New South Wales Supreme Court CITATION : Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 HEARING DATE(S) : 22/05/08 JUDGMENT DATE : 26 May 2008 JURISDICTION : Equity Division JUDGMENT OF : Barrett J DECISION : Leave under rule 31.28(3) refused CATCHWORDS : PROCEDURE - adducing expert evidence - whether report "merely updates" earlier "expert's report" - whether "exceptional circumstances" shown to warrant service of expert's report out of time LEGISLATION CITED : Uniform Civil Procedure Rules 2005, rules 31.18, 31.28 Evidence Act 1995, s 177 CATEGORY : Procedural and other rulings Tim Barr Pty Limited - First Plaintiff PARTIES : Timothy James Barr - Second Plaintiff Narui Gold Coast Pty Limited - Defendant FILE NUMBER(S) : SC 2762/02 COUNSEL : Mr R G McHugh SC/Mr J Lazarus - Plaintiffs Mr M L D Einfeld QC/Mr A Harding - Defendant SOLICITORS : Corrs Chambers - Plaintiffs Verekers - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J MONDAY, 26 MAY 2008 2762/02 TIM BARR PTY LIMITED v NARUI GOLD COAST PTY LIMITED JUDGMENT 1 These proceedings were commenced in the first half of 2002. They are large and complex. Ten days have been allocated for a hearing commencing on 16 June 2008. It has been indicated that ten days will not be enough. 2 I am now dealing with a notice of motion filed by the plaintiffs on 13 May 2008 and heard by me on 22 May 2008. The plaintiffs seek, in the alternative, a number of orders directed towards putting them into the position where they can introduce into evidence a document dated 28 April 2008 which is expressed to be a certificate by Mr Glazebrook, a town planner, under s 177 of the Evidence Act 1995. 3 The document has annexed to it a statement of opinion by Mr Glazebrook as to the reasons (related to an "existing use" exception) why he was of the opinion that there was requirement for development consent in relation to the establishment of a tea tree plantation on relevant land in 2001. Questions about the need for development consent (or, perhaps more precisely, persons' understandings about that) go to an issue about an alleged right to terminate a lease and a related question about relief against forfeiture. 4 It is accepted by the plaintiffs that, subject to one possible qualification, they require leave in order to be able to rely on Mr Glazebrook's report of 28 April 2008. The possibility that leave may not be required comes from rule 31.28(4)(b) of the Uniform Civil Procedure Rules 2005. I should set out rule 31.28 in full: " Disclosure of experts' reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3) (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)." 5 It is accepted by the plaintiffs that an order of the court dealt with the service of evidence and that Mr Glazebrook's report of 28 April 2008 was not served in accordance with the court's order: see rule 31.28(1)(a). 6 The possibility relevant to the potential applicability of rule 31.28(4)(b) is that Mr Glazebrook's report of 28 April 2008 "merely updates" what is properly described as "an earlier version of a report" duly served. 7 An affidavit of Mr Glazebrook sworn on 16 April 2004 has been served. In that affidavit, he says that he was, in 2001, retained by one of the parties to provide consultancy services. He says in paragraph 8: "During 2001, I became aware that a lemon scented tea tree plantation had been established over a part of the Kings Forest known as the Cudgen Paddock. During the course of 2001, I expressed the view to Tim Barr, on a number of occasions, that, in my opinion, development consent was not required for the lemon scented tea tree plantation. On those occasions I said to Tim words to the effect of " In my opinion, I don't think a DA is necessary for the tea trees ". 8 This is, clearly enough, evidence of Mr Glazebrook of what he said to Mr Barr in 2001 in the course of providing consulting and advisory services. It is evidence of contemporary events, not an "expert's report" within the definition of that term which applies for the purpose of Division 2 of Part 31 of the Uniform Civil Procedure Rules and is set out in rule 31.18: " expert's report means a written statement by an expert (whether or not an expert witness in the proceedings concerned) that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based." 9 Because the affidavit of 16 April 2004 is not an "expert's report", as defined, it cannot be, in terms of rule 31.28(4)(b), "a report that has been served in accordance with subrule (1)". That subrule is concerned with "expert's reports" and "hospital reports". The document of 28 April 2008 therefore cannot be something that "merely updates" in the way contemplated by rule 31.28(4)(b). 10 That being so, the 28 April 2008 report cannot be relied upon in the absence of a grant of leave under rule 31.28(3) and, by virtue of rule 31.28(4)(a), leave may not be granted unless the court is satisfied that there are "exceptional circumstances that warrant the grant of the leave". 11 As to the reasons why the report was not forthcoming earlier, the plaintiffs say no more than that it was an afterthought. As to "exceptional circumstances", the plaintiffs refer to four matters: first, that the report is within the "spirit" of the updating exception; second, that the existing pre-trial timetable is entirely obsolete (contemplating service of all affidavits by a date in 2004); third, that the document was in fact given to the defendant on 28 April 2008 which is well before the 28 days deadline in rule 31.28(1)(c); and, fourth, that the defendant had not indicated any positive prejudice to it stemming from the new report. It may be that the second of these is unusual but I doubt that it qualifies as "exceptional" – the parties have apparently been content to work under that regime. 12 It was submitted on behalf of the defendant that leave should be refused. The main point the defendant makes is that the new report raises for the first time the objective question whether development consent was needed and the supportability of a conclusion that it was not – as distinct from the question about what Mr Barr had (rightly or wrongly) been told or advised by Mr Glazebrook and what the basis was for Mr Barr's state of mind on the subject. 13 The defendant also says that, if the question whether, as an objective matter, development consent was needed is indirectly added to the case, it will become necessary to address the objective applicability of an "existing use" exception. It will therefore be necessary to explore factual questions about what was done on the relevant land at various times in the past. This will entail the obtaining of further evidence. 14 The points thus made by the defendant are telling points going, in particular, to the exercise of discretion. The hearing is close. The parties have had years to develop their cases and assemble evidence. Mr Glazebrook's opinion could have been obtained years ago. The defendant will be prejudiced if it has to embark on attempts to obtain evidence about the history of activities on the land. 15 The defendant says that, if the application were granted, the trial dates would have to be vacated. I accept that this is virtually inevitably so. The plaintiffs do not wish to lose the hearing dates and have indicated that they would oppose any adjournment application. 16 But I do not accept that the plaintiff have put forward a sufficient case for application under rule 31.28(3) to be granted. The matters going to discretion are against the plaintiffs. Fundamentally, however, the plaintiffs have failed to show the "exceptional circumstances" contemplated by rule 31.28(4)(a). 17 An alternative claim is for an order extending time so as to validate retrospectively, in effect, the service of Mr Glazebrook's report in fact effected on 28 April 2008. That, however, would be to approach through the back door of rule 1.12 something that should be approached through the front door of rule 31.28. 18 The application for leave under rule 31.28(3) in respect of Mr Glazebrook's report of 28 April 2008 is dismissed, as are the other claims in the plaintiffs' notice of motion filed on 13 May 2008 in respect of that report. ********** 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.