Williams v Coles Supermarkets Australia Pty Limited

Coles' belated application

1. On 10 March 2017 the matter was listed for hearing for three days, commencing on 25 September. Various orders were then made, including that the parties file affidavits as to readiness, by 11 August. Neither party complied with that order.
2. As the Court had also ordered, however, Dr Mellick and Ms Williams' expert, Associate Professor Fearnside, produced a joint report of 12 July 2017, the parties having provided them with agreed information and agreed questions having been posed to them. The opinions there recorded supported aspects of Ms Williams' case.
3. On 28 August 2017, the time by which Coles was entitled to file further experts' reports without the Court's leave expired: r 31.28(1)(c). It was only that day that Coles first took steps to have Dr Mellick produce a further report, even though it had no further information to provide him. It provided Ms Williams a copy of Dr Mellick's resulting 6 September report before the hearing, but Coles could not serve that report without the Court's leave, or Ms Williams' consent: r 31.28(3). Without service this report was not admissible at the hearing: r 31.29(1).
4. Neither before nor even when the hearing commenced on 25 September, however, did Coles seek the Court's leave to serve that or Dr Mellick's further reports, nor did it seek Ms Williams' consent to using those reports.
5. On 14 September Coles sought a further report from Dr Mellick, which he provided on 15 September. It did not then disclose the existence of that report to Ms Williams. Instead, it sought yet another report.
6. In response to a request conveyed by my Associate to the parties, on 22 September the parties provided copies of various documents which were to be tendered, including expert reports. It was Ms Williams who provided the joint reports. Coles provided Dr Mellick's first report, of 18 April 2017, as well as his 6 September report.
7. The existence of Dr Mellick's 15 September report was still not disclosed, even when the hearing commenced on 25 September, when issues lying between the parties about the expert evidence were raised by Ms Williams. Its existence only came to light on 26 September, after Coles served Dr Mellick's 25 September report, in circumstances which I will explain.
8. It eventually became common ground between the parties that without Ms Williams' consent, r 31.34 precluded Coles from using any of Dr Mellick's reports in the proceedings. That prompted Coles' application for the Court's leave to serve his September reports.
9. In advancing that application, it was not Coles' case that the course which had been pursued was the result of any ignorance of the applicable Rules. That it was the result of representative error, rather than a deliberate course, has not been established. In the circumstances which I will explain, it must be concluded that what had been done to the point that the application for leave was made was deliberate, pursued presumably to advantage Coles in the litigation.
10. Were it otherwise, a different and available course under the Rules would have been pursued.

The requirements of the Rules

1. Rule 31.28 provides: "31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party: (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties: (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied: (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1)."
2. The meaning of the phrase "exceptional circumstances" was considered in in State of NSW v Tyszyk [2008] NSWCA 107, where Campbell JA observed at [206]: "206 I venture to repeat what I said (with the agreement of Tobias JA and Handley AJA) in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]-[67]: "Another question of construction concerned "exceptional circumstances" in rule 31.18(4). In San v Rumble (No 2) [2007] NSWCA 259 at [59]-[69], I gave consideration to the expression "exceptional circumstances" in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4). (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) [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] 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 295 [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)." In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.""
3. It is common ground that unless Coles is now given leave to serve Dr Mellick's three September reports, the Court has no discretion to permit it to use those reports in the proceedings, they not having been served in the way provided by the Rules.
4. Rule 31.34 governs the provision of supplementary expert reports. It provides: "31.34 Supplementary reports by expert witness (1) If an expert witness provides a supplementary report to the party by whom he or she has been engaged, neither the engaging party nor any other party having the same interest as the engaging party may use: (a) the supplementary report, or (b) any earlier report affected by the supplementary report, unless all of those reports have been served on all parties affected. (2) For the purposes of this rule, supplementary report, in relation to an earlier report provided by an expert witness, includes any report by the expert witness that indicates that he or she has changed his or her opinion on a material matter expressed in the earlier report. (3) This rule does not apply to a report prepared by a court-appointed expert."
5. On 26 September, Dr Mellick's 25 September report was provided to Ms Williams' counsel, moments before the commencement of the hearing. At that point Coles was proposing that this report be provided to the four other experts it had subpoenaed to attend to give concurrent evidence that afternoon, including Ms Williams' experts, after she completed her oral evidence. There was a dispute about this, but Coles still did not disclose the existence of the 15 September report to the Court, or to Ms Williams.
6. Dr Mellick's reports of 6, 15 and 25 September were all "supplementary reports" to which r 31.34 applied, even though the 25 September report included opinions which did not support Ms Williams' case, as opinions in the earlier reports had: r 31.34(2).
7. Coles' application for leave to serve all three reports was only made later on 26 September, after the existence of the 15 September report came to light, when it produced documents Ms Williams called for. Its use of Dr Mellick's reports to that point was inconsistent with r 31.34, given that it was in possession of the undisclosed 15 September report.
8. In the result, Coles accepts that r 31.34 precludes it from further "using" any of Dr Mellick's reports in the proceedings. Unless it is now granted leave to serve the September reports which it has so belatedly sought, it cannot use any of his reports in the proceedings.
9. Rule 31.29 governs the admissibility of experts' reports. It provides: "31.29 Admissibility of expert's report (1) If an expert's report is served in accordance with rule 31.28 or in accordance with an order of the court, the report is admissible: (a) as evidence of the expert's opinion, and (b) if the expert's direct oral evidence of a fact on which the opinion was based would be admissible, as evidence of that fact, without further evidence, oral or otherwise. (2) Unless the court otherwise orders, a party may require the attendance for cross-examination of the expert by whom the report was prepared by notice served on the party by whom the report was served. (3) Unless the court otherwise orders, such a requirement may not be made later than: (a) in the case of proceedings for which the court has fixed a date for trial, 35 days before the date so fixed, or (b) in any other case, 7 days before the date on which the court fixes a date for trial. (4) The parties may not by consent abridge the time fixed by or under subrule (3). (5) If the expert's attendance for cross-examination is required under subrule (2), the report may not be tendered under section 63, 64 or 69 of the Evidence Act 1995 or otherwise used unless the expert attends or is dead or the court grants leave to use it. (6) The party using the report may re-examine the expert if the expert attends for cross-examination pursuant to a requirement under subrule (2). (7) This rule does not apply to proceedings in the District Court or the Local Court or to proceedings on a trial with a jury."
10. Even if Coles is not given the leave which it seeks, this Rule would appear to permit Ms Williams to use Dr Mellick's report of 18 April 2017, which was served and to rely on his joinder in the opinions expressed in the joint report. She accepted, however, that it would be unfair to her to do so and thus would not rely on Dr Mellick's participation in the joint report, even though it is in evidence.

The consequences of Coles' failure to call evidence to support its application

1. Coles' case was that the question of leave must be determined in light of the documents in evidence, accepting that they must be considered in the context of what unfolded at the hearing, which culminated in its belated application.
2. During the course of the hearing on 26 September, the parties returned to what lay in issue between them over the expert evidence over the course of the morning. It was then that the existence of the 15 September report came to light, giving rise to my concern that mistakes had been made, which could give rise to a conflict between Coles and its legal representatives, given the case being pressed for Ms Williams.
3. I adjourned in order for that concern to be conveyed to Coles, there not being any representative present in Court to instruct counsel. I was later informed that it did not wish to seek other representation and that it proposed to call no evidence in support of its application for leave.
4. Despite adjournment of the application so that written submissions could be provided, on 28 September before it addressed its written submissions, Coles called no evidence from any of those who could have given an explanation of the course which it had pursued and the circumstances in which its application for leave came to be made .
5. Jones v Dunkel (1959) 101 CLR 298 considerations accordingly arise. They are concerned with a party's unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence. In this case such evidence could have been given by Mr Siebold, for example. He is the solicitor with carriage of the matter and the author of emails sent to Dr Mellick, which Coles tendered on its application. They had been copied to counsel.
6. The operation of the principles was explained in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75] - [96]. The three relevant considerations are: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained. Coles offered no explanation for no evidence being called from obvious witnesses to support its application.
7. When those conditions are satisfied, the inference that the evidence would not have helped the party's case may be drawn and used in two ways. First, in deciding whether to accept any other evidence given, whether for or against that party, which relates to a matter about which the person not called could have given evidence. Secondly, in deciding whether or not to draw inferences of fact which are open, about matters that person could have given evidence about.
8. In this case the application of those principles gives rise to the inference that the course which was pursued in relation to Dr Mellick's September reports was deliberate. That course either accorded with instructions Coles had given, or with Coles having been informed of what had unfolded during the hearing and it being content with the course its legal representatives had pursued.

25 September

1. When the hearing commenced on 24 September the issues between the parties were considerably narrowed by concessions then made by Coles. It then admitted ownership of the supermarket where Ms Williams slipped and fell in 2014; the duty of care it had then owed her; the existence of a risk of slipping on a floor surface that was slippery when wet and there was a substance on the floor; that the risk of resulting harm was not insignificant; that the risk was foreseeable; and that Ms Williams had slipped and fallen.
2. What was in issue on liability was identified to be first, whether Coles had taken adequate precautions by way of a system within the store, of monitoring and inspecting the floor surface and secondly, the period of time that the substance or liquid on which Ms Williams had slipped, was present on the floor. Coles' case was explained to be that the system which operated at the store was "cleaners would come through every morning and then the rest of the staff members were trained to keep an eye out for spills".
3. Coles had provided Dr Mellick's 6 September report to Ms Williams prior to the hearing, but neither sought her consent, nor the Court's leave to serve it. At the hearing Ms Williams objected to what Coles proposed in relation to both Dr Mellick's report, the report of another expert, Dr Stephen and how the concurrent evidence was to be managed, that also not having been disclosed to Ms Williams prior to the hearing.
4. It emerged that while Ms Williams had earlier given Coles notice under r 31.29(2), that its experts were required for cross-examination, no such notice had been given to Ms Williams. Instead, also without any notice, Coles had subpoenaed Ms Williams' experts and her GP, to give evidence. Coles had also made arrangements for all experts to give concurrent evidence on the afternoon of the second day of the hearing, although it appears that it had also not provided any of the other experts with Dr Mellick's September reports. Its position was explained to be that: "… the real medical issue that we want to explore in the proceedings is the causation in relation to the plaintiff's neck condition that led to her surgery. Now that issue was a matter of considerable agreement in the conclaves but it's something that the defendant wants to challenge."
5. The problem with this, as I then observed, was that the Civil Procedure Act and the Uniform Civil Procedure Rules intend that litigation not be conducted by ambush or surprise, but in accordance with the obligations imposed by s 56.
6. The position in relation to Dr Stephen, another orthopaedic surgeon, was that Coles had retained him, before the experts' conclaves. Ms Williams had objected to Coles calling evidence from two and had refused to be examined by him. Coles had then provided Dr Stephen with what was described to have been "a more fulsome history", albeit he was instructed with the same documents as the other experts. Dr Stephen then provided a report, which Coles had served in accordance with the timetable the Court had ordered. Ms Williams had consented to Dr Stephen's report being provided to the other experts, but he did not participate in either the conclaves or joint reports.
7. At the hearing Coles proposed that as well as the other four experts who had produced the two joint reports already in evidence, he would also be called to give concurrent evidence. Ms Williams objected, this not having been agreed or even discussed with her legal representatives before the hearing, as it undoubtedly should have been.
8. The parties were given an opportunity to discuss how the concurrent expert evidence should be managed. In the meantime, Ms Williams commenced her case, medical records and reports, including the joint reports were tendered and CCTV footage of the slip and fall was played in court. After the morning tea adjournment, the parties returned to the question of the expert evidence.
9. It then emerged that the "major issue of medical contention" was going to be in relation to the aetiology of the neck surgery carried out by Dr Bazina, a neurosurgeon, who had earlier treated Ms Williams' back in 2011 and 2012.
10. It was accepted for Ms Williams that the majority of the medico-legal opinions had proceeded on the basis that she had no prior neck symptoms, but that there were a couple of mentions of neck complaints, in the years preceding the accident in the records provided to the experts prior to their conclave. It was whether they were of significance, which Coles sought to pursue with the experts, even though that had not been raised by the agreed questions which the parties had put to the experts for consideration at their conclaves and so their significance was not addressed in the joint reports. Nor was a second question, whether a fall of the nature captured on the CCTV footage was capable of causing a neck injury which might require surgery. Coles also wished to ask the experts about the significance of Ms Williams' neck having become progressively more symptomatic, about one to two weeks after the accident.
11. Ms Williams objected to Coles either tendering Dr Stephen's report, or he being called to give concurrent evidence, even though it had been provided to the experts who, it seemed from what had been agreed in the joint reports, had not agreed with his views. Ms Williams relied on r 31.26(5) which provides that, "Except by leave of the Court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report".
12. Ms Williams did accept that it was appropriate to have the other experts confer again, before they gave their evidence concurrently the next day, in order to produce a written response to the further matters Coles wished to pursue with them. Additional questions to be put were to be prepared, with the aim that the concurrent evidence would be given after Ms Williams' lay evidence was called.
13. It was only at this point that it was revealed by Coles that as well as having obtained the 6 September report from Dr Mellick, it had also sought further opinions from Dr Pillemer; that there had also been further attempts to clarify Dr Mellick's opinion; and that "something more is coming. We haven't heard from Dr Pillemer." No further report emerged from him.
14. The unsatisfactory way in which Coles had pursued these matters was then acknowledged, but its position was that when the five experts all attended the following day, as it had arranged, they should be provided with a document which set out a history and asked short questions, which could then be dealt with orally, but it accepted that I might conclude that another report should be generated, before the experts were called, for which it had made arrangements. These questions had not, however, been agreed.
15. I then concluded that in all of these circumstances, Coles could not justly be permitted to call evidence from Dr Stephen, it having not taken available steps to obtain the necessary leave it required to call him, prior to the hearing. I also concluded, however, that Coles could not be precluded from tendering Dr Stephen's report, given that Ms Williams had earlier agreed to the experts being provided with it, as part of the materials with which they were provided, before they met in conclave.
16. I also took the view that when the experts gave their concurrent evidence, Coles could not be precluded from asking them why they had not accepted Dr Stephen's views. Nor could it be precluded from asking the experts about the basis of the opinions which they had expressed in the joint report. It was also entitled to draw their attention to documents in evidence and to ask whether they had earlier been considered. If they had, the experts could be asked about what impact they had on the views which they had reached. If they had not been considered, the experts could be asked whether that material had any impact on their opinions.
17. I also concluded, however, that in so far as the matters which Coles wished to pursue with the experts was the result of its failure to have asked the relevant questions about medical records in evidence before the conclave, in relation to the "fulsome history" Dr Stephen had considered, that should have been raised with Ms Williams prior to the hearing, so that steps could be taken to have the experts consider them together, before they were called to give concurrent evidence.
18. I came to these conclusions because the purpose of the Rules and the applicable Practice Note, is to ensure that the experts are able to consider matters over which the parties have joined issue; to meet in the absence of the parties' lawyers, in order to discuss their opinions about those matters; and to record them in a report, with the result that prior to the hearing, what the experts agree and disagree is clearly identified. It is only after that has occurred, that the experts should be called to give their evidence concurrently.
19. Having come to those conclusions, for Ms Williams the issue of full disclosure by Coles was understandably raised: "STONE: Thank you, apart from that we are in favour of the experts producing something further with questions before they all hop in the witness box because we don't want to be taken by surprise. I should also say that this is the first we've heard that yet further opinion is being sought from Dr Zenman and that there have been efforts to obtain additional opinion from Dr Pillemer and I'd very much like to know before anybody gets together and asks any questions, exactly what's been sent to whom. There ought to be full disclosure of all of that so that we know exactly what they've been told and whether there have been conferences, whether with counsel, with solicitor, by telephone, in person, what's been sent to them in writing, all of that ought to be properly disclosed because although I have absolutely no doubts about my learned friend that nothing dishonourable would be done that he was a part of the phrase novelling (sic) springs to mind somewhere along the way. There's a crossover between legitimate efforts to draw things to peoples' attention and there's a point at which that crosses over and I've got some concerns. HER HONOUR: And I share your concerns, this ought not to be happening at this stage, litigation is not conducted by ambush and surprise, the whole regime of concurrent evidence is designed to ensure that the lawyers step out of the way of the experts, that they're given an opportunity to look at material, to meet together, to come to form opinions which they explain and can be asked questions about and so there needs to be disclosure, I would have thought, to you and a further report or reports from the experts provided before they give their concurrent evidence and it's a question of timing, I suppose and you being provided with necessary information."
20. Despite this, Coles did not disclose the existence of Dr Mellick's 15 September report.
21. Ms Williams was then called. The hearing that day concluded on the basis that arrangements would be pursued with the experts, other than Dr Stephen's, so that their concurrent evidence could be called the next afternoon, after they had met and produced a further report in response to further questions, which the parties hoped to agree.

26 September

1. From what unfolded on the second day of the hearing, it has become apparent that Coles paid no heed to what I had earlier said about ambush and surprise, or its obligations under the Act and the Rules.
2. Moments before the hearing commenced that day, Coles served Dr Mellick's fourth 25 September report, still without disclosing the existence of the 15 September report. It emerged that this fourth report had not rested on any new information provided to Dr Mellick, but was the result of further undisclosed communications and instructions given by Mr Siebold, about the documents the experts had considered in conclave.
3. The possibility of concurrent evidence being able to be called later that day, the only day the other four experts who Coles had subpoenaed were available that week, appeared to be receding, with complaints of manifest unfairness being advanced for Ms Williams.
4. Coles' position then was explained to be: "As far as the defendant is concerned that can happen and it should happen and the matters of history and the question that really needs to be asked about medical causation in relation to the neck condition, matters simple enough for it to be all dealt with in that way today, if my learned friend has concerns that it cannot properly be done because of late reports coming in from Dr Mellick and uncertainty as to what should be asked, then that might have to be put off, your Honour but that should probably be decided now, I at least agree with him to that extent."
5. After adjourning, so that Ms Williams' counsel could read Dr Mellick's report, it was submitted that it would be unfair to have this report put to the other experts during concurrent evidence later that day, because it raised opinions which would best be dealt with by Dr Bazina, Ms Williams' treating neurosurgeon, who had operated on her neck in 2015 and who could not be consulted in the time available. Nor was there time to permit the other experts to consider what had emerged from Dr Mellick's report.
6. The opening sentence of Dr Mellick's 25 September report referred to an email with which he had been provided on 24 September. It was then called for, but could not immediately be produced by Coles, because a copy was not in court, even though counsel conceded that "letters of instruction and emails of instruction should all be part of the mosaic". Even at this point, however, the existence of the 15 September report was not disclosed.
7. It was at this stage that Ms Williams' application that Coles not be permitted to rely on Dr Mellick's reports was made, in order that the concurrent evidence could proceed that afternoon and the trial conclude within the allocated time.
8. On this application it was accepted for Ms Williams that after provision of a joint report, there was no blanket prohibition on a party raising further questions with a retained expert. But, it was argued that the course which Coles had pursued and how it had undermined the orderly process envisaged by the Rules as to the calling of concurrent expert evidence, warranted the exclusion of all of Dr Mellick's reports.
9. Coles resisted that application and any deferral of the expert conclave that day, even though it had still not disclosed the 15 September report, which it knew was referred to in Mr Siebold's email of instructions of 24 September, neither of which it then even had in court to produce.
10. I took the view, at that stage, that excluding all of Dr Mellick's reports for what was then submitted to be representative misconduct, would not preclude Coles from requiring the other experts to give concurrent evidence and for questions to be put to them about matters which had been raised with Dr Mellick. Further, that the Court would be slow to reach the conclusion that none of Dr Mellick's reports could be received, that being an extreme outcome, and one which I was not then satisfied was justified in the circumstances.
11. I concluded, however, that in all of the circumstances these developments would have to result in the conclave not proceeding that day, there being an adjournment and a costs order made against Coles, in terms which would have to be later considered.
12. The application to exclude all of Dr Mellick's reports was soon re-agitated, over Coles' objection, after it produced the email Mr Siebold sent to Dr Mellick on 24 September, when it was finally brought to court.
13. It was that email which disclosed the existence of Dr Mellick's 15 September report. Even then a copy of that report had not been brought to court. Despite this, Coles submitted: "Your Honour, the application is opposed again, it's never been my intention or the defendant's intention to tender or rely on any report of any doctor without providing all of the reports. It must be the case your Honour, that any correspondence with the expert and all of their reports must go before the Court for tender and that was always my intention, your Honour."
14. In the circumstances, that submission was difficult to accept, given that Coles had been pressing to have the concurrent evidence proceed that day, not having disclosed the existence of the 15 September report, or having brought it to court, even when the email of 24 September was produced. As I observed: "It hasn't even been served and its existence has only come to light through the call made for the email of 24 September which I notice seems to have been copied to you, Mr Priestley and that reveals the position to be that there is a report of 15 September which has [not] been provided to the defendant and r 31.34 provides that the defendant can't use any supplementary report or any earlier report affected by the supplementary report unless all reports have been served."
15. Ms Williams' position was that there were factual inaccuracies in the instructions Mr Siebold had provided Dr Mellick, which were explained. Complaints as to resulting unfairness, if the trial could not conclude within the allocated time, were pressed. It was also submitted that: "… it's one matter to robustly discuss with an expert the contents of their opinion and suggest alternate scenarios for them to consider, in my submission, this correspondence crosses the line in terms of suggesting to the expert the opinion he ought to be providing. It's inappropriate and in that context to now allow this trial to be delayed for any period of time is a consequence of a catalogue of what we say is misconduct on the part of the defendant's inappropriateness and the punishment they suffer is that Dr Mellick goes out."
16. Coles' position then was that the 15 September report was being brought to Court and that its difficulties under the Rules could be cured by service of the 15 September report, when it was brought to court. It was at this point that I raise the question of conflict. It was then apparent that serious mistakes had been made, but the question was by who.
17. Ms Williams' case was that there must have been a deliberate decision made not to serve the 15 September report, because the preceding Friday a tender bundle had been sent to my chambers, which had not included or referred to the 15 September report, the existence of which had not been disclosed to Ms Williams.
18. At that stage Ms Williams was still being cross-examined. As it soon emerged, her evidence could not be concluded that day, because of all that was put to her, including surveillance footage. Further, again without prior notice to Ms Williams, that day Coles also made arrangements with her GP, Dr Deighton, to attend court at 10am on the following day, to be interposed while she continued her evidence. This was also not disclosed when Coles resisted the deferral of the experts' concurrent evidence.
19. When the report arrived at court I was also informed by Senior Counsel for Coles: "I've spoken to the solicitor with carriage of the matter who has conferred with the client, raised the concerns that your Honour has raised and has received instructions that the client is content for this issue and the matter generally to continue to be conducted by their solicitors and they don't seek to intervene in any way, your Honour."
20. It was then revealed that the views Dr Mellick had expressed in the 15 September report, had supported Ms Williams' case, as had the views expressed in the joint report, but those expressed in his most recent report did not. It raised other matters which had not been raised with the experts, before they produced their joint reports.
21. Ms Williams' position was that the Dr Mellick's September reports not having been served, that requiring the Court's leave, which had not been sought or obtained, r 31.29 precluded Coles from using any of Dr Mellick's reports.
22. It was only this submission which finally prompted Coles' application under r 31.28(4)(a), for leave to serve Dr Mellick's 15 and 25 September reports and this exchange: "PRIESTLEY: I do seek leave to rely on them, although noting we're not in the defendant's case yet but I'm happy to seek leave now. They are not updating but they are also not reports from someone new and so they lie somewhere in between, for the purpose of principle. They should be admitted, in my submission, because all of the three reports now, after the first one, all go to achieve the same thing which is to consider a question of medical causation for the neck injury in light of the fulsome history and the reason why we have such a mess is because Dr Mellick has not considered all of those matters, it would seem, in my submission, adequately until the fourth report. HER HONOUR: Are you going to lead some evidence, or are you going to advance that application simply on the basis of a submission? PRIESTLEY: I rely on the evidence that your Honour already has, which is the reports themselves show his opinions and the request for the report show what's being sought. HER HONOUR: You don't propose to call any evidence from your instructing solicitor as to the circumstances which you say establish that it can be concluded that, in terms of the rule, the circumstances are exceptional. PRIESTLEY: I had not intended to but perhaps I should take instructions about that. HER HONOUR: I appreciate it's unusual that this has happened at all but it having happened, and what's happened, having come to light in the way that it has in bits and pieces rather than as one might expect, service by the defendant, and the problems with the conclave, this has come in advance of when it might otherwise arise but it has and it's a question for you whether or not you lead evidence or whether you simply advance the submissions you've advanced on the basis of mere documents themselves."
23. The parties later provided written submissions, but Coles led no evidence to explain the course which it and its legal representatives had pursued.

Coles' case

1. In its written submission Coles contended: "6 What constitutes exceptional circumstances must depend on a close consideration of the facts of the case. As a first point in response the Defendant submits that, whilst the reports served out of time are not strictly "merely updates of earlier reports", (UCPR 31.28(4)(b)), in that they do not purport to record a change of circumstances since an earlier report, they are nevertheless reports from an expert who has already provided a report that has been served in accordance with the Rules. The requirement for exceptional circumstances needs to be considered in that context, and this is capable of constituting such circumstances. 7 Further, each of Dr Mellick's further reports after the first one all go only to a specific issue, that is, medical causation of the Plaintiff's neck condition as arising from the accident in question. The foremost need for this further process has arisen from the Plaintiff's own instructions to Dr Mellick, (and others), that she had no symptoms in her neck or arms prior to the incident at Coles. 8 Whilst the plaintiff has placed strong emphasis on the history of the procurement and service of the later reports, the fact remains that the reports have only very recently come to hand, and were all served immediately, but for the short report of 15 September 2017. As the communications that followed this clearly reveal, the defendant's solicitors considered that this report proceeded on a serious misapprehension of what was being asked, and that view was found to be justified by the last report of 25 September. This is not a case where the reports have been held for any lengthy period prior to service. 9 In the circumstances, (submitted as exceptional circumstances), the Court would allow expert opinions from all of the specialist medical experts in this matter, with their opinions updated by the most fulsome history available on the evidence, not just that of Dr Mellick. Again, in the circumstances, rather than rejecting evidence from any expert on the topic because it is late, whatever time is necessary should be allowed for all of the experts to properly consider this. Notably it is inevitable that the Plaintiff's experts will be cross-examined on the point and asked to express opinions, opinions that may well substantially vary from those they have already expressed in their reports. 10 It is clearly open to the court in dealing with the tender of the later reports here to adopt such procedural means of achieving the practical result intended by rule. It is particularly appropriate to do so here because again, the issue dealt with in the late reports is a discrete one which can be dealt with by the plaintiff's current experts given time, and there is in fact no other prejudice of substance that cannot be cured by costs. The court has already decided that there is to be a further conclave and concurrent evidence, addressing precisely this issue. 11 In any case it would be a particularly unreasonable response to the service of late reports from an expert to reject them, due to lateness, and then therefore also reject their earlier reports served in time."
2. In oral submissions Coles' case was that on a fair reading of the communications with Dr Mellick, nothing improper or inappropriate had occurred, there had merely been "a process of attempting to obtain an opinion from Dr Mellick on the question of medical causation of the plaintiff's neck condition in light of a "fulsome history". Dr Mellick's 6 and 15 September reports were criticised as not having adequately answered what had been raised with him by Mr Siebold. He was also criticised for only having provided his 25 September report on the first day of the hearing.
3. None of these criticisms are warranted.

Ms Williams' case

1. Ms Williams' case was that the evidence had established that after the experts had produced their joint report in June, after the time for service of further reports without the Court's leave had elapsed, Coles had pursued a course contrary to that which the Act and Rules envisaged. On repeated occasions, including partway through the trial, Coles had communicated with one of the experts in an endeavour to secure a different opinion to that explained in the joint report, without properly disclosing what had it had done.
2. In written submissions it was argued that this could not establish exceptional circumstances. Preparation of expert evidence in personal injury cases is routine, requiring experts to examine plaintiffs and their medical records, for reports to be produced and for them to be exchanged; for experts to meet in conclave and for joint reports then to be produced. In this case, since the joint reports had been produced, no further materials concerning Ms Williams' condition had arisen to be considered by the experts.
3. Coles had earlier obtained a report from Dr Stephen, which was made available the other experts, who had not accepted his views. After the joint report was received, there had been more than 28 days in which supplementary comments could have been sought from Dr Mellick and served. Coles could also have approached Ms Williams to agree to further questions being put to the experts, about matters Mr Siebold finally pursued only with Dr Mellick, after it obtained his report of 15 September. If that had not been agreed, the Court could have been approached.
4. It was also submitted that there was nothing exceptional about Coles having left till the last minute the preparation of its case. That could not establish exceptional circumstances of the kind required by Rule 31.29. No evidence had been led to explain the course which had been pursued, or what was exceptional about the situation with which Coles was then confronted.
5. Coles' position was argued to be different to that which arose in Schofield v Serenity 5 Pty Ltd [2017] NSWSC 1168, where I concluded that evidence led from the plaintiff's solicitor established a combination of matters, which permitted the conclusion that exceptional circumstances did there exist. They included admitted representative error, given late realisation as to the existence of an evidentiary gap, as well as the nature and consequences of the plaintiff's injury and the treatment he was still receiving.

The circumstances Coles has created are not exceptional

1. I am satisfied that the matters on which Coles relied do not establish exceptional circumstances
2. The circumstances which have here arisen in this case are not analogous to those which arose for consideration in Schofield. No evidence has been led from Coles, to explain the course which was pursued. There is no evidence that representative error occurred. To the contrary, the course pursued appears to have been deliberate.
3. After the experts provided their joint reports, Coles repeatedly asked Dr Mellick to consider questions about documents which had been considered at the conclave, on which the views expressed in the joint report had been arrived at. They were questions which could and should have been put to the experts, to consider jointly. What was being advanced to Dr Mellick in that way was said to be 'the more fulsome history' which Dr Stephen had considered and dealt with in his report. His report was also before the experts at conclave. It follows that the experts could also have been asked questions about that history and Dr Stephen's view's about them, but Coles did not seek to have any such questions put to the experts.
4. Coles having approached Dr Mellick as it did and not having received responses with which it was satisfied in the 6 and 15 September reports, endeavours to have him alter the opinions in which he had earlier joined, were pursued by the 24 September email. All this was done without notice to Ms Williams, approach to the Court, or giving the other experts the opportunity to consider and discuss the matters Coles had so raised with Dr Mellick, before Coles arranged to have them give their concurrent evidence on 26 September. Even that day Coles did not disclose the existence of the 15 September report. That was only disclosed when the 24 September email had to be brought to court.
5. Undoubtedly, if the leave Coles now seeks is given, it will be relieved of the consequences which flow under the Rules from the course which was deliberately pursued. It is as a result of that course, that the hearing has had to be adjourned, because the time taken with these matters precluded it concluding within the allocated time.
6. I have already concluded that in the circumstances, costs orders must be made against Coles. That does not establish the existence of exceptional circumstances. It merely reflects the just consequence of Coles' conduct.
7. That further costs orders could be made in favour of Ms Williams, if the leave Coles now seeks is now granted, also does not establish the existence of exceptional circumstances. That would merely reflect the just consequence of the grant of such leave, in Coles' favour.
8. The hearing having had to be adjourned as it was, it is now practically possible for steps to be pursued, to have the experts meet again, in order to consider Dr Mellick's September reports, as well as the additional matters which the parties have agreed should be raised with them, before concurrent evidence is given. That alone cannot establish the existence of exceptional circumstances, although it is a relevant consideration, as Coles submitted. That must be considered together with the other matters I have discussed.
9. Having weighed all of these considerations, I am satisfied that Coles has not established that the circumstances it has itself created, which under the Rules preclude it from relying on Dr Mellick's reports without the leave it seeks being granted, are exceptional. The result which Coles has achieved is that which the Rules intend will result from such conduct. That was the risk which was taken, when the course which was embarked on, was deliberately pursued, until the existence of the 15 September report came to light, rather than being disclosed by Coles, as it should have been.
10. The joint report was received in July. The parties then asked the experts no questions about Dr Stephen's report, or the "fulsome history" Coles had put to him, or his views about that history, as they could have been. It was only on 28 August that Mr Siebold approached Dr Mellick for a further report. That was the last day on which any supplementary expert's report could have been served, without leave or Ms Williams' consent. Coles sought neither.
11. Coles was not content with either Mr Mellick's 6 September report which was provided to Ms Williams, or the 15 September report which was not. Dr Mellick was asked on 22 September: "Ms Williams seems to have suffered the same symptoms in 2011, at the hospital in September and then as recorded by Ms Winterbottom in November - two months is clearly not a one-off. Add the comment of the General Practitioner in February 2014 to the Housing Commission that Ms Williams was now getting neck pain. This was confirmed two months later by the Housing Commission. Therefore is it not more likely that any aggravation in the fall would have manifested itself with immediate symptoms? Particularly as Ms Williams was seeing the same physiotherapist who treated those symptoms before. If so, does it not follow that the neck symptoms, first recorded 10 weeks after the fall (despite seeing a GP 3 times and a physio 4 times) are unrelated to the fall?"
12. When the 25 September report was provided to Ms Williams on the second day of the trial, objection was understandably taken to what Coles had done and further proposed. An issue as to whether what was put in the 24 September email was even factually correct, then arose. That has not been resolved.
13. This well explains why Coles ought to have raised the further matters it pursued only with Dr Mellick, with Ms Williams prior to the hearing. If it had then not been agreed that those further matters should be considered by the experts, Coles ought to have approached the Court, it at that time requiring the Court's leave to rely on any further reports from Dr Mellick.
14. Not only was leave to serve Dr Mellick's 6 and 15 September reports not sought, even when the hearing commenced, unbeknownst then to either Ms Williams or the Court, Coles having not disclosed the existence of the 15 September report, it was not entitled to make use of any of Dr Mellick's reports in the proceedings. That was also not disclosed, even though the further pursuit of the report which emerged from Dr Mellick on 25 September was. Even on 26 September Coles did not disclose what was known only to it, that it was not entitled under the Rules to use any of Dr Mellick's September reports.
15. In the absence of evidence from Coles, or its legal representatives, explaining why this course was pursued, it can only be inferred that it was a deliberate one.
16. Had it been otherwise, the documents which evidenced the communications Mr Siebold had pursued with Dr Mellick, after the time for service of supplementary reports had expired in August and his 15 September report itself, would all have been served before they were produced only during the course of the second day of hearing, in the unsatisfactory way that I have described.
17. That they were not all served before, or even on the first day of the hearing, when I drew Coles' attention to the requirements of s56 and observed that litigation should not be conducted in this way, by ambush and surprise, is difficult to understand. Even on the second day of the hearing, neither the existence of the 15 September report, which engaged the provisions of Rule 31.29, nor all of the documents finally produced that day, were even brought to court, until they were called for by Ms Williams.
18. This approach was not consistent with the obligations imposed on Coles by s 56(3) of the Civil Procedure Act and on its legal representatives by s 56(4).
19. In the result, it cannot justly be concluded that Coles has established exceptional circumstances warranting the exercise of the Court's discretion to grant it leave to serve Dr Mellick's reports of 6, 15 and 25 September. Justice does not permit such circumstances to be established by a party and its legal representatives deliberately breaching their obligations to the Court and knowingly acting inconsistently with the requirements of the Rules. The Court's discretions cannot justly be exercised in a way which encourages conduct of the kind which has been pursued in this case.
20. Coles' application for leave is accordingly refused.
21. The usual order as to costs is that they follow the event. On this application that would be an order in favour of Ms Williams. If the parties wish to be heard further on the question of costs, they will be heard in due course.

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