Background
John Graham Martin (the plaintiff) sued STBAUS Pty Ltd (the defendant) for personal injuries sustained while working as a parachuting/skydiving instructor. The plaintiff alleged that the defendant breached its duty of care, causing injury during his employment between 2014 and 2019. The proceedings commenced in the District Court in June 2022 and were transferred to the Supreme Court in May 2025, with a hearing scheduled for August 2026.
Throughout the litigation, the defendant repeatedly failed to comply with court orders to serve expert liability evidence, receiving numerous extensions. The defendant made a “forensic decision” to defer retaining a skydiving expert to save costs. After finally engaging an expert, Brett Newman, the defendant again delayed providing instructions and serving the reports (dated June and July 2026), missing the final extended deadline of 8 May 2026. The defendant then filed a notice of motion seeking leave to rely on this late-served expert evidence.
The Court’s Holding
The Supreme Court of New South Wales, per Chen J, partially granted the defendant’s application for leave to rely on late-served expert evidence but dismissed the overall motion, vacated the upcoming hearing, and ordered the defendant to pay the plaintiff’s costs. The court found the defendant’s explanation for the delay unsatisfactory, noting that the “forensic decision” to delay retaining an expert, combined with subsequent inaction, demonstrated a clear pattern of non-compliance with court orders.
While acknowledging the materiality of the expert evidence and the prejudice to the defendant if it could not be adduced, the court emphasized the considerable unfairness to the plaintiff in being forced to deal with critical new evidence so close to trial. The court granted an extension of time for the defendant to serve Mr. Newman’s reports (retrospectively to 14 July 2026) but, crucially, vacated the August 2026 hearing, rescheduling it for December 2026, to allow the plaintiff adequate time to respond. The defendant was ordered to pay the plaintiff’s costs for the notice of motion and all costs thrown away by the vacation of the hearing date, underscoring the serious consequences of its procedural failures.
Key Takeaways
- Courts will critically examine reasons for delayed compliance with orders, especially where a “forensic decision” to save costs leads to repeated non-compliance.
- The UCPR provides broad power to extend time, but its exercise is conditioned by the overriding purpose of the Civil Procedure Act and the dictates of justice.
- Unsatisfactory explanations for delay, coupled with significant prejudice to the opposing party, weigh heavily against granting leave to rely on late evidence without other mitigating actions.
- Non-compliance with court orders is a matter of obligation, not discretion, and repeated failures will attract adverse cost orders and potentially disrupt trial schedules.
Why It Matters
This decision reinforces the judiciary’s firm stance on adherence to case management directions and procedural rules in Australian civil litigation. It serves as a stark reminder to practitioners that strategic delays to save costs, particularly concerning critical expert evidence, are viewed unfavorably when they result in repeated non-compliance and prejudice to the opposing party. While courts may grant extensions for late evidence if it is material, they will do so only with measures that mitigate the unfairness to the compliant party, typically involving adverse costs orders and rescheduling that impacts the non-compliant party.
The ruling underscores that efficient disposition of litigation requires strict compliance with court orders and that a party’s “forensic decisions” cannot supersede its fundamental obligations to the court and the timely administration of justice. It highlights the importance of proactive and diligent case preparation, particularly in securing expert evidence, to avoid significant financial penalties and disruptions to trial schedules.