Lando v Rawlinson & Brown Pty Limited [2018] NSWSC 220

Supreme Court New South Wales

Medium Neutral Citation: Lando v Rawlinson & Brown Pty Limited [2018] NSWSC 220 Hearing dates: 12-13 February 2018 Date of orders: 13 February 2018 Decision date: 13 February 2018 Jurisdiction: Common Law Before: Hamill J Decision: Trial date vacated. Parties to bear their own costs. Case management orders made. Catchwords: CIVIL LAW – vacation of trial date – failure of parties to comply with court orders – lamentable and flagrant breach of timetable by both parties – disruption of list – interference with rights of other litigants – appropriate orders as to costs – no question of principle Legislation Cited: Civil Procedure Act 2005, s 56 Competition and Consumer Act of 2010 Category: Procedural and other rulings Parties: Joseph Lando (Plaintiff) Sylvia Lando (Second Plaintiff) Rawlinson & Brown Pty Limited (Defendant) Representation: Counsel: Mr SB Docker with Mr M Seelig (Plaintiffs) Mr B Kelleher (Defendant)

Solicitors: Taylor and Whitty Solicitors (Plaintiffs) Colin Biggers & Paisley (Defendant) File Number(s): 2015/00214720

Ex tempore Judgment 1. This case, in essence, is a suit by a wheat farmer against an agronomist for providing (what is alleged to be) negligent advice that led to a failed wheat crop. It has now been twice listed for hearing. On neither occasion was the matter ready to proceed. 2. The circumstances in which the present trial date must be vacated arise from the flagrant and lamentable failure of the parties to comply with certain case management orders and directions made when the matter was unable to proceed in December last year. Because of what I accepted to be the precarious financial position of the plaintiff and the importance of the current litigation to his situation, I ordered that the hearing date be expedited and liaised with the civil list Judge, the list clerk and the Common Law Registrar in order to give the matter the first date that was available to the Court and suitable to the parties, their experts and legal practitioners. I also set a table for the filing of evidence by each party. The reasons why the matter was unable to proceed in December last year was the plaintiff, in spite of clear directions given by the Registrar for the service of evidence, sought to rely on additional affidavit material that was filed a short time before the hearing date. In those circumstances, I accepted the submission of counsel for the defendant that the matter was unable to proceed. In addition to the late service of evidence there was also controversy surrounding the question whether the plaintiff had complied completely, or at all, with a notice to produce, or notices to produce, requiring the production of certain relevant documents. 3. It is unnecessary to go into any great detail of the factual controversies between the parties. The plaintiff has been a wheat farmer for many years. The present litigation concerns a wheat crop which failed in the middle of 2014. The plaintiff had engaged the defendant to provide him with advice and guidance as to the use of chemicals to foster a healthy crop and to deal with weeds in the paddocks in which the crop was to be grown. The reasons the crop failed to a substantial degree are to be determined in the course of the litigation. In the months that followed the failure of the crop, it became clear that the plaintiff held the defendant to be responsible. 4. In July of 2015, the plaintiff commenced proceedings by statement of claim in this Court. The statement of claim asserted a breach of contract, an action in the tort of negligence (being the provision of negligent advice) and, in the alternative, an action for misleading and deceptive conduct and similar assertions pursuant to the provisions of the Competition and Consumer Act 2010. Again without going into the details and particulars of those causes of actions, the plaintiffs asserted that the defendant provided him with bad advice as to the mixture of chemicals that should be sprayed on the paddocks in which the crop was to be grown. 5. The defendant filed a defence in which it denied those allegations generally and will, as I perceive it, assert that the advice provided to the plaintiffs was good advice and that the crop failed for other reasons including, perhaps, the fact that the plaintiff failed to spray the crop in accordance with the plan and advice provided by the defendant. 6. There were other related proceedings between the parties, or similar parties, being what was generally described as a money claim, but that action settled shortly before the matter came on for hearing in December. At some stage, one set of proceedings was brought up, or transferred, from the District Court to this Court and the proceedings were joined to be heard together. The matter was listed for hearing and a timetable for the filing of evidence was set by the Registrar. The parties prepared for the inevitable hearing there being, it seems, no prospect that the matter will settle. The case was before the Registrar on a number of occasions. 7. Finally, the matter was listed for hearing on 4 December 2017. As I have said, the Registrar made orders for the service of evidence by the parties on particular, and clearly defined, dates. The matter was allocated to me in the week prior to the hearing date 4 December 2017 and there was a court book comprising close to 400 pages, and containing the pleadings, various affidavits and associated evidence relied on by both parties. The matter had an estimate of five days. 8. A very, very short time before the hearing, and after a joint expert report had been provided, the plaintiff filed and sought to rely on further affidavit evidence which appeared to move the goalposts somewhat in terms of the factual and evidentiary circumstances upon which the experts had provided their diametrically opposed opinions. Relevant matters were when the crop was planted, by whom it was planted and when and what chemicals were sprayed. Unsurprisingly, the defendant sought to vacate the hearing date. The application was granted and costs were reserved to be decided by the trial judge. 9. In addition to the order vacating the trial date, I attempted to streamline the hearing of the case by making a number of orders for further service of evidence. In spite of those orders and in spite of there being no communication from the parties to the Court that the timetable was being disregarded or, in any event, not complied with, it became apparent yesterday that the matter cannot proceed. I will return to the reasons presently. 10. There was a time in this Court when the delay between the readiness of the parties to go to trial and the actual hearing of their court case was extensive. At times that delay may have been for many years. There was a significant backlog in the number of cases to be heard and determined. As a consequence, a number of legislative and quasi-legislative changes were made to the conduct of litigation. The "overriding purpose" of those amendments was to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": see section 56 of the Civil Procedure Act 2005. 11. Tens of thousands of litigants approach the Supreme Court of New South Wales each year with a diverse range of legal problems and conflicts. They range from the seemingly mundane (but important to the parties), to matters involving hundreds of millions of dollars, and matters involving the liberty of the subject. Each time a case is listed and unable to be heard due to the indolence of the parties to the litigation, other litigants are denied a quick resolution of the proceedings. 12. By way of example – and perhaps the most poignant example – is the fact that people refused bail by the lower courts may approach the Supreme Court to make a release application. The delay between the filing of that application and the hearing of the bail application is often in the order of two months. When a judge, such as myself, is allocated a five-day civil hearing, such as this one, the judge becomes unavailable to hear and determine an application for bail made by such litigants. Meanwhile, they remain in custody while, in legal theory at least, they enjoy the presumption of innocence. Equally, parties to civil litigation are delayed in having their matter heard and determined in the aspirational manner postulated by section 56. 13. In the present case the defendant was required to serve its additional evidence in response to the plaintiff's late served evidence by 22 December 2017. Part of the evidence contemplated, when the matter was last before me, was handwriting and other forensic evidence concerning documentary material produced by the plaintiff said to support their case as to when the chemicals were sprayed and what mixture of chemicals were sprayed. It was incumbent on the defendant to expedite the obtaining of such expert material to enable the plaintiff to respond to it by engaging its own expert, if necessary. However, that evidence was not obtained until early February of 2018, just a couple of weeks before the hearing and then it was served. Had he chosen to, the plaintiff would have been unable to respond to that evidence, which I take to be an important part of the defendant's case that aspects of the plaintiff's affidavit evidence cannot be accepted and, further, that the documents produced did not accurately reflect the true situation and perhaps worse. The failure of the defendant to serve its expert evidence, in accordance with the timetable set, is one of the reasons, but not the most important reason, that the matter is not ready to proceed today. 14. A second problem concerned the availability of the plaintiff's expert agronomist. Shortly after the matter was before me in December, the plaintiff's solicitor had an exchange of text messages with the relevant expert. At that stage the expert indicated that he was available to give evidence and participate in a "hot tub" or conclave of expert witnesses in the week of 13 February 2018. Based on that text message exchange, the plaintiff's solicitor took no formal steps to ensure the attendance of the expert; in other words, the plaintiff did not issue a subpoena ordering the expert to attend, nor, it seems - and I may be wrong about this - did the plaintiff formalise the retainer of the expert on the particular dates by formal correspondence. In any event, when the plaintiff's solicitor contacted the expert, a surprisingly short time before the hearing was due to commence, the witness responded by saying that he was not available to give evidence during the period set aside for the hearing. It was for this reason that the case was listed urgently before me yesterday, that is the day before the case was listed for a five-day hearing. By then, other problems had emerged and the unavailability of the expert was the least of the problems. 15. One of the problems that had emerged was the issue surrounding the late service of the defendant's handwriting expert report. 16. The parties had come up with a possible solution to the unavailability of the plaintiff's agronomist by seeking to have the expert testimony heard on Friday of next week. That is the date that had originally been set aside for the hearing of submissions, it being understood that all of the evidence would be received in the four days set aside this week. 17. While that was a possible solution to the problem, it was not one that was particularly satisfactory because it meant (i) that the hearing of the evidence in the first four days set aside would be disrupted and disjointed and some court time was likely to be wasted and (ii) the likelihood of hearing both the expert testimony and the submissions on the last day set aside for the hearing is slim. Accordingly, even if that solution were accepted, it was likely that there would be a further delay in the proceedings. One hopes that the plaintiff's solicitor has learned a lesson as to the benefit of a court order and the nature of a subpoena over an informal exchange of text messages. 18. Meanwhile, the defendant had also conducted an analysis of the plaintiff's records in an attempt to establish that he had neither purchased, nor had on hand, the amount of chemicals he claims, in his affidavits, to have sprayed on the crops. That material also was not made available to the plaintiff until some weeks after the date upon which the defendant was, by direction of the Court, required to serve its evidence. 19. Finally, and according to experienced counsel who appear for each side, most importantly, the plaintiff has, in the seven or eight days prior to the commencement of the hearing, located what is described as a "black book". It appears that this black book may become a crucial piece of evidence in the case. In this book the plaintiff says he made contemporaneous notes as to when and with what chemicals he sprayed the subject wheat crop. It was that record upon which the information contained in various earlier served spray reports was derived. Given that the defendant seems to be conducting its case partially, at least, on the basis that the plaintiff's evidence cannot be accepted and that the records upon which his evidence, and his case, is based, has (to put it as neutrally as I can) some inherent difficulties, it was inevitable that the production of the black book, at such a late stage, would cause some consternation and disquiet in the defendant's legal team. 20. Counsel for the plaintiff put his client's position that, notwithstanding the late service of the black book, the case could proceed, at least from the plaintiff's point of view. Counsel for the defendant made the unsurprising submission that the defendant now wished to subject the black book to the same kind of forensic testing and handwriting analysis that had been undertaken in respect of those earlier spray reports which were produced, essentially, when the matter was last listed for hearing. In the face of those submissions and questions from the bench, counsel for the plaintiff fairly and responsibly accepted that there was very little he could say to gainsay the defendant's submission that the matter could not proceed. 21. For all of those reasons there was, as things stood and stand, an inevitability that this case could not proceed this week. 22. The parties have come before me today, a variety of material was tendered and the parties agreed upon a timetable which is calculated to ensure that the matter does proceed when it is next listed for hearing. 23. One question which arises, of course, is the question of who should bear the costs. One possible solution is to order that the costs thrown away follow the cause, but I think the better exercise of the discretion as to costs, which is a wide one, is to order that the parties bear their own costs for the time thrown away for this hearing and for the mentions yesterday and today. I think such an order reflects the opinion I have reached that neither party has distinguished itself, in terms of compliance with Court orders and the preparation of this matter, and the attempt to comply with the purposes set out in the Civil Procedure Act, including section 56. Accordingly, the orders I make are these: 1. The trial date is vacated. 2. The parties are to bear their own costs for the costs thrown away for the vacation of the hearing. 3. The plaintiff is to file and serve any additional affidavit evidence by 20 February 2018. 4. The defendant is to file and serve any further affidavit evidence, including evidence relating to the location of photographs taken by Mr Ryan, by 13 March 2018. 5. The matter is listed for mention before me at 9.30am on Wednesday, 14 March 2018. 6. The defendant is to serve any further expert evidence by 20 April 2018. 7. The plaintiff is to serve any further expert evidence in reply by 31 May 2018. 8. The matter is listed again for mention before me at 9.30am on Friday, 29 June 2018. 9. The plaintiff is to file an agreed chronology by 13 July 2018. 10. The parties' legal representatives are to meet to discuss objections to evidence by 13 July 2018. 11. Any additional Court Book is to be filed and served by 18 July 2018. 12. A list of any remaining objections should be filed with the Associate of the trial judge by Friday, 20 July 2018. 13. The matter is listed for hearing on 23 July 2018, with an estimate of seven days. 14. I note that the costs reserved, following the last adjournment of the matter in December, remain reserved to the trial judge. 15. Liberty to apply on three days' notice to my associate until the trial judge is known.