- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Fricke & Anor v WH Frier Building Contractors Pty Ltd & Ors  QSC 6
KARL WILHELM FRICKE and DORIS MARY
FRICKE (in their own capacity) and ATF The Fricke
WH FRIER BUILDING CONTRACTORS PTY LTD
ACN 061 703 731
WILLIAM HENRY FRIER
GEORGE ROBERT DAWSON THOMSON
GREGORY PAUL DEMPSTER
DEVELOPMENT CERTIFICATION PTY LTD
ACN 082 385 911
SC No 21 of 2016
Supreme Court at Mackay
17 January 2019
28 November 2018
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – EVIDENCE – EXPERT EVIDENCE – where expert engineer has been appointed – where expert evidence does not address all issues - where plaintiffs rely on r 429N(3) - whether court should allow parties to call further expert evidence
Uniform Civil Procedure Rules 1999 (Qld) r 423, r 429, r 429G(1), r 429N(3)
Atkinson v Habermann (No 2)  QSC 294
Cosgrove v Pattison  All ER (D) 2007
Coyne v Calabro  NSWSC 1023
Daniels v Walker  1 WLR 1382
Davron v Teys  NSWSC 1004
Tomko v Tomko  NSWSC 1486
Stolfa v Owners Strata Plan 4366 (No 2)  NSWSC 531
Wu v Statewide Developments Pty Ltd  NSWSC 587
Optimisation Australia Pty Ltd, Re  NSWSC 2072
Ms C Heyworth-Smith QC for the plaintiffs
Mr D Chesterman for the defendant
Macrossan & Amiet for the plaintiffs
HWL Ebsworth for the defendant
The plaintiffs apply for orders pursuant to r 429N(3) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR") that they be permitted to call an engineer and a geotechnical engineer as expert witnesses at the trial of the proceeding and a direction for court order pursuant to r 429 that the plaintiff be entitled to rely upon a report of a quantity surveyor.
There is no opposition to the granting of leave to tender the quantity surveyor’s report, even though it has been disclosed outside of the requirements of r 429. Accordingly, such leave is given.
There is, however, an issue between the parties with respect to the plaintiffs’ desire to call a civil engineer and a geotechnical engineer. On 28 November 2018, orders were made as set out herein and, given the importance of the issue, written reasons were reserved. These are my reasons for making the orders.
The plaintiffs purchased two units off the plan in a community title scheme (CTS) development. The units were constructed during 2005 and 2006. The plaintiffs allege the construction is defective because the foundations are inadequate. The plaintiffs allege that the two units are built on an uncontrolled fill on a concrete slab which is partially suspended and partially a slab-on-ground construction, whereas because of the uncontrolled fill, the slab ought to have been a fully suspended slab.
The plaintiffs complain that there is cracking, moving, and bowing demonstrated in the units. The plaintiffs’ claim has always been as set out in paragraph 44(b)(i), that “the units need to be entirely demolished and entirely reconstructed.”
The plaintiffs’ claim in negligence is brought against the first defendant, being the building contractor, the second defendant being a director of the first defendant, the third defendant being an engineer, the fourth defendant being the person who performed the certification, and the fifth defendant being the company who was the certifier which employed the fourth defendant.
By order of North J on 25 November 2016, Peter Wright of Hughes Beal and Wright Pty Ltd was, pursuant to r 429N, appointed by the court as an expert in relation to an issue in the proceeding. Pursuant to paragraph 7(b) of the order, Mr Wright was directed to provide a report addressing “the extent of the work necessary to rectify the defective construction of the residential units including consideration of the issue raised at paragraph 45(a) of the second amended statement of claim.”
There is not one, but several issues raised in paragraph 45(a) of the second amended statement of claim. Paragraph 45(a) of the second amended statement of claim pleads an economic loss of $915,000 calculated to include the cost of expert reports of some $7,000, a loss of market value at some $780,000, consequential interest, and future losses. These losses include the cost of demolition of the units, remediation of the site on which they were constructed, the cost of effecting vacancy of the units at some $50,000, together with the costs of redesign and reconstructing the units at $40,000, reinstatement of common property that is damaged during the demolition at a further $20,000, and loss of rental income of the units at $600 per week for 30 weeks, a further $18,000.
Accordingly, the issues raised in paragraph 45(a) of the second amended statement of claim included the cost of demolition, redesign and reconstruction of the units.
Despite Mr Wright providing a most detailed report of 4 July 2017 (contained in the first 162 pages of Exhibit SGN-1), Mr Wright’s report does not address the issues raised in paragraph 45(a) of the second amended statement of claim as to the issue of the cost of demolition and reconstruction. At pages 43 and 44 of his report of 4 July 2017, Mr Wright in Paragraphs 10.1.4 and 10.1.5 forms the opinion that it is reasonable to rectify the units, but unreasonable to consider demolishing and reconstructing the units.
Mr Wright then at Paragraph 10.1.5 identified the rectification work that would be required, but did not provide a cost of the rectification work. Specifically, Mr Wright commented in Paragraph 11.2 that he was not a quantity surveyor or cost estimator and did not provide any estimate of the costs of the rectification work that he suggested.
It is important to note that by Paragraph 7 of the order of North J, Mr Wright is the civil engineer who was directed to provide a report relating to liability issues, specifically design issues (raised in Paragraphs 27 to 29 of the second amended statement of claim), construction issues (raised by Paragraphs 33 to 33 of the second amended statement of claim), and supervision and inspection issues (raised by Paragraphs 34 and 35 of the second amended statement of claim).
Mr Wright was also directed to provide a report on quantum issues, however, as noted above, by Paragraph 7(b) of the order, the request was limited.
Of more importance is Paragraph 44 of the second amended statement of claim by which the plaintiffs set out their case that “the foundation material on the site on which the units are constructed is subsiding or prone to subside” and that pursuant to Paragraph 44(c)(1), the fabric of the units is damaged and subject to further damage resulting from subsidence of the foundation material.
It is concluded that the plaintiffs had pleaded a case relating not only to damages for units as shown in their current conditions, but also alleging that the foundation material is not only currently subsiding, but prone to subside “in the future” and underpins the plaintiffs’ case as originally pleaded for demolition and reconstruction. Despite a comprehensive report, and perhaps because Mr Wright was not directed to provide any expert evidence upon the issues raised by Paragraph 44 of the second amended statement of claim, Mr Wright has not addressed the issue as to whether the units are “prone to subsidence” and “subject to further damage resulting from subsidence of the foundation material” in the future.
Indeed, as is set out in Paragraph 7.10 of Mr Wright’s report, the issue of damage to the structure was assessed by Mr Wright objectively with reference to AS 2870-1996 Residential Slabs and Footing Standards plainly on the basis of the damage observed by Mr Wright when he performed his inspection on 20 April 2017.
The plaintiffs complain that their case in respect of future subsidence as set out in Paragraph 44 of the second amended statement of claim has not been addressed by Mr Wright and whilst that is so, it is important to note that the issues the subject of Paragraph 44 of the second amended statement of claim were not required to be addressed in Mr Wright’s report.
Three days after Mr Wright had provided his report, the solicitors for the plaintiffs wrote to Mr Wright asking for a conference between Mr Wright and their senior counsel, no doubt to address the issues which had not been addressed, proposing a series of conference dates in July 2017. Mr Wright replied promptly on 13 July 2017 declining the conference as he had been engaged by all parties, and offering “to consider a written request for further information or explanation of any matters in my report. However, that written request will have to be circulated to all parties to this dispute prior to me providing any response.”
That response was unsatisfactory to the solicitors for the plaintiffs because there were five defendants at that stage represented by three different firms, such that the implied necessity for consent from all parties would be “unworkable, cumbersome, and will unnecessarily increase costs.”
One of the difficulties with single and court appointed experts is the lack of availability of that expert to provide ready assistance to any party to a dispute in the same manner that the party would have access to that expert if solely retained by that party. Indeed, as the cases discussed below show, if any party is to have close contact with a sole expert or court appointed witness, it may be seen as a grounds for questioning the independence of the sole expert and the appointment of additional experts.
The plaintiffs have met that issue by the retention of further experts: civil engineer, Mr Goddard, as well as a geotechnical engineer, Mr Berdie.
Rule 429N of the Uniform Civil Procedure Rules 1999 (Qld) provides:
429N Consequences of court appointment
This rule applies if the court appoints an expert in relation to an issue in a proceeding.
Unless the court otherwise orders, the expert is to be the only expert to give evidence in the proceeding on the issue.
However, the court may, on its own initiative or on application by a party, appoint another expert (the other expert) to prepare a report in relation to the issue if—
(a) after receiving a report from the expert originally appointed (the first expert), the court is satisfied—
there is expert opinion, different from the first expert’s opinion, that is or may be material to deciding the issue; or
the other expert knows of matters, not known by the first expert, that are or may be material to deciding the issue; or (b) there are other special circumstances.
Although the plaintiffs’ written submissions proceed on the basis that there is an application for the orders pursuant to r 429N(3), that is not what the application filed 31 October 2018 sought.
The application filed 31 October 2018 sets out:
“15. In the present application the Plaintiffs seek orders to be permitted to call:
Gary Goddard, engineer;
Edem Berdie, geotechnical engineer; and (c) Chris Marais, quantity surveyor,
as expert witnesses at the trial of the proceeding without prejudice to any objection to the admissibility of that evidence on the grounds other than non-compliance with chapter 11 part 5 of the UCPR and Practice Direction No. 2 of 2005.”
One of the difficulties in the present application is that Mr Goddard and Mr Berdie have provided written opinions which do not accord with the case being brought by the defendants and accordingly it is unlikely that the defendants would ask for those experts to be court appointed experts pursuant to r 429G(1). What is plain is that there is not any expert appointed by the court to directly address the issues raised by Paragraph 44 of the second amended statement of claim, and it is by Paragraph 44 of the second amended statement of claim that the plaintiffs squarely put their case as the only effective remedy being the demolition and reconstruction of the units.
The plaintiffs propose to remedy the oversight by calling Mr Goddard and Mr Berdie and requires leave under r 429G. The plaintiffs argue that, as Mr Goddard and Mr Berdie’s reports substantially relate to the issues in Paragraph 44 of the second amended statement of claim, leave is not required.
Single Expert Opinion
For many years prior to the introduction of Chapter 11, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld), the Civil Procedure Rules of the English superior courts, and by Part 35, have placed a duty upon the English courts to restrict expert evidence with Rule 35.7 giving the court the power to direct expert evidence be given by a single expert.
Lord Woolf MR was a substantial advocate for the confinement of experts in civil proceedings.
In Daniels v Walker Lord Woolf MR, in overruling a trial judge’s decision to prohibit the use of an additional expert said:
“ Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert.
In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert’s report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert’s report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.
In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases, it would be wrong to make a decision until one is in a position to consider the situation in the round. You cannot make generalisations, but in a case where there is a modest sum involved, a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report.
However, in this case a substantial sum of money depended on the issue as to whether full-time or part-time care was required. In those circumstances it was perfectly reasonable for the defendant, if the matter had been properly explained, to say that he would like to have the claimant examined by Miss Grindley…”
Lord Woolf MR’s decision in Daniels v Walker was handed down on 3 May 2000 and later that year on 27 November 2000 Mr Justice Neuberger, in Cosgrove v Pattison followed Lord Woolf MR’s decision in Daniels v Walker and at page 5 added the following:
“In my judgment, although it would be wrong to pretend that this is an exhaustive list, the factors to be taken into account when considering an application to permit a further expert to be called are these. First, the nature of the issue or issues; secondly, the number of issues between the parties; thirdly, the reason the new expert is wanted; fourthly, the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly, the delay, if any, in making the application; seventhly, any delay that the instructing and calling of the new expert will cause; eighthly, any special features of the case; and finally, and in a sense all embracing, the overall justice to the parties in the context of the litigation.”
In that case, Mr Justice Neuberger exercised his discretion to allow further experts to be called but proposed a test at page 7 taking into account the factors mentioned as follows:
“Standing back and looking at the justice between the parties, I ask myself two questions, do not represent a decisive test but they may be of some help. First, if the appellants are not entitled to call Mr McIntosh and they lose the case, will they have an understandable sense of grievance judged objectively? To my mind they would – an understandable, if not overwhelming, feeling. Secondly, if the appellants are entitled to call Mr McIntosh and won, would the respondents have an understandable sense of grievance, judged objectively? I think it is inevitable that they would have a sense of grievance, because that is in the nature of litigation. But I do not think that to most people be a particularly understandable sense of grievance….”
The English approach has been taken into consideration and perhaps expanded by a series of decisions of Brereton J in the New South Wales Supreme Court. In Tomko v Tomko, Brereton J, after referring to the two English cases, said in Paragraph 9:
“ In my view, the court should be relatively ready to grant leave to adduce evidence from a separate expert, lest trial by single expert otherwise become substituted for trial by judge. Where some arguable basis is shown for challenging the report of a single expert, the court should be disposed to grant such leave.”
Brereton J’s decision in Tomko has been referred to with approval in several New South Wales decisions where in each case leave was granted to receive evidence from other experts other than the court appointed expert.
In D v S Margaret Wilson J dismissed an application by which parties sought to introduce further expert evidence of a valuer of real property in circumstances where the court had appointed a joint valuer pursuant to r 429N. It would appear that none of the earlier English cases, nor Brereton J’s decision in Tomko was referred to. The conclusion of Her Honour in that case was:
“This is simply a case of the applicant having agreed to a joint valuation and then not liking the joint valuation she received. It is not necessary to ensure a fair trial of the proceeding that there be more than one expert on the value of the real estate. To allow the applicant to rely on the evidence of another expert in the circumstances would unnecessarily increase the costs of the litigation.”
In Conias Hotels Pty Ltd v Murphy & Anor Applegarth J had the benefit of the referral to the earlier English cases, Tomko and subsequent New South Wales cases. I would respectfully adopt Applegarth J’s views, that is, accepting the principles set out by Brereton J in Tomko and Wu but not to the extent, as Brereton J said in Tomko at Paragraph 9 that courts “should be relatively ready to grant leave to adduce evidence from a separate expert.”
I adopt the reasons of Applegarth J at Paragraph 10 that “the court should only grant leave to adduce further evidence in the circumstances stated in the rule and if the interests of justice require it.”
As may be observed from the decision, Applegarth J fashioned orders allowing the further expert evidence, but requiring a conference of experts to produce a joint report.
McMeekin J in Atkinson v Habermann,and without the benefit of the English and NSW cases, came to the same conclusion described Lord Woolf MR in Daniels case (at paragraph 29) as the “sensible approach”. McMeekin J said:
“ In my view it is premature to consider appointing another expert. What should happen is that the expert appointed needs to be asked the correct question. It may be that his opinion will be the same. Perhaps not.
In addition to the point I have discussed Mr Hawkes says that several of Mr Ryan’s critical assumptions are unreliable. He claims that the areas sampled are unrepresentative, that no allowance has been made for inaccessible areas, or areas with demonstrably limited resources, that the report does not refer to the product proposed to be produced or what the market for that product was, nor to the method of calculating log volumes, that the grading system adopted does not meet accepted standards, that the recovery rates assumed are unlikely to be realistically achieved, that the extraction costs assumed are unrealistically low, and that the assumed market prices are generous.
Mr Ryan has not yet had a chance to respond to these criticisms. In my view he should be given that chance before appointing a second expert. It may be that what is in issue is not as fundamental as seems presently to be the case. For the moment I assume that Mr Ryan is able and willing to assist.”
The application of the principles established in the above cases suggest that the answer to a difficulty arising from the lack of reference in the consent order appointing Mr Wright as an expert (being that he has not been specifically directed to provide expert opinion upon the issues the subject of Paragraph 44 of the second amended statement of claim) is to allow Mr Wright to provide an opinion on the issues not yet the subject of his opinion.
An important issue raised on the pleadings is the potential need for demolition and reconstruction based on further subsidence. Whilst it is true that Mr Wright’s report in some small measure deals with this issue, it does not directly deal with the issue, and like McMeekin J, I consider it premature to consider appointing another expert until Mr Wright has had opportunity to consider his position.
There are, however, two other matters which, in the interests of justice and from a pragmatic point of view, ought to be considered. They are the costs and delay occasioned by the alternatives proposed by the applicant and the respondent.
The order of North J appointing Mr Wright as an expert requires each party to pay a sixth of the costs. As was made plain by Mr Chesterman, it is not in any of the defendants’ interest to be seeking the further opinion on this issue and accordingly if the plaintiff seeks the opinion on this further and important issue, the plaintiff ought to pay a reasonable cost for that opinion.
In the absence of any specific evidence, given that it is a discreet issue, I consider the interests of justice require that the report be provided promptly and at a reasonable cost, that is, at no more than a sixth of the cost of the original report, which in effect requires the plaintiffs to pay additional fees to Mr Wright.
I am conscious, of course, that I cannot bind the expert, Mr Wright, to any orders without his consent and have fashioned orders to meet the contingency that Mr Wright is, through the pressing commitments of work, unable to provide the further report in a timely fashion, or alternatively, because of the scope of work required, unable to do so for less than a sixth of the cost of the original report. The orders that I consider appropriate and in the interests of justice therefore allow for an opportunity for the sole expert, Mr Wright, to continue to be the sole expert, but also accept that if that is pragmatically unachievable in a timely fashion, the application can be adjourned and brought on at earlier convenient date so that the litigation can continue in a timely fashion.
There are circuit sittings at the Supreme Court at Mackay commencing 22 April 2019 and the parties, in compliance with their implied undertaking to litigate expeditiously may be able to proceed sufficiently expeditiously to allow this case to be determined in those sittings.
The difficulty with the plaintiffs’ application is that it seeks an impermissible amalgam between r 429N(2) or r 429N(3) seeking permission to call an engineer, whereas r 429 applies when a party seeks permission to call an expert, not having complied with the time limitation periods provided in Chapter 11, Part 5 of the Uniform Civil Procedure Rules 1999 (Qld).
The application calls for a consideration of the principles reflected by the purposes of Chapter 11, Part 5 as set out in r 423 which provides as follows:-
423 Purposes of pt 5
The main purposes of this part are to—
declare the duty of an expert witness in relation to the court and the parties; and
ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court; and
avoid unnecessary costs associated with the parties retaining different experts; and
allow, if necessary to ensure a fair trial of a proceeding, for more than 1 expert to give evidence on an issue in the proceeding.
It is then in the interests of justice to have a single expert agreed by the parties or appointed by the court, however, it is not always in the interests of justice that there be a single expert and as r 429N(3) make plain, there is often more than one reasonable expert opinion on a matter of controversy.
In the present case, if Mr Wright agrees with Mr Goddard’s and Mr Berdie’s opinions concerning the issue of further subsidence, then there will be no need for the evidence of Mr Goddard or Mr Berdie, as Mr Wright may provide an addendum report expressing the same opinions as held by Mr Goddard and Mr Berdie. Because of the preference displayed in r 423 to a single expert, I intend to fashion orders to give Mr Wright an opportunity to consider the issues to which he was not originally directed, and those which have been raised by Mr Goddard and Mr Berdie.
If, however, Mr Wright provides an addendum report taking a different opinion, then that report may be perused in order to identify whether there is a reasoned basis for the alternative opinion, and then compare that to opinions of Mr Goddard and Mr Berdie in order to see whether discretion is properly enlivened pursuant to r 429N(3) to receive the evidence of Mr Goddard and Mr Berdie.
It seems to me that, as the parties have now, for over 2 years, proceeded down the path towards the utilisation of one expert, being Mr Wright, that general approach in compliance with r 423(c) ought not to be easily jettisoned in favour of a multiplicity of experts. On the other hand, if there is a genuine dispute on a matter of significance in the expert opinion and based on reasonable grounds, the interests of justice will be promoted by the granting of leave pursuant to r 429N(3).
In this regard, I intend to follow an approach similar to that set out by McMeekin J in Atkinson v Habermann (No 2) (supra).
The orders are as follows:
- Prior to 5:00pm Monday 3 December 2018, the plaintiffs are to email a letter to Mr Wright enclosing all documents held by the plaintiffs that have been obtained from Mr Goddard and Mr Berdie asking for Mr Wright’s reasoned opinion on any relevant issue. Any such letter and documents are to be emailed to the defendants contemporaneously.
- If Mr Wright advises in writing prior to 2:00pm Wednesday 19 December 2018 that he is able to provide a further report prior to 4 February 2019 addressing such issues and at a cost no more than one-sixth of the cost of Mr Wright’s original report, the application is to be adjourned until Monday 11 February 2019 at Mackay at 9:00am.
- If Mr Wright advises in writing prior to 2:00pm Wednesday 19 December 2018 that he is unable to provide a further report prior to 4 February 2019 addressing such issues and at a cost no more than one-sixth of the cost of Mr Wright’s original report, the application is adjourned until Thursday 20 December 2018 at Rockhampton at 9:00am.
- The costs of any such report completed by Mr Wright are to be paid by the plaintiffs.
- The parties have leave to appear by way of telephone for any adjournment application referred to in these orders.
- The parties have liberty to apply on 2 days’ notice.
- Costs are reserved.
 Supreme Court of Queensland Practice Direction 2 of 2005 – Expert Evidence: Supreme Court 2  1 WLR 1382.
 Daniels v Walker  1 WLR 1382 at p 1387.
  All ER (D) 2007.
  NSWSC 1486.
 Stolfa v Owners Strata Plan 4366 (No 2)  NSWSC 531; Wu v Statewide Developments Pty Ltd  NSWSC 587; Davron v Teys  NSWSC 1004; Coyne v Calabro  NSWSC 1023; Optimisation Australia Pty Ltd, Re  NSWSC 2072.
  QSC 446.
  QSC 297.
 Atkinson v Habermann (No 2)  QSC 294.
 Uniform Civil Procedure Rules 1999 (Qld) r 5.
- Published Case Name:
Fricke & Anor v WH Frier Building Contractors Pty Ltd & Ors
- Shortened Case Name:
Fricke v WH Frier Building Contractors Pty Ltd
 QSC 6
17 Jan 2019
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 6||17 Jan 2019||Plaintiff's application pursuant to r 429N(3) of the UCPR to be permitted to call an engineer and geotechnical engineer as expert witnesses; directions made with respect to a joint expert witness (inquiries to be made as to whether that expert witness will provide a supplementary report) and matter otherwise adjourned: Crow J.|