District Court New South Wales Medium Neutral Citation: Barakat v Mastroianni [2016] NSWDC 122 Hearing dates: 14 October 2016 Date of orders: 14 October 2016 Decision date: 14 October 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Plaintiff be granted leave pursuant to r 31.28 of the Uniform Civil Procedure Rules 2005 to rely upon the report of Kate Dawson dated 31 August 2016 notwithstanding it was served upon the defendants after 22 January 2016. (2) Costs of the motion be costs in the proceedings. (3) Grant leave to the defendants to rely on a report responding to the occupational therapist's report the subject of this motion that is served by 11am on 1 November 2016. Catchwords: CIVIL PROCEDURE – expert report – late filing and service of expert report – exceptional circumstances – leave granted Legislation Cited: Civil Procedure Act 2005, s 56 Practice Note DC (Civil) No. 1 Uniform Civil Procedure Rules 2005, r 31.28 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Procedural rulings Parties: Kayla Barakat (plaintiff) Cesare Mastroianni (first defendant) Consetta Mastroianni (second defendant) Glenrose Beauty Gallery Pty Ltd (third defendant) Representation: Counsel: Mr P Frame (plaintiff) Mr Carolan (defendants) Solicitors: W D Hunt & Associates (plaintiff) BBW Lawyers (defendants) File Number(s): 2015/258399 Publication restriction: None Judgment 1. Ms Kayla Barakat, a solicitor, claims to be injured due to the negligence of a tanning salon when, after utilising the services of the salon, Ms Barakat left the premises wearing the apparently disposable tanning shoes supplied by the salon for treatment and Ms Barakat slipped on wet steps outside the salon. Liability is in issue. 2. Last October, directions were made about the service of evidence including service of expert reports by late January 2016. In April this year, at a status conference, a trial date was set for 2 November 2016. Ms Barakat was, at that stage, represented by her father who, it was said by the defendants, without objection, was an experienced personal injury solicitor. In July Mr Barakat arranged for another solicitor to represent Ms Barakat because of a potential conflict. Ms Barakat's present solicitor quickly determined an occupational therapist's report should be obtained and an appointment was arranged for a date in August 2016. A report dated 31 August 2016 was received by the new solicitor for the plaintiff and served on the defendants by 15 September 2016. 3. The defendants objected to the report, "Given the proximity of the hearing date due to its late service". At that stage, the hearing date was about seven weeks away but, of course, the date in January for service of the expert reports had long passed. The plaintiff obtained the availability of two occupational therapists that had never been retained by the plaintiff's solicitor. Ms Barakat's present solicitor, Ms Wendy Hunt, also deposed that she was aware of these occupational therapists, having provided reports for defendants in other cases. She informed the defendants of the availability and invited the defendants to retain them. She said she would not object to the late service of a responding occupational therapist report, initially, so long as the report was received 14 days before the trial, and subsequently, so long as the report was received by the day before the trial. 4. The defendants did not respond to that correspondence other than to state that the defendants would not be retaining those occupational therapists. The plaintiff served this notice of motion before me for leave to rely upon the reports, there is now less than three weeks before the trial. Rule 31.28 of the Uniform Civil Procedure Rules 2005 is the relevant rule and it provides that expert reports must be served, in subr (1), in accordance with any order of the Court and in subr (3) that the report is not admissible unless it is served in accordance with the rule except by leave of the Court or by consent of the parties. Subrule (4) provides that leave is not to be given unless, relevantly, the Court is satisfied that there are exceptional circumstances that warrant the grant of leave. 5. The plaintiff's counsel initially submitted that the plaintiff gave notice of an intention to serve the report and relied on three matters as unusual features of this case; that the father of Ms Barakat was acting for her, that she had a new solicitor in recent times and that the report was served six weeks before the trial. The defendants disputed that there was any notice of intention to serve the report and it is common ground now that no notice was given until the report was served on 14 or 15 September 2016. 6. The defendants rely on the provisions of r 31.28, to which I have referred, and also Practice Note DC (Civil) No. 1 at [8.6] which says: "8.6 Unless orders are made at the status conference, the Court will usually not allow parties to rely on medical reports and experts' reports served later than 28 days before the status conference. Reports which are not served in accordance with the Court's orders are usually inadmissible (see rule 31.28)." 1. The defendants also rely on the prejudice they say they will suffer by reason of an inability to obtain an occupational therapist report. There is evidence before me about the circumstances if leave is given to the plaintiff to rely upon the report saying: "The defendants would require further time in which to make arrangements to have the plaintiff assessed in her new home by an occupational therapist and it would be expected that an appointment would be scheduled in four to six weeks (with his preferred provider occupational therapy network) that a further four week period thereafter before receipt of the report in the form ready for service. That being the case the defendants would be highly prejudiced by the need to vacate the current hearing date which is opposed." 1. In relation to this matter of prejudice, I note that the evidence relies upon an expectation of the solicitor and not upon any attempt to obtain an occupational therapist's report before the trial date. In those circumstances, I find it unpersuasive. The plaintiff has put on evidence of the availability of two occupational therapists that have in times past been seen to provide reports for defendants, therapists who the plaintiff has not previously retained in any manner. 2. Of course, the defendants are not obliged to utilise the occupational therapists suggested by the plaintiff but given the ready availability of those occupational therapists, on balance, I do not think the availability is to be rebutted by a mere expectation of a solicitor without taking any steps to contact an occupational therapist to see if they could comply with the tight timetable left to enable a report to be used at the trial. Thus, I am unsatisfied about the claimed prejudice although I recognise that now there are only three weeks left before trial. 3. I turn to the question of the need for exceptional circumstances. I do not think that the circumstance that the plaintiff was previously represented by her father is an exceptional circumstance. The other matters asserted can be listed as follows: 1. There was a change of solicitor in July of this year. 2. The occupational therapist report was served almost seven weeks prior to trial. 3. The order for the service of expert reports was made 12 months ago and it required service in January 2016. 4. The plaintiff's solicitor had obtained the availability of two occupational therapists that had been known in times past to provide reports for defendants. 5. There was not any persuasive evidence to rebut the availability of an occupational therapist's report for the defendants. 1. These matters seem to me, in the context of this matter, to be sufficiently exceptional to attract the ability of the Court to grant leave. 2. I note in this context that the reference to [8.6] of the Practice Note seems to contemplate implicitly that reports served earlier than 28 days before the status conference might be allowed even though those reports also would have been, if served after January 2016 in this matter, outside the Court's order. I think the value of relying upon an order or direction in respect of the service of expert reports may be lessened the longer away from the trial the order is made, but perhaps most importantly in this matter, I think that the application of s 56 of the Civil Procedure Act 2005 informs the construction and application I should give to r 31.28. As is well known, s 56 defines the overriding purpose of the rules being to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" and that in subr (2): "The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule." 1. Thirdly, in subs (3) of s 56: "A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court." 1. On one view, the failure of the plaintiff to serve an occupational therapist's report or a relevant occupational therapist's report by January 2016 was a non‑compliance with court orders, while of course the report was not available at that date. But the rule also has application to the defendants' conduct in properly participating in the processes of the Court. In Ritchie's at [s 56.15] is reference to the obligations on legal practitioners, including cooperation, which "means that parties should be encouraged to make practical assessments, and avoid unnecessary controversy, about tangential matters". 2. In my view, upon the receipt of the occupational therapist's report, the obligation imposed by s 56 requires a defendant, at least, to consider whether they can take steps to avoid prejudice to enable the trial to proceed by seeing whether a responsive report could be obtained. In the circumstance, there is no evidence before me that that step was taken. Indeed, evidence that some four weeks have now passed and the defendants can only rely on an expectation as to the reason why a report cannot be obtained. 3. In the result, and bearing in mind the overriding purpose in s 56, I find that the circumstances of this case do amount to exceptional circumstances and I grant leave to the plaintiff to rely upon the report. No issue was taken by the defendants about the utility of the report or the inadmissibility of the report on other grounds and I make no comment about those matters or about the probative value of the report. These are matters for the trial judge. 4. I note that notwithstanding the plaintiff's success on the motion, the defendants seek an order for costs of the motion in their favour by reason of the nature of the application, seeking some form of indulgence or leave. In some cases, such a submission has significant merit. In this case, given the attempts taken by the plaintiff to have the matter resolved in a way that did not prejudice the defendants and the lack of steps taken by the defendants to either avoid the prejudice or to ascertain whether the prejudice was real or not, and the fact that, as the defendants concede, the plaintiff was successful in the motion, I accept the appropriate order in respect of this motion is that the costs be costs in the proceedings as sought by the plaintiff. 5. Accordingly, the orders of the Court are: 1. Plaintiff be granted leave pursuant to r 31.28 of the Uniform Civil Procedure Rules 2005 to rely upon the report of Kate Dawson dated 31 August 2016 notwithstanding it was served upon the defendants after 22 January 2016. 2. Costs of the motion be costs in the proceedings. 3. Grant leave to the defendants to rely on a report responding to the occupational therapist's report the subject of this motion that is served by 11am on 1 November 2016. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2021