…
106 As I sought to make clear in Hans Pet and Bi v Mourad , the question of efficiency is not the imposition of mere managerial standards. Rather, the timely disposition of litigation is central to the provision of justice in the individual case, and generally. I repeat what I said in Bi v Mourad at [47]:
"Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act . It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice."
107 The considerations in s 57(1)(a)-(d) are inextricably related. Together with s 56(2), s 57(2) requires this Court to apply rules of court as best to ensure the attainment of the objects in s 57(1). Those objects include, of course, the "just determination of the proceedings": s 57(1)(a). There can be no doubt, however, that that means "just" for both parties: Aon at [94].
25 It is irrefutable that had the application to vacate the hearing dates been refused prejudice would have flowed to Vilro, particularly in terms of additional costs expenditure and costs thrown away.
26 But, in my opinion, the evidence did not disclose that Vilro could not absorb these costs. And more importantly, the evidence did not disclose that irreparable or even severe harm would have, at this stage, been visited upon Vilro by the making of such an order (cf Fostoria-Fannon (Aust) Pty Ltd v Minister Administering the Water Management Act 2000 [2010] NSWLEC 121 at [16] per Preston CJ). While no alternative town planner could be located in Port Macquarie, there was no evidence of the unavailability of any Sydney based town planner and no explanation was provided to the Court as to why only a town planner located in Port Macquarie had to be used by Vilro.
27 Until the evidence of Mr Steele was served, extraordinarily, no efforts whatsoever had been made by Vilro to engage another town planner. While an exhaustive search is not required to satisfy the Court that an alternative expert cannot be retained, Vilro's efforts in this regard were highly unsatisfactory.
28 This is particularly so when, as referred to above, a preliminary examination and assessment of Ms Hollis' report revealed that the matters about which she expressed an opinion were, as the RTA submitted, relatively straightforward. While care must be taken by a Court in an application such as this not to overly scrutinise material which has not yet been admitted into evidence or tested or measured in any way, a preliminary analysis of Ms Hollis' and Mr Sanders' reports nevertheless indicated to me that with five weeks remaining to the hearing date, it ought to have been possible to engage an alternate town planner to prepare another report. Further, while it is correct that Mr Sanders and the valuation experts refer in their evidence to the conclusions arrived at by Ms Hollis, any departure from Ms Hollis' opinion could have been accommodated by brief supplementary evidence from those experts.
29 In addition to the matters raised above at [11], what the evidence does disclose is that Vilro may be criticised for allowing Ms Hollis' equivocation as to whether or not she would attend the hearing to persist for over a month. While her decision not to attend was not caused by Vilro, a decision ought, in my view, to have been made decisively and quickly by Vilro to terminate Ms Hollis' engagement in the proceedings in order to maximise the implementation of a solution that, if possible, avoided a vacation application.
30 While it is undeniable that the prejudice that would have been suffered by the RTA if the hearing dates had been vacated would have been significantly less compared to that of Vilro, I agree that the RTA would nevertheless have suffered some prejudice inasmuch as the litigation would not have been finalised until 2011.
31 It is also true that absent vacation the RTA would have incurred additional costs in having to respond to the evidence of an alternative town planner. However, these are costs that the RTA indicated that it would prefer to absorb rather than face the prospect of a lengthy delay in the finalisation of the proceedings. Justice delayed is justice denied, as the aphorism states.
32 Accordingly, I remained unconvinced, at this stage, that the vacation of the hearing dates would have facilitated the overriding purpose of the just, quick and cheap resolution of the real issue for determination in the proceedings. This is particularly so when alternatives to the complete vacation of the hearing dates were, as the current order sought demonstrates, available and had not been adequately explored in order to preserve at least some portion of the allocated hearing dates.
33 Absent satisfactory evidence of severe prejudice and given what I regard as less than satisfactory conduct by Vilro in its handling of the situation, and the impact that this vacation would have had on the efficient running of the business of the Court, it would have been appropriate that I exercise my discretion to decline to make the vacation order sought.
34 However, for all the reasons discussed above it is entirely appropriate that I order that the matter be set down for an additional day of hearing prior to the originally scheduled commencement of the proceedings in order to hear the town planning evidence.
Duty of Expert Witnesses to Attend Hearings
35 Finally, I must make some observations about the conduct of Ms Hollis given her engagement as an expert witness in these proceedings.
36 It is also trite law that an expert witness' paramount duty is to the Court and not to the party engaging that expert (r 31.23 and Sch 7 to the Uniform Civil Procedure Rules 2005).
37 As such, it is expected that when an expert gives a commitment that he or she will be available to attend a hearing at which he or she is to give evidence in respect of a report prepared earlier in the proceedings, this commitment will be honoured save in only the most exceptional circumstances that will generally be beyond the control of the expert. Any failure in this regard breaches not only the expert's duty to the client but, and more importantly, the expert's paramount duty to the Court.
38 However compromised and difficult the circumstances were that Ms Hollis found herself in (and I do not doubt that they have caused her considerable and genuine distress), they were not, in my opinion on the evidence before me, so exceptional and beyond her control that her conduct in not making herself available for the hearing can be justified.