Supreme Court New South Wales

• Medium Neutral Citation: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District Sydney Local Health District v Macquarie Health Corporation Ltd [2013] NSWSC 970
• Hearing dates: 18 July 2013
• Decision date: 18 July 2013
• Jurisdiction: Equity Division
• Before: Kunc J

Decision

Directions made

• Catchwords: PRACTICE AND PROCEDURE - Expert evidence - Personal responsibility of experts to Court for compliance with timetable for filing of reports - Possibility of costs orders against experts personally
• Legislation Cited: Civil Procedure Act 2005 (NSW)
• Cases Cited: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd [2013] NSWSC 764
• Category: Interlocutory applications
• Parties: Plaintiff: Macquarie International Health Clinic Pty Ltd; Defendant: Sydney Local Health District
• Representation: Counsel: Plaintiff: Mr A. Harding of Counsel; Defendant: Mr G. Burton SC & Mr P. Bruckner of Counsel; Solicitors: Plaintiff: S Moran & Co; Defendant: Bolzan & Dimitri
• File Number(s): 2000/34949 and 2010/90340
• Publication restriction: No

EX TEMPORE JUDGMENT

1 HIS HONOUR: These proceedings are complex and have been on foot for a considerable period of time. Their procedural history was set out at some length in my judgment delivered on 13 June 2013 Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd [2013] NSWSC 764. The matter has come back before me today due to continued slippage in compliance with the timetable for the filing of experts reports by the plaintiff.

2 I have made directions again extending the time by which those experts reports are to be filed. I have also made a direction which has, at its heart, the intention of ensuring that experts understand that when they accept a brief to provide expert evidence to the Court they themselves become personally responsible to the Court for compliance with the Court's directions in relation to when their reports must be provided. That direction is:

12. Direct that if any expert report is not filed and served in accordance with these orders:

(a) no later than 4pm on 2 August 2013 the party which proposes to call that expert is to file and serve an affidavit from the party's solicitor explaining the reasons for the non-compliance; and

(b) if the non-compliance was caused or contributed to by the action or inaction of the expert (whether by delay or otherwise) then:

(i) the party wishing to call that expert is to procure and the expert is to provide an affidavit from the expert explaining the reasons for the non-compliance and providing reasons why an order should not be made against the expert that he or she pay any costs occasioned to any party by reason of the non-compliance; and

(ii) that affidavit is to be filed and served on or before 4pm on 2 August 2013; and

(iii) the expert is to attend personally before the Court when the matter is next before the Court on 5 August 2013.

3 The Court of course accepts that experts are dependent upon the timely provision of instructions and information from the party briefing them. A party is subject to the obligations in s 56 of the Civil Procedure Act 2005 (NSW) ("the Act"), in particular s 56(3), to assist the Court to further the overriding purpose of the just, quick and cheap resolution of the real issues in the proceedings.

4 But, on the assumption that the parties themselves comply with that obligation in providing timely instructions and information to the expert, the Court wishes to make it clear that experts must understand that they themselves bear a direct responsibility to the Court for compliance with the Court's directions in relation to when their report is to be ready for filing and service and the form of the report itself.

5 S 61(2)(c) of the Act empowers the Court to give such other directions with respect to the conduct of proceedings as the Court considers appropriate. UCPR r 31.17, dealing with evidence, identifies that one of the main purposes of that division is (UCPR r 31.17 (f)) to declare the duty of an expert witness in relation to the Court and the parties to proceedings. UCPR r 31.23(1) requires an expert witness to comply with the Code of Conduct set out in Sch 7. The Expert Witness Code of Conduct set out in Sch 7 provides in cl 3(1) that "an expert witness must abide by any direction of the Court".

6 It therefore follows that once an expert accepts a retainer to provide expert evidence for the purposes of proceedings before this Court, that expert himself or herself becomes subject to the directions of the Court and is amenable to orders from the Court. This must extend to explaining why there has been non-compliance with any order of the Court in relation to the expert's report insofar as that non-compliance is the fault of the expert rather than some difficulty or inefficiency on the part of those instructing the expert.

7 The Court wishes to make it clear that in appropriate cases the Court will require personal explanations from experts (rather than through a solicitor's affidavit) as to why they have not been able to comply with the Court's orders. Furthermore, in cases which the Court hopes will be extremely rare, experts could themselves be subject to costs orders insofar as any party to the proceedings suffers additional costs by reason of the non-compliance with a direction as to the timely preparation of an expert's report where the reason for that non-compliance can be visited upon the expert.

8 The Court recognises that experts are often professional people with responsibilities to other clients and undoubtedly will have other matters claiming their attention. However, the Court will not in general terms regard it as being acceptable for experts simply to say they are unable to comply with timetables fixed by the Court because of the pressure of other business. The Court expects experts to take into account the other business that they must attend to in making a decision whether or not they will accept a retainer in a particular matter and when informing the party instructing them as to the time they require to do their work.

9 I am not to be taken as suggesting in this case that the conduct of any particular expert gives rise to the concerns which I have expressed at a high level of generality. There are several experts in these proceedings and the reasons their reports are late vary between them. Rather, this case is a very good example of the difficulties that can arise when experts have other claims upon their time and other circumstances arise which mean their reports are late. It is nevertheless appropriate to remind the profession and the expert community generally of the obligations that experts themselves bear directly to the Court in the discharge of what is a very important role in the due administration of justice by assisting the Court to arrive at just outcomes in the particular cases before it.

oOo

Decision last updated: 19 July 2013