New South Wales District Court CITATION: Tilley Air Conditioning Pty Limited v Traminer Pty Limited [2009] NSWDC 158 JUDGMENT DATE: 20 January 2009 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Refuse leave to relieve the first defendant of the provisions of r 31.28 of the Uniform Civil Procedure Rules 2005 CATCHWORDS: CIVIL LAW - objection to tender of affidavit - expert's report - requirements for service of experts' reports - update on exceptional circumstances LEGISLATION CITED: Uniform Civil Procedure Rules 2005 r 38.18 r 41.28 PARTIES: Tilley Air Conditioning Pty Limited Traminer Pty Limited FILE NUMBER(S): 894/06 COUNSEL: Mr Bland (plaintiff) Mr Loewenstein (first defendant) JUDGMENT 1 The first defendant, Traminer Industries Pty Ltd, through its counsel, Mr Loewenstein, is tendering an affidavit by Joseph Maric. The affidavit was sworn on 16 January 2009. It was served on the plaintiff's solicitors on the same day. The part heard proceedings in this case were resumed yesterday, Monday 19 January 2009. 2 Objection has been taken by Mr Bland, who appears for the plaintiff, to the tender of the affidavit. It is agreed by the parties - subject to one matter to which I will refer - that the affidavit which is tendered purports to be an expert's report as that is defined in r 38.18 of the Uniform Civil Procedure Rules 2005. Mr Bland has made it clear that his agreement to that proposition is not a concession that Mr Maric is an expert for the purposes of giving evidence on certain topics in this case. That concession is not forthcoming because Mr Bland is challenging the capacity of Mr Maric to give opinion evidence on certain specified topics. 3 It has been convenient to deal with the tender of this affidavit in accordance with the Uniform Civil Procedure Rules dealing with experts' reports. The problem that Mr Loewenstein has to confront is contained in r 41.28. That provides that experts' reports must be served in accordance with an order of the Court, a practice note or no later than twenty-eight days before the relevant hearing. Mr Loewenstein concedes that the report has not met any of those requirements. He is then confronted by r 31.28(3)(a) which provides, except by leave of the Court or consent which is not forthcoming, an expert's report is not admissible unless it has been served in accordance with the requirements of the rule. Hence Mr Loewenstein seeks my leave to render the report admissible. 4 Rule 41.28(4) provides that leave is not to be given unless I am satisfied that there are exceptional circumstances that warrant the granting of leave or that the report merely updates an earlier version of the report that has been served in accordance with the Rules. 5 Dealing with the second condition, the tendered report cannot, in my opinion, be described as merely updating an earlier version of a report. I am of that view partly because of the sequence of events in which this occurred. Two earlier reports of Mr Maric have been tendered by Mr Loewenstein. Both are in the forms of affidavits, one sworn 25 October 2007 and the other sworn on 1 October 2008. Mr Bland objected to both affidavits. It was agreed that written submissions could be exchanged and that I may be able to determine the admissibility of those affidavits on the basis of the written submissions. As it happens the evidence has been supplemented by the evidence from Mr Maric on the voir dire. Returning to the sequence of events, Mr Loewenstein frankly concedes that the purpose of the affidavit sworn 16 January 2009 is to address certain issues which were concerning the plaintiff. These issues are ones which arose in the plaintiff's written submissions on the admissibility of the two earlier affidavits. To my mind the 2009 affidavit is not one that merely updates an earlier version of a report. It expands the earlier reports by adding material designed to address issues raised by the plaintiff in its written submissions. The report does not fall, in my opinion, into that category of the bases for granting leave. 6 Mr Loewenstein's argument that there are exceptional circumstances warranting the grant of leave is that the 2009 report seeks to further clarify and explain the contents of the earlier reports in circumstances where the plaintiff in its written submissions has raised issues with those earlier reports. It is, as Mr Loewenstein frankly acknowledged, an attempt to address the issues raised by the plaintiff. 7 I do not regard those as exceptional circumstances warranting the grant of leave. They are matters which perhaps might have been anticipated by the first defendant in providing the two earlier affidavits, to the extent that the plaintiff's submissions may have exposed inadequacies in the earlier affidavits - a question which I do not resolve in this judgment - they do not constitute, in my opinion, exceptional circumstances warranting the granting of leave for the admission of this report. 8 Accordingly, I refuse leave to relieve the first defendant of the provisions of r 31.28. ********** 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.