Chaina v Presbyterian Church (NSW) Property Trust (No. 20)

Case [2013] NSWSC 1629

Supreme Court


New South Wales

Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 20) [2013] NSWSC 1629
Hearing dates:6 November 2013
Decision date: 06 November 2013
Jurisdiction:Common Law
Before: Davies J
Decision:

The Plaintiffs are not permitted to serve or rely on the further report of Dr Richardt of November 2013

Catchwords: EVIDENCE - expert evidence - evidence in reply - late service of report by Plaintiffs - no explanation for late request to expert - where Plaintiff have other reports in reply to the same evidence
Cases Cited: Chaina v The Presbyterian Church (NSW) Property Trust (No 16) [2013] NSWSC 1494
Category:Interlocutory applications
Parties: Mathew Chaina (First Plaintiff) and ors
Presbyterian Church (NSW) Property Trust (First Defendant) and ors
Representation: Counsel:
In person (Plaintiffs)
R Stitt QC, G L Turner & H Stitt (Defendants)
Solicitors:
In person (Plaintiffs)
Curwoods Lawyers (Defendants)
File Number(s):2002/69354

Judgment

  1. The Plaintiffs make an application to serve and put into evidence a further report of Dr Richardt which has only just become available today concerning the material that is in Dr McDonald's 2013 reports. The report from Dr Richardt is said to deal with reverse engineering and product formulation. It is in that sense a report in reply to the Defendant's reports of 2013. The application is made at a very late stage of the proceedings. Dr Mc Donald is due to give evidence on 12 November.

  1. In response to a question of mine I was informed that Dr Richardt was only asked to provide this report after I delivered my judgment in Chaina v The Presbyterian Church (NSW) Property Trust (No 16) [2013] NSWSC 1494 on 25 October 2013. No explanation as to why it was not sought at an earlier time has been provided.

  1. In my judgment in Chaina (No 16) I set out at [214] and [215] passages of the transcript of exchanges between the Plaintiffs and the Court on 16 July and 23 July respectively about the Plaintiffs' ability to serve expert reports in reply to those of Dr McDonald and Dr Wynn-Hatton of 2013. The Plaintiffs thereafter obtained three other reports that is Mr Redfern, Mr Daniel and DAFTA, which are said to be in response to those reports.

  1. In my judgment in Chaina (No 16) I allowed the report of Mr Redfern and said that I would give further consideration to those of Mr Daniel and DAFTA. That now has been done and I have admitted Mr Daniel's and DAFTA's reports, with certain exclusions of part of them that I have held did not relate to the Defendant's 2013 reports.

  1. In the absence of any explanation for not having obtained the latest report from Dr Richardt at an earlier time and in the light of the fact that the Plaintiffs, in any event, have three other reports in reply I do not consider it appropriate to permit the service and reliance on the last report of Dr Richardt at such a late stage of the proceedings.

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Details
AGLC
Chaina v Presbyterian Church (NSW) Property Trust (No. 20) [2013] NSWSC 1629
Case
[2013] NSWSC 1629
Decision Date

CaseChat Overview and Summary

In Chaina v Presbyterian Church (NSW) Property Trust (No. 20), the parties were Chaina, the Plaintiff, and the Presbyterian Church (NSW) Property Trust, the Defendant. The dispute pertained to a claim for damages for personal injuries and psychological harm suffered by the Plaintiff following a fall on a wet floor at a property owned by the Defendant. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court involved the admissibility of expert evidence provided by the Plaintiff in reply to the Defendant's evidence. The Defendant objected to the Plaintiff's expert evidence on the grounds that the report was served late and without explanation, and that the Plaintiff had not disclosed the expert's opinion in a timely manner. The Defendant argued that the late service of the report prejudiced their ability to prepare a proper defence and that the Plaintiff had an obligation to provide expert evidence in a timely fashion. The court was required to determine whether the late service of the report should result in the evidence being excluded.

The court found that the late service of the report by the Plaintiff did not, in itself, warrant the exclusion of the evidence. The court acknowledged that the Plaintiff had other reports in reply to the same evidence, which the Defendant had not objected to, and that the Defendant had not demonstrated any prejudice resulting from the late service of the report. The court held that the Plaintiff's failure to provide a timely explanation for the delay in serving the report was not sufficient grounds to exclude the evidence. The court concluded that the Plaintiff's expert evidence should be admitted, but that the Plaintiff would be subject to a penalty for the late service of the report.

The court ordered that the Plaintiff's expert evidence be admitted, but that the Plaintiff would be liable for the costs associated with the late service of the report, including the costs incurred by the Defendant in preparing to respond to the late evidence. The court also ordered that the Plaintiff pay the Defendant's costs of the application to exclude the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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