Supreme Court New South Wales Medium Neutral Citation: Bannister & Hunter v Transition Resort Holdings (No.2) [2013] NSWSC 1656 Hearing dates: 04/11/2013, 05/11/2013, 06/11/2013, 7/11/2013, 8/11/2013 Decision date: 08 November 2013 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Report admitted except to prove, as opinion of its author, the "Conclusion" stated in it. Catchwords: PRACTICE & PROCEDURE - where plaintiff did not include subject document in court book - whether plaintiff provided sufficient notice of its intention to rely on the document - where defendant deprived of opportunity to cross-examine the author of the document Category: Procedural and other rulings Parties: Bannister & Hunter Pty Ltd (Plaintiff/First Cross-Defendant) Transition Resort Holdings Pty Ltd (Defendant/Cross-Claimant) Peter William Barclay (Second Cross-Defendant) Representation: Counsel: MJ Windsor SC / G Gemmell (Plaintiff/First Cross-Defendant) DS Weinberger (Defendant/Cross-Claimant) Solicitors: Indemnity Legal Pty Ltd (Plaintiff) Gadens Lawyers (Defendant/Cross-Claimant) File Number(s): 2010/41432 Judgment (ex tempore - revised 8 november 2013) 1HIS HONOUR: The plaintiff tenders for all purposes a report prepared by Coffey Geotechnics known as the "Site Regrading Report". Coffey Geotechnics provided that report to the defendant under cover of a letter dated 19 June 2008. 2The defendant objects to the admission of the report into evidence, to prove, as the opinion of Coffey Geotechnics, the "Conclusion" stated in it. The conclusion is to the effect that Stage One filling for the subject land "was generally carried out to Level One as defined in" a certain standard. 3The balance of the actual report itself comprises a statement of what was done by way of importation of fill and in respect of its placement and compaction. It seems that no objection is taken to that. The great bulk of the material however is contained not in the report itself but in annexed geotechnical reports and the like. 4Starting from the end: there could be no objection to the test reports and the like. Nor, it seems to me, could there be objection to the statement of what material was brought on site and how it was dealt with. 5The difficulty arises because of non-compliance with the usual order for hearing that was made in this matter. The document in question was not included in the draft Court book. The plaintiff did not notify the defendant, no later than six weeks before the start of the trial, that the plaintiff proposed to rely on it. In fact, what happened was that the document was tendered during the course of the trial. 6For the defendant, Mr Weinberger submits that his client has been deprived of the opportunity to cross-examine Coffey Geotechnics or the person who prepared the report. In the ordinary way, that might not be a matter of great moment. However, it is apparent from other documents that are in evidence that, by the time the report was delivered, the defendant was in dispute with Coffey Geotechnics as to the nature and quality of the work that Coffey Geotechnics had carried out. Specifically, a complaint was made about "a very elaborate (and hugely expensive) procedure for laying services which penetrate the "capping" layer". 7For the plaintiff, Mr Windsor of Senior Counsel submits that the document is one that has been in the defendant's possession since it was produced, and one which was discovered in the course of pre-trial preparation. He submits that there can be no real question of prejudice, and that the interests of justice require that his client be able to rely on the expression of opinion contained in the report. 8In that regard, Mr Windsor submits, the requirements of the Practice Note should be regarded as intended to achieve justice between the parties, and should not be applied strictly if that application would defeat the interests of justice. 9Further, Mr Windsor submits, it would have been open to the defendant to require the author of the report to attend for cross-examination. 10The purpose of the usual order for hearing (which was made in this case, although I think the requirement for an electronic Court book may have been dispensed with) is to ensure that each party knows, well before the start of the hearing, the evidence on which the other will rely. That is done because proceedings in the Commercial List and the Technology and Construction List are conducted by way of abbreviated "pleadings", with an absence of formality, and on the basis that, in the ordinary way, further and better particulars will not be ordered. 11In those circumstances, it is common experience that in effect it is the revelation of one party's evidence to the other that demonstrates in full what is the case that the revealing party seeks to make out. 12There has always been an issue in this case as to whether the Stage One filling was carried out in a satisfactory and proper way. Expert evidence has been called. The experts have had access to this and other reports prepared by Coffey Geotechnics or associated entities, and have informed themselves from, in particular, the test reports and other day to day data contained in those reports. However, the plaintiff did not call as a witness an independent expert who was able to say, by reason of testing that he himself carried out or supervised, that the Stage One filling was carried out in accordance with the requirements of the contract. The furthest that the plaintiff's expert witness, Mr Mostyn, could go was to describe what he concluded could be inferred based on a range of materials that he had been shown. 13In circumstances where there was a dispute between the defendant and Coffey Geotechnics as to the work done by Coffey Geotechnics, and where in the course of elaborating that dispute the defendant called on Coffey Geotechnics to certify the fill, there must be at least a basis for suspicion that the report prepared by Coffey Geotechnics apparently in response to that request may not have been entirely impartial. In the ordinary way, one would expect an expert retained by a party in the course of carrying out works to give independent and impartial advice on what was done and the standards reached. Whilst I do not for a moment suggest that Coffey Geotechnics would have sought to act in any other way, nonetheless there must have been some perception on its part that it was "in the gun" "if it should turn out that the works (the filling works) had not been completed to the required standards for the purposes of the defendant's proposed development. 14Bearing that in mind, I find it a little concerning that, without the author being called, and without the defendant having had any adequate prior notice, the Court is now being asked to accept the expression of opinion that was given against the background I have sketched. 15I accept, as Mr Windsor submits, that the Practice Note should be the servant and not the master. I accept that it is intended to facilitate the achievement of justice between the parties, on the issues and on the evidence that they present to the Court for resolution. But justice between the parties does not mean that attention is to be paid to the interests of one party only. That is why, among other things, each party is required to notify the other, in accordance with the timetable set out in the usual order for hearing, of the testimonial and documentary (and expert) evidence on which it intends to rely. That is not just a matter of form. It is an essential part of achieving procedural fairness and, in that way, of leading to a just outcome. 16I do not accept that it is appropriate to indicate, only in the course of a hearing, that one party proposes to rely, for all purposes, on a report that has not been the subject of notice in accordance with the usual order for hearing. 17To my mind, there is a real risk in accepting the evidence in the circumstances that have arisen. 18As I have said, the Coffey Geotechnics report was before the parties' experts. But that was as I understand it basically for the purpose of the experts informing themselves of the factual material contained in it (and in the other Coffey entity reports that were given to them). In circumstances where the experts were apparently not asked to express an opinion as to whether the conclusion stated in the report presently under consideration was justified by the test material annexed to it (or contained in other reports), I think that there is a significant risk of proceeding on an untested and possibly unsound basis if the conclusion is to be admitted for all purposes. 19Accordingly, the report is admitted for all purposes except to prove, as the opinion of Coffey Geotechnics, the "Conclusion" expressed in the 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. Decision last updated: 19 November 2013