Christina Theodorelos v Nexus Projects Pty Ltd

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 06 November 2009
• Docket Number: No. SC 354 of 2007
• Date: 06 November 2009

[2009] ACTSC 149

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 354 of 2007

No. SC 355 of 2007

Between:

Christina Theodorelos

Plaintiff /Respondent

and

Nexus Projects Pty Limited

Defendant/Appellant

Counsel for the plaintiff/respondent: Mr P J Mooney

Counsel for the defendant/appellant: Mr G A Stretton

Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492

Clune v Watson [1882] Tarl 75

WJD v TEK (1998) 72 ALJR 1323

Aon Risk Services Australia Ltd v Australian National University (2009) 83 ALJR 951

O'Sullivan v Farrer and Anor (1989) 168 CLR 210

Salido v Nominal Defendant (1993) 32 NSWLR 524

Davern v Messel (1984) 155 CLR 21

Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Allesch v Maunz (2000) 203 CLR 172

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd and Anor (1976) 135 CLR 616

Fox v Percy (2003) 214 CLR 118

Traut v Faustmann Bros Pty Ltd (1983) 48 ALR 313

Parer v John Fairfax Publications Pty Ltd [1998] ACTSC 138

White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511

Duralla Pty Ltd v Plant (1984) 2 FCR 342

Petreski v Cargill (1987) 18 FCR 68

Mickelberg v The Queen (1989) 167 CLR 259

Eastman v The Queen (2000) 203 CLR 1

State of Western Australia v Ward & Ors (2002) 213 CLR 1

Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VR 187

Southwell v Specialised Engineering Services Pty Ltd (1990) 101 FLR 175

Rothwells Ltd (in liq) v Entity Group Ltd and Ors (1990) 101 FLR 460

Quirk v Bawden (1992) 107 FLR 455

Protonotarios v Zapasnik (1992) 106 FLR 243

Stelmag Pty Ltd v Tifferley Manufacturing Pty Ltd and Ors [2003] ACTSC 49

Re Milosevic (1996) 134 FLR 429

Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409

Edwards v Noble (1971) 125 CLR 296

Warren v Coombes (1979) 142 CLR 531

House v The King (1936) 55 CLR 499

Gronow v Gronow (1980) 144 CLR 513

Campbell v Fortey (1987) 85 FLR 462

CDJ v VAJ (1998) 197 CLR 172

( Anutech Pty Ltd v Latent Energy Systems Pty Ltd unreported, ACTSC, Gallop J, 3 February 1987)

Martin v NRMA Insurance Ltd [1998] ACTSC 52

In the Matter of an Application for Bail by Rebecca Massey [2008] ACTSC 145

Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

Director of Public Prosecutions (Vic) v Cozzi (2005) 12 VR 211

Cox v Mosman and Anor [1908] St R Qd 210

Golski v Kirk (1987) 14 FCR 143

Civil Law (Wrongs) Act 2002 (ACT), Div 3.1.2

Supreme Court Act 1933 (ACT), ss 9, 47

Bail Act 1992 (ACT)

Court Procedures Rules 2006 (ACT), rr 6, 21, 53, 270, 1241, 1304, 1305, 1306, 1309, 6250

APPEALS — appeal from interlocutory decision of the Master — nature of appeal to be determined by reference to statute, Supreme Court Act 1933 (ACT), s 9 — appeal by way of rehearing — where no fresh evidence called, real question is whether court should substitute its view of the facts below — appeal based on facts and law at time of appeal.

PRACTICE AND PROCEDURE — application to serve expert reports out of time, Court Procedures Rules 2006 (ACT), r 1241 — a report which identifies an entirely novel aspect of damage cannot be an ‘update’, r 1241(5)(b) — need to identify ‘extraordinary circumstances’, r 1241(5)(a) — prolonged failure of expert to provide report despite repeated enquires ‘extraordinary’ — failure by the Master and applicant to identify extraordinary circumstances with respect to certain reports — leave to provide further submissions — failure by the Master to properly analyse prejudice to defendant — relisting of hearing defeats any prejudice.

COSTS — where a party by application seeks an indulgence of the court, that party ordinarily pays the costs of that application — leave to provide further submissions in the circumstances.

ORDER

THE COURT ORDERS THAT:

1. The appeal, so far as it relates to the report of Dr Alexandra Viketos dated 30 June 2009, be dismissed.

2. The appeal, so far as it relates to the whole of the report of Ms Judith Davidson dated 30 May 2009 and the report of Ms Emily Knight, architect, dated 13 August 2009, be upheld and the order of the learned Master be set aside.

3. The plaintiff file and serve an amended Application in Proceedings seeking in addition to the orders presently sought leave to rely on the whole of the report of Ms Judith Davidson dated 30 May 2009.

4. The defendant file and serve a Notice of Appeal in proceedings No. SC 354 of 2007 in the same terms as that filed in proceedings No. SC 355 of 2007.

5. The appeal be adjourned to a date to be fixed for further submissions.

THE COURT ORDERS THAT:

1. The appeal, so far as it relates to the report of Dr Alexandra Viketos dated 30 June 2009, be dismissed.

2. The appeal, so far as it relates to the whole of the report of Ms Judith Davidson dated 30 May 2009 and the report of Ms Emily Knight, architect, dated 13 August 2009, be upheld and the order of the learned Master be set aside.

3. The plaintiff file a copy of the application and affidavit of Gregory Steve Masselos sworn 31 August 2009 for inclusion in file No: SC 355 of 2007.

4. The plaintiff file and serve an amended Application in Proceedings seeking in addition to the orders presently sought leave to rely on the whole of the report of Ms Judith Davidson dated 30 May 2009.

5. The appeal be adjourned to a date to be fixed for further submissions.

1 In 1910, Griffith CJ opined in Union Bank of Australia v Harrison, Jones and Devlin Ltd (1910) 11 CLR 492 (at 504):

Rules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice.

2 In this, his Honour was echoing the well-known dictum of long ago:

The rules must be the servant, not the master of the Court: Clune v Watson [1882] Tarl 75.

See also WJD v TEK (1998) 72 ALJR 1323 (at [8]).

3 That is not to say, however, that the rules of court are to be ignored or set aside readily, for clearly the intention of the rules is to assist in the attainment of justice by providing a known and understood basis on which litigation is conducted and to see that fairness and equality is provided to all litigants.

4 Thus, the rules assist in ensuring that the resources of the court are used efficiently and, by providing an appropriate degree of certainty to the parties, and others, to maintain public confidence in the judicial system: Aon Risk Services Australia Ltd v Australian National University (2009) 83 ALJR 951 (at 956). These are important aspects of the attainment of justice.

5 This is the context in which this matter needs to be considered.

The proceedings

6 On 4 June 2004, Dimitrios Theodorelos, the husband of Christina Theodorelos, was working for Nexus Projects Pty Limited on a construction site at the Canberra Airport when he fell from the shipping container on which he was working, sustained serious injuries and died the next day.

7 On 12 June 2007, Mrs Theodorelos as plaintiff commenced proceedings numbered SC 354 of 2007 claiming damages under Div 3.1.2 of the Civil Law (Wrongs) Act 2002 (ACT) (the compensation to relatives claim) against Nexus Projects Pty Limited as defendant and on the same day also as plaintiff commenced a second proceeding in this Court numbered SC 355 of 2007 claiming damages from the same defendant, Nexus Projects Pty Limited, for the injuries she suffered when her husband died within her sight and hearing or, alternatively, when she was advised of it (the nervous shock claim). It appears that these two proceedings, for good and obvious reasons, are being heard together, though no order of the Court under r 270(2)(b) of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) appears to have formally been made.

8 In the nervous shock claim, Mrs Theodorelos seeks damages for the compensable injuries she suffered, including, as particularised in the Statement of Claim (in the form permitted under r 53 of the Court Procedures Rules) attached to the Originating Claim:

(l) Severe interference with social activities;

(m) Severe interference with pre-injury capacity to perform domestic duties and maintain her dwelling;

(n) Loss of independence.

9 In the compensation to relatives claim, Mrs Theodorelos pleaded, as well as similar allegations to those in the nervous shock claim:

The deceased had an intention and the capacity to continue working until at least 75 years of age.

10 The usual pre-trial proceedings were conducted: discovery was given by Nexus Projects Pty Limited, notices for non-party production were issued and subpoenas issued.

11 Both proceedings were listed for hearing before the Master on 21 September 2009. A certificate of readiness had been signed by both parties and filed in each case. Curiously they each bear two date stamps for lodgement: 2 December 2008 (the plaintiff's solicitors having signed each on 28 November 2008 and the defendant's solicitors on 2 December 2008) and 2 March 2009. It appears that they may have been lodged on the earlier date and requisitioned because no statement of particulars had been filed, as required by r 1306(3)(b) of the Court Procedures Rules. A statement of particulars in each action was actually lodged on 27 February 2009.

12 It appears from the files that at a listing hearing (r 1309 of the Court Procedures Rules) on 15 April 2009, both proceedings were listed for hearing to commence before the Master on 21 September 2009.

The application

13 By Application in Proceedings filed on 2 September 2009, Mrs Theodorelos made application under r 1241(4)(a) of the Court Procedures Rules for leave for three reports which had not been served in accordance with r 1241(1)...