could not reasonably live with his new wife in the family home with Mrs Theodorelos. Although the report, and the challenged section, responded to a change in circumstances, it raised a whole new issue which required, as it happens, Mrs Theodorelos to retain the architect, Ms Knight, a new expert. In my view, where r 1241(5)(b) of the Court Procedures Rules refers to "only updates an earlier version of an expert report" this does not encompass an entirely new aspect of damage which has not been referred to in the earlier version, nor particularised.

38. Thus, although the Application in Proceedings did not refer to this passage of that report in seeking the Court's leave, the parties agreed to argue that before the learned Master and the learned Master entertained the application. It is desirable, however, that the record be accurate and so I shall give appropriate directions to this effect.

39. A helpful summary of the matters in Ms Davidson's report which led to the commissioning of Ms Knight's report, its receipt and service, are helpfully set out in the affidavit of Mr Masselos as follows:

In her supplementary report of 30 May 2009, Ms Judith Davidson made certain recommendations with respect to modifications of the Plaintiff's home. These recommendations were made on the basis that the Plaintiff, because of her psychological injury, cannot live alone and consequently, it was considered necessary to modify her dwelling so that she may continue to reside with her son and his wife, following his marriage in May 2009. It is noted that recommendations regarding home modifications were not made by Ms Davidson in her primary report.
In light of the recommendations made by Ms Davidson in this regard, I qualified on behalf of the Plaintiff an architect, Ms Emily Knight, to prepare an expert's report setting out the costs of the home modifications recommended by Ms Davidson.
On 13 August 2009 I caused a letter to be forwarded to the Defendant's solicitors enclosing by way of service a copy of the report of Ms Emily Knight, Architect, dated 13 August 2009.

40. The objection to the tender and admissibility of this report was ventilated in the correspondence I have referred to (at [30]).

41. I note, too, that on 25 August 2009 the defendant's solicitors served on Mr Masselos a report of Dr Doron Samuell, Clinical and Forensic Psychiatrist, dated 6 May 2008. It appears that, despite the late service of this report that had been received over a year before, no objection to its tender was apparently to be taken by Mrs Theodorelos, presumably, one suspects, because it was entirely consistent with the expert evidence to be adduced on behalf of Mrs Theodorelos.

42. The Court Procedures Rules specifically permit expert reports served after the time specified in r 1241(1) to be tendered and admissible by consent of the parties. This is clearly desirable and appropriate. That does not affect the rest of the rules, however, and the implicit suggestion in the plaintiff's submission that the late service of this report by Nexus Projects Pty Limited somehow undermined its opposition to the application for leave to tender the other reports made by Mrs Theodorelos is not sustainable. That is a quite irrelevant factor. Had Mrs Theodorelos not agreed to the tender of Dr Samuell's report, Nexus Projects Pty Limited would have had to make an application and show exceptional circumstances justifying its tender and admissibility.

43. Once a party is ready for trial, he, she or it must complete and sign a certificate of readiness and submit it to the other party or parties who, if also ready for trial, must complete and sign and return it to the first party: r 1306(1) and (2) of the Court Procedures Rules.

44. Once each active party (see Dictionary to the Court Procedures Rules) has signed the certificate, and, if the proceedings are for personal injuries or compensation to relatives in death claims, then only if a statement of particulars (required by r 1304 or r 1305 of the Court Procedures Rules) has been filed, the certificate may be filed and the court must then set a date for a listing hearing: r 1306(3) and (4) of the Court Procedures Rules.

45. At the listing hearing, the court, usually comprised of the Registrar or Deputy Registrar (r 6250(2)(e) of the Court Procedures Rules, and (s 47(2) of the Supreme Court Act 1933 (ACT)), considers relevant issues, including the simplification of matters in dispute and readiness for trial, including "the filing and serving of expert reports", and, if satisfied that the proceedings are ready for trial, must set a date for trial: rr 1309(1)-(3) of the Court Procedures Rules.

46. These events are important for the question of the service of experts' reports which is governed by r 1241 of the Court Procedures Rules and which provides:

1241 Service of expert reports

(1) At least 28 days before a certificate of readiness is filed in a proceeding, the plaintiff must serve on each other active party a copy of each expert report obtained by the plaintiff.

(2) Not later than 14 days after being served with a copy of a report under subrule (1), the defendant must serve on each other active party a copy of each expert report obtained by the defendant.

(3) If -

(a) a party obtains an expert report after serving reports under subrule (1) or (2); and

(b) either -

(i) the report is only responding to another report served under this rule; or

(ii) the report updates another report served under this rule;

the party must serve a copy of the report on each other active party not later than 3 days after the day the party obtains the report.

(4) An expert report must not be tendered, and is not admissible, in the proceeding unless it has been served in accordance with this rule, except with -

(a) the court's leave; or

(b) the agreement of all active parties to the proceeding.

Note: Pt 6.2 (Applications in proceedings) applies to an application for leave or an order under this rule.

(5) The court must not give leave under subrule (4)(a) unless satisfied that -

(a) there are exceptional circumstances that justify giving leave; or

(b) the expert report only updates an earlier version of an expert report that has been served in accordance with this rule.

(6) This rule applies subject to any order of the court.

47. On the application, the learned Master made an order under r 1241(4). This required his Honour to find under r 1241(5), that there were exceptional circumstances justifying a grant of leave to Mrs Theodorelos to tender the reports.

48. The requirement for exceptional circumstances was a pre-condition to the grant of leave. If found, however, the exceptional circumstances did not thereby entitle the applicant to the leave of the court. Such leave is always a matter of discretion. See O'Sullivan v Farrer and Anor [1989] HCA 61; (1989) 168 CLR 210 (at 216). That a pre-condition is met does not necessarily require the leave to be exercised in favour of the applicant. See Salido v Nominal Defendant (1993) 32 NSWLR 524 (at 530-533).

49. It is important that these two issues be separated. There may be exceptional circumstances that would justify leave but there may be other circumstances, such as prejudice to another party, which requires that leave be refused. Further, the considerations under r 21 of the Court Procedures Rules (see Aon Risk Services Australia Ltd v Australian National University) may provide some indication of the circumstances which require a refusal of leave.

50. Thus, while it is clearly in the interests of justice that a party have every reasonable opportunity to put all the evidence the party wishes to put before a court, this has to be understood in the light of the provisions of r 21. That rule provides:

21 Purpose of ch 2 etc

(1) The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.

(2) Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving -

(a) the just resolution of the real issues in the proceedings; and

(b) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(3) The parties to a civil proceeding must help the court to achieve the objectives.

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example for r (4)

The court may dismiss a proceeding or make a costs order if a plaintiff fails to proceed as required by the rules in ch 2 or an order of the court.

Note 1: See esp div 2.14.2 (Failure to comply with rules or order).

Note 2: An example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

1"> 51. As the plurality said in Aon Risk Services Australia Ltd v Australian National University (at 975):

[98] Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

[99] In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent ... The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh. [footnotes omitted]

52. The same can be said of the option of an adjournment, formerly a frequent panacea for any change in circumstances, such as the introduction of unexpected new evidence (as well as a change in the pleadings of a case), but which now in the light of r 21 of the Court Procedures Rules needs to be more carefully evaluated against the prejudice it causes to other parties.

53. As noted above, the learned Master heard the application on 11 September 2009. The affidavit of Mr Masselos was read. He was not cross-examined.

54. There was no challenge to the conclusion from the evidence in that affidavit that Mr Masselos had made reasonable efforts to secure the reports from the general practitioner in good time before the decision had to be made as to whether to sign the Certificate of Readiness.

55. The learned Master referred to the need, reinforced by Aon Risk Services Australia Ltd v Australian National University, to have regard to r 21 of the Court Procedures Rules.

56. In doing so, his Honour referred to "the just resolution of the real issues in civil proceedings" but made no reference to the other matters mentioned in the rule, namely "minimum delay and expense".

57. In relation to the general practitioner's report, his Honour found that there were exceptional circumstances saying (at p 19 of the transcript):

the exceptional circumstance being that the general practitioner, notwithstanding what might be seen as an obligation on her part to provide a report when requested to do so, ignored correspondence from the plaintiff's solicitors requesting a report and prepared a report only on 30 June 2009.

58. As to the delay in service, his Honour further said:

I accept that the plaintiff's solicitors attempted to serve that report immediately and assumed they had done so until it became apparent that the defendant's solicitors had not received it. So, I would certainly have been satisfied if it has been received shortly after 1 July, that there were exceptional circumstances justified in the grant of leave. On consideration, I am not satisfied that those exceptional circumstances no longer exist simply by reason of the fact that somehow the report was not received when the plaintiff's solicitors assumed that it would be.

59. His Honour then addressed the question of whether the report could be met by the defendant. His Honour said:

In particular, I am satisfied that it's not a report which is capable of being responded to in the usual manner, that is, of qualifying another expert and putting the same assumptions to that expert. There really would have been nothing, and still is nothing available to the defendant to test the opinion expressed in the report as to the fitness of the deceased to continue working to the age of 75 years, other than cross-examination of the general practitioner.

60. Reading this third extract carefully, it is not clear whether his Honour was adding these factors to the totality of the circumstances which amount to "exceptional circumstances" or addressing it to the question of prejudice which would be relevant to the leave which the court has a discretion to give, even if exceptional circumstances are made out. The two issues are not, of course, hermetically independent.

61. The learned Master then turned to the challenged portion of Ms Davidson's report (see [36] above). As his Honour noted, it was not strictly necessary for his Honour to deal with that matter but it was clearly convenient for it to be done. No objection was taken by any party to that course.

62. In effect, and again reasonably, his Honour dealt with both challenged portions of the fourth report, Ms Davidson's report, and the architect's report, the need for which arose out of the challenged portion of Ms Davidson's report. His Honour found:

I am conscious of two balancing factors. One is that I suspect that the expression of opinion by the occupational therapist may turn out to be a relatively minor aspect of the case. She has, after all, expressed the opinion only that it is possible that the plaintiff will not continue to cope with living alone. She is certainly not expressing the opinion that the modifications to the house are more likely than not to happen, but rather that it's simply a possibility.

On the other hand, I recognise that it might operate unfairly to the plaintiff if something which is, in the opinion of an expert witness, a possibility, is not permitted to be taken into account in the assessment of damages. On balance it seems to me that the objective of achieving the just resolution of the real issues of the proceedings is best achieved by permitting the evidence to be given. So, I rule that the objection to the portion on page 7 of the second report of Ms Davidson fails and that that evidence is admissible.

Having said that, I note that the hearing of the action is listed for the week commencing 21 September, that is, the week after next; but in relation to the architect's report I take account of the fact that it was apparently possible for the plaintiff's solicitors to qualify an architect who undertook an inspection and produced a report two days later which was able to be served on the other side on the date that it was produced, and I would be inclined to the view that if the defendant's solicitors move swiftly they ought to be able to identify and qualify an architect who would be able to conduct an inspection and provide a report before the hearing.

63. The reference to producing the architect's report in two days appears to come from the annotation on the report that "[a]reas stated in this report are based on measurements taken on site during an inspection on 11th August 2009."

64. It seems to me, with respect, that this is a conclusion not open to the Master to draw. It may turn out to be correct that the report was prepared in two days, and clearly much in the report, such as the actual calculation of costs, would have to depend on actual measurements which could probably only be obtained at the site inspection, but a great deal of the work in and for the report could well have occurred before then: reading Ms Davidson's report, any conferences with the solicitors or plaintiff, consideration of possible modifications and so on. In particular, no copy of the letter of instruction to the architect and the date of that letter or any enclosure with it is in evidence. I do note that Ms Davidson's report has itself photographs and "suggestions for major modifications".

65. An appeal from an interlocutory decision of the Master is made to a single judge of this Court. As an appeal is a creature of statute, it is necessary to identify from the terms of the statute the nature of the appeal: Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 (at 30).

Section 9 of the Supreme Court Act 1933 (ACT) is the relevant statutory provision and is in the following terms:

(1) For the purposes of the exercise of jurisdiction given to the master under the rules, this Act has effect, subject to this section, as if the court consisted of the judges and the master.

(2) A person who is dissatisfied with an order of the master made in the exercise of jurisdiction given under the rules may appeal, as prescribed under the rules -

(a) for an interlocutory order - to the court constituted by a single judge; and

(b) in the case of any other order - to the Court of Appeal.

(3) On an appeal under subsection (2)(a), the court -

(a) must have regard to the evidence given in the proceeding out of which the appeal arose; and

(b) may draw inferences of fact from the evidence; and

(c) may receive further evidence in any of the following ways:

(i) by oral examination before the court or a judge;

(ii) on affidavit;

(iii) by audiovisual link or audio link;

(iv) any other way the court may receive evidence.

(4) On an appeal under subsection (2)(a), the court may confirm, amend or set aside the order of the master and may make any order that in all the circumstances it considers just.

(5) In this section:

audio link - see the Evidence (Miscellaneous Provisions) Act 1991, section 16 (Definitions - pt 3).

audiovisual link - see the Evidence (Miscellaneous Provisions) Act 1991, dictionary.

67. Much ink has been spilt in the consideration of the types of appeals and how they may be distinguished. It seems to me that the position is now fairly clear as to the types of appeals, the criteria for them and what process a court follows in hearing them.

68. In Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, Glass JA set out six forms of appeal. His Honour said (at 297-8):

(a) Appeals to supervisory jurisdiction. Only errors going to jurisdiction or denials of natural justice can be ventilated.

(b) Appeals on questions of law only, e.g. from the Workers' Compensation Commission. Undetermined or wrongly determined issues of fact must be remitted.

(c) Appeals after a trial before judge and jury. The result below will be disturbed if the judge fell into error of law, or if the jury's errors of fact transcend the bounds of reason. But, except for the assessment of damages, issues of fact must be redetermined in a new trial.

(d) Appeals from a judge in the strict sense, e.g. appeals to the High Court. If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing. Later changes in the law are disregarded and additions to the evidence are not allowed: Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [(1931) [1931] HCA 34; 46 CLR 73 at 107].

(e) Appeals from a judge by way of rehearing, e.g. appeals under s 75A of the Supreme Court Act, 1970. Judicial opinion differs on whether a power to receive fresh evidence is implied: Ex parte Currie; Re Dempsey [(1968) 70 SR (NSW) 1; 88 WN (Pt 2) 193]. Almost invariably, however, it is expressly conferred. If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded: Ex parte Currie; Re Dempsey [(1968) 70 SR (NSW) 1: 88 WN (Pt 2) 193]; Edwards v Noble [(1971) [1971] HCA 54; 125 CLR 296 at 304].

(f) Appeals involving a hearing de novo, e.g. appeals from a Court of Petty Sessions to a Court of Quarter Sessions. All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time: Sweeney v Fitzhardinge [(1906) [1906] HCA 73; 4 CLR 716].

69. It is the last three types that have been given the greatest attention. While cautioning against too simple a categorisation, the High Court addressed these types of appeal in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194. Gleeson CJ, Gaudron and Hayne JJ, after observing that the nature of an appeal must ultimately depend on the terms of the statute conferring the right of appeal, said (at 203-4):

[11] ... The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the tribunal concerned or powers that are common to other appellate bodies. There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another.

[12] It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.

[13] If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

[14] Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. [footnotes omitted]

70. Earlier, in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ had compared the differences between an appeal by way of rehearing and a hearing de novo. Their Honours said (at 180):

in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. [footnote omitted]

71. Mason J (as his Honour then was) described the process of a hearing de novo in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd and Anor [1976] HCA 62; (1976) 135 CLR 616. His Honour said (at 620):

In truth the appeal to Quarter Sessions is most aptly described as a hearing de novo because, even if it be the defendant who appeals, the informant or complainant starts again and has to make out his case and call his witnesses.

His Honour did in that case also refer to a further category of "appeal by rehearing of the evidence before the trial court" (see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 124)) but it seems, with respect, that this is merely a rehearing without the right to receive fresh evidence.

72. While the three principal terms are used frequently to describe appeal types, namely appeal in the strict sense (senso strictu), appeal by rehearing and rehearing de novo, it has also been said that the classification is not into three clearly definable categories. In Traut v Faustmann Bros Pty Ltd [1983] FCA 137; (1983) 48 ALR 313, Lockhart J said (at 322):

The classification of appeals into three categories is sometimes helpful, but it is impermissible to treat each category as being necessarily distinct from the others or as having immutable characteristics or inflexible boundaries. Ultimately the true character of an appeal must depend on the interpretation of the particular legislation; the jurisdiction, powers, composition and functions of the tribunal from whose decision the appeal lies; and the nature of the rights and liabilities of the persons affected by the tribunal's decision.

73. Thus, for example, it has been said that the difference between an appeal in the strict sense and an appeal by way of rehearing is that in the latter case, the court "might, more readily ... receive further evidence": Parer v John Fairfax Publications Pty Ltd [1998] ACTSC 138 (at [5])

74. Again, it has been said that an appeal to the Full Court of the Federal Court of Australia is an appeal in the strict sense but in which fresh evidence is admissible: White v Minister for Immigration and Multicultural Affairs [2000] FCA 232; (2000) 96 FCR 511 (at 516) relying on cases such as Duralla Pty Ltd v Plant [1984] FCA 146; (1984) 2 FCR 342 (at 349-50, 360-5, 366-7) and Petreski v Cargill (1987) 18 FCR 68 (at 77-8). This is not the usual position.

75. This was unusual because ordinarily it was accepted that in an appeal in the strict sense fresh evidence was not admissible: Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 (at 267, 274, 298). See also Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.

76. This position has now been brought into line with a more traditional categorisation as the High Court in State of Western Australia v Ward & Ors [2002] HCA 28; (2002) 213 CLR 1 has held (at 87) that an appeal to the Full Court of the Federal Court of Australia is not an appeal in the strict sense but an appeal by rehearing, overruling Duralla Pty Ltd v Plant and Petreski v Cargill. Accordingly, I am not so sure that the categories of appeals are so fluid as may formerly have been considered, noting, however, that careful attention must still be paid to the terms of the statute establishing the appeal mechanism.

77. In determining the nature of the appeal, it is important to answer the following questions:

Which tribunal has jurisdiction to determine the appeal?
At what date should the applicable law and facts be determined?
What procedure will be adopted on the appeal?
May the appeal court receive further evidence and, if so, on what conditions, if any?
What type of decision of the tribunal below is being attacked?
What orders may the appeal court make?

78. It would thus seem that it can now be reasonably confidently said that, while careful attention needs to be paid to the precise terms of the legislation establishing a right of appeal, the three major categories can be described fairly clearly and accurately as follows:

1. Appeal in the strict sense (stricto sensu) is one where the appeal court is obliged to decide whether the decision of the body from which the appeal is taken is wrong, by the body falling into an error of law, making a finding of fact which is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. That is to say, the appeal court does not determine where the truth lies but whether the body from which the appeal is taken made an error. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. This decision is to be made on the evidence that was before that body and no additional evidence is admissible on the issue. The appeal court may, however, draw its own inferences from primary facts found by the body from which the appeal is taken. The appeal court must determine whether there was an error at the time of the decision by the body from which the appeal is taken and not as at the time the appeal is determined. The only decision on the appeal if the hearing is not remitted for a fresh hearing is the one that the body from which the appeal is taken should have given if error had not been made.

2. Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.

3. A rehearing de novo is not, strictly speaking, an appeal at all but is a complete rehearing of the proceedings from the body from which the appeal is taken and proceeds regardless of whether an error in the decision of the other body can be found and must, unless otherwise by consent, hear the witnesses again and is not limited to the evidence before the other body. Indeed, the appeal court must make a decision of its own on the proceedings whether or not there was an error in the decision of the court from which the appeal is taken.

As can be imagined, principles which apply to the hearing of both appeals in the strict sense and appeals by way of rehearing, such as that the appeal court has power to draw inferences of fact from the primary facts found by the body from which the appeal is taken and that findings of fact based on an assessment of the witnesses will not ordinarily be disturbed, do not apply to rehearings de novo.

79. Appeals from interlocutory decisions of the Master were probably thought of, when instituted, as rehearings de novo. At that time, the Master's jurisdiction was much more limited than it now is. The bulk of such decisions were made in the Friday Motions List (now Applications List) before the Master (see Notice to Practitioners "Listing Procedure 1990" 19 January 1990). A judge was available on that day at a later time to hear matters outside the learned Master's jurisdiction and to hear appeals from interlocutory decisions of the Master (see Notice to Practitioners "Judges/Master's Motions List" 15 May 1990). Thus, such an appeal would be reheard, if the parties wished, within a fortnight (or perhaps a week) usually by simply making the application again before the Judge.

80. This accords with other jurisdictions, where appeals from the decision of a Master are by rehearings de novo: Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VicRp 23; [1980] VR 187 (at 190); Southwell v Specialised Engineering Services Pty Ltd [1990] NTSC 27; (1990) 101 FLR 175 (at 176).

81. So far as I can ascertain, however, the first reserved decision on the nature of the appeal from an interlocutory decision of the Master in this Territory was in Rothwells Ltd (in liq) v Entity Group Ltd and Ors (1990) 101 FLR 460 where it was held that the appeal was neither an appeal in the strict sense nor a rehearing de novo. The Court there, however, held (at 462):

That appeal is said to be neither an appeal stricto sensu or an appeal by way of re-hearing de novo. It is a re-hearing on the evidence in the court below with a discretion to receive further evidence. Regard is to be had to the findings and reasons of the court of first instance.

Accordingly, whilst House v The King [1936] HCA 40; (1936) 55 CLR 499; Evans v Bartlam [1937] AC 473; Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 would apply to an appeal stricto sensu, they have no application to an appeal by way of re-hearing.

82. The characterisation of the appeal as being by way of rehearing was accepted by a number of subsequent decisions of the Court. See, for example, Quirk v Bawden (1992) 107 FLR 455 (at 456); Protonotarios v Zapasnik (1992) 106 FLR 243 (250- 251); Stelmag Pty Ltd v Tifferley Manufacturing Pty Ltd and Ors [2003] ACTSC 49 (at [2]).

83. In Re Milosevic (1996) 134 FLR 429, Hogan AJ reconsidered the nature of the appeal carefully and thoroughly.

84. His Honour's conclusions were that, contrary to Rothwells Ltd (in liq) v Entity Group Ltd and Ors, the principles were those enunciated by Cross J in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409. Thus, in an appeal from the learned Master:

1. Where no fresh evidence is called, the court's powers to substitute its own view of the facts is limited by the principles expressed in Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296 (at 304) as expanded by Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, which importantly state that it is not whether the court can substitute its view of the facts (for it has power to do so) but whether it should do so.

2. Where the decision the subject of the appeal is a discretionary decision, the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 apply. See also Gronow v Gronow [1979] HCA 63; (1980) 144 CLR 513.

85. The admission of fresh evidence, is, as the court held in Re Milosevic, governed by s 9(3)(c) of the Supreme Court Act 1933 (ACT), though without the criteria applicable in appeals from the Magistrates Court as considered by Miles CJ in Campbell v Fortey (1987) 85 FLR 462. Such decisions now appear to be governed by the principles enunciated in CDJ v VAJ (1998) 197 CLR 172 and Allesch v Maunz.

86. The principles set out above as to the nature of the appeal and the powers of the court on appeal have now been accepted in a number of decisions of this court: Anutech Pty Ltd v Latent Energy Systems Pty Ltd (unreported, ACTSC, Gallop J, 3 February 1987), Martin v NRMA Insurance Ltd [1998] ACTSC 52. I accept that these are the principles to be applied.

87. In particular, and relevantly to this appeal, I can accept evidence of what occurred at the date listed for the hearing on 21 September 2009 and I also must not merely determine whether the learned Master was in error but, if his Honour was, determine the application on the circumstances as they now exist.

88. I was told that when the principal proceedings came on for hearing on 21 September 2009, they were adjourned because they could not be reached. They have now been listed for hearing on 29 March 2010. This was agreed between the parties.

89. Mr G A Stretton, who appeared for Nexus Projects Pty Limited, submitted that the learned Master did not find exceptional circumstances in respect of any of the reports and so the statutory pre-condition for their admissibility was not met.

90. The term "exceptional circumstances" is a term not infrequently used by the legislature to qualify the exercise of a discretion. I have analysed its use in the context of the Bail Act 1992 (ACT) in a number of cases such as In the Matter of an Application for Bail by Rebecca Massey [2008] ACTSC 145 (Massey) (at [7]-[8]) where I held that there must be some unusual or uncommon circumstances found to justify the granting of bail.

91. Mr Stretton referred me to a decision of the NSW Court of Appeal, Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290. That decision referred to a rule of the NSW Supreme Court relevantly identical to r 1241 of the Court Procedures Rules. The case also concerned the tender of an expert's report which was not served in accordance with the relevant rule.

92. In that case, Campbell JA (with whom Tobias JA and Handley AJA agreed) held (at [66]) that the finding of "exceptional circumstances" should be considered in accordance with the following conclusions:

(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No [2007] FCA 388 (at [26]).

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).

93. This seems to me a very helpful framework from which to consider the application of the phrase.

94. Mr Stretton then submitted that the learned Master had not found circumstances that were exceptional in respect of any of the reports. There was, as was clear, a conscious decision of Mr Masselos to have the proceedings listed for hearing notwithstanding that the reports of the general practitioner had not been received.

95. In relation to the general practitioner's report, Mr Stretton contended that the exceptional circumstance found by the learned Master was that the assertion in the report about Mr Theodorelos being, pre-accident, likely to be able to work until he was 75 was "not ... capable of being responded to in the usual manner, that is, of qualifying another expert and putting the same assumptions to the expert". This, he submitted, was not an exceptional circumstance.

96. In relation to the challenged portion of Ms Davidson's report and the architect's report, Mr Stretton submitted that the learned Master had found no circumstances that were exceptional at all; indeed, he submitted that his Honour did not even characterise what he relied on as exceptional circumstances but rather proceeded with a balancing process more appropriate to the question of the discretion to grant leave, though not necessarily thereby irrelevant.

97. As, he submitted, the learned Master had not found exceptional circumstances, the appeal must be upheld and the grant of leave set aside.

98. Mr P J Mooney, who appeared for Mrs Theodorelos, submitted that, properly read, the learned Master had found exceptional circumstances.

99. I note in this regard that the decision of the learned Master was delivered ex tempore, properly and appropriately in the circumstances. An appeal court should, of course, approach the articulation of such a decision in those circumstances in a broad and liberal way. The reasons should not be scrutinised in the same way as one would scrutinise an equity pleading.

100. In any event, Mr Mooney submitted, there were exceptional circumstances. The way in which the reports of the general practitioner arrived was exceptional. Given the nature of the appeal, I have the power, and obligation (Fox v Percy (at 126-8)), to ascertain whether there are exceptional circumstances.

101. In relation to the other reports, these were occasioned by a change in circumstances. The position was that Mrs Theodorelos had been living in the family home and her son had been living with her. As I noted above (at [8]), the pleadings alleged that she was not able to live independently and carry out the normal domestic duties she would need for that. This, I accept, was claimed to be a result of the severe grief reaction that Mrs Theodorelos was suffering. Her son was to marry and the family home as presently configured could not accommodate him and his new wife as well as Mrs Theodorelos. This, Mr Mooney submitted, was a change in circumstances that was not foreseen and which made the circumstances exceptional.

102. I shall deal with the general practitioner's report first.

103. I do not accept that Mr Stretton has correctly identified the Master's reasoning.

104. His Honour did find exceptional circumstances and said so in terms. Those were that the general practitioner ignored the requests of Mr Masselos but then produced the reports after the proceedings had been listed for hearing.

105. The learned Master, regularly hearing cases such as these ones and other personal injuries cases, would be in a good position to know whether these circumstances are truly exceptional. His Honour is certainly in a better position that I am. I can accept that while treating medical practitioners are reluctant to participate in litigation, most ultimately accept that they must engage in such participation by providing reports, delivering copies of medical records and the like which are in the best interests of their patients and which, I would have thought, they were interested in, and, if not promoting, then at least not obstructing. They comply and, if sometimes tardy, do so at a time consistent with the reasonable progress of litigation.

106. Even were failure to provide such reports readily not rare, I can accept that a prolonged failure, such as occurred here, followed by an almost last minute production of the reports is unusual, or uncommon.

107. I take also into account that Mr Masselos had made repeated and sustained attempts to obtain the reports, despite which they had not been forthcoming. This seems to me to make these exceptional circumstances ones which justify the grant of leave, subject to the question of prejudice which, as I have indicated above, goes both to contribute to the exceptional circumstances justifying the grant of leave and to the discretion as to whether leave should be granted or not.

108. Although Mr Stretton did not expressly submit that, were I satisfied that the learned Master had found exceptional circumstances justifying the grant of leave, his Honour should nevertheless not have granted leave, he did refer to the reasoning of the Master that the report was not "capable of being responded to in the usual manner".

Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149

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Judgment (232 paragraphs)

Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149 (6 November 2009)

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Legislation Cited (8)

Cases Cited (32)