Lee v Bus and Coach International Pty Ltd
[2005] QDC 269
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Lee v Bus and Coach International Pty Ltd[2005] QDC 269
- Add to List
Lee v Bus and Coach International Pty Ltd[2005] QDC 269
Lee v Bus and Coach International Pty Ltd[2005] QDC 269
[2005] QDC 269
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 5082 of 2000
WOO NAM LEE AND CHIN OK LEE | Plaintiffs |
and | |
BUS AND COACH INTERNATIONAL PTY LTD (ACN 073 935 341) | First Defendant |
and | |
RONALD JAMES NAZZARI | Second Defendant |
and | |
JEFF WALKER | Sixth Defendant |
BRISBANE
DATE 24/08/2005
ORDER
CATCHWORDS: | Uniform Civil Procedure Rules r 470 - leave refused for defendants to apply for an order that plaintiffs file an affidavit deposing to what reports or draft reports of an expert exist - trial before another judge stood adjourned part heard after the plaintiffs' opening (in the course of which a report and supplementary report of the expert were tendered, subject to her being called - confusing correspondence from plaintiffs' solicitor induced concern that additional reports of the expert (not disclosed) might exist - unimpressive efforts by legal representatives to sort out confusion - by the hearing date, the defendants accepted there were no further reports or drafts. |
HIS HONOUR: It is almost a quarter to 1 and most of the participants in this matter have been here at Court since about 9.30. The hearing began at 5 past 11. I am sorry to say that the exercise does not reveal the legal system operating at its best or living up to the philosophy set out in rule 5 of the UCPR.
The application before the Court was filed on 15th of August on behalf of the first and second defendants. It seeks the Court's leave under rule 470 for the bringing of the application. Beyond that, what the applicants ask for is orders that:
- (1)The plaintiffs file and serve within seven days affidavits deposing to:
- (a)the number and description of the reports including draft reports prepared on their behalf by HLB Mann Judd (formerly Moore Stephens HL) for the purpose of this proceeding;
- (b)whether any expert reports as to damages other than those deposed to have ever been within their possession or control; and
- (2)Costs on an indemnity basis."
Leave was necessary because not only has a request for trial date been signed but the trial has commenced before his Honour Judge McLauchlan QC on the 18th of July 2005. Some oral evidence has been taken to accommodate a witness who was ill. The plaintiff's opening was presented by Mr Amerena of counsel and, in the course of it, subject to the calling of the author, there was tendered and received a report and supplementary report of Ms Manders. She is an accountant giving expert evidence which may assist the Court in quantifying the plaintiffs' loss which they assert contains large consequential losses attributable to deficiencies in a bus acquired from the principal defendant which led to its not being available for service; opportunities for other employment of capital tied up were lost, etc.
Ordinarily, one would expect the present application to have been brought before the trial Judge who happens to be in Cairns this week, as is Mr Amerena. Word is that his Honour has no objection to another judge entertaining the application. It was plainly an appropriate courtesy that his Honour's view be ascertained against the possibility that he may have taken a more proprietorial approach.
It is accepted by Mr Anderson that on the eve of this hearing, an assurance was given by the plaintiffs' solicitors that there are no reports over and above those which have been made available and have been tendered before Judge McLauchlan, subject to Ms Manders being called to give evidence. Mr Anderson accepts that there is no requirement for provision of an affidavit as sought unless it is ordered by the Court in appropriate circumstances.
It is only in a relatively rare case that such affidavits are required, although I have personally seen it occur on many occasions. The real issue today, one suspects, concerns costs which are sought on both sides. Mr Webb, standing in for Mr Amerena in the circumstances mentioned, opposes the granting of leave under rule 470 and has presented arguments that even if leave be granted to bring the application, the substantive relief sought in it should be refused.
Among other things, he relies on the absence of demonstrated compliance by the applicants with rule 444 - which is not necessarily a difficulty having regard to BTU Group v. Noble Promotions Pty Ltd [2002] QCA 505.
One would like to think that until the recent clarification which the applicant defendants accept (that there are no further reports), there was a serious forensic reason for wanting the matter gone into.
It is a feature of modern litigation since the UCPR that reports of experts must be the subject of disclosure, even reports on which the party obtaining them does not wish to rely. (See Mitchell Contractors Pty Ltd v Townsville- Thuringowa Water Supply Joint Board [2004] QSC 329).
The applicants have become concerned that there may be additional reports of Ms Manders under either or none of the firm names that have been mentioned which have not been disclosed. As Mr Anderson says, if that were the case there might be forensic advantages available depending on the contents of the reports not tendered by the plaintiffs which would weaken the effect of Ms Manders' opinions in the tendered reports. The applicants will have the opportunity to pursue those matters when she is cross-examined, of course.
It has to be said that the plaintiffs' solicitors bear responsibility for engendering suspicion that further reports exist. The applicants' solicitors wrote on the 5th of July 2005:
"We are preparing a response to your expert's report from Moore Stephens HL dated 1 November 2002. We require further documentation and particulars in relation to this. We have perused the list of documents and are unable to find the information required. Accordingly would you please provide the following..."
The response is a letter of the 7th of July 2005 which, on any standard, involves sloppy work:
"We enclose an unsigned report from HLB Mann Judd which has changed its name from Moore Stephens & Co, prepared by Ms Manders. We have asked her to consider some concessional matters which may impact on the information you now want and, in the light of a concession being made, do you wish to revise your list of information from our client? The report still does not conform, in our view, under Rule 468 of UCPR, and we are having it revised. We expect that the substance of the report will not change."
The "unsigned report" may have been dated 6th of July. The document provided with the letter was not, in fact, a report at all, rather a document outlining information that had been supplied to Ms Manders to assist her in her task.
The reference to Rule 468, which deals with expediting trials, is completely nonsensical. The letter clearly foreshadows that the report purportedly enclosed was going to be revised so that there would be two versions of it.
In those circumstances the applicants or their legal advisers became fearful that the documents tendered at trial were only part of the full catalogue of Ms Manders' reports. Experience in the law makes it unsurprising that what a lay person might have thought was confusion that could easily be resolved generated a considerable body of correspondence of increasingly peremptory or aggressive tone.
I have formed the view that there has been fault and stubbornness on both sides, a refusal to acknowledge errors, a refusal to seek cooperatively a way which would avoid the incurring of costs in respect of this application. (It is pleasing to see that Ms Manders and her opposite number have apparently been making some progress towards refining issues.) The bottom line is that the applicants now have the clarification they need. Even receipt of the affidavit sought may not accurately answer the question what reports or drafts Ms Manders may have produced in the past. If there is anything to be explored there, it will be done by her at the trial.
In my opinion there is no justification for granting the leave which is required under Rule 470. I consider that the costs of and incidental to this application ought to be reserved to the trial Judge who will be in a better situation than I am to assess the merits of it. My feeling at the moment is that they may be bound up with the evidence that Ms Manders gives. The application is dismissed and costs reserved to the trial Judge.
MR WEBB: Your Honour, might I mention one matter or correct one matter that your Honour recited?
HIS HONOUR: Yes.
MR WEBB: I said that Judge McLauchlan - it was related to me that Judge McLauchlan had said that - what he anticipated the subject of his order which is an exhibit - an argument about particulars could go before him. He had no knowledge that this application might be made.
HIS HONOUR: Oh well, consistently with what I've said, I think perhaps he should have had it, but it doesn't matter now.
MR WEBB: I just didn't want it to - that I was putting‑‑‑‑‑
HIS HONOUR: Thanks for clarifying that. I will make sure that gets transcribed with what I have said.