Supreme Court New South Wales Medium Neutral Citation: Menz v Wagga Wagga Show Society Inc [2018] NSWSC 1326 Hearing dates: 28 August 2018 Date of orders: 30 August 2018 Decision date: 30 August 2018 Jurisdiction: Common Law Before: Harrison J Decision: The defendant's application is dismissed with costs. Catchwords: CIVIL PROCEDURE – expert evidence – application to rely upon expert report served out of time – where significant delay – where inadequate explanation for the delay Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCCA 230 Category: Procedural and other rulings Parties: Kerri Anne Menz (Plaintiff) Wagga Wagga Show Society Inc (Defendant) Representation: Counsel: M Inglis (Plaintiff) D Kelly (Defendant) Solicitors: Commins Hendriks (Plaintiff) Mason Black Lawyers (Defendant) File Number(s): 2015/285709 Publication restriction: Nil Judgment 1. HIS HONOUR: By notice of motion filed on 28 August 2018, the defendant seeks an order that it be given leave to rely upon the report of an expert dated 3 August 2018. The proceedings are listed for hearing commencing on 24 September 2018. The time for the service of reports of this kind has long ago expired. 2. The defendant relies upon an affidavit of Mariam Taouk sworn on 24 August 2018. Ms Taouk deposes to efforts made by her on behalf of the defendant to obtain a report from an expert dealing in general terms with equine propensities when spooked or startled. It is the plaintiff's claim that she was injured when riding her horse at the Wagga Wagga Showground when she was thrown and injured. The plaintiff contends, in very general terms, that her horse was startled by noises from children who were permitted to come into close proximity to her and that this was something that the defendant should have foreseen and prevented. More particularly, the plaintiff alleges that the defendant had control of the showground premises and that it ought to have designated certain zones or areas to which members of the public were denied access. 3. The report upon which the defendant seeks to rely has been prepared by Dr Andrew McLean. It is not for present purposes in dispute that Dr McLean is an expert in the behaviour of horses. It is also not apparently in issue that the behaviour of horses generally is likely to be a relevant consideration in this case. 4. Ms Taouk says that she obtained instructions in late April 2017 to conduct enquiries with a number of expert witness services as well as equine experts in order to locate and retain a suitable liability expert. She had conducted preliminary enquiries in March 2017 with Unisearch and Animal Expert Witness Services to determine whether they could provide details and qualifications of suitable candidates. 5. On 6 April 2017, Ms Taouk placed a formal enquiry with Animal Expert Witness Services and held a teleconference with that organisation two days later. Ms Taouk was advised that they would attempt to locate someone suitable. 6. Orders were made by this Court on 19 July 2017 that the defendant serve expert liability evidence upon which it proposed to rely by 8 September 2017. Ms Taouk continued to make enquiries. Between 27 July 2017 and 15 August 2017, Ms Taouk and counsel for the defendant conferred with witnesses for a number of purposes, including assessment of the need for a liability expert witness. A suitable candidate was identified in late August 2017. That expert was asked on 2 September 2017 to provide a report. 7. The expert attended the Wagga Wagga Show on 3 September 2017. On 21 September 2017, the expert advised that the report would not be available for a number of weeks. On 4 October 2017, the Court extended the time for service of the defendant's expert liability evidence to 31 October 2017. In the events that occurred, the final report was not received until 28 December 2017. On 21 February 2018, the Court again extended the time for service of expert liability evidence to 23 February 2018. 8. At paragraphs 22 to 30 of her affidavit, Ms Taouk said the following: "22 Having reviewed the report from the expert, received advice from counsel, consulted further with the expert and prospective witnesses, I received instructions not to serve the report from the expert for reasons including the unavailability of the expert for the hearing date, costs considerations, issues with the expert's expertise, and the inability of the expert to commit to certain timeframes, including a possible conclave. 23 As such, I was instructed to defer making any further attempt to obtain a liability expert report and to explore all possibilities of a resolution of the matter at mediation without having to proceed to hearing for commercial reasons and particularly noting that mediation had been scheduled for 27 April 2018. 24 Following mediation on 27 April 2018, a number of formal offers were exchanged between the parties, with the last offer being made by the defendant on 31 May 2018, expiring on 28 June 2018. 25 From late April 2018, in anticipation of the possibility that the matter may not settle, I conducted urgent enquiries with Animal Expert Witness Services in order to locate and engage an appropriate liability expert. 26 I finally located Dr Andrew McLean in early June 2018 and on 13 June 2018, I addressed a letter of instruction to [him]. 27 On 10 July 2018, I arranged a teleconference with Dr McLean. 28 On 26 July 2018, I arranged a teleconference with Dr McLean and the defendant's counsel in order to discuss his opinion and the requested report. Dr McLean had a busy schedule, spending approximately a third of his time overseas lecturing and running clinics, making it difficult to coordinate a teleconference with [him], our office and the defendant's counsel. 29 On 30 July 2018, having discussed the matter at length in order to determine the issues in dispute, a second letter of instruction was addressed to Dr McLean which was tailored in order to limit the issues in dispute, address all aspects which required addressing, and clarify and canvass Dr McLean's opinion in respect of these issues. 30 On 3 August 2018, I received Dr McLean's written report." 1. It would appear that no further attempt to extend the time for service of such a report was made, either by application to the Court or by obtaining the plaintiff's consent to such a course. 2. I note in passing that the several questions contained in the 30 July 2018 letter sent to Dr McLean are reproduced in his report. Having regard to his expertise as an equine behaviourist, it seems likely that the preponderance of questions Dr McLean has been asked to consider do not fall within his area of expertise and are susceptible to objection on that basis alone. I say this for the reason that the defendant's questions, with the possible exception of question 5, appear to be directed to the proper conduct of the Wagga Wagga Show by the defendant rather than to the behaviour or propensities of horses that may compete in it. I note, however, that this issue was unfortunately not argued before me on the present application. 3. Mr Inglis of counsel for the plaintiff contends that Ms Taouk's affidavit does not properly or adequately explain the delay. It somewhat curiously does not in my opinion satisfactorily explain why the expert report received on 28 December 2017 was never served. I make that comment having regard to what Ms Taouk says in paragraph 22 of her affidavit, which is reproduced above. 4. Mr Kelly of counsel for the defendant maintains that there is no demonstrated delinquency on the part of the defendant or its legal advisers and that, having regard to s 58 of the Civil Procedure Act 2005 and what has been said in cases such as Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [43] to [47], it is appropriate to allow the present application. While I accept the force of that decision, it does not appear to me to assist the defendant in the present case. 5. As Mr Inglis has indicated, the defendant has made, or appears to have made, a commercial decision about whether or not to retain someone such as Dr McLean in the hope that it may not be necessary if the proceedings were ultimately to settle. That is unfortunately not a luxury in which parties are able without reservation to indulge, and certainly not one that ought to be considered without the prospective sanction of the Court. The more apt decision for present purposes seems to me to be Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, to the well-known and arguably terrifying terms of which it is presently unnecessary in detail to refer. 6. As I have indicated, the defendant's concern is more apparent than real having regard to the chances that Dr McLean's report, or a substantial proportion of it, would be likely to be excluded having regard to a comparison between his undoubted expertise with horses and the questions about event management that he has been asked to consider. 7. Moreover, having regard to the fact that this matter is listed for hearing commencing on 24 September 2018, it would be unfair to the plaintiff if leave were to be given. Orders were previously made requiring that such evidence be served almost a year ago. Further orders were then made on two occasions extending that deadline. 8. In my opinion, the defendant's application should be dismissed with costs. ********** 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: 30 August 2018