District Court New South Wales Medium Neutral Citation: Chambeyron v Dr Redgment [2021] NSWDC 795 Hearing dates: 26 August 2021 Date of orders: 26 August 2021 Decision date: 26 August 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Order: (1) Notice of Motion filed 18 August 2021 dismissed. (2) The defendant is to pay the plaintiff's costs of the application and argument. Catchwords: PRACTICE AND PROCEDURE – leave sought to reply upon three late-served reports – whether to engage UCPR 1.12 or 31.28 – hearing of proceedings imminent – application refused Legislation Cited: UCPR rr 1.12 and 31.28 Cases Cited: Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433 ASIC v Rich (2005) 218 ALR 764; [2005] NSWCA 152 Dickson v State of NSW [2021] NSWSC 234 Gershowitz v Kaye [2021] NSWDC 128 Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265 Category: Procedural rulings Parties: Plaintiff/ Respondent to the NOM: Geoffrey James Chambeyron Defendant/ Applicant to the NOM: Dr Andrew Redgment Representation: Counsel: Plaintiff/ Respondent to the NOM: Ms J Hillier Defendant/ Applicant to the NOM: Ms G Babe Solicitors: Plaintiff/ Respondent to the NOM: Commins Hendriks Pty Ltd Defendant/ Applicant to the NOM: Moray & Agnew File Number(s): 2019/00300134 Judgment 1. The defendant by notice of motion filed on 18 August 2021 seeks orders as follows: 1. An order pursuant to r 31.28(3) UCPR that the defendant have leave to rely on the supplementary reports of A/Professor Brett Courtenay dated 5 August 2021 and Dr Anthony Smith dated 4 February 2021. 2. An order that the defendant have leave to serve a forensic accountant report from Axiom Forensic Pty Ltd by 27 August 2021; 3. Any such further or other orders as the Court deems fit; 4. Costs in the cause. 1. The defendant relies upon two affidavits of Ms Marie Valerie Karine Marianne sworn on 18 and 25 August 2021. 2. The application is opposed by the plaintiff, who reads and relies upon two affidavits of Rebecca Collins sworn 11 and 23 August 2021. 3. Before considering the evidence, I will set out a short history of the commencement of these proceedings and the machinery orders made which I note were commenced on 25 September 2019, at which time the plaintiff served a report from Dr Peter Johnson, an orthopaedic surgeon, dated 5 January 2019 which is an exhibit to the affidavit of Ms Collins dated 11 August 2021. 4. That report sets out that it was Dr Johnson's medical opinion, having reviewed the appropriate documentation and radiographic imaging, that the overall appearance of the related knee-only X-rays of 25 February 2011, which take in the AP and lateral views, showed what appeared to be satisfactory placement of the femoral, tibial, and patellar components. There was, however, no skyline X-ray to look at the degree of patellar tilt. Dr Johnson went on to set out a careful consideration of long leg X-rays taken in 2013, a CT scan of 29 August 2013, further X-rays of 14 August 2012, and he concluded as follows: "This situation occurring within 18 months of the insertion of the total knee replacement suggests that the patellofemoral mechanism was not well balanced at the time of the original surgery and therefore excessive lateral pressure has led to accelerated polyethylene wear and failure of the component. This, therefore would be a reasonable reason for ongoing pain in the knee joint post surgery." 1. Many other matters were covered by Dr Johnson, but two issues would have been immediately apparent. The first is that there is a careful consideration of all of the investigations and X-rays, and the second is that this information was available to the defendant from the very commencement of proceedings in September 2019. It was with this information at hand that the defendants notified an appointment with Dr Smith as early as 10 February 2020, although I gather that a report was served some time later. 2. The plaintiff also attended to the service, early in 2020, of an accountant's report. This was served on 4 May 2020, and there was confirmation that the plaintiff had served all the quantum evidence by 26 May 2020. 3. The matter was carefully case managed in the list by the Judicial Registrar, and I note that there were a series of three sets of orders for the filing by the defendant of all expert reports. It was pursuant to these reports that a report from Professor Brett Courtenay was served, as well as a report from Dr Anthony Smith. As is set out helpfully in the affidavit of Rebecca Collins of 11 August 2021, on each of the occasions that the matter was before the Court, careful consideration was given by the Court as well as by the parties to the need for all of the evidence to be served, as these proceedings were to be listed for hearing in the Wagga Wagga sittings. 4. The defendant sought some extensions of time; I note, for example, on 11 March 2020, the defendant sought leave from the Court for time to serve liability and quantum evidence to 8 May 2020. The defendant served liability evidence in the form of Professor Courtenay's report as late as 15 December 2020. 5. The matter was referred to the Judicial Registrar on 18 December 2020, and on 27 January 2021, Registrar Howard made the following orders: "1. The defendant is to respond to the plaintiff's correspondence dated 16 December 2020, 14 January 2021, and 19 January 2021 by Friday 29 January 2021. 2. The defendant is to serve the further reports of Dr Anthony Smith and Ms Sue Dinley on or by 5 February 2021. 3. The plaintiff is to serve his expert liability and quantum evidence in reply by 26 March 2021. 4. The Court notes upon receipt of reports of Dr Anthony Smith and Sue Dinley, the defendant has completed service of his primary expert liability and expert quantum evidence. 5. Parties to attend the listing on 28 January 2021 by telephone with available dates for hearing, including the sittings of 13 September 20201." 1. On 28 January 2021, the following further orders were made by Judicial Registrar Howard: "1. Listed for hearing in the sittings in Wagga Wagga on 29 November 2021 for an estimate of 3 days. 2. Under s 26 of the Civil Procedure Act, mediation to be arranged by the parties and completed by 30 May 2021. 3. Stood over CMLDH 30 July 2021 at 9.30am at Sydney in the OLC." 1. On 3 March 2020, Dr Peter Johnson's report in reply to the defendant's liability report was served on the defendants. This was a report that was, among other things, critical of Professor Courtenay, in particular for not looking at the investigations and X-ray reports. 2. The parties attended mediation on 22 June 2021, and I am satisfied from what both counsel say that the question of these additional reports, including any report at all of a forensic accountant and any report either in reply or by way of supplementary report from either Dr Smith or Professor Courtenay was not raised. This is particularly serious in relation to Dr Smith because in fact the plaintiff's solicitor had received a report from Dr Smith which she had not served. 3. It is appropriate, in these circumstances, to look at the explanation for this matter being given a hearing date and the reports the subject of this application being effectively sprung on the defendants, a matter of a week or two ago at best. 4. The following explanations are taken from the relevant passages from the affidavit of Ms Marianne of 18 August 2021. Dr Smith's Supplementary Report 1. Ms Marianne acknowledges that on 11 February 2021, she received Dr Smith's supplementary report dated 4 February 2021 but goes on to say that: "Due to an oversight on my part for which I apologise, Dr Smith's supplementary report was not served on the plaintiff until 9 August 2021, which was in breach of time required under the court orders." 1. It is asserted in paragraph 22 that Dr Smith's supplementary report was obtained "for the purpose of clarifying some comments made in his earlier report dated 5 March 2020". I am satisfied looking at the questions he was asked that the report goes well beyond that, but that is not an issue that need concern me. Associate Professor Courtenay's Supplementary Report 1. The defendants had been served on 30 March 2021 with the supplementary report of Dr Johnson dated 26 February 2021, in which he was critical of Professor Courtenay for not having reviewed the plaintiff's X-ray and radiological films. Even though there was a mediation in the interim, it was not apparently until after the mediation that Ms Marianne received instructions "to obtain a supplementary report from Associate Professor Courtenay in response to Dr Johnson's report on behalf of the defendant". 2. Although this is called a supplementary report, I agree with Ms Hillier's description that it is in fact a report in reply. Nevertheless, as Ms Marianne goes on to admit in paras 27 and 28 of her affidavit: "27. Regrettably, there was a delay due to an oversight on my part in providing instructions to Associate Professor Courtenay to provide a supplementary report. I apologise for that oversight. 28. I also accept that there was a delay on my part in requesting a copy of the plaintiff's X-rays and radiological imaging and reports from the plaintiff's solicitors. Regrettably, this was due to an oversight on my part for which I again apologise." 1. It was not until 26 July 2021 that the plaintiff's X-rays and radiological imaging and reports were finally obtained and provided to Professor Courtenay, and this was what led to Professor Courtenay's supplementary report of 5 August. 2. Although described as a "supplementary report" by Ms Marianne, I must say I prefer Ms Hillier's description of this as being a report in reply and, indeed, her characterisation of it as being a desire to have the last word seems particularly apt in the circumstances. Axiom Forensic Report 1. It was not until 13 August 2021 that Ms Marianne sent a letter of instructions requesting a report in reply to Ms Bossert's report of 20 March 2020. Once again she states: "41 Due to an oversight on my part, a report from Axiom Forensic was not sought earlier. I accept that this should have been done and was an error on my part, and I again apologise for the error. 42 I have since spoken to David Mullins of Axiom Forensics Pty Ltd who I understand will be the expert witness making the report and proposing to give evidence at the hearing. Mr Mullins has said to me words to the effect of, 'I can get this report to you by no later than 25 August 2021'. 43 Once I have received this report, in the event that the defendant intends to rely on it at the hearing I will serve it as urgently as I can, so as to minimise any further delay or conceivable prejudice to the plaintiff." 1. It is for this reason that an order for service by 27 August 2021 was sought. 2. These explanations paint a long and sad picture of repeated delays in relation to all of these reports, in circumstances where these are proceedings that have been set down for hearing for three days in the Wagga Wagga circuit a matter of some 12 weeks away. 3. The first issue is whether or not UCPR r 31.28 applies or UCPR r 1.12 would be applied. The parties are familiar with the decisions of the Supreme Court discussing this issue and I note in particular Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433, Dickson v State of NSW [2021] NSWSC 234, and most helpfully in my view, the decision of Judge Wilson SC of this Court in Gershowitz v Kaye [2021] NSWDC 128. From a strict stare decisis point of view, these decisions are not binding upon me, but the careful explanation of the rules set out in these decisions carries great weight. 4. UCPR r 31.28 provides: "31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party-- (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties-- (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995 , is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied-- (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1)." 1. UCPR r 1.12 provides: "1.12 Extension and abridgment of time (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. (2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires." 1. In Gershowitz v Kaye, Judge Wilson SC explains the difference between the two regimes at paragraphs [28] to [38]. I particularly note his Honour's helpful observations as to the case management implications of s 56 and his observation that "[t]o grant leave, by reference to the dictates of justice under UCPR r 1.12, would be to render obsolete the careful case management principles set out" in this Court when considering what amounts to an exceptional reason warranting the dispensing of the rules. 2. The key point in these decisions, as Ms Hillier points out (referring to an additional decision of Cavanagh J in Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265), is that, where a hearing date has been allocated and is relatively close, the circumstances in which time will be extended would have to be exceptional. 3. Mr Babe addressed me as to the relevant principles set out in ASIC v Rich (2005) 218 ALR 764; [2005] NSWCA 152, and puts to me that there is an absence of prejudice. He added that, in circumstances where two of the three reports are reports by doctors who have already provided reports to the Court, the hearing would take on what Mr Babe called almost a farcical nature, in that they would not be able to refer to their more recent reports. 4. Dealing first with the two orthopaedic reports, the difficulty is that, although it is asserted there is a lack of foreseeable prejudice to the plaintiff, Ms Hillier submits, and I accept, that mere costs orders alone will not remedy the kind of prejudice and delay that is caused by this kind of last-minute preparation, not only of a report in reply, but also changes to the proposed conclave evidence as a result. 5. This is even more starkly illustrated by the late forensic accountant's report, where there was in fact no plan for there to be a conclave at all and all of that time and expense involved, which is considerable, would need to be incurred at breakneck speed between now and the hearing, including the service of a report in reply by the plaintiff's expert, even though the plaintiff's expert report has been in the possession of the solicitors for the defendant for well over a year. 6. I have taken into account, when considering exceptional circumstances, although they have not been mentioned in oral submissions, that Ms Marianne has referred to the pandemic and to the difficulties under which everybody is operating at the moment. That is, however, a two-edged sword, in that, just as the pandemic has contributed to delays and oversights in legal offices, the difficulties caused by the pandemic will contribute to the compliance with the very considerable timetable changes and extra expenses that would be incurred if the defendant were in fact granted leave to rely upon these reports. 7. I am satisfied that this is an appropriate case for determination under UCPR r 31.28 for reasons similar to those set out by Judge Wilson SC, and I am satisfied that the discretion ought not to be exercised by reason of the matters that he has raised in argument. I am satisfied that there would be prejudice and difficulty caused to the plaintiff and that the application is simply brought too late. I am not satisfied that any problems would arise at trial by reason of the exclusion of these reports. While I note the prejudice caused to the defendant of going to trial without any evidence on quantum, that was a decision that the defendant made knowingly, and I note that the defendant was able to go to mediation without any of these reports, which is also significant. 8. In my view, none of the factors identified by Mr Babe, either individually or together, justify the favourable exercise of the discretion under UCPR r 31.28. I note in paragraph 46 of Judge Wilson's judgment that his Honour states that the failure by legal representatives in proceedings in court to comply with the orders of the Court is becoming "frequent and problematic" and that, while in appropriate cases leave to rely upon late-served reports would be granted, the application before him was not such a case. For the reasons that I have set out above, I am satisfied that this is also not such a case. 9. It was for these reasons that I dismiss the notice of motion. Order: 1. Notice of Motion filed 18 August 2021 dismissed. 2. The defendant is to pay the plaintiff's costs of the application and argument. ********** 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: 14 June 2022