Supreme Court New South Wales Medium Neutral Citation: Kelly v Thorn; Monteleone v Thorn [2020] NSWSC 1933 Hearing dates: 17 November 2020 Date of orders: 17 November 2020 Decision date: 17 November 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Leave be granted to the plaintiff to rely on the report of Professor Brew subject to the following conditions: (a) The solicitors for the defendant use their best endeavours to obtain a report in response to the report of Professor Brew prior to 20 November 2020; (b) If, having used their best endeavours, the solicitors for the defendant are unable to obtain such a report then they should prepare and provide an affidavit setting out the efforts they have made and the reasons why no such report will be available. Catchwords: CIVIL PROCEDURE — admissibility of expert report — service out of time — leave — where necessary to demonstrate exceptional circumstances under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) — whether exceptional circumstances shown — impecuniosity Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 31.28 Cases Cited: Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Category: Procedural rulings Parties: Proceedings 2015/326714 William Andrew Kelly (First Plaintiff) William Richard Kelly (Second Plaintiff) Margaret Jane Kelly (Third Plaintiff) Andrew Thorn (First Defendant) Thorn Transport Pty Limited (Second Defendant) Proceedings 2016/74936 Ross Monteleone (formerly Poyser) (Plaintiff) Andrew Thorn (First Defendant/First Cross-Claimant) Thorn Transport Pty Limited (Second Defendant/Second Cross-Claimant) William Andrew Kelly (First Cross-Defendant) William Richard Kelly (Second Cross-Defendant) Representation: Counsel: Proceedings 2015/326714 L D Robison (Plaintiffs) M T McCulloch SC with D P Kelly (Defendants) Proceedings 2016/74936 A Renshaw with B Adam (Plaintiff) M T McCulloch SC with D P Kelly (Defendants/Cross-Claimants) L D Robison (Cross-Defendants) Solicitors: Proceedings 2015/326714 Benson Law (Plaintiffs) Gillis Delaney Lawyers (Defendants) Proceedings 2016/74936 AR Conolly & Company Lawyers (Plaintiff) Gillis Delaney Lawyers (Defendants/Cross-Claimants) Benson Law (Cross-Defendants) File Number(s): 2015/326714; 2016/74936 Publication restriction: None revised ex tempore Judgment 1. This is the judgment in respect of the application of Ross Monteleone, who is the plaintiff in Proceedings 2016/74936 ("the plaintiff") to tender the report of Professor Bruce Brew dated 15 August 2017. 2. The reason that the application is necessary is because the report of Professor Brew was only served by the plaintiff on 13 November 2020. The parties agree that r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") applies. 3. It is necessary to set out the background to the issue that arises. The plaintiff alleges that he sustained injuries in an accident on 15 March 2013. He alleges that the accident was caused by the negligence of the defendants Andrew Thorn, and Thorn Transport Pty Ltd. (I will hereafter refer to the first and second defendant together in the singular — as "the defendant" — unless further distinction is necessary). 4. The plaintiff, who at the time of this application is in the middle of cross-examination, alleges that he sustained a severe injury to his right arm when he was assisting the first defendant, Andrew Thorn, in unloading or removing sheep from a truck and trailer which had been driven on to the property where the plaintiff was working. 5. The plaintiff alleges severe injury to his right arm. He has provided a schedule of damages which sets out his claims for substantial economic loss for the past and into the future, as well as a substantial claim for domestic assistance. The plaintiff is currently 39 years of age. 6. The plaintiff's claim is being heard together with proceedings being pursued by the plaintiff's employer, William Andrew Kelly, William Richard Kelly and Margaret Kelly ("the Kellys") trading as Lugano Pastoral Co., for recovery of workers compensation payments made to or on behalf of the plaintiff. 7. The proceedings pursued by the Kellys (2015/326714) were commenced in the District Court in 2015. The proceedings commenced by the plaintiff were commenced in this Court on 9 March 2016. Since March 2016, both proceedings have been case managed by the Court. 8. The matter has been the subject of considerable dispute and skirmishes between the parties relating to a number of issues, which sometimes arise in these complex personal injury cases. The matter was allocated a hearing date for seven days commencing 16 November 2020 by the Registrar on 17 December 2019, being 11 months ago. 9. The issue that arises at this time is that the plaintiff seeks to rely on the medico-legal report of Professor Brew, a neurologist, for the purposes of adducing expert medical opinion as to the nature and extent of his ongoing disabilities, capacity for work and need for care. The plaintiff seeks to rely on Professor Brew's report as evidence explaining in part why the plaintiff continues to suffer from disabilities on an ongoing basis. The position of the parties 1. The plaintiff accepts that he must show exceptional circumstances, having regard to UCPR r 31.28(4). The plaintiff relies on an affidavit of Alan Conolly, the solicitor for the plaintiff, dated 16 November 2020. 2. The explanation for the failure to serve the report in accordance with all earlier orders and the rules is essentially that Professor Brew would not release his report until he received payment for the examination and report in the sum of $4,400. Professor Brew informed the solicitors for the plaintiff that the report had been finalised as early as at 17 August 2017 and would be released on payment. The plaintiff was unable to afford that fee and thus did not pay for the report. 3. It seems that in October 2020, there were some further discussions with Professor Brew, and he agreed to reduce his invoice to $2,500 which, according to Mr Conolly, was then paid by the plaintiff and the report was obtained. 4. Mr Renshaw of Counsel, who appears with Mr Adam of Counsel on behalf of the plaintiff, submits that I should also have regard to the conduct of the defendant, in that he submits the defendant was well aware that Professor Brew had examined the plaintiff and that the defendant would be seeking to rely on the report if it could be obtained, and did not obtain its own expert neurological opinion. Mr Renshaw also submits that the defendant had itself served evidence outside the Court's orders and that this is a factor which should be taken into account. 5. The defendant accepts the explanation for the late service, that is, impecuniosity, but says that could not constitute exceptional circumstances. The defendant submits that there was no obligation on it to obtain a neurological opinion just in case the plaintiff might actually serve Professor Brew's report. 6. The defendant also disputes the plaintiff's suggestion that it has failed to comply with Court orders in terms of service of its own evidence. Consideration 1. UCPR r 31.28 is in the following terms: 31.28 Disclosure of experts' reports and hospital records (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. … 1. Plainly, the plaintiff did not serve Professor Brew's report either in accordance with the orders of the Court or in accordance with any practice note. Nor did the plaintiff make any application for an abridgment of or extension of time to serve Professor Brew's report. 2. This means that, as set out in r 31.28(3), except by leave of the Court or consent of the parties, the report of Professor Brew is not admissible. 3. As set out in UCPR sub-r 31.28(4): (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). 1. Professor Brew's report is not an updated version of an earlier report. The question is whether there are exceptional circumstances that warrant the plaintiff being granted leave. 2. In Yacoub v Pilkington (Australia) Ltd, [1] the Court considered the meaning of exceptional circumstances in the following terms: "[66] 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)." 1. "Exceptional circumstances" is not defined. Whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case. The facts particular to this application are as follows: 1. The plaintiff maintains a significant injury to his right arm and claims substantial damages. 2. The plaintiff has not served any medical evidence dated after 2016 other than a psychiatric opinion, in support of his claim. By medical evidence I mean expert orthopaedic (or other similar discipline) or neurological evidence. 3. The defendant has obtained medico-legal opinions from Dr David Maxwell, orthopaedic surgeon, and Dr Allan Meares, hand specialist, and has served those reports and is entitled to rely on them. 4. There is no evidence of any failure by the defendant to comply with any orders in terms of service of its own reports. 5. The reason that the report was not served until shortly before the hearing is the impecuniosity of the plaintiff. 6. The report was obtained and served as soon as the plaintiff could afford the cost of the report. 7. This matter is listed for hearing for seven days. There are two sets of proceedings and three different sets of parties. 8. All parties are being represented by experienced and competent counsel adept in often dealing with such issues on the run. 9. It must be viewed as extraordinary that the hearing of this case commenced in circumstances in which the plaintiff seeks substantial damages arising out of allegedly very severe injuries to his right arm without any medical evidence to support his claims post-dating 2016. 1. I have regard to those facts in my consideration. I do not regard the impecuniosity of a plaintiff as, of itself, sufficient to ground a finding of exceptional circumstances. If that be the case, then in many matters plaintiffs would be able to overcome the rules by simply adducing evidence that they could not afford the costs of the reports on which they needed to rely. Of course, it is an unfortunate circumstance of these types of matters that the plaintiff, on his own case, finds himself unable to earn an income because of the injuries and thus he is unable to afford the cost of pursuing the litigation. 2. Be that as it may, the experience of the Court is very much that this type of litigation is conducted in accordance with the rules and in circumstances in which plaintiffs do generally obtain and serve the evidence that is necessary for their case in accordance with orders of the Court, even when many plaintiffs who come before this Court are similarly impecunious. 3. Further, I do not regard the conduct of the defendant in not obtaining a pre-emptive report, if I put it that way, as in some way impacting upon my decision or leading to a finding of exceptional circumstances. Of course, it may be that well-resourced defendants have the ability to obtain reports well in advance of any hearing but I reject the idea that defendants are required to obtain their own report of a doctor in a particular discipline just in case the plaintiff might serve such a report from a doctor in that discipline in due course, even a week before the hearing. 4. However, the overriding principle that applies to an application like this is that the Court must do justice between the parties and ensure that its orders provide for the just, quick and cheap resolution of the real issues between the parties. Plainly, the opinion of Professor Brew is highly relevant to the issues between the parties. 5. In my view, exceptional circumstances may be grounded by one powerful factor or a combination of factors. A combination of factors will include in a particular case the explanation afforded by the party for the failure to comply with the rules and whether there are available ameliorating conditions. By that, I mean that if the prejudice to the other party can be cured, that is a factor that can be taken into account in making a finding of exceptional circumstances. 6. It is most unsatisfactory that the plaintiff seeks to rely on this report at this stage. Whilst I accept the explanation offered by the solicitors for the plaintiff, the fact remains that until this application the plaintiff was intending to pursue this case without the benefit of any up-to-date medical evidence. On any view, that is an unsatisfactory situation for both parties and in particular the plaintiff. 7. I accept that the solicitors for the defendant would wish to obtain a report in response to Professor Brew. It would seem to be sound and competent practice for the solicitors to do so. It is common for defendants to obtain a report from an expert in the same discipline as that on which the plaintiff relies. The parties have allowed me to review in brief Professor Brew's report. Again, I can only say from looking at the report that I accept the defendant would wish to obtain a report in response. 8. There has been no application for an adjournment by the plaintiff and I am not making a decision on the basis that there will be. As I said, my overriding concern is to ensure that the litigation is conducted in a cheap, just and efficient way and to do justice between both parties. 9. Having regard to all of the facts to which I have referred and, in particular, the potential for the problem to be ameliorated by appropriate conditions, I am satisfied that exceptional circumstances have been shown as a result of a combination of factors that arise in this case. In the circumstances, I make the following orders: 1. Leave be granted to the plaintiff to rely on the report of Professor Brew subject to the following conditions: 1. The solicitors for the defendant use their best endeavours to obtain a report in response to the report of Professor Brew prior to 20 November 2020; 2. If, having used their best endeavours, the solicitors for the defendant are unable to obtain such a report then they should prepare and provide an affidavit setting out the efforts they have made and the reasons why no such report will be available. 1. I understand that will involve seeking out an appropriate expert but, of course, there are many experts available to undertake such examinations in the medico-legal context. 2. I note that Professor Brew is available for cross-examination. I would have in mind Professor Brew being available for cross-examination next Monday, 23 November 2020. I will obviously deal with any further issues that arise in terms of the service of any report the defendant might obtain, or any ability of the defendant to obtain such a report as and when any such problem arises. ********** Endnote 1. [2007] NSWCA 290 at [66] (Campbell JA, Tobias JA and Handley AJA agreeing). 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: 19 February 2021