Supreme Court New South Wales Medium Neutral Citation: King v Liverpool City Council (No.2) [2018] NSWSC 29 Hearing dates: 31 January 2018 Date of orders: 31 January 2018 Decision date: 31 January 2018 Jurisdiction: Common Law Before: Garling J Decision: (1) Vacate the hearing date of these proceedings of 6 March 2018. (2) Fix that hearing and all of the issues previously fixed for hearing on 30 July 2018 for a period of 10 days. (3) Order plaintiff to pay the defendant's costs of and thrown away by the vacation of the hearing date. (4) Order the plaintiff to pay the defendant's costs of the directions hearing before this court on 14 December 2017 and 31 January 2018. (5) Direct that the subpoena issued by the plaintiff to the New South Wales Environmental Protection Authority be listed for production of documents at 10.30am on 8 February 2018. (6) Order that Ms Melinda Listing, Senior Legal Officer, Litigation, Legal Services branch of the New South Wales Environmental Protection Authority appear at 10.30am on 8 February 2018 to respond to the subpoena on behalf of the New South Wales Environmental Protection Authority. (7) Direct that if the New South Wales Environmental Protection Authority wish to file any notice of motion seeking orders with respect to production of or access to the documents sought by the subpoena, any such notice of motion and affidavit in support is to be served by 5pm 6 February 2018. Direct that a copy of such documents be delivered to my Chambers at that time. (8) Direct that the solicitor for the plaintiff is to notify Ms Listing of these orders by email by no later than 5pm today. (9) Grant the parties liberty to apply on 2 days' notice. (10) Stand the proceedings over for further directions before Garling J at 9.30am on 16 February 2018. Catchwords: CIVIL PROCEDURE – case management – vacation of hearing date – interests of justice Legislation Cited: Not Applicable Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Bernard King (P) Liverpool City Council (D) Representation: Counsel: M Finnane QC (P) A Abadee (D) Solicitors: Paramount Compensation Lawyers (P) Moray & Agnew (D) File Number(s): 2016/169197 Publication restriction: Not Applicable EX TEMPORE JUDGMENT 1. This proceeding is a representative action in which the plaintiff, Mr King, claims damages on behalf of himself and fellow group members against the Liverpool City Council ("the Council") with respect to economic loss arising out of the conduct of the Council in placing mounds of dirt in the area of the plaintiff's and group members' homes. The plaintiff claims that the mounds of dirt contained asbestos fibres within them as a consequence of which his and the group members' properties have been contaminated, and that adverse economic consequences have flowed from that contamination. 2. The proceeding was commenced in about July 2016 and has been judicially case managed. The matter was fixed for hearing at an early stage and that hearing date, namely 6 March 2018, was fixed so as to provide a sufficient time for all of the parties to take the necessary steps to ensure that the proceeding was ready for a hearing. 3. Today, in the course of a case management hearing, it has become obviously apparent that the matter is clearly not ready for hearing to proceed on 6 March 2018. The parties have served lay evidence. Discovery has been had. The documents discovered by the Council have been inspected and copies made available in accordance with requests, but the plaintiff has failed to comply with a series of orders made by the Court to serve any expert reports dealing with the issues which are intended to be heard when the matter is dealt with in March. 4. The Court has been informed variously on a number of occasions by senior counsel for the plaintiff about the anticipated dates for service of these expert reports, but none of those dates have been able to be complied with. The most recent set of orders required the plaintiff to serve an expert report from a hygienist by 22 December 2017, with a valuation report to be served within two business days after that. 5. It appears that the hygienist expert has prepared a report, but senior counsel for the plaintiff has informed the Court that he did not think it appropriate for that report to be served in circumstances where the expert did not have access to documents which he thought may be relevant and which are the subject of a subpoena to the New South Wales Environmental Protection Authority ("the NSW EPA"). 6. Senior counsel today says that he is unable to predict with certainty, or confidence, the date by which the expert reports will be able to be served. He anticipated that it might take 14 or 21 days for that to occur, but understandably was reluctant to nominate a specific date. The service of an expert report by then is simply too close to the hearing date to allow the Council time to consider it, take instructions and serve any report which may respond to it. And it would further be a wholly inadequate amount of time for the Court to then make directions of the kind which it would usually make for the experts to jointly confer and produce a joint report to the matters that are agreed or not agreed. 7. For that reason it is abundantly clear that the hearing date of 6 March 2018 cannot be maintained. The parties are agreed that a further date which is available for the hearing, namely 30 July 2018, is convenient to both of them. 8. In light of the fact that the plaintiff is not ready to proceed with the hearing fixed for 6 March 2018, in the circumstances I have previously described, the interests of justice require that that hearing date be vacated. A new hearing date of 30 July 2018 will be fixed. 9. It also follows from the recitation of the circumstances that the plaintiff is to pay the defendant's costs thrown away by reason of the vacation of the hearing date, and also the defendant's costs of the directions hearings of 14 December 2018 and of today. 10. It is necessary to address the outstanding issue of production of documents by the NSW EPA. The subpoena, I am informed, was served in October 2017. A number of return dates have been fixed and, to date, no documents have been produced by the NSW EPA. Recent correspondence with the plaintiff's solicitor suggests that the NSW EPA may not be ready to produce the documents for some weeks yet. 11. Although I have not heard from any officer of the NSW EPA on the material about which I have been informed, and which I have read in email correspondence, a substantial question arises as to whether the NSW EPA has made any real attempt to comply with their obligations in a timely way. In light of that, I propose to make orders which have the effect of making the return of the subpoena and the production of documents subject to judicial supervision. 12. I will make orders today giving effect so as to ensure that such documents as are able to be properly and promptly produced. I will make the following orders: 1. Vacate the hearing date of these proceedings of 6 March 2018. 2. Fix that hearing and all of the issues previously fixed for hearing on 30 July 2018 for a period of 10 days. 3. Order plaintiff to pay the defendant's costs of and thrown away by the vacation of the hearing date. 4. Order the plaintiff to pay the defendant's costs of the directions hearing before this court on 14 December 2017 and 31 January 2018. 5. Direct that the subpoena issued by the plaintiff to the New South Wales Environmental Protection Authority be listed for production of documents at 10.30am on 8 February 2018. 6. Order that Ms Melinda Listing, Senior Legal Officer, Litigation, Legal Services branch of the New South Wales Environmental Protection Authority appear at 10.30am on 8 February 2018 to respond to the subpoena on behalf of the New South Wales Environmental Protection Authority. 7. Direct that if the New South Wales Environmental Protection Authority wish to file any notice of motion seeking orders with respect to production of or access to the documents sought by the subpoena, any such notice of motion and affidavit in support is to be served by 5pm 6 February 2018. Direct that a copy of such documents be delivered to my Chambers at that time. 8. Direct that the solicitor for the plaintiff is to notify Ms Listing of these orders by email by no later than 5pm today. 9. Grant the parties liberty to apply on 2 days' notice. 10. Stand the proceedings over for further directions before Garling J at 9.30am on 16 February 2018. ********** Amendments 09 July 2018 - Addition to case title on coversheet - (No.2) 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: 09 July 2018