DISTRICT COURT OF QUEENSLAND

CITATION:	Ryschka v JW & MM Haylock Pty Ltd [2024] QDC 100	
PARTIES:	GLEN JEFFREY GEORG RYSCHKA
(Plaintiff)
V 
J W & M M HAYLOCK PTY LTD ACN 010 953 509
(First Defendant)	
FILE NO/S:	390/24	
DIVISION:	Civil	
PROCEEDING:	Application	
ORIGINATING COURT:	District Court	
DELIVERED ON:	7 June 2024 (ex tempore)	
DELIVERED AT:	Brisbane	
HEARING DATE:	7 June 2024	
JUDGE:	Porter KC DCJ	
ORDER:	1.	The plaintiff’s application filed 4 June 2024 is dismissed.
2.	The plaintiff pay the defendant’s costs of the application on the standard basis.	
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – Amending, varying and setting aside judgments and orders – General principles – where the plaintiff applies to amend orders made by the trial judge during the trial – where those orders permitted the plaintiff an opportunity to apply for leave to adduce new expert evidence, for the first defendant to apply for leave to adduce responsive expert evidence, for the plaintiff to provide the first defendant a proposed amended pleading, for the hearing of cross-applications to lead that further expert evidence and for leave to amend pleading – where the plaintiff seeks to extend the date for filing the application for leave, the expert report, and the proposed amended pleading – where the trial is to resume in mid-September 	
CASES:	Aon Risk Services v Australian National University (2009) 239 CLR 175	
COUNSEL:	J. Marr appearing for the respondent (defendant in the proceedings)	
SOLICITORS:	P. Mylne of Turnbull Mylne Solicitors appearing for the applicant (plaintiff in the proceedings)	
Background
[1]	This is an application by the plaintiff in this matter to amend orders made by Judge Andreatidis KC of this Court on the 15th of May 2024. 
[2]	That day was the second-last day of the initial tranche of hearing dates for this trial. The trial was listed initially to go for five days. It ultimately went for eight. I think it is fair to describe the manner in which the plaintiff’s case was run as shambolic, in this sense. A core issue in the case was expert electrical evidence in respect of a swimming pool. The case was over a very small amount – some $28,000. It had had a long and unfortunate history up to that point. Counsel who practise in construction law are familiar with disproportionate amounts being spent on the litigation of construction disputes, but even in that context, this one is notable for the disproportion between the sum claimed and the amount involved.
[3]	Through the trial there were difficulties, as I said, with the plaintiff’s case, on a central proposition which had to do with the competence or otherwise of the electrical work in relation to the pool. There were three costs orders made in the course of the trial, arising broadly out of the plaintiff’s attempts to grapple with that issue in the course of the trial: once for an abandoned adjournment application; once for a failed application to amend the statement of claim; and once for an amount ordered as costs thrown away, arising out of various actions by the plaintiff in the conduct of the trial to that date.
[4]	By the end of the first tranche of the trial (if I can use that description) it had become evident that for the plaintiff to succeed on what was, as I understand it, emerging as the real issues in the trial, further and different electrical expert evidence was required. It does not take much legal imagination to see the difficulties that that could cause where the plaintiff sought leave to file further evidence on that issue on the seventh day of an eight-day trial.
[5]	There were ultimately orders made by Judge Andreatidis KC that permitted the plaintiff an opportunity to take the rather exceptional step of providing new expert evidence; a proposed amended pleading for consideration by the defendant; for the defendant, if necessary, to provide its own responsive expert evidence; and for the hearing of cross-applications to lead that further expert evidence and, for the plaintiffs, leave to amend its pleading.  
The circumstances of the 15 May 2024 orders
[6]	Looming behind all of this is the High Court’s decision in Aon Risk Services v Australian National University (2009) 239 CLR 175. I do not need to set out the well-known passages of that case, or to say a great deal about it.  The scheme that his Honour set up for further material, pleadings, and application for leave was generous in the light of the principles articulated in that case. Nonetheless, those were the orders made.
[7]	Those orders were made by his Honour taking into account the availability of counsel for the defendant to be able to address what could well have turned out to be a fundamentally different case from that she had met on behalf of the defendant so far, at least on this issue. Ms Marr explained from the bar that she then, and now, was in the position of having back-to-back trials (in the sense of trials with relevant preparation time), starting from about the eighth of July through until the end of August, this year.
[8]	I did not disbelieve what she told me but, given the nature and the seriousness of this application, at my invitation she explained how that was so. I will not go into the detail, but it is so. That, as I understand it, was a reason for the reasonably tight timetable for the plaintiff to take some steps which, as I say, were going to be difficult to achieve in the time available.
[9]	The reasonably tight timetable that his Honour set down, which I have not come to yet, was also dictated in substantial part by his Honour’s availability to deal with the matter. Notably, the regime resulted in his Honour hearing any applications that were opposed, both for leave to file expert reports, and for leave to amend pleadings, on the 27th and 28th of June. His Honour was in applications, in any event, for those hearings. His Honour was in applications the week after, but after that was not realistically available – for what could be quite difficult applications which would almost certainly give rise to ex tempore judgments – until the week of the 26th of August, during which Ms Marr has the third of her three Industrial Relations Court one-week trials. That is another factor that led to this particular timetable.
[10]	The timetable was set out in an order his Honour made on the 15th of May 2024. It required the plaintiff, in effect, to serve its application for leave to adduce electrical expert evidence, along with a draft statement of claim, by the 31st of May. It gave the defendant three weeks to file and serve any application to adduce expert evidence in response, including the proposed report. The defendant’s time to respond to that material was already very short. They were the key dates in a timeline which would have led to his Honour determining the cross-applications on the 27th and the 28th of June.
The application to vary the 15 May 2024 orders
[11]	On the 4th of June, the plaintiff filed an application to vary his Honour’s orders. The central change proposed was that the date for filing of the application for leave, and the expert report, and the proposed amended statement of claim, be altered to 5:00pm on 17 June, now 10 days from today. 
[12]	It is a small but not irrelevant consideration that that application was filed after the date when the steps, provided in his Honour’s orders, were to have been taken; although, to be fair to Mr Mylne, he filed his affidavit just before the expiry of the time. 
[13]	Mr Mylne’s affidavit described some progress towards obtaining reports of the kind which were provided by his Honour’s order to have been included in material filed and served on the 31st of May. I note that since his affidavit was filed, there has been more progress on that front. Without objection from Ms Marr, Mr Mylne explained that the two experts identified had been to the site, and had inspected the site, and their reports were imminent.
[14]	Two reports is not what was contemplated by his Honour’s order. It refers to the report of the proposed expert. I do not think, in the context I have described, that would be taken to have included the plural. That does not mean that leave might not have been given. As I apprehend it, the additional expert, which it was hoped to obtain a report from, is an expert giving evidence about the application of Australian standards to particular kinds of electrical work. But it does expand– if leave were granted, and if the proposed orders were complied with – the scope of what the defendant was expected to grapple with.
[15]	There are some other difficulties that the plaintiff has. One of them is that counsel at the trial is no longer acting in the matter. Mr Mylne informed me that that was not a result of a decision by his client. I must say that troubles me a little, but I do not want to say anything unfair to the barrister who is not here to explain his side of the matter. That does explain, though, that Mr Mylne has, understandably, given the straits his client is in, sought to find new counsel. Mr Mylne explained the difficulties, practically, given the position that his client is in financially. I want to emphasise that I understand and accept that that is a difficulty, and in some respects this whole proceeding is a tragedy for everybody involved.
[16]	For the purposes of this application, though, what it means is that Mr Mylne had some limitations on counsel he could retain. Mr Clutterbuck of counsel agreed in principle to assist in the matter; but Mr Mylne swore, with frankness, that Mr Clutterbuck is not generally available, presently. Paragraph 10 of his affidavit speaks for itself.
[17]	What it does mean, though, is that I cannot really have any confidence that any pleading that was delivered on the 17th of June (which is the time that Mr Mylne seeks) would indeed be the last pleading that the plaintiff sought to advance at the resumption of the trial. Again, with admirable frankness, Mr Mylne conceded as much in his reply submissions.
[18]	The trial is set to resume in mid-September. Notwithstanding the extraordinary circumstances of this case, in an attempt, fairly to the defendant, to make it possible for the plaintiff to have an opportunity to articulate this further claim, I raised with Ms Marr the proposition, at least, that there is time for this to occur if the defendants were given until the 17th of June to do that which should have been done on the 31st of May. She explained, in a way that I accept, that it is just not as simple as that, because of her availability, because of the potential complexity of what her client has to deal with, because of his Honour’s availability, because of the possibility of further changes even if the plaintiff delivers what they have got on the 17th of June, and because it is simply not possible, fairly to the defendant, to require them to respond to this material in less than, in my respectful view, four weeks from receiving it.
[19]	That is simply because there is now expert reports in two different areas, and even limiting them to the three weeks that was ordered in the context of the 15 May orders, the hearing dates before his Honour on the 27th and 28th of June cannot be maintained. The reality is that his Honour does not then have any sufficient availability to deal with these applications until the beginning of September, which is clearly too late. And, as I said, Ms Marr has explained about her position.
[20]	I should add that parties appearing in trial listing matters, at least before me, often hear that convenience of counsel is not usually a reason to not list something, but this is not a case like that. Continuity of counsel is vital in a case of this kind. Nothing can be done fairly to the defendant at this stage which requires them to have to address a changed case without Ms Marr being available to assist her solicitors to do so.
[21]	Aon itself involved an attempt to introduce a new case. I think it was about three weeks before the commencement of the trial. This is a case where, after eight days of trial, with a further tranche allocated in September, the plaintiff, with the indulgence of the Court, was given an opportunity to seek leave to introduce further evidence, in a tight timeframe, admittedly, but one which his Honour, who was seized of the matter and had spent the previous seven days dealing with it, thought was a proper one in the circumstances.
Conclusion
[22]	Even bearing in mind the desirability of a trial being conducted on the real issues, it does not seem to me that, perhaps not surprisingly, given the work that went into the first lot of orders, it is realistically possible for the timetable to be re-jigged in the manner that the plaintiff seeks, without actual unfairness of a very significant kind to the defendant.
[23]	That is quite apart from the fact that there does come a point in litigation (although, where that point is might be argued) where its simple continuation or alteration creates difficulties and challenges for a defendant that they just shouldn’t have to deal with. I do not have to rely on any such principle here. In my respectful view, it is not realistically possible for this timetable to be adjusted, even in the modest way Mr Mylne sought, without, as I said, causing very substantial unfairness to the defendant. For those reasons, I dismiss the application.
[24]	I order the plaintiff pay the defendant’s costs of the application on the standard basis.