District Court New South Wales Medium Neutral Citation: Weekes v Vandervelde t/as Molong Ready Mixed Concrete [2021] NSWDC 824 Hearing dates: 7 October 2021 Date of orders: 7 October 2021 Decision date: 07 October 2021 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Make orders 1, 3 (but not 3c) and 5 sought in the notice of motion filed 24 September 2021. (2) Grant leave to the defendants to serve a reply report of Mr Mahaffey by 21 October 2021. (3) The notice of motion is otherwise dismissed. (4) Defendants' costs of the motion be the defendants' costs in the proceedings. (5) Grant liberty to any party to list the matter before the list judge on 24 hours' notice. Catchwords: CIVIL PROCEDURE — time — extension of time – expert report – whether in reply – whether exceptional circumstances – default by, opposing party Legislation Cited: Uniform Civil Procedure Rules 2005, r 1.12, r 31.28, r 42.7 Cases Cited: Gershowitz v Kaye [2021] NSWDC 128 Category: Procedural rulings Parties: Toby Weekes (plaintiff) Dustin Vandervelde t/as Molong Ready Mixed Concrete (first defendant) Lisa Vandervelde t/as Molong Ready Mixed Concrete (second defendant) Representation: Counsel: Mr J Ireland QC (plaintiff) Mr J Lee (defendants) Solicitors: McGirr Lawyers Pty Ltd (plaintiff) Sparke Helmore Lawyers (defendants) File Number(s): 2020/00241680 Publication restriction: None Judgment Background 1. The plaintiff, Tony Weekes, sues the defendants, Dustin and Lisa Vandervelde, for supply of allegedly defective concrete. Mr Weekes applies for leave to file an amended statement of claim and file further evidence. Mr and Mrs Vandervelde take no objection to the amended pleading on the usual condition that Mr Weekes pay the costs thrown away by the amendment, a matter accepted by him in proposed order 5 of the motion. Mr and Mrs Vandervelde also do not oppose Mr Weekes being able to rely upon a lay witness' affidavit. Issue 1. The issue before the Court today is whether Mr Weekes can rely on two expert reports, one by an engineer, Richard Noonan, the other by a quantity surveyor, Graeme Walton-Smith. The quantity surveyor's report 1. As to Mr Walton-Smith's report, Mr Weekes does not dispute that if leave is granted, the hearing date set for 25 October 2021 would be in jeopardy and could only be saved if the proceedings were bifurcated, perhaps with damages to be heard by a referee. Mr and Mrs Vandervelde oppose the proceedings being split. The issue of causation of damage is not clear, a matter which might be problematic for separating liability and quantum. 2. In any event, the practice of this Court is for a vacation of the hearing date to be dealt with by the list judge. The question of bifurcating the hearing and the appointment of a referee are related questions, and, in my view, should also be dealt with by the list judge if the parties wish to pursue that course. No formal application has yet been made to vacate the hearing, to split the trial, or to appoint a referee. 3. Leave to rely on the report of Mr Walton-Smith should be refused. I do not intend to preclude a subsequent contrary order should the list judge, on any future application, remove the question of damages from being heard on the currently appointed date of 25 October 2021. The engineer's report 1. The primary issue on this application is whether Mr Weekes should be granted leave to rely upon Mr Noonan's report. Mr and Mrs Vandervelde frankly conceded that they could deal with the report without disturbing the hearing date so long as they had leave to file a report in reply on 21 October 2021, a direction Mr Weekes did not oppose. 2. However, Mr and Mrs Vandervelde referred to r 31.28 of the Uniform Civil Procedure Rules 2005 and the decision of Gershowitz v Kaye. [1] The rule provides that an expert report not served in accordance with a court order is not admissible unless by consent of the parties or by leave of the court, and leave is not to be given, relevantly, unless there are exceptional circumstances. Leaving aside consent, the application of that rule here cannot be doubted notwithstanding that r 1.12 allows the Court to amend time, by reason of the compelling matters raised by Wilson SC DCJ in Gershowitz, including the imminent final date, by reason of the rule of construction that the specific provision prevails over the general, [2] and because r 1.12 itself is expressly subject to the rules, including r 31.28. 3. A question arises then as to whether Mr Noonan's report is in reply to the defendants' expert, Mr Mahaffey, and whether that would constitute exceptional circumstances warranting the grant of leave. 4. Mr Noonan's report, as a matter of form, purports, in part, to give evidence in answer to Mr Mahaffey's report, but in another part answers questions not expressly connected with Mr Mahaffey's report. Some of those questions and answers seem to have been prepared well prior to Mr Mahaffey's report being served. When pressed, Mr and Mrs Vandervelde accept that the substance of the evidence in Mr Noonan's report did not differ between that which was expressed to be in reply and the residue. 5. Mr and Mrs Vandervelde asserted that the report was not in reply, principally because it relied on some tests done and a report apparently prepared prior to the service of the plaintiff's evidence-in-chief. And so it was submitted that Mr Weekes made a forensic decision not to serve that material earlier, and should not be granted leave now. 6. I do not accept that the existence of the earlier tests or the earlier report, in the circumstances of this case, is determinative of whether the report of Mr Noonan is evidence in reply. That question is answered by whether the material goes to and seeks to answer material in Mr Mahaffey's report. It seems to me that it does, a point Mr and Mrs Vandervelde did not strongly resist. 7. That the report of Mr Noonan is reply evidence is not the end of the issue. Rule 31.28 is not limited to evidence-in-chief, and reply evidence still must also comply with the requirements in subrule (1) of r 31.28 including exceptional circumstances in order for leave to be granted. 8. The defendants fairly submit that they have not had an opportunity to respond to this report and I accept that they should have this opportunity. As I said, the defendants can do this in time for the hearing to continue. 9. In this case, the Court ordered the defendants' evidence to be served by 14 July, and the reply evidence of the plaintiff by 4 August. The defendants' evidence was not served until 10 August. As a consequence, the plaintiff's reply evidence would necessarily be late if the defendants' evidence was permitted, a matter about which no party took issue. The defendants accepted that if the plaintiff was only three weeks late, that is, the period the defendants were late, then the defendants could not take an objection. But here the service of the plaintiff's expert report was five or more weeks late, and the defendants say, in those circumstances, no leave should be granted. 10. I am not persuaded that this period by which the plaintiff exceeded the directed time precludes the exceptional circumstances requirement of r 31.28. Nor do I think fairness demands only a three-week extension for the defendants. One can readily perceive circumstances where if the defendants had a three-week extension on the period allowed, the plaintiff should also have his time allowed increased by a further three-week period for reply evidence. With the later start date of the period, that would allow a total of six weeks. Arrangements may have been made in accordance with the directions to prepare reply evidence on the basis that the defendants would comply with the orders, another matter in favour of the plaintiff. 11. In my view, the exceptional circumstances do exist in that the defendants' delay meant that Mr Weekes could not comply with the timetable for reply evidence. The circumstances that the reply evidence was served more than 28 days in advance of the hearing date and can be met by the defendants confirm my view that I can and should grant leave to Mr Weekes to rely upon the report of Mr Noonan. 12. Accordingly, for these reasons, I make orders in accordance with the proposed orders in the notice of motion numbered 1, 3, but not 3c, and 5 of the notice of motion. I grant leave to the defendants to serve a reply report of Mr Mahaffey by 21 October 2021. Costs 1. As to costs, the level of success in terms of what leave has been granted or not on the motion is not really a guide to what costs should be ordered, in part because the plaintiff was seeking an indulgence in terms of obtaining leave, and there is no suggestion in the evidence before me that the motion would not have been required if the motion had been limited to the quantity surveyor's report. 2. In those circumstances, the plaintiff has no entitlement to costs. But Mr Weekes does not seek costs. 3. In terms of the defendants' costs, there is, in r 42.7, a prima facie position, perhaps of limited weight, that costs of interlocutory applications become costs in the proceedings, at least in circumstances where no costs order is made. 4. The plaintiff should not be entitled to his costs whatever be the result of the proceedings. But in the event that the plaintiff is successful, I am not persuaded that the outcome of the motion requires that the defendants should be awarded their costs. 5. The appropriate order is that the defendants' costs of the motion be the defendants' costs in the proceedings. Orders 1. Accordingly, the orders of the Court are: 1. Make orders 1, 3 (but not 3c) and 5 sought in the notice of motion filed 24 September 2021. 2. Grant leave to the defendants to serve a reply report of Mr Mahaffey by 21 October 2021. 3. The notice of motion is otherwise dismissed. 4. Defendants' costs of the motion be the defendants' costs in the proceedings. 5. Grant liberty to any party to list the matter before the list judge on 24 hours' notice. ********** Endnotes 1. [2021] NSWDC 128. 2. Generalia specialibus non derogant. 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: 26 October 2022