Anthea Hammon v ASKO APPLIANCES (AUST.) PTY. LTD.

In the midst of a formidable duty list last week, the plaintiffs (Anthea Hammon and Ian Jay) made an application for leave to rely on an expert report by Marty Denham, an electrical compliance consultant, dated 30 June 2025. The plaintiffs seek leave to rely on that report in a 5-day hearing listed to commence on 11 August 2025. The defendant (Asko Appliances Pty Ltd) objects to the use of the report on two main bases. First, the relevant report purports to be evidence in reply whereas it is not properly so categorised. Secondly, the report was filed and served in breach of case management orders made by Chen J on 15 November 2024 and creates unfairness to the defendant which will not be in a position to respond to the evidence. In opposing the grant of leave, the defendant also raised the likelihood that the hearing date will need to be vacated if leave is granted and questioned whether Mr Denham is an appropriate expert to include in an expert conclave. It also raised the timing of the briefing of a new expert, particularly as it related to the conduct of a mediation and the proximity of an expert conclave.

Explaining the factual background to the current dispute is relatively simple. The first plaintiff purchased a clothes dryer from the defendant in March 2015 and installed it in the home owned by her and the second plaintiff. On 10 January 2021 a fire caused extensive damage to the plaintiffs’ house. The plaintiffs allege that the cause of the fire was an electrical fault in the clothes dryer. The statement of claim alleges the plaintiffs suffered loss and damage amounting to a little less than $1,300,000. It seems that the case will be contested largely on the basis of conflicting expert evidence. The defendant denies that the fire was caused by any fault in the product it sold to the first plaintiff. It is unnecessary for present purposes to dwell on the legal and statutory bases of the plaintiffs’ cause of action, but it is succinctly put in the plaintiffs’ written submissions on the present application:

The matter has been case managed by Chen J and on 15 November 2024, by which time there had already been an exchange of expert reports, his Honour made the following orders:

For present purposes the critical dates in those directions were:

By the time Chen J made the case management orders referred to in paragraphs [3]-[4], the defendant had served expert reports from Dr Colin Grantham dated 5 October 2023 and 6 September 2024. [1] The report of 5 October 2023 was served on the plaintiffs on 10 October 2023. The second report was served on 6 September 2024, the day it was signed.

The plaintiffs filed and served expert reports in reply as follows:

The authors of those reports were the same experts whose reports formed part of the plaintiffs’ evidence to which Dr Grantham’s reports responded. Those reports in reply were served close to two months outside of the period stipulated by Chen J in the directions made on 15 November 2024. Even so, the defendant takes no objection to reliance on those reports and has no objection to Mr Gardner and Ms Jones participating in the conclave.

The immediate dispute, which provoked forceful, feisty and (in the context of the forum, that is the duty list) quite lengthy submissions by counsel for both sides, arose because of the service of an expert report of Mr Marty Denham dated 30 June 2025. That report was served more than three months after the evidence in reply was directed to be served and two days after the date by which the conclave was supposed to have taken place.

On the hearing of the application, counsel for the plaintiffs explained the parties’ failure to comply with the case management orders:

I did not understand counsel for the defendant to gainsay the proposition that there was fault on both sides in terms of non-compliance with the time limits for the directions relating to arranging the mediation (which occurred on 16 May 2025, more than a month after the date contemplated in order 5) or the exchange of letters of instructions of the experts who were expected to participate in the conclave.

However, the most egregious delinquency was on the part of the plaintiffs who did not engage Mr Denham until 10 June 2025, that is after the mediation failed to resolve the disputes between the parties. As to that, the plaintiffs’ solicitor said in his affidavit in support of the current motion:

It will be noted, as was stressed at the hearing, that 16 May 2025 was the date of the mediation. One of the defendant’s complaints is that the plaintiffs are attempting to patch up their case by reference to matters raised in the mediation or, as it was put in argument by Mr Kelly, using the mediation as a form of “advice on evidence”. Mr Ahmed submitted it was “slightly unfair” to say that the plaintiffs used the mediation as a means of “flushing out any problems in this case and then patching [them] up”. He explained that, as the hearing date approached, the plaintiffs had looked to the evidence adduced in the case to determine whether there was a sufficient response to each aspect of the defendant’s evidence. While that may be accepted, the coincidence of the date nominated by the solicitor in his affidavit and the date of the mediation is conspicuous.

The defendant’s position at the hearing was that the plaintiffs have been aware of the contents of Dr Grantham’s report for over 18 months, and that the decision to obtain a report from Mr Denham after the mediation on 16 May 2025 was not adequately explained and was inconsistent with principles of good faith negotiations. Mr Kelly argued:

Moreover, the defendant argued that there was no explanation for the delay between the decision on 16 May 2025 to obtain an additional report and the letter of instruction to Mr Denham which was dated some 25 days later.

I accept there is force in the defendant’s position on these matters. Further, as Mr Kelly submitted, more recent authorities emphasise the need for courts to deal efficiently and expeditiously with civil suits, such as the present one, and to insist on parties complying with the relevant rules of court and case management orders made to ensure such efficiency.

Previously the High Court had taken the position exemplified in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 155; [1997] HCA 1 that justice between the parties is the “paramount consideration” and that, while case management is a relevant concern, it should not be allowed to “prevail over the injustice of shutting the applicants out from raising an arguable [case], thus precluding the determination of an issue between the parties”. However, in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (“Aon Risk Services v ANU”) the Court took a different approach. For example, French CJ said at [30]:

Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

Mr Ahmed submitted that the purpose of obtaining a report from Mr Denham was to reply directly to three specific paragraphs of Dr Grantham’s report dated 5 October 2023. Those paragraphs were [45], [46] and [47] and related to a component of the dryer called “metallised film capacitors” in relation to which Dr Grantham conducted experiments “many years ago”. Dr Grantham said these capacitors “are particularly susceptible to high voltage surges.” Based on evidence that there was an electrical storm in the area relatively shortly before the fire, Dr Grantham posited that the fire was not caused by any defect in the capacitor but as a result of a voltage surge caused by, or incidental to, the electrical storm.

The relevant part of the report is as follows:

This evidence has a capacity to undermine the plaintiffs’ case that there was a manufacturing defect in the capacitor of the dryer, which would constitute a “safety defect” under s 9 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (“ACL”), making the defendant liable for the fire (see ACL s 54). The defendant disputes that the fire started in the dryer but says that, even if the fire did emanate from the dryer due to a failure of the capacitor, such a failure was caused by a lightning strike rather than as a result of any mechanical fault.

In parts 8 and 9 of his report, Mr Denham provides an explanation of the way in which capacitors operate and the causes of failure in such components. In part 10 he goes on to discuss relevant safety standards and in part 11 he deals with what he calls “the issue at hand”, namely whether any failure of the capacitor was caused by a lightning event.

To understand the arguments and my conclusions it is useful to set out the relevant part of the report in full despite its length:

At paragraph 11.12 of his report, Mr Denham concludes:

This is highly probative evidence relating to the opinions expressed in paragraphs [45]-[47] of Dr Grantham’s report dated 5 October 2023 and is responsive to those opinions. Putting to one side part 10 which, as the defendant submits, seems to amount to a recasting of the plaintiffs’ case, the evidence in parts 8, 9 and 11 of the report is evidence in reply to the evidence in Dr Grantham’s report.

Mr Kelly submits that such evidence does not constitute reply evidence as envisaged by Chen J in his case management orders in November last year:

Further, Mr Kelly notes that Mr Gardner, the plaintiffs’ original expert electrical engineer, dealt with the issue in his supplementary report dated 6 May 2025. It is true that Mr Gardner’s report deals with the issue, specifically at paragraphs [72]-[76] and at [130]:

The matters raised in those submissions raise issues of fairness and the multiplicity of experts, but they do not deny the true categorisation of Mr Denham’s report as evidence in reply.

I accept the defendant’s submission that reliance on the report of Mr Denham’s evidence, in addition to the opinions of Mr Gardner, creates the kind of multiplicity of expert evidence that the Court generally discourages. Pressed as to whether the plaintiffs could have relied on Mr Denham’s report if it had been served in a timely fashion, Mr Kelly stated he did not believe they could, pointing to paragraph 44 of the Practice Note SC CL 1 which states:

I do not accept the extremity of the defendant’s submission which bordered on suggesting that, in presenting evidence in reply, a party is bound to rely on the same experts who prepared its original reports. As Mr Ahmed submitted, again ignoring the contents of part 10 of his report, Mr Denham’s report is focused on the issue of capacitors and the relevance of lightning strikes, a matter raised by Dr Grantham and which appears to assume great significance in the way the defendant intends to conduct its case. I also accept the plaintiffs’ contention that Mr Gardner “doesn’t deal with capacitors to the same depth as Dr Grantham does” and that Mr Gardner may not have the same extent of relevant expertise that Mr Denham does as an “electrical safety consultant”.

Ultimately, the defendant submits that the proceedings have been carefully case managed, with the expectation that reply evidence would be served prior to the mediation, and that it is now unfair for the plaintiffs to attempt to effectively “recast their case”. This in turn leads to the issue of prejudice to the defendant.

In their written submissions, the plaintiffs submitted that the service of Mr Denham’s report did not cause any prejudice to the defendant on the basis that:

Mr Ahmed expanded upon these points in oral argument, submitting that Dr Grantham is an expert in capacitors who has conducted experiments at the University of New South Wales, albeit many years ago, and was the one who introduced the topic in his report. While accepting that there had been a breach of the case management orders, counsel contended that Dr Grantham would have two weeks to respond to Mr Denham’s report in relation to “areas that he is very, very, very well versed in”, and concerning only “two specific narrow issues”.

Mr Kelly made a spirited submission that there was not a sufficient period of time in which Dr Grantham could be expected to consider Mr Denham’s report and undertake the necessary research to respond, noting that the report includes reference to something like 15-20 publications and canvasses issues about safety standards and product compliance that have not been raised previously. However, when pressed on this submission, Mr Kelly said:

It seemed that the reason Dr Grantham had not been consulted as to his capacity to deal with the issue is that the law partner with carriage of the matter is presently overseas. [2]

The defendant also submitted that Mr Denham has been introduced as a “new expert who has got very specific expertise in dealing with the effect of voltage overcharge and capacitors generally and also with product safety standards”. Consequently, the defendant submitted it will be necessary to retain a new expert to be briefed who is similarly qualified, as Mr Denham’s report covers “whole new areas, [and] it goes to the critical legal issue in between the parties”.

Balancing all relevant considerations, I have concluded that the plaintiffs should have leave to rely on the evidence of Mr Denham, with the exception of part 10 of the report. However, there must be certain conditions attached to that grant of leave. I am satisfied that Mr Denham’s report is important and relevant evidence in reply to the opinions posited by Dr Grantham in paragraphs [45]-[47] of his report. I am not satisfied on the material before me that Dr Grantham will not be in a position to respond to the opinions of Mr Denham and am not persuaded that he lacks the relevant expertise to deal with those opinions.

I have taken into account the failure of the plaintiff to serve the report within the time frames contemplated in the case management orders. However, the facts and circumstances are far removed from the circumstances of a case like Aon Risk Services v ANU. Both parties have taken a somewhat cavalier approach to the timeframes contemplated by Chen J.

I would not allow part 10 of the report because the facts and opinions in that part of the report appear to re-cast the plaintiffs’ case in a way that would create unfairness to the defendant at this late stage.

To avoid a multiplicity of experts providing opinions on the same subject, the grant of leave will be conditional upon the plaintiffs making an election as to whether to rely on the evidence of Mr Gardner or the evidence of Mr Denham on the issues raised by Dr Grantham in paragraphs [45]-[47] of his report.

Contrary to the defendant’s submission, I can see no reason why Mr Denham could not participate in the expert conclave which has been delayed by the failure of both parties to comply with the case management orders.

I will also make some case management directions calculated to focus the attention of the parties for the status review before Chen J on 25 July 2025.

While I have not heard the parties on the issue and while the plaintiffs have succeeded on the motion, it seems tolerably clear in the circumstances that the dictates of justice require that the plaintiffs should pay the costs of and incidental to the notice of motion. I will make such an order but allow the parties seven days to indicate whether it seeks to contest that a different order relating to costs should be made.

For the foregoing reasons, I make the following orders: