JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA 
IN CHAMBERS 

LOCATION	:	PERTH 

CITATION	:	MELONI & ANOR -v- BROOKVISTA PTY LTD & ORS [2009] WADC 86 

CORAM	:	STAVRIANOU DCJ 

HEARD	:	3 JUNE 2009 

DELIVERED	:	Delivered Extemporaneously on 3 JUNE 2009 typed from tape and edited by Trial Judge 

FILE NO/S	:	CIV 1190 of 2006 

BETWEEN	:	MARCO MARINO MELONI
PAOLA STEPHANIE LOVI
Plaintiffs
 
AND
 
BROOKVISTA PTY LTD
First Defendant
 
CHERYLE EVELYN BANDY
Second Defendant
 
LELLO ROLAND PAPALIA
CLAUDIO PAPALIA trading as JAN LAW DEVELOPMENTS PTY LTD
Third Defendants 

Catchwords:
Practice and procedure - Leave to adduce expert evidence - Turns on own facts 
Legislation:
Nil 
Result:
Leave granted 

Representation:
Counsel:
Plaintiffs	:	Mr J C Hammond
First Defendant	:	Mr J R Ludlow
Second Defendant	:	Mr J R Ludlow
Third Defendants	:	No appearance 
Solicitors:
Plaintiffs	:	Hammond Worthington
First Defendant	:	Macdonald Rudder
Second Defendant	:	Macdonald Rudder
Third Defendants	:	Not applicable 

Case(s) referred to in judgment(s):

Cropper v Smith (1884) 26 Ch D 700
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tremeer v City of Stirling & Anor [2002] WASCA 281

STAVRIANOU DCJ:  
Introduction
1		In this action the plaintiffs seek to recover damages arising out of the supply and installation of jarrah flooring and skirtings by the first and second defendants at the plaintiffs' residence situated at 17 Joyce Street, Dalkeith ("the property").
2		The first and second defendants' application now before the Court is by summons dated 11 May 2009 and is for the following orders:
1.	The first and second defendants do have leave to adduce expert evidence at the trial of this action from Peter Ferguson ("Mr Ferguson"), the substance of which is set out in the substance expert evidence of Mr Ferguson dated 11 May 2009 (being attachment CEB1 to the affidavit of Cheryle Evelyn Bandy sworn 11 May 2009).
2.	The parties be at liberty to apply for further orders concerning expert evidence.
3.	The costs of the application be reserved.
3		The application is supported by affidavits of Cheryle Evelyn Bandy sworn 11 May 2009 and 22 May 2009.  The application is opposed and the second‑named plaintiff has filed affidavits sworn on 19 May 2009 and 29 May 2009 in reply.
4		At the commencement of the hearing counsel for the plaintiffs stated that the making of an order in terms of par 1 of the summons would not be opposed provided the first and second defendants paid the plaintiffs' costs thrown away including the cost of briefing experts to provide supplementary reports.  The application could not be resolved on that basis and proceeded to hearing.
The interlocutory process
5		The plaintiffs' cause of action relies upon alleged conduct of the first and second defendants between August 2005 and December 2005.
6		The plaintiffs allege that:
(a)	The work done was not done in a proper and workmanlike manner;
(b)	The materials supplied were not of good quality and suitable for the work.
7		The plaintiffs' damages are quantified at $240,682.11.
8		The action was commenced on 20 June 2006.
9		The first and second defendants filed a defence on 3 November 2006 in which it is pleaded that:
(a)	The concrete sub‑floor contained excessive undulations and was not within Australian Standards requirements or normal industry standards of levelness for building floor pads.  Any gaps formed along the underside of the skirting boards (which are not admitted) were as a result of the unevenness of the underlying concrete flooring.
(b)	Any foreign matter including paint staples and grit that is now present on the flooring (which is not admitted) was as a result of Jan Law Developments Pty Ltd admitting other tradesmen to the house subsequent to the first defendant's completion of the works but prior to the sealant being allowed to completely dry.
(c)	Any white jarrah strips that were laid (which is not admitted) were part of the natural variation in colour of the timber and the defendants refer to and rely on the clause headed "Timber" in the Standard Terms.
10		The plaintiffs entered the action for trial on 7 March 2007.
11		On 3 December 2007 the plaintiffs applied by summons to join Jan Law Developments Pty Ltd as third defendant and to amend the statement of claim.  A consent order was made in relation to the plaintiffs' application on 4 March 2008.  The action against the third defendant has been discontinued.
12		On 19 January 2009 the action was listed for trial for five days commencing on 20 April 2009.
Expert evidence
13		On 20 March 2006 Dr Armand Zurhaar ("Dr Zurhaar"), a scientist, was engaged by the first and second defendants.  He inspected the property and thereafter provided a report dated 27 March 2006.  The plaintiffs have now sought to rely upon Dr Zurhaar's evidence at trial.  Mr Ferguson's professed expertise is as a person experienced in laying floors and is different to that of Dr Zurhaar.  His proposed evidence, it is said, in part contradicts the proposed evidence of Dr Zurhaar and is relevant to the damages claimed by the plaintiffs.  Some of Mr Ferguson's proposed evidence supports the evidence of Dr Zurhaar.  I cannot determine at this stage the credit and weight to be given to Mr Ferguson's proposed evidence.
14		The case of the defendants is that the evidence of Mr Ferguson will be of substantial assistance at trial and to exclude it will result in irreparable prejudice.
15		The defendants' advisors determined that in the conduct of the action an additional expert was required and accordingly made application for orders to permit an expert to inspect the property.
16		On 31 March 2009 the Principal Registrar delivered written reasons for decision in relation to the first and second defendants' application for orders for inspection of the plaintiffs' property and in relation to delivery of expert evidence.  In his reasons the Principal Registrar stated:
"15.	In looking at this, it is relevant to consider the issue of the standard of workmanship of the flooring is not likely to be a hugely complex one.  I derive support for that proposition from the fact that the substance of expert evidence of Dr Zurhaar filed by the plaintiffs is five paragraphs long and comprises 15 lines of text.
16.	On balance, it seems to me that it is appropriate to order that inspection be allowed by a second expert on behalf of the first and second defendants.  In coming to that conclusion, I have taken into account the submissions on behalf of the plaintiffs in terms of the importance of the case management principles being adhered to.  However, in the circumstances of this case, it is clear from the file that the case management principles of this Court have not really been adhered to by any of the parties.
17.	In particular two things stand out.  Firstly, no party has filed an index of the reports that they propose to rely on at trial.  That is required to be done prior to the first listing conference: District Court Rules r 45E(3).  The second is that the plaintiffs haven't complied with District Court Rules r 45G.  That Rule provides that at least 42 days before trial the plaintiffs are to serve on the defendants a list of all the records and objects they propose to tender at trial.  Importantly, had that been complied with, the photos discovered informally in late March would have been discovered by approximately 2 March.  Had there been compliance with that case management principle, then it may well be the whole issue of further expert evidence would have been dealt with much earlier.
18.	For these reasons I am prepared in substance to grant the application in terms of the chamber summons.  I will heard (sic) from counsel in terms of drafting the precise orders."
17		On 6 April 2009 Dr Zurhaar and Mr Ferguson inspected the plaintiffs' property.
18		On or about 12 May 2009 the solicitors for the first and second defendants delivered the substance of the expert evidence of Mr Ferguson to the plaintiffs' solicitors.  The substance of evidence delivered outlines Mr Ferguson's qualifications and experience.  It details the observations he made during the inspection of the plaintiffs' home on 6 April 2009.  The substance outlines his opinion as to the cause of problems with the flooring levels and the remedial works required.
Adjournment of trial
19		On 20 April 2009 the first and second defendants applied to his Honour Judge Keen to adjourn the trial of the action listed to commence that day.  The application was made on the ground that the first and second defendants wished to obtain additional expert evidence and that the solicitors then acting for the defendants had inadequately prepared the matter for hearing.  The application was supported by an affidavit of the second affidavit sworn 20 April 2009.
20		The affidavit of the second defendant relevantly states:
"3.	I have today orally terminated the services of the firm as I do not believe that the firm is adequately looking after my interests.
4.	I have had concerns for some time, although my concerns came to a head this past weekend.
…
9.	I did not know that Mr Ferguson was not going to be called by the firm until last Friday, 17 April 2009, when I was informed to that effect by a third party.  I had not been informed by the firm that orders had been made in relation to Mr Ferguson's report.  If I had known that, I would have ensured his report would have been finalised within time."
21		The application to adjourn was opposed by the plaintiffs' solicitors.  His Honour Judge Keen delivered extempore reasons allowing the adjournment and made an order that the defendant pay the plaintiffs' costs thrown away by reason of the adjournment fixed at $25,000.  The order for costs is the subject of an appeal which has not as yet been disposed of.
22		In the course of his reasons for decision his Honour Judge Keen stated:
"In fact, Mr Hammond in his submissions to me expressed it as contumelious disregard of orders and the processes of the court.  I agree.  It seems to me that this matter for whatever reason – and it is not for me to determine whether or not there is any fault on the part of the second defendant in the way in which she has given instructions to her solicitors or of the solicitors.  It is not for me to determine that at this stage."
23		His Honour further stated:
"However, in granting the adjournment I am conscious that the plaintiffs have come to court today against a background of, as I say, Mr Hammond calls a contumelious disregard of the case management in this particular matter, but the plaintiffs come to court today ready to proceed to trial, with – its witnesses ready to go and wishes to have a trial."
24		The orders made by his Honour Judge Keen were as follows:
1.	The trial dates fixed to be vacated;
2.	The trial be adjourned sine die;
3.	The matter be adjourned to the Principal Registrar for further directions at 11.00 am on 29 April 2009;
4.	The first defendant do file and serve a notice of appointment of solicitors in the action by 11.00 am on 29 April 20009 in default of which the first defendant's defence be struck out and judgment be entered for the plaintiffs for damages to be assessed and costs of the action to be taxed;
5.	The first and second defendants do pay the plaintiffs' costs thrown away by the adjournment herein which are fixed at $25,000 such costs to be paid on or before 4 pm on 4 May 2009 and in default thereof the First and second defendants' defence be struck out and judgment be entered for the plaintiffs for damages to be assessed and costs of the action to be taxed;
6.	The first and second defendants do have liberty to apply only in relation to the time for payment of the sum of $25.000.
25		On 29 April 2009 a notice of change of solicitors was filed on behalf of the first and second defendants.
26		On 29 April 2009 the Principal Registrar made the following orders in chambers in relation to the conduct of the action:
1.	The directions hearing be adjourned to 13 May 2009 at 10.30 am;
2.	By 11 May 2009 the first and second defendants file and serve any application for leave to adduce any further expert evidence, that application to be supported by affidavit;
3.	The first return date of any application filed pursuant to paragraph 2 be 13 May 2009 at 10.30 am;
4.	The first and second defendants' pay the plaintiffs' costs of today in any event.
Legal principles
27		In Tremeer v City of Stirling & Anor [2002] WASCA 281 (27 August 2002) the Full Court in a joint judgment dealing with an appeal in relation to an adjournment of a trial stated:
"36	There is no doubting the proposition that litigation is not merely a matter for the parties and that courts can, and will, take into account the need to avoid disruptions in their lists which inconvenience the courts and prejudice the interests of other litigants (Sali v SPC Ltd (1993) 67 ALJR 841 at 849, per Toohey and Gaudron JJ).  But that does not mean that principles established in such cases as Cropper v Smith (1884) 26 Ch D 700 (in which Bowen LJ said, at 710, that the object of the courts is to decide the rights of the parties and not to punish them for mistakes made in the conduct of their cases by deciding otherwise than in accordance with rights) can be ignored: see Clough & Rogers v Frog (1974) 48 ALJR 481 and Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, at 154, per Dawson, Gaudron and McHugh JJ.
37	In JL Holdings, at 154, Dawson, Gaudron and McHugh JJ said, of Sali, that:
	'... nothing in that case suggests that those principles [of case management] might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable.  Case management is not an end in itself.  It is an important and useful aid for ensuring the prompt and efficient disposal of litigation.  But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim'.
38	Their Honours went on to say (at 155) that:
	'Justice is the paramount consideration in determining an application such as the one in question [there an application for amendment which, though arguable, was likely to result in the vacation of the hearing date which had been fixed for the trial].  Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application.  Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration.  But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary Judge was, in our view, in error in the exercise of her discretion'."
28		In their joint judgment in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Dawson, Gaudron and McHugh JJ approved of what had been said by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, 710 as follows:
"Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes the make in the conduct of their cases by deciding otherwise than in accordance with their rights.  Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party.  Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace."
Conclusion
29		The time limited for compliance with the order for delivery of expert evidence by the defendants made on 31 March 2009 expired on 9 April 2009.
30		The defendants' application to adduce expert evidence was filed within time and then adjourned by the Principal Registrar for hearing by a Judge.
31		The evidence sought to be relied upon by the defendants in this matter is evidence relating to issues in the action.  It is submitted that Mr Ferguson's relevant expertise is of a practical nature and as he has experience in laying floors.  It was submitted that his evidence will contradict that of Dr Zurhaar and is relevant to the damages claim.  To not allow the defendant to have an opportunity to adduce the evidence would be to shut the defendants out of an opportunity to present their case.
32		The identified prejudice to the plaintiffs in allowing the expert evidence to be adduced is that additional costs would be incurred in re‑engaging experts.  The question of additional costs incurred is one which to some extent is bound up with the order made by his Honour Judge Keen which is the subject of appeal.  It seems to me in those circumstances that any order as to costs thrown away should be reserved to the trial Judge.  At that stage the decision of the Court of Appeal would have further outlined the position in relation to costs thrown away.
33		I am satisfied that this is not a case where a tactical advantage was sought to be obtained by the late delivery of expert evidence.  The defendants came before the court on 20 April 2009 and applied to adjourn the trial.  The adjournment was granted on terms requiring payment of costs fixed at $25,000 which have been paid.
34		The second defendant in her affidavit has outlined that she relied upon her then solicitors and has never intentionally breached court orders.  The position is that those now instructed by the first and second defendants consider it appropriate to adduce evidence from Mr Ferguson at trial.  The retainer of the first and second defendants' solicitors was terminated for reasons including a failure to rely upon Mr Ferguson as a witness.
35		I am satisfied in the circumstances that in the interests of justice the defendants should be given leave to adduce the expert evidence of Mr Ferguson.  In saying that, I make no finding and do not seek to bind the trial Judge as to whether the proposed evidence of Mr Ferguson in its ultimate form is indeed relevant or admissible in the proceedings.
36		I am satisfied that the prejudice to the defendants in refusing leave far outweighs any prejudice to the plaintiffs.  In the circumstances the defendants should have leave to adduce the proposed expert evidence.
37		I would make an order in terms of par 1 of the summons and hear counsel as to the remaining orders to be made.