Byers v Frith [2016] NSWDC 209

District Court New South Wales

Medium Neutral Citation: Byers v Frith [2016] NSWDC 209 Hearing dates: 29 and 30 August 2016 Date of orders: 30 August 2016 Decision date: 30 August 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Grant orders 1 and 2 sought in the notice of motion filed today. (2) Order the plaintiff pay the costs occasioned by the late service of the Llewellyn report which includes the costs of 1 day of the trial. Catchwords: PRACTICE AND PROCEDURE – expert evidence – late service – prejudice – significant parts of report not pressed – exceptional circumstances Legislation Cited: Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 1.12, r 31.28 Cases Cited: Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 Category: Procedural and other rulings Parties: Malcolm Byers (plaintiff) Jan Frith (first defendant) Kelvin Hutchinson (second defendant) Vision In Action Pty Ltd (third defendant) Representation: Counsel: Mr A J McInerney SC with Mr D Robertson (plaintiff) Mr R Potter (first defendant) Mr A d'Arville (second and third defendants)

Solicitors: Ferrier & Associates (plaintiff) Curwoods Lawyers (first defendant) Hallewell Law (second and defendants) File Number(s): 2014/24350 Publication restriction: None

Judgment 1. The plaintiff, Malcolm Byers, has filed a motion seeking to extend the time to serve expert evidence in reply or alternatively, to be given leave to rely on expert evidence not served in accordance with a previous order of the Court. The plaintiff provides no satisfactory explanation for the delay in the service of the expert evidence and there is inevitably prejudice that is occasioned by allowing reliance upon the report, it being now the second day of the trial. 2. The existence of prejudice is effectively conceded by Mr Byers. As a consequence, Mr Byers has nominated significant parts of the expert report of Dafydd Llewellyn that create the prejudice identified by the defendants and proposes not to read those parts, thereby relieving or curing the prejudice asserted. Further paragraphs have been identified by the defendants raising the same problem and Mr Byers has indicated a willingness not to press those paragraphs either. 3. The parts that Mr Byers proposes not to read are paras 37(a)(ii), 37(b), 37(c), 145 to 150, 173(d), 167, 177, 180, 188, 192 and 199, the reference in para 203 to para 199, para 208 except for the first six words, the first sentence of paras 215 and 216; and also para 213. As a result, the prejudice in running a fair trial seems to have been cured by the plaintiff's actions. 4. The question of costs occasioned by the delay can be cured by an order. 5. Late service of an expert report can cause prejudice that may be immediately apparent but might also only be revealed in the course of the trial. Notwithstanding this possibility, I am minded to make the orders sought by Mr Byers, whether by extending the time in r 31.28(2) of the Uniform Civil Procedure Rules 2005 or by finding exceptional circumstances in subr (4). Other prejudice will be considered when and if it becomes apparent. 6. I note that his Honour Barrett J in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 at [17] was critical of what his Honour termed, "the back door of rule 1.12" whereby time was extended rather than requiring satisfaction of the "exceptional circumstances" test in r 31.28(4). The reference to an extension of time in subr (2) of r 31.28 is not a matter mentioned by his Honour, at least not in the passage to which my attention was drawn. It may be that that provision in the relevant rule might not fairly be described as a back door method, although r 31.28(2) must be read with r 1.12. But, in any event, I think in this case there is sufficient material to satisfy me that there are exceptional circumstances, namely, a withdrawal by Mr Byers of all the material thought to be prejudicial to the further conduct of the trial, including the further material identified by the defendants. Also relevant is that the amount in dispute is relatively modest, and all parties are keen for the matter to proceed to trial. 7. In order to clarify the issues that might arise between the experts, there should be a meeting between Douglas Smith and Mr Llewellyn. They should prepare a joint report identifying the matters in agreement between them, the matters where they disagree and the nature of their disagreement. The joint report is not an occasion to re-ventilate any of the matters in Mr Llewellyn's report that were not pressed. 8. Costs have been occasioned by the late service of this report, including approximately a day, part of yesterday and part of today. I am minded to order that Mr Byers bear the costs thrown away or occasioned by the late service of the report, which will include the cost of one day of the trial. 9. That leaves the question of the absence of a satisfactory explanation for the delay in the service of the report. In my view, the purpose of the rule is not to punish a failure to comply but to achieve, in accordance with s 56 of the Civil Procedure Act 2005, a just, cheap and quick result. I think Mr Byer's course of abandoning parts of the report operates to ameliorate to some degree the absence of a satisfactory explanation. 10. I make the following orders: 1. Grant orders 1 and 2 sought in the notice of motion filed today. 2. Order the plaintiff pay the costs occasioned by the late service of the Llewellyn report which includes the costs of 1 day of the trial.