Searle v Commonwealth of Australia (No.8) [2022] NSWSC 1806

Supreme Court New South Wales

Medium Neutral Citation: Searle v Commonwealth of Australia (No.8) [2022] NSWSC 1806 Hearing dates: 18 March 2022 Date of orders: 21 March 2022 Decision date: 21 March 2022 Jurisdiction: Common Law Before: Garling J Decision: Notice of Motion of 17 March 2022 dismissed. Catchwords: CIVIL PROCEDURE — application for leave to rely on expert reports — reports filed and served on day 14 of four-week hearing — reports elicit expert opinions based upon additional documents not previously considered by experts — documents always available to parties — other party unable to reasonably reply — unexplained delay — interests of justice favour rejection of reports — leave refused Legislation Cited: Uniform Civil Procedure Rules 2005 rr 29.5, 31.20 Cases Cited: Searle v The Commonwealth of Australia[2019] NSWCA 127 Texts Cited: Not Applicable Category: Procedural rulings Parties: Clayton William Searle (P) Commonwealth of Australia (D) Representation: Counsel: N Kidd SC / D Meyerowitz-Katz (P) K Andronos SC / S Keizer (D)

Solicitors: Levitt Robinson (P) McCullough Robertson (D) File Number(s): 2016/45027 Publication restriction: Not Applicable

Judgment 1. The Court is presently hearing evidence for the purpose of assessing the damages to be awarded to nine individual Group Members in these proceedings.

Proceedings 1. It is unnecessary for me to recount in this interlocutory judgment the history of the proceedings. It's sufficient to note that the history is available from the judgment of the Court of Appeal in the proceedings Searle v The Commonwealth of Australia [2019] NSWCA 127. This judgment assumes knowledge of the proceedings. 2. The damages assessment hearing commenced on 28 February 2022. Four weeks were allocated for the matter and the matter has been allocated for many months. 3. It is the case for the Commonwealth that although it is liable for damages to each claimant arising from its breach of the respective Training Contracts, those damages ought not to be assessed on the basis that there was a complete failure to perform the Training Contract but, rather, that there had been only a defective performance because training relevant to an MEM qualification was in fact provided to each claimant. It accepts that such training as was provided was not sufficient to achieve a Certificate IV in Engineering (MEM40105) within a four year period. Accordingly, it submits that a relevant integer for the Court in assessing damages is the number of competencies which an individual claimant had obtained prior to his discharge from the navy and what competencies remained to be attained to enable a Certificate IV in Engineering to be obtained or else an appropriate Certificate III qualification. Another relevant integer is the time which it may take to achieve these "outstanding" competencies if enrolled with a registered training organisation. 4. The plaintiff and the claimants do not accept that this is a proper method of assessing damages for each claimant. They say that such integers are entirely irrelevant. In part, this submission is based upon the absence of any pleading and the position of the Commonwealth not to plead the case, that any individual claimant has failed to act reasonably to mitigate his loss. The Commonwealth has orally abjured from an allegation of failure to mitigate.