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. Expert Reports 1. In preparing its evidence for the present hearing, the Commonwealth retained two experts: Mr Andrew Gill whose expertise is in the field of manufacturing and engineering, and training associated with that field; and Mr Steven Waye whose expertise is in the field of electrical trades and training in that expertise. Their reports dated 5 March 2021 and 16 April 2021 respectively have been served and are intended to be put before the Court. 2. Prior to these reports being obtained and served, the plaintiff's expert in the area, Mr Fergus Nelson, provided a report which had been served but which did not deal with the two integers to which I have earlier referred and to which further attention is to be drawn later. Further Evidence 1. Mr Gill was asked to offer an opinion on the following two questions: 1. first, with reference to the ADO Service Records and based on the training undertaken by each individual, how many additional units of competency, and of what kind would the relevant member need to have undertaken to obtain an MEM40105, Certificate IV in Engineering and an MEM30205, Certificate III in Engineering; and 2. secondly, what is the average time it takes to complete a unit of competency? 1. Mr Waye was asked a more limited question, and then only in respect of four of the nine claimants. That question was, "With reference to the ADO Service Records of four nominated claimants and based on the training undertaken by each individual, how many additional units of competency, and of what kind, would the relevant member to need to have undertaken to attain a Certificate III in Electrical Fitting (UEE33011)"? 2. Each of Mr Gill and Mr Waye provided answers to these questions based upon the documents provided in respect of each individual complainant, which was the claimant's ADO Service Record. The formal title of the document is the "ADO Service Record". ADO is an abbreviation for Australian Defence Organisation. This Record can be quite a lengthy document containing a wide range of matters relevant to a sailor's service. The Record includes personal information, enlistment and separation dates, and a detailed history of the different postings a claimant has had during their service. The ADO Service Record includes periods of leave and the nature of the leave. It includes the courses which a claimant has attended together with the dates for those courses. Some of those courses are applicable to all sailors and their relevant workplace and others relate to an identified specialty. 3. There is also a section following a heading "Academic Qualifications", which is headed, "Competencies Assessed". Some but not all of these recorded competencies are those necessary to be satisfied to obtain a Certificate IV in Engineering or a Certificate III in Engineering. The record of each competency includes the date, a reference to the code for the competency and a short description of each competency. 4. Ms Scarlet Reid, one of the partners of the firm McCullough Robertson with the carriage of the proceedings for the Commonwealth, deposed in an affidavit sworn on 17 March 2022, that her understanding and belief was that the ADO Service Records were "a complete and reliable record of all units of competency completed" by each individual claimant. She did not set out the basis of her understanding and belief in that affidavit. 5. A report in reply to the reports of Mr Gill and Mr Waye was obtained by the plaintiff and Group Members from Mr Fergus Nelson. Thereafter, two joint reports were obtained with respect to the opinions about each claimant. All of those expert reports which were obtained prior to the commencement of the hearing have been included in the court book and are to be tendered in evidence. Evidence of Warrant Officer Gale 1. On the seventh day of the hearing, Tuesday, 8 March 2022, the Commonwealth called Warrant Officer Nathan Gale to give evidence. His present role is in the Directorate of Navy Career Management. He was familiar with the ADO Service Record. During cross examination (T.399.27) his evidence was that the ADO Service Record recorded only the formal, or off-the-job training competencies, but did not pay any regard to whether any required on-the-job training had also been completed. 2. The context for this evidence was that Mr Gale had earlier agreed that some competencies were assessed by both formal or off-the-job training, for example at HMAS Cerberus or at a TAFE, and as well by on-the-job training on a navy ship or, presumably, at an appropriate on-shore establishment. While Officer Gale was not re-examined on this particular issue, he was asked some questions about a training plan. He gave an answer at T.410.31 and following which suggested that any on-the-job training recorded in a sailor's log book or similar documentation such as "Profile21", was included in a later certification carried out at HMAS Cerberus during a Trade Qualification Certification Assessment. Further Expert Evidence 1. On the afternoon of Tuesday 8 March 2022, (at T441.40 and following), Mr Kidd SC, counsel for the plaintiff, informed the Court that in light of the evidence of Warrant Officer Gale, his solicitor intended to provide a further letter of instruction to Mr Nelson to supplement his earlier reports. 2. I informed Mr Kidd SC that it may be appropriate, if such an exercise was to be undertaken, that the other relevant experts, Mr Gill and Mr Waye, could also be asked to do the same exercise if the Commonwealth wished so to do. On the following day, Wednesday, 9 March 2022, Mr Andronos SC, counsel for the Commonwealth, returned to the topic raised by Mr Kidd SC on the previous day. Mr Kidd SC indicated that a draft of the letter to his expert, Mr Nelson, would be provided promptly later that afternoon to the Commonwealth. 3. On the afternoon of Thursday, 10 March 2022, at the conclusion of the evidence called on that day, I was informed that the solicitor for the plaintiff and the group members had on the previous day provided a letter to the solicitors for the Commonwealth containing a proposed assumption to be provided to Mr Nelson arising out of the evidence of Mr Gale. Mr Andronos SC acknowledged that the letter had been received. Commonwealth Proposal 1. He proposed that the Court adjourn the proceedings to enable: 1. the Commonwealth to respond to the plaintiff's letter by the following Monday, 14 March 2022; 2. with the agreement of the plaintiff after their consideration of the Commonwealth draft, to send a letter to the experts by the morning of Wednesday, 15 March 2022, if not the previous evening; 3. on the basis of the discussion with Mr Gill, the Commonwealth's expert, that expert reports could be prepared and circulated by a week later, being Tuesday, 22 March 2022; 4. that the Court would sit on Thursday, 24, and Friday, 25 March, if necessary to take the evidence of the experts; and, 5. a timetable could be set for further written submissions and oral addresses on a future date after the elapse of the four week hearing time. 1. I indicated that the Court could not readily accommodate such a proposal because of the difficulty in finding suitable dates outside of the four-week hearing allocation. After further debate, I indicated to Mr Andronos SC that the period proposed by the Commonwealth and at the commencement of his submission to respond to the plaintiff's letter, by the following Monday, 14 March 2022, was too long for putting an agreed assumption to the experts arising out of the evidence of Mr Gale. Mr Andronos SC offered to respond to the proposal by Sunday evening, 13 March 2022. 2. The Court resumed on Monday, 14 March 2022, for further directions. On that day, some relatively short evidence was taken and the Court, shortly before the luncheon adjournment, returned to the issue of the further expert reports. Mr Andronos SC informed the Court that the Commonwealth lawyers had prepared suggested amendments to the plaintiff's proposed letter in marked up form, but did not yet have instructions to send it to the plaintiff's solicitor. 3. He informed the Court that he expected to receive instructions that afternoon or overnight. He suggested that a letter be sent to the experts by Thursday morning, 17 March 2022, to enable them to prepare updated reports in respect of which evidence could be given on Monday, 21 March 2022, with the parties putting their final submissions to the Court in that week after the expert evidence was concluded. 4. With the agreement of the parties, I gave directions for the service of any further expert reports by midday on Friday, 18 March 2022. I directed that the experts engage in a joint conference on Monday, 21 March 2022, and give their oral evidence jointly thereafter. Further Progress (or lack of progress) 1. The case resumed hearing on Thursday, 17 March 2022, for taking of further evidence. 2. After that evidence was taken, I was informed that the letter which the Commonwealth had proposed sending to the experts had only been provided to the plaintiffs on that morning. It was apparently revised from the letter originally provided on Wednesday, 9 March 2022, by the plaintiff's solicitors, and proposed asking questions based on 41 documents which had not previously been provided to any of the experts, although they had been discovered by the Commonwealth. Some of the documents were in the court book. 3. Mr Kidd SC informed the Court that in light of the provision of the letter that morning, his expert could not comply with the timetable which I had fixed for the exchange of expert reports by midday on Friday, 18 March 2022. 4. I directed that if the Commonwealth wished to rely on expert reports which were based on 41 documents not previously provided to the experts as a basis for their report, that it would be necessary for the Commonwealth to file a Motion seeking leave so to do, together with any affidavits upon which it wished to rely. I indicated that I would hear the Motion at 2.00pm on Friday, 18 March 2022. 5. On 17 March 2022, the Commonwealth filed a Motion which sought the following orders; "1. Pursuant to rules 29.5 and 31.20 of the Uniform Civil Procedure Rules 2005, an order that the defendant be given leave to tender and rely on the expert reports of Mr Andrew Gill and Mr Steven Waye, both dated 17 March 2022." The Commonwealth's Notice of Motion 1. Other incidental orders were sought in support of that Motion and the affidavit to which I have earlier referred, of Ms Reid, was read. Ms Reid noted, correctly, that each of the reports of Mr Gill and Mr Waye and the further report of Mr Nelson dated 23 September 2021, and their respective joint reports, appeared to proceed on the basis that the ADO Service Records were a comprehensive record. She deposed to the fact that the first time she became aware that the ADO Service Records might not be a complete or accurate record was during the course of the cross examination of Warrant Officer Gale. 2. Ms Reid noted that she received an email from the plaintiff's solicitors on Thursday, 10 March 2022, which contained the proposed letter to the experts. She said that, having considered that letter and the form of questions which she thought appropriate to put the expert witnesses, instructions were sought from the Commonwealth over the weekend of 12 and 13 March 2022. She said that she anticipated, as the Court was informed by senior counsel, that she was likely to receive those instructions and she would be able to provide the plaintiff's solicitors with an alternative form of question for the experts by the end of the day, 14 March 2022, or some time the following day. Ms Reid deposed to the fact that she subsequently, although it's not clear when, became aware that it might be the case that there may be documents which corroborated the ADO Service Records, some of which were in evidence. 3. She concluded that her analysis of those additional records indicated to her that the ADO Service Records were comprehensive records of the skills-based instruction each individual group member received. Based upon such further consideration, Ms Reid prepared further letters of instruction to each of Mr Gill and Mr Waye. The letters of instruction which are relevantly in similar terms, are each dated 17 March 2022. As is apparent from those letters, each expert was asked to consider, firstly, an example of a training plan for one of the claimants which had been shown to Mr Gale during his evidence and also a bundle of additional documents. They were asked in light of that additional material whether their opinions had changed in relation to the progress of each of the claimants towards the completion of either Certificate III or Certificate IV qualifications. 4. Ms Reid informed the Court that she was not able to send those letters of instructions to the experts or to the plaintiff's solicitors until she had received instructions from the Commonwealth to do so. She said that shortly after she received those instructions, she caused the letters of instruction to be sent to the plaintiff's solicitors by email shortly after 8.00am on the morning of Thursday, 17 March 2022. It is to be recalled that she had earlier deposed to first seeking instructions from the Commonwealth over the weekend of 12 and 13 March 2022. I infer from her affidavit that she first received instructions from the Commonwealth early on the morning of Thursday, 17 March 2022. I infer that because of her use of the phrase "shortly after receiving instructions" she sent the letters to the plaintiff. 5. No explanation has been forthcoming in support of the Motion from any officer of the Commonwealth as to the time which elapsed between when instructions were first sought on the weekend of 12 March 2022 until they were provided early on the morning of 17 March 2022, or perhaps late in the evening of the previous day. The subject matter upon which instructions were sought was a confined one. It arose out of the giving of evidence by a witness called for the Commonwealth. I cannot think, knowing of the nature of the dispute in this case, of any reason for the absence of evidence which would explain the delay between when instructions were first sought and when they were provided. No submission was made when the Motion was heard as to the existence of any reason. 6. In response to the evidence of Mrs Reid filed on the Motion, an affidavit sworn by Mr Imlay was relied upon by the plaintiffs and group members. 7. Mr Imlay was cross-examined upon that affidavit. In short, the issue arising from that affidavit was the length of time which it would take Mr Nelson to respond to the reports which had been served that morning, 18 March 2022, from each of Mr Gill and Mr Waye. Mr Imlay informed the Court that he had been informed by Mr Nelson that it would take some days for him (Mr Nelson) to be in a position to respond. Mr Imlay recorded that he had been informed by Mr Nelson that morning that he would require until 4.00pm today, Monday, 21 March 2022, to consider and prepare a report in answer to question (a) of Mr Gill and Mr Waye's letters of instruction, and would require a further three to four days to properly consider an answer to question (b) in Mr Gill and Mr Waye's letters of instruction because, Mr Nelson assessed, he would need to review 87 different units of competence attained by the various claimants in the proceedings. 8. In cross-examination, and then in submission, Mr Andronos SC, counsel for the Commonwealth, suggested that such an estimate was a gross overestimate of the necessary time. In particular, Mr Andronos SC noted that the supplementary report that had been prepared by Mr Nelson dated 17 March 2022 included material which did not fall within the specified request and which could be regarded as adjectival comment or submission and of no direct relevance. 9. Submissions were made by the Commonwealth with respect to the Motion. Having reflected on the matter, I think it would be wrong to deal with the submissions on the substantive basis that the Commonwealth was seeking leave to re-open its case. Strictly speaking, their case had not closed. Lay evidence had been called and two experts had been called to give evidence, but clearly the Commonwealth's case had not closed at that stage. 10. The proper course is to consider whether, in light of previous directions for the filing of evidence and the adducing of evidence, it is appropriate for the Commonwealth to be given leave to tender and rely upon the further expert reports dated 17 March 2022. 11. In response to the Motion, Mr Kidd SC, counsel for the plaintiff and individual claimants, submitted that the Court ought not permit the reports to be adduced because they were irrelevant to any issue which fell for determination. Mr Kidd SC drew attention to what he submitted was the proper basis for the assessment of damages of a lost chance of obtaining employment without the qualifications promised by the Training Contracts. He submitted that the approach of the Commonwealth had no relevance to that question. I have earlier outlined the basis upon which the Commonwealth submitted that the evidence is relevant. Discernment 1. I have not yet considered the question of what the proper approach to damages ought be and, accordingly, I have formed no view on the question of whether or not the Commonwealth's approach is relevant or not, and therefore whether any evidence tendered in support of it, is relevant or not. I am not prepared, in giving a ruling on this notice of Motion, to engage with it by determining the substantive question of relevance of the correct approach to damages as urged by Mr Kidd SC. I don't think it is appropriate to do so because, first, the evidence is not complete, and I have not heard carefully formulated submissions by counsel for both sides on that question. Secondly, in any event in considering the relevance of evidence for the purposes of admissibility, a court in accordance with the usual approach assumes that the arguments being advanced respectively by each side may be established and admits evidence on that basis. 2. Ultimately, if matters are not established as being relevant or proved, the evidence itself may thereafter not be relevant. Accordingly, I do not think that it is appropriate to proceed on the basis of determining the substantive relevance of an argument on damages at this time. 3. However, it is necessary that I make a determination on the Motion. 4. I have set out, somewhat extensively for an interlocutory judgment, the background to this Motion and all of the facts and matters leading up to it. I have done so in order that my reasoning can be exposed relatively briefly and in a summary form. That reasoning draws from the history to which I have referred and various facts within it. 5. I have come to the conclusion that I should refuse to make the orders sought by the Commonwealth for the following reasons, which as I say are expressed in summary form. 6. First, the reports recently obtained by the Commonwealth do not directly address the factual basis of the evidence of Warrant Officer Gale which emerged in cross examination, but rather seek to advance expert opinions based upon additional documents not previously considered by the experts. To that extent, these are new opinions being advanced during the hearing arising out of a different factual basis to opinions previously obtained. 7. Secondly, it was always open to the Commonwealth to seek expert opinions on the basis of the additional documents because they had those additional documents in their possession, but they chose to obtain expert opinions on the basis of the ADO Service Records. I do not suggest that the belief of Ms Reid that those records were complete records was a belief that she did not hold. Rather, that was the basis upon which the Commonwealth chose to obtain the evidence. It is not as though the additional documents emerged only during the course of cross examination of Warrant Officer Gale. As I have said, they have always been available. I conclude that this is a new case upon a different factual basis which is now being sought to be advanced, but not because of new evidence. 8. Thirdly, it is not reasonable to require the plaintiff's expert to respond to the reports of Mr Gill and Mr Waye in less than three working days, which is in fact a time shorter than that first proposed by the Commonwealth for its own experts to prepare their reports to deal with the matters emerging from Warrant Officer Gale's evidence. The Commonwealth first proposed a period of seven days for their experts to prepare their reports. Although criticism is advanced of Mr Nelson's estimate, I am not prepared to conclude, on the basis of the material I have, that a reply report could be obtained in a period much shorter than three working days. 9. Fourthly, there is insufficient time within the constraints of the current hearing period to conclude the hearing if the extended period required for a response to the reports now sought to be relied upon by the Commonwealth is allowed. Any hearing after the period allocated is not in the interests of justice having regard to the adverse impact such adjournment would have on the Court's workload and the interests of other litigants in obtaining the just quick and cheap disposition of their litigation. 10. Fifthly, the Commonwealth proffers no explanation for the delay in providing instructions to its lawyers to give the proposed letter of instruction for the experts to the plaintiff between Saturday, 12 March 2022, and Thursday, 17 March 2022. That period does not take into account the time which elapsed between when it had first received the letter from the plaintiff's solicitors on 9 March 2022 and when it had formulated a draft letter in response, upon which it sought instructions. 11. Shortly put, having regard to the stage of the hearing, the nature of the issue which emerged, and the length of time which elapsed between the receipt of the letter from the plaintiff and the response of the Commonwealth, which is unexplained, I am not persuaded that the court can excuse the consequences of that delay - which would act adversely to the prejudice of the plaintiff, in obtaining a considered response to the expert reports, and which would act to the prejudice of the other litigants, because it would mean this case could not be completed within the allocated time. 12. Sixthly, there is no prejudice to the Commonwealth, as it seems to me and as was submitted by senior counsel, with respect to the remaining group members, whose claims are yet to fall for determination. That is because the reports which are sought to be tendered go only to a specific question of fact relevant to each of the nine claimants, whose damages are being assessed during this period, and do not constitute a matter of principle which will have an effect on the other claimants and group members. That matter of principle is whether or not the Commonwealth's approach is the correct approach to the assessment of damages. There will be a determination on that matter of principle, in this case in any event. 13. I next observe that if there is any confusion arising out of the evidence of Warrant Officer Gale as to whether the ADO Service Record does or does not constitute a complete record of the competencies of each individual complainant, then - as the evidence of Ms Reid in her affidavit suggests may be the case - that is a matter of fact. It is open to the Commonwealth to seek to recall Warrant Officer Gale if further evidence is to be obtained from him, or to address that question of fact in different ways. 14. The expert evidence is not a means by which that difference in fact - namely, are the ADO Service Records complete and accurate - ought be addressed by reference by the experts to their opinions, having regard to additional documents. I note that no application has as yet been made by the Commonwealth to address the question of fact, by the recalling of Warrant Officer Gale or some other witness. 15. In all of those circumstances, having regard to: the late stage of the proceedings at the time of which this motion is brought; the prejudice to the individual claimants if the matter is not completed within the four weeks; the unexplained delay; and all of the remaining matters to which reference has been made, I am not persuaded that the interests of justice favour allowing the Commonwealth to rely upon new reports at this stage of the proceedings. In fact, I am persuaded that the interests of justice favour the rejection of those reports. 16. It follows that I am not prepared to grant leave to the Commonwealth to tender and rely on the expert reports of Mr Gill and Mr Waye, both dated 17 March 2022. It follows that the Notice of Motion filed 17 March 2022 will be dismissed. Order 1. I make the following order: 1. Notice of Motion filed 17 March 2022 dismissed. ********** 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: 16 June 2023