Supreme Court New South Wales Medium Neutral Citation: Reid v Wright t/as D M Wright & Associates Solicitors [2016] NSWSC 466 Hearing dates: 8 April 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Common Law Before: Wilson J Decision: 1. In the absence of any agreement between the parties, the following questions are to be submitted to the expert witnesses in conclave: Question 1: At the time of the events the subject of these proceedings, by reference to a range if appropriate, what would you regard as a reasonable time frame for the period between the commencement of proceedings and the hearing for final relief? What are your respective reasons for any disagreement? Question 2: In light of the progress of litigation over time what advice should have been given by the defendant to the plaintiff? What are your respective reasons for any differences in opinion? Question 3: In light of the progress of litigation over time what proceedings should have be instituted by the plaintiff to best preserve the plaintiff's position and advance her case? What are your respective reasons for any disagreement? Question 4: By reference to a range if appropriate, what do you consider to be a reasonable time frame for the period between conclusion of the hearing for final relief and the delivery of judgment? What are your respective reasons for any disagreement? Question 5: In relation to each of the particulars of negligence in the Statement of Claim; 5.1: Do you consider the defendant to have committed the omission alleged? 5.2: In each instance, what are your reasons for any disagreement? 2. Leave is granted to the parties to amend or supplement the questions set out in Order 1, on the basis that each party agrees to the proposed amendment or supplementation of the questions. Catchwords: PRACTICE AND PROCEDURE – professional negligence claim – disagreement between parties as to drafting of questions for expert conclave – no joint statement of facts Category: Procedural and other rulings Parties: Christine Margaret Reid (Plaintiff) Diane Marie Wright trading as Wright & Associates Solicitors (Defendant) Representation: Counsel: Mr E Anderson (Plaintiff) Mr J Catsanos (Defendant) Solicitors: Greg Walsh & Co. (Plaintiff) DLA Piper (Defendant) File Number(s): 2013/00234613 Publication restriction: None EX TEMPORE Judgment 1. There is a Statement of Claim before the Court filed for the plaintiff in these proceedings, Christine Margaret Reid, on 2 August 2013. The Statement of Claim alleges negligence against the defendant, Diane Marie Wright, who trades as D M Wright & Associates Solicitors, in Queensland. The Statement of Claim alleges professional negligence, being essentially a failure to properly advise, a failure to properly institute proceedings necessary to preserve the plaintiff's position, and a breach of a fiduciary duty. The matter is listed for hearing before this Court on 18 April 2016 with a three-day estimate, although the parties note that the matter may well overshoot that estimate and may run into some four or five days. 2. The issue before this Court is the question of an expert conclave and, more particularly, the questions to be put to an expert conclave to facilitate the hearing of the matter on 18 April 2016. Each party has provided me with a list of proposed questions and there is a vast difference between the two lists. There is no agreement as to facts between the parties and there has been no Joint Statement of Facts filed. Each party will in lieu of that file its own Statement of Facts. 3. In part, therein lies the difficulty, in that given that there is no agreement as to the underlying facts relevant to the claim, it is perhaps rather more difficult for the parties to agree upon a list of questions framed in a neutral way to provide answers that would be of some meaningful assistance to the Court in determining the Statement of Claim. The parties being unable to agree upon the precise questions, it falls to the Court to endeavour to frame the questions for the conclave. 4. The plaintiff has provided quite a lengthy list of questions. The defendant has provided a rather shorter list of questions. The plaintiff contends that the defendant's questions are far too broad and that the questions would not precipitate responses that could provide assistance in the determination of the real issues before the Court. 5. The defendant criticises the plaintiff's questions as designed to elicit an expert report in reply to the report provided by the defendant's expert and to do so by what has been referred to as a "back-door" means. There is also some criticism of the level of detail of the questions as framed by the plaintiff. It is contended by the defendant that they are seeking to "micro-manage" the experts' evidence, and would needlessly confine the experts in the matters which they would consider, and the context in which they consider those particular matters. 6. It is difficult in the course of a Duty List to have any real hope of fully determining the merits of the claims of the parties. However, having read the material, it seems to me the best approach probably falls between the competing positions before the Court. I think there is some merit in the defendant's claim that the questions as framed by the plaintiff have a degree of "loading" although it may be that that is because of the purpose for which they were drafted (it seems to me that that purpose is or was, when the questions were drafted, to seek a reply from the plaintiff's expert to the report of the defendant's expert). 7. Perhaps because of that purpose the questions are to a degree loaded, as the defendant complains. They are certainly closely drafted to an extent that the experts I think would be unduly confined in the way in which they were able to consider the issues at a conclave and provide a joint report. However, I also agree that the defendant's questions perhaps do not go far enough and may need some supplementation to adequately address the relevant evidence. 8. As a general statement I think it is desirable not to too closely manage the nature of the questions asked. It would be unhelpful if the experts were so confined by the framing of the questions as to be unable to have regard to the evidence overall and to view the specifics of evidence in its overall context. 9. The Statement of Claim, as I have indicated, relates in broad to complaints of failure to advise, failure to properly institute proceedings, and a breach of a fiduciary duty, and it is those matters that ultimately the Court will be considering in the plaintiff's claim before the Court. It will be important for the expert conclave to provide evidence to the trial judge that will shed light on the nature and substance of the plaintiff's claim. 10. The questions that seem to me to be perhaps of a little greater utility than those proposed by the defendant, but without being quite as involved as those provided by the plaintiff, are as follows. ORDERS 1. In the absence of any agreement between the parties, the following questions are to be submitted to the expert witnesses in conclave: Question 1: At the time of the events the subject of these proceedings, by reference to a range if appropriate, what would you regard as a reasonable time frame for the period between the commencement of proceedings and the hearing for final relief? What are your respective reasons for any disagreement? Question 2: In light of the progress of litigation over time what advice should have been given by the defendant to the plaintiff? What are your respective reasons for any differences in opinion? Question 3: In light of the progress of litigation over time what proceedings should have be instituted by the plaintiff to best preserve the plaintiff's position and advance her case? What are your respective reasons for any disagreement? Question 4: By reference to a range if appropriate, what do you consider to be a reasonable time frame for the period between conclusion of the hearing for final relief and the delivery of judgment? What are your respective reasons for any disagreement? Question 5: In relation to each of the particulars of negligence in the Statement of Claim; 5.1: Do you consider the defendant to have committed the omission alleged? 5.2: In each instance, what are your reasons for any disagreement? 1. Leave is granted to the parties to amend or supplement the questions set out in Order 1, on the basis that each party agrees to the proposed amendment or supplementation of the questions. ********** 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 April 2016