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Tarangau Game Fishing Charters Pty Ltd v Eagle Yachts Pty Ltd

 

[2016] QSC 66

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Tarangau Game Fishing Charters Pty Ltd v Eagle Yachts Pty Ltd & Anor [2016] QSC 66 

PARTIES:

TARANGAU GAME FISHING CHARTERS PTY LTD

(plaintiff)

v

EAGLE YACHTS PTY LTD

(first defendant)

BY WINDDOWN, INC

(second defendant)

FILE NO:

BS 9201 of 2010

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

9 March 2016 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

JUDGE:

9 March 2016

Atkinson J

ORDERS:

  1. The hearing listed for 14 March 2016 is adjourned to a date to be fixed.
  2. The plaintiff is granted leave to rely upon:
    1. the report of David Lyons dated 4 March 2016; and
    2. the report of William Wright dated 7 March 2016
  3. The second defendant’s expert, Lloyd Griffin, is allowed to inspect the vessel that is the subject of these proceedings (‘vessel’) and to take up to 100 samples of a similar kind to that obtained by the plaintiff’s expert.
  4. The plaintiff must permit and not impede in any way the attendance by Mr Griffin on the vessel and must permit and not impede in any way the taking of samples from the vessel.
  5. The plaintiff is to give at least 2 days’ written notice to the second defendant of the identity of any proposed representative of the plaintiff to be present during the inspection and testing of the vessel by Mr Griffin.
  6. The second defendant is to file and serve any further expert report on or before 22 April 2016.
  7. The matter is to be listed for a directions hearing not before 26 April 2016 and not later than 6 May 2016.
  8. The plaintiff is to pay the costs of the first defendant and second defendant thrown away by the adjournment of the trial.
  9. The parties have liberty to apply.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – DISCLOSURE OF REPORTS – where a directions hearing was conducted on Friday 14 March 2016 to ensure the parties were ready for trial – where no suggestion was made at that hearing that any further expert report had or would be sought to be tendered at trial – where after that directions hearing the plaintiff served two further expert reports on the defendants and sought the court’s leave to rely on the reports at trial – whether a just determination of the real issues in dispute between the parties required the admission of the expert reports – whether the trial need be adjourned – whether any further directions were necessary

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 366, r 429, r 429A

COUNSEL:

B D O’Donnell QC for the plaintiff

S Anderson for the first defendant

S E Seefeld for the second defendant

SOLICITORS:

McCullough Robertson Lawyers for the plaintiff

JHK Legal for the first defendant

Norton Rose Fulbright for the second defendant

[1] The Court was convened today to deal with an application filed by the second defendant, filed pursuant to r 366(4) Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), in circumstances where it had been served with a supplementary report by one of the experts intended to be called by the plaintiff in this matter, David Lyons.  Subsequent to the filing of that application the defendants were served with yet another supplementary report by another expert intended to be called by the plaintiff, William Wright.  Accordingly, the second defendant sought leave to amend the application to refer not only to the expert report of David Lyons, dated 4 March 2016, but also the expert report of William Wright, dated 7 March 2016.

[2] In addition to the orders sought by the second defendant, the plaintiff orally sought leave to rely upon those two reports.  Leave is necessary because under r 429 UCPR a plaintiff intending to rely on a report must disclose the report within 90 days after the close of pleadings, unless the Court otherwise orders.  The plaintiff argued that the supplementary reports complied with r 429A UCPR and were disclosed as soon as possible.  Nevertheless it accepted that it had to apply for leave to rely upon them.  I agree that that leave is necessary. 

[3] I should set out the circumstances in which these reports came to be disclosed.  The proceedings commenced in 2010.  They have been the subject of extensive directions, including being supervised closely under the supervised case list.  The final pleadings relied upon are the further amended claim and statement of claim, filed on 20 February 2013;  a further amended defence of the first defendant filed on 7 February 2013;  a defence of the second defendant to the further amended statement of claim filed 3 June 2013;  a reply to the further amended defence of the first defendant filed 22 March 2013, and a reply of the plaintiff to the defence of the second defendant to the further amended statement of claim filed 13 August 2013.  That must, therefore, be considered the last date on which it could be said that the pleadings closed.

[4] As I have said, both before and subsequent to that, this case has been the subject of extensive supervision by the Court to case manage it ready for trial.  A request for trial date was filed on 30 August 2013, signed by all the parties that the matter was ready for trial.  The last order made by the judge who was closely supervising it under the supervised case list was made on 6 November 2015.  Earlier orders had dealt with such matters as the second defendant being required to file any further expert report on which it intended to rely by 15 July 2015; a settlement conference to take place between the parties; and following that, the nominated experts of the parties were to confer with a view to identifying and clarifying any issues arising within their areas of expertise for the purposes of resolving or narrowing the points of difference.  They were to lodge with the supervised case list manager a report signed by each expert certifying that they had conferred, and stating the outcome of their conference, by succinctly identifying where they were in agreement and where they were not, and in the latter case stating the basis of the disagreement, and a copy of the report was to be provided to the solicitors for the parties.   That direction, of course, was made on the basis that all the expert reports would have been completed and disclosed before then.  In accordance with that direction, although not in accordance strictly with the date required, the experts did produce a conclave report which was dated 13 October 2015.  As I have said, a subsequent directions hearing was conducted by the supervised case list judge and orders made. 

[5] This matter was set down to commence before me on 14 March 2016, as was published in the Court calendar some months previously.  As late as last Friday, 4 March 2016, I conducted a directions hearing where I canvassed any matters that the parties wished to raise to ensure that the matter was ready for trial and a number of matters were dealt with and directions made.  One of the matters covered was the question of expert reports and the conclave report.  No suggestion was made that any further expert report had been sought or would be sought to be tendered at the trial. 

[6] Unknown to the other parties, that is the first defendant and the second defendant, and unknown to the Court was the following:  on 25 February 2016 the solicitors for the plaintiff had instructed an expert that they intended to call at the trial, and who had already provided an expert report many years earlier and had taken part in the conclave, to conduct a further inspection of the vessel, which is the subject of the dispute in this litigation.  A time and date for that inspection was set as Monday, 29 February 2016.  The letter of instructions also sets out that the plaintiff’s solicitors had engaged a representative from another expert they intended to call at the trial to attend the inspection with them for the purpose of assisting in the conduct of the sampling and/or testing to be undertaken in the course of the inspection, and otherwise as required for the purpose of conducting the inspection.  Mr Lyons was instructed to prepare a draft to be provided to the plaintiff’s instructing solicitors prior to signing and finalising the report in order for those solicitors to consider it.  The solicitors then said they would contact the expert to arrange a further brief teleconference to discuss the expert’s findings and finalise the report.  It referred to his earlier report, which was dated 22 November 2012, and other reports.  The expert was instructed to conduct an inspection of the vessel for the purpose of conducting sampling and testing, including peel evaluation, in order to ascertain the extent, where possible, beyond the visible cracked areas of the secondary bonding, defects throughout the vessel.  Again, he was instructed to draft a report of his findings.  He was told what the focus of his “inspection, sampling, testing and report” were to be.  He was then given specific instructions as to what to inspect and report upon.

[7] It appears that Mr Lyons did carry out the inspection as instructed and in his report he says he carried it out on 29 February 2016.  He then says he took samples, either taken by himself or by a Mr Nolan Head of Norman Wright & Sons, with the exception of some samples which were taken on 2 March 2016 by Mr Head in accordance with his directions.  He says his instructions were to conduct sampling and testing, including peel evaluation.  It appears that he used a hole saw and a screwdriver to take samples from the vessel.  He then examined those samples and reported on the conclusions he reached.  A video was taken of one peel test sample.

[8] At about 4.34 pm on last Friday, 4 March 2016, the day on which I had conducted the final directions hearing prior to the matter proceeding to trial, the defendants received a copy of that report.  It is apparent that that was the first notice they were given that samples were to be taken, or had been taken, and that a supplementary report of some 28 pages would be provided from Mr Lyons.  That led, as I have said, to the filing of the application. 

[9] No suggestion was made that yet another expert report would be sought to be relied upon, so it must have been some surprise to the defendants that after 5 pm on 7 March 2016 the defendants received a supplementary report from William Wright, another of the experts which the plaintiff intends to call at the trial of this matter.  It is apparent from that report that Mr Wright says that he was fortunate to be on the vessel when Mr Lyons was investigating secondary bonding delamination.  He says the date was 1 March 2016.  He says he witnessed first-hand the removal of a number of samples, and what he said that showed. He then refers to some experiment that he carried out with Mr Lyons.

[10] Mr O’Donnell QC, on behalf of the plaintiff, argued that I should give leave to allow the plaintiff to rely on that report, partly because only one part of it deals with something entirely new and other parts are responses to a report done by the second defendant’s expert, Mr Griffin, on 27 April 2013.  Counsel for the second defendant refers to the fact that since that report by Mr Wright refers to his observations on 1 March 2016, this report is inextricably linked to the experiments undertaken, and sampling undertaken by Mr Lyons, and it is not as simple as saying there is one part of the report that is entirely new and the rest is a response to Mr Griffin’s report because the response may well be infected or affected by what he observed of the sampling undertaken by Mr Lyons.

[11] The report by Mr Lyons refers in detail to the inspection that he undertook, the sampling that he did and his conclusions based on that.  Mr O’Donnell argues – and it is not disputed by the second defendant – that the report is relevant to the matters in dispute between the parties, and it is argued that a just and even an expeditious determination of the real issues in dispute requires the admission of those reports. 

[12] In view of the timing that I have set out it is not possible to argue that admitting these reports would assist in the expeditious resolution of the real issues.  The late provision of these reports has been at grave cost to the efficient administration of justice in the civil list in this Court, this matter having been set down for a two to three-week period, thereby denying other parties the opportunity to set down their matters. 

[13] However, it is true that the reports address genuine matters in dispute between the parties, indeed the real issues between the parties. Not to allow the plaintiff to rely upon these reports would not facilitate the just resolution of the real issues in these proceedings.  Faced with this prospect the plaintiff submitted that it would prefer not to rely on the reports rather than have the trial adjourned;  however, the first defendant has submitted that since it has had these reports disclosed to it, it reserves the right to cross-examine on these reports because, of course, its case is different from that of the second defendant and it appears to me also unarguable that any oral evidence given by Mr Wright and Mr Lyons will be infected or affected by the experiments and sampling undertaken by them.

[14] I should say I am astounded by the behaviour of the plaintiff in obtaining these reports for a matter that started in 2010 for issues in dispute between the parties at such a late date.  It is quite extraordinary that it should regard that as an acceptable way of conducting commercial litigation in this Court.  I should make it clear that it is not acceptable.  The situation, however, is that the Court is now faced with the plaintiff calling experts who have undertaken experiments and sampling and the second defendant’s expert has not had that opportunity.  The second defendant’s expert is in the United States and it has been known from the trial plan that he would not be giving evidence until 23 March 2016.  The second defendant’s expert will need time after he arrives in Australia to conduct his own inspection and sampling of the vessel and to prepare his own report on that matter in dispute between the parties.  As I said, Mr Griffin has made arrangements to arrive in Australia early in the morning of 19 March 2016 to give evidence.  The second defendant’s legal representatives could not be expected to be able to cross-examine the plaintiff’s experts prior to their own expert conducting similar tests and giving his expert report.  All of which, on the present timetable, would have to occur before Mr Griffin even arrived in Australia. 

[15] In the circumstances further directions will have to be given for the conduct of this matter, and I am left with no option but to adjourn the trial.  One of the directions that needs to be given is for the defendant’s expert, Mr Griffin, to inspect and sample the vessel owned by the plaintiff.  That requires an order of the Court, and I will order that Mr Griffin be allowed to inspect the vessel the subject of this dispute, and further that he be allowed to take up to 100 samples of a similar kind to that taken by the plaintiffs’ experts.  I order that the plaintiff, by itself, its agents or representatives, permit and not impede in any way the attendance of Mr Griffin upon the vessel and permit and not impede in any way the taking of the samples.  Clearly the plaintiff will have to pay the costs of the first and second defendant thrown away by the adjournment of the trial.

[16] I will give liberty to the parties to apply to me for further directions to be given in this matter once the sampling has been done by the second defendant’s expert and a report provided to the other parties.  The report is to be provided by 22 April 2016. The plaintiff is to give at least two days’ notice to the second defendant of any person it wishes to have present during the inspection of the vessel, and liberty to apply, of course. The matter is to be set down in the applications list for directions any time in the fortnight following 26 April 2016. 

[17] As to the costs thrown away, the application, as it presently stands, specifically notes the costs thrown away as a result of complying with order 4 of the supervised case list judge’s previous orders.  I will adjourn consideration of that until the report by the second defendant’s expert is completed. I will then determine whether another conclave is needed and whether the report affects the results of the previous conclave and whether or not that conclave will have been useful in any event, notwithstanding my criticisms of the report. 

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Editorial Notes

  • Published Case Name:

    Tarangau Game Fishing Charters Pty Ltd v Eagle Yachts Pty Ltd & Anor

  • Shortened Case Name:

    Tarangau Game Fishing Charters Pty Ltd v Eagle Yachts Pty Ltd

  • MNC:

    [2016] QSC 66

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    09 Mar 2016

Litigation History

No Litigation History

Appeal Status

No Status