Jones v State of New South Wales (NSW Police Force)

[2021] NSWDC 763

District Court

New South Wales

Medium Neutral Citation:

Jones v State of New South Wales (NSW Police Force) [2021] NSWDC 763

Hearing dates:

9 April 2021

Date of orders:

9 April 2021

Decision date:

09 April 2021

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I reject the tender of the report of Professor Neil Greenberg of 4 October 2019.

Catchwords:

TORTS – PRACTICE AND PROCEDURE.

Work Injury damages claim. Expert Liability report. Report not served with pre-filing defence as it did not then exist. The nature and substance of the report needed to be disclosed with the pre-filing defence. Its substance could not be disclosed as it was unknown. Tender of report rejected.

Legislation Cited:

Workplace Injury Management and Workers Compensation Act 1988 (NSW)

Cases Cited:

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Plaintiff – Judith Jones
Defendant – State of New South Wales (NSW Police Force)

Representation:

Plaintiff – Campbell, D. SC
Defendant – Stanton, D.

File Number(s):

2020/00137732

Publication restriction:

Nil

Judgment

1. HIS HONOUR: The plaintiff is a former sergeant of police. She brings an action for damages for personal injury as a result of the alleged consequences of the way in which she was "interviewed" by, inter alia, Detective Inspector Rupp, on 5 November 2014. The plaintiff gave notice of her intention to bring a claim for damages at common law against the New South Wales Police Force, on 5 June 2018. The plaintiff served a pre‑filing statement of claim on 16 December 2019 together with the supporting documents upon which she relied. That included a report of Mr David Halpin, which has been described as an "expert liability report", but that has yet to be determined. The defendant sought to obtain evidence in reply.

2. On 17 September 2019, to comply with its statutory obligations, the defendant served a pre‑filing defence. Disclosed with that pre‑filing defence was a statement in a letter to this effect: "An expert liability report of Professor Greenberg (which has been requested in response to the issues raised in the pre‑filing statement that is not yet complete)" was to be served.

3. In fact, Professor Greenberg had not actually been retained as at 17 September 2019. A letter of instructions was sent to him by the defendant's solicitors on 23 September 2019. Professor Greenberg, who practises in the United Kingdom, replied on 4 October 2019, within the miraculously short period of 11 days. It is common ground that the report of Professor Greenberg was served on the plaintiff's solicitors by the defendant's solicitors on 14 October 2019. The defendant seeks to tender the report of Professor Greenberg. It is conceded that the report itself was served out of time.

4. The defendant does not rely on s 318(2) of the Workplace Injury Management and Workers Compensation Act 1988. Rather, the defendant submits that by pointing out that there was to be served an expert liability report from Professor Greenberg, that there was adequate disclosure within the meaning of s 318(1). The relevant authority can be found in Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 at [219], where Hoeben JA (as his Honour then was) said of the trial judge's interpretation of the section:

"His Honour's interpretation of s 318(1)(d) was correct. I do not read that section as requiring a verbatim transcript of the evidence which will be given at trial, but rather a disclosure of the nature and substance of the evidence to be given."

5. Here the nature of the evidence which the defendant sought to adduce from Professor Greenberg was disclosed, but not its substance. Its substance could not have been disclosed because no‑one knew what that substance was, because at that time the Professor had not even been retained.

6. I therefore am unable to admit the report of Professor Neil Greenberg of 4 October 2019.

7. I make that order reluctantly, because the Professor is extremely well qualified in his field and would be able to give appropriate evidence, in my view. However, the defendant could have qualified him much earlier than it did and, if so, given the timeliness of the Professor's reply, would have had had his report in time to be served with the pre‑filing defence.