Livesay v Hawkins[2010] QSC 489

SUPREME COURT OF QUEENSLAND

[1] FRYBERG J:  In this matter the parties have agreed on forms of consent orders by way of directions designed to bring the matter to trial at an early date and as efficiently as possible.  In particular, they have agreed on orders for the obtaining of expert evidence by the plaintiff and, in the event that such evidence is obtained, the disclosure of that evidence to the other parties and the conferring of the experts for the usual reason.

[2] They have also included in the order a paragraph which I quote:  "(6)  At the trial of this action the plaintiff and the third defendant be permitted to call the engineers who have provided expert reports on their respective behalves."  I was informed that similar orders or directions have been made or given by the Chief Justice and Atkinson J in respect of other expert witnesses.  It does not appear, however, whether their Honours' attention was drawn to the question of whether such an order is necessary.

[3] In Thomson v Mt Isa City Council[1] I explained the reasons why in my view such an order is unnecessary.  The view that it is necessary emanates from a reading of Practice Direction 2 of 2005 in conjunction with the provisions of the Uniform Civil Procedure Rules relating to expert evidence, but for the reasons which I there gave I do not think that those provisions read together either authorise or require an order in this form.  Since it is not my practice to make orders that are unnecessary, I do not propose to make it.

[4] There is a point of principle at issue here.  It is a fairly fundamental rule of natural justice that at a trial in our courts parties be permitted to put their case fully and effectively.  The default position as far as calling witnesses to support a party's case is concerned, is that a party may call such witnesses as he or she chooses.  Only if that right is abridged by statute or by the Rules is that right to be cut back.  Since the Rules do not, in my view, prevent a party from calling such witnesses, there is no occasion to make the order and I would not wish to make it for fear of perpetuating the myth that it is necessary.

[5] I am conscious of the argument advanced by Mr Williams that it having been made in relation to other witnesses, the failure to make it now might be construed in a way adverse to his client at some future time.  Because there is no reason to suppose that anyone else who has dealt with this case has turned their mind to the question, I do not think such a construction would be open.  It is plain, in my view, that the witness can be called.  The order is unnecessary.

[6] It may be technically necessary, however, for the plaintiff and for other parties to obtain an order dispensing with compliance with para 4 of the practice direction in the event that they have not complied with that provision.  Whether such an application should be made is a matter for the parties, all of them, to consider.  No such application is in writing before me and, in the circumstances and the absence of some parties, I am not prepared to deal with oral applications of that nature today.

[7] I will therefore strike out para 6, and with that amendment there will be an order in accordance with the draft, initialled by me and placed with the papers.