Maea v Acciona Infrastructure Australia Pty Ltd

HIS HONOUR: Siosaia Maea was injured in the course of his employment with Bleasdale National Personnel Pty Ltd on 22 January 2019 when he fell through an unguarded manhole into a pit. Mr Maea sued the defendant Acciona Infrastructure Australia Pty Ltd, which he alleged was the design and construction contractor responsible for the Sydney Light Rail Project where he was working. Mr Maea did not sue his employer. The proceedings were commenced by statement of claim filed on 19 January 2022. The defence was filed on 21 November 2022.

On 29 August 2023, the defendant was ordered to serve expert evidence by 8 December 2023. It did not do so. On 14 December 2023, the time for the service of the defendant’s expert evidence was extended to 25 January 2024. The defendant did not serve any expert liability evidence by that date.

At a Status Review before Chen J on 15 November 2024, the defendant sought and obtained, over objection by Mr Maea, orders granting leave to serve any evidentiary statements and expert liability evidence by 20 December 2024. The defendant did not serve any liability evidence by that date. Chen J listed the matter for hearing on 15 September 2025.

At a Status Review before Chen J on 28 February 2025, his Honour noted the defendant’s intention to serve a further evidentiary statement and expert liability report by the end of March 2025. No further evidentiary statement or expert liability report was served by 31 March 2025.

By its notice of motion filed on 1 May 2025, the defendant relevantly moved the Court for orders pursuant to UCPR 1.12, extending until 9 May 2025 the time for the defendant to serve an expert report from Carl Strautins dated 17 April 2025 and the unsigned evidentiary statement of Ashley Coates. The defendant also sought leave pursuant to UCPR 31.28 to rely upon Mr Strautins’ expert report. Mr Maea opposes these orders.

UCPR 31.28 is as follows:

The defendant maintains that there are exceptional circumstances in this case that support the grant of leave required. In written submissions, under the heading “Whether there is an explanation for the delay”, the defendant submitted that “the explanation for the delay is set out in the affidavit of Lisa Schumacher affirmed on 1 May 2025”. The defendant contended that the

I have read Ms Schumacher’s affidavit and I listened closely to the evidence she gave in cross-examination. Neither in her affidavit nor her evidence before me did Ms Schumacher provide anything that could be described as an explanation for the delay. It must be remembered that on 29 August 2023, the defendant was ordered to serve expert evidence by 8 December 2023 but did not do so. Ms Schumacher does not refer to this order or to the reason, if any, that it was not complied with. Then on 15 November 2024, the defendant sought and obtained orders granting leave to serve any evidentiary statements and expert liability evidence by 20 December 2024. It did not do so. Ms Schumacher does refer to this order but does not provide any reason why it was also not complied with.

The defendant and Ms Schumacher appear to place reliance upon the fact that the defendant filed a cross claim against Mr Maea’s employer only as recently as 24 September 2024. Ms Schumacher says in terms in her affidavit that the “extent of any lay and expert evidence served in support of that cross claim was to be determined on receipt of the defence to the cross claim”, whatever that may mean. This saga of indecision about when or if the defendant should join Mr Maea’s employer to the proceedings appears to me to ignore or disregard the fact that the orders for the service of expert evidence, and the defendant’s obligation to comply with them, were made in the proceedings between the defendant and Mr Maea, who did not sue and has not since joined his employer as a second defendant. Even if Ms Schumacher’s evidence provides the reason why the defendant chose to take a particular course in the litigation and not file evidence as it was required to do, it does not amount to an explanation for the delay that was thereby occasioned. The joinder of the cross defendant is neither logically nor procedurally connected to or dependent upon the defendant’s separate obligation to comply with orders for the filing of evidence. The defendant’s attempt somehow to relate the two does not have any force.

In my opinion, the things on which the defendant wishes to rely in this context could never amount to exceptional circumstances. I was not unexpectedly referred to the decision of the Court of Appeal in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290. Paragraphs [66] and [67] in the judgment of Campbell JA should be noted:

Far from being exceptional, the circumstances to which the defendant refers in this case, whether taken alone or in combination, are ordinary, mundane, not unusual and perhaps somewhat regrettably, not out of the ordinary. There is no suggestion that Mr Strautins is the only expert in the field who could possibly provide the evidence the defendant wants him to provide. There is no evidence to suggest that attempts were made to qualify anyone else in his stead. The defendant appears simply to have proceeded somewhat hopefully upon the basis that the joinder of Mr Maea’s employer would alter the litigious landscape and that it was appropriate to put compliance with the rules and orders of the court on hold until that became clear.

Nor do I perceive that anything in the quoted sections of the Civil Procedure Act 2005 assists the defendant. These proceedings commenced in 2022. In the three and a half years since, Mr Maea still does not have an expert report from the defendant that has been served in accordance with the rules or an order of the court and he does not have what I consider to be an explanation of why that is so. Quite apart from the total absence of exceptional circumstances, the overriding purpose and the dictates of justice do not otherwise seem to me either to support or compel the favourable exercise of any discretion to extend time for the service of the defendant’s expert reports.

Then by its further notice of motion filed on 12 May 2025, the defendant sought orders pursuant to UCPR 23.4 that Mr Maea be required to undertake psychometric testing by Dr John McMahon on 10 June 2025 or on some other date suitable to the plaintiff and to the doctor. The inspiration for this application is to be found in the report of Dr Leonard Lee, a psychiatrist, dated 28 March 2025, who examined Mr Maea on the defendant’s behalf. In the course of his examination, Dr Lee conducted two psychometric tests, the Inventory of Problems and the Modified Somatic Perceptions Questionnaire. Dr Lee’s report was then in the following relevant terms:

The defendant’s submissions in support of this application were as follows. In the present case, the key factors affecting the exercise of the Court’s discretion to make an order pursuant to UCPR 23.4 for Mr Maea to submit to psychometric testing appear to be whether the order is reasonable in light of information and advice received from experts and whether any refusal by him to attend an appointment is reasonable. The defendant contended that the circumstances have created a need objectively to balance the reasonableness of the defendant’s request with Mr Maea’s objection to ensure a just determination taking account of the parties’ reasonable requirements.

The defendant submitted further that psychometric testing is necessary to assist the Court to evaluate Dr Lee’s diagnosis of malingering, particularly as there was no indication of a potential diagnosis of malingering until it received Dr Lee’s report on 28 April 2025 and his revised report on 1 May 2025.

UCPR 23.4 is in these terms:

In my opinion, this rule does not authorise the making of an order that Mr Maea submit to psychometric testing for the particular purposes nominated by the defendant. First, Dr Lee carried out a limited form of psychometric testing. He was as a result able to express the opinion that Mr Maea was malingering. The defendant already has the benefit of that opinion for use in these proceedings. Secondly, however, Dr Lee did not recommend further testing: the present application is, in effect, a non-medical forensic decision by the defendant and its legal advisers to obtain additional support for Dr Lee’s opinion that Mr Maea is exaggerating. The application is a thinly disguised attempt to impugn Mr Maea’s credit, rather than a desire to secure an expert medical opinion about his alleged injuries and disabilities. Thirdly, and consequently, the defendant’s application is impermissible and “not a proper purpose for a medical examination”: Corke v Shopping Centres Australasia Property Group Re Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019, per Campbell J. The following passages from his Honour’s judgment should be noted:

In the present case, there is no secret that the defendant wishes to have Mr Maea tested psychometrically in order to assess whether or not he is “malingering”. As it was put by Mr Griscti for the defendant, a more complete psychometric examination of Mr Maea would on one view permit Dr Lee to have greater confidence in providing “a non-diagnosis”. The purpose of the proposed examination by Dr McMahon is therefore not for, and has nothing to do with, any diagnostic assessment connected with Mr Maea’s claimed injuries or disabilities. It is in contrast clearly for what is a collateral, and as such impermissible, purpose. The application should not be allowed.

I note in passing, however, that Dr Lee’s position is that he is unable, by reason of his asserted lack of co-operation from Mr Maea, to provide the defendant with a psychiatric assessment of any value. Psychometric testing will not of itself cure that problem, even if it served to confirm Dr Lee’s suspicions. The issue of whether or not Mr Maea was actively refusing to co-operate, so that the defendant is at some forensic disadvantage in responding to his claims, will presumably remain a live question for assessment at the hearing, about which it is presently unnecessary to make any comment.

Finally, I note that the defendant also sought an order pursuant to UCPR 1.12 extending until 9 May 2025 the time for the service of the unsigned evidentiary statement of Ashley Coates. As far as I am aware, Mr Maea no longer objects to the defendant relying upon this statement. Having regard to the content of the statement, that is unsurprising. In any event, Ms Schumacher has identified a series of difficulties in obtaining Mr Coates’ co-operation in adopting and signing this statement. Ms Schumacher also gave reasons, which I accept, for the defendant’s reasonable disinclination to serve this statement before Mr Coates has indicated that it accorded with his recollection of the events he relates. The defendant should be permitted to rely upon Mr Coates’ statement.

As far as I am aware, no other matters require resolution. Accordingly, I make the following orders: