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Supreme Court of the ACT |
Last Updated: 9 November 2009
CHRISTINA THEODORELOS v NEXUS PROJECTS PTY
LIMITED
[2009] ACTSC 149 (6 November 2009)
APPEALS – appeal from interlocutory decision of the Master – nature
of appeal to be determined by reference to statute,
Supreme Court Act 1933
(ACT), s 9 – appeal by way of rehearing – where no fresh evidence
called, real question is whether court should substitute its view
of the facts
below – appeal based on facts and law at time of appeal.
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
Supreme Court Act 1933
(ACT), ss 9, 47
Bail Act 1992 (ACT)
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
Clune v Watson [1882] Tarl 75
WJD v
TEK (1998) 72 ALJR 1323
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
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Builders Licensing
Board v Sperway Constructions (Syd) Pty Ltd and Anor [1976] HCA 62; (1976) 135 CLR
616
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Traut v Faustmann Bros Pty
Ltd (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]
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
Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296
Warren v Coombes
[1979] HCA 9; (1979) 142 CLR 531
House v The King [1936] HCA 40; (1936) 55 CLR 499
Gronow
v Gronow [1979] HCA 63; (1980) 144 CLR 513
Campbell v Fortey (1987) 85 FLR
462
CDJ v VAJ (1998) 197 CLR 172
Anutech Pty Ltd v Latent
Energy Systems Pty Ltd (unreported, ACTSC, Gallop J, 3 February
1987)
Martin v NRMA Insurance Ltd [1998] ACTSC 52
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) 12 VR 211
Cox v Mosman and
Anor [1908] St R Qd 210
Golski v Kirk (1987) 14 FCR 143
No. SC 354 of 2007
No. SC 355 of 2007
Judge: Refshauge J
Supreme Court of the ACT
Date: 6 November 2009
IN THE SUPREME COURT OF THE )
) No. SC 354 of
2007
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: CHRISTINA THEODORELOS
Plaintiff /Respondent
AND: NEXUS PROJECTS PTY LIMITED
Defendant/Appellant
ORDER
Judge: Refshauge J
Date: 6 November 2009
Place: Canberra
THE COURT ORDERS THAT:
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.
IN
THE SUPREME COURT OF THE )
) No. SC 355 of
2007
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: CHRISTINA THEODORELOS
Plaintiff/Respondent
AND: NEXUS PROJECTS PTY LIMITED
Defendant/Appellant
ORDER
Judge: Refshauge J
Date: 6 November 2009
Place: Canberra
THE
COURT ORDERS THAT:
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 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.
The
proceedings
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.
The
application
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.
The reports
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:
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]).
27. Mr Masselos then deposed:
...
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:
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.
The statutory framework
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.
The decision of
the learned Master
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”.
Appeals from the Master
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)
155 CLR 21 (at 30).
Exercise of jurisdiction by 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) 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) 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:
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] 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) 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.
The hearing of the appeal
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.
The submissions of Nexus Projects Pty Limited
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) [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.
The submissions of Mrs
Theodorelos
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.
Findings
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”.
109. It seems to me, with respect, that the learned
Master’s argument was too limited on this point. Whether his Honour was
combining this with the other matters to find exceptional circumstances or
relying on it to justify the grant of leave as showing
no or no relevant
prejudice does not matter.
110. It may be true that a responding report from
another expert would be hardly an appropriate response to the general
practitioner’s
assertion that Mr Theodorelos could have worked until he
was 75 years old. That is by no means clear, however, in that past medical
records would be available and from which an assessment may be able to be made
by another expert. That, however, is not the only
way to respond to the report
and not the only way that would take time.
111. The report meant that there
was a new witness to be called in the case to be made by Mrs Theodorelos, namely
the general practitioner.
The opinion of that witness was to be challenged.
That could be done by providing a contrary opinion but would also have to be
done by cross-examination as the learned Master noted. The learned Master seems
to have minimised the fact that time would be needed
to prepare for such
cross-examination. Such cross-examination would have to be prepared. Contrary
to what might be popular opinion,
good cross-examination does not simply flow
from a stream of consciousness when counsel rises to commence it. There has to
be preparation,
not just in thought but in investigation. Has the general
practitioner expressed a contrary opinion or made a contrary diagnosis
before?
Are there other facts which would, if known by the general practitioner, require
her to, or suggest she should, change her
opinion? Subpoenas may need to be
issued, documents read to see if, in the light of this fresh evidence, a new
light is to be thrown
on them.
112. The lack of time to prepare such
cross-examination is a potential source of prejudice to Nexus Projects Pty
Limited and needed
to be properly taken into account by the learned
Master.
113. The situation now, however, is different. There are now nearly
six months before the trial will commence, even accepting that
the Christmas/New
Year period occurs in that time. That, however, puts a new perspective on the
issue of prejudice to Nexus Projects
Pty Limited. This is a fact I need to take
into account, which was not available to the Learned Master.
114. I turn then
to the reports of Ms Davidson and the architect. They are in a different
position.
115. Allowing for the ex tempore nature of the learned
Master’s decision, I accept that in relation to those reports, his Honour
does not seem to have found exceptional circumstances. His Honour proceeded to
deal essentially with the balancing of factors which
is more appropriate to the
issue of discretion though it may be relevant to finding exceptional
circumstances. His Honour does not
seem to have addressed at all the question
of what made the circumstances of the receipt and wish to tender the reports
exceptional,
if they were.
116. It seemed to me a little curious that his
Honour considered that the opinion of the occupational therapist as to whether
Mrs
Theodorelos would be able to cope was so determinative. While an essential
element, it had to be based on the psychological disability,
namely the severe
grief reaction, and the evidence of the psychiatrists would, I should have
thought, be essential, and at least
relevant, to whether it would continue to be
debilitating to the relevant degree.
117. It was also a little curious that
the two factors mentioned by his Honour as “balancing factors” were
both matters
favouring admission of the report rather than factors that might
need to be balanced. Having said that, it seems to me that his
Honour was more
likely referring to these two factors as balanced against the unstated but
obvious and, therefore presumably assumed,
factor that late service of these
reports without a reasonable opportunity to obtain responsive reports and
investigate them would
be highly prejudicial to Nexus Projects Pty Limited.
Given the ex tempore nature of the judgment, this appears more
likely.
118. Before one gets to that position, however, the court has to make
a finding of exceptional circumstances and his Honour did not
do
that.
119. In approaching this task, the court must not merely read the rules
but understand them and their purpose. They need, too, to
be read in the
context of the overriding purpose set out in r 21 of the Court Procedures
Rules.
120. It is clearly in the interests of justice that a party should be
able to adduce all the admissible evidence the party wants to
adduce. Such
evidence should not be excluded simply because the rules require it; that would
make the rules a master of the litigation
and not the
servant.
121. Nevertheless, the rules are the agreed policy as to the
procedural basis on which the litigation in the court is to be conducted,
balancing all the relevant interests of the parties, the court and the
community.
122. The purposes of a rule such as r 1241 of the Court Procedures
Rules are various but directed towards ensuring that the issues are crystallised
well before an action is heard and to preventing prejudice
to a party in not
knowing what expert evidence needs to be confronted and addressed as well as
ensuring that there is time to do
so.
123. It would have been possible for
the Learned Master to have dispensed with r 1241 (see r 6 of the Court
Procedures Rules) or, less drastically, to have set aside the Certificate of
Readiness so that a fresh hearing date could have been set if his Honour
thought
that justice demanded it. Mr Stretton fairly and properly accepted these
options but pointed out that no such application
had been made by Mrs
Theodorelos.
124. Nevertheless, the fact is that now the proceedings have had
to be adjourned for reasons irrelevant to the matters the subject
of this appeal
and I cannot pretend that the adjournment has not occurred nor ignore it and the
effect it has on these proceedings.
In this light, it may be that the nature of
the circumstances I must consider as to whether they are exceptional or not may
not
be the same as if the hearing of the proceedings were days away. Certainly,
issues of prejudice would bear a wildly different
perspective.
Conclusions
125. Based on my findings, I am of the opinion
that the appeal against the learned Master’s order in relation to the
general
practitioner’s report must be dismissed. As I noted above, the
challenge really was to the finding of exceptional circumstances
justifying the
grant of leave, which I have found did exist and were identified by his
Honour.
126. There was some unclarity as to whether the challenge included a
claim that even if such exceptional circumstances were found,
leave should not
have been granted. As I have noted above, I must decide the appeal not as at
the time when the learned Master decided
it but on the facts and law as now
known. That includes the fact that the proceedings were adjourned to 29 March
2010. In those
circumstances, it is difficult to see what prejudice there is to
Nexus Projects Pty Limited.
127. I note that the learned Master granted the
leave to rely on the general practitioner’s report subject to a condition
that
the general practitioner be available for cross-examination. I was not
asked by either party to interfere with that part of his
Honour’s order.
That would also provide a good antidote to any bane of prejudice otherwise
suffered by Nexus Projects Pty
Limited. That part of his Honour’s order
is undisturbed.
128. As to the other reports, the learned Master did not find
exceptional circumstances either expressly or, so far as I could find,
implicitly. As a result, his Honour’s grant of leave must be set
aside.
129. That is, however, not the end of the matter. I could dismiss the
application, but to do so I would be required to be satisfied
that there were no
exceptional circumstances. I am not yet convinced that this is so. The change
in circumstances of the family
situation may well be sufficient. I have not,
however, had argument, at least from Nexus Projects Pty Limited on that and
natural
justice forbids me from making a finding without the defendant having
the opportunity to be heard.
130. It could be argued that it should have made
the submissions at the hearing and this may well be true. That can, however, be
resolved by an appropriate order for costs.
Costs
131. The notice of
appeal also challenged the order for costs. There was no oral argument on this
issue. The learned Master ordered
that the costs be the defendant’s costs
in the cause. That seems to me to be very generous, perhaps overly generous, to
Mrs Theodorelos.
132. When a party, who, in this case, consciously
decided to proceed with the actions although some evidence was not available
according
to the rules, seeks then an indulgence of the court, that party would
ordinarily be required to pay the costs of the application,
even if it is
granted over the other party’s opposition: Cox v Mosman and Anor [1908]
St R Qd 210 (at 216); Golski v Kirk (1987) 14 FCR 143 (at 157). I would be
inclined, provisionally, to order that the costs of Nexus Projects Pty Limited
of the proceedings before the
learned Master be paid by Mrs
Theodorelos.
133. In respect of the appeal, it seems to me that each party
has had a significant measure of success and that, provisionally, I
would be
inclined to order each party to pay their own costs.
134. Given that I need
to receive further submissions, I will also receive further submissions on
costs.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 5 November 2009
Counsel for the plaintiff/respondent: Mr P J Mooney
Solicitor for the plaintiff/respondent: Pamela Coward Higgins Lawyers (as
agents for Steve Masselos & Co)
Counsel for the defendant/appellant: Mr
G A Stretton
Solicitor for the defendant/appellant: Mallesons Stephen
Jaques
Date of hearing: 2 October 2009
Date of judgment: 6 November 2009
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URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2009/149.html