Is it too late to serve?

This recent decision of the Supreme Court of NSW (Le v Brown; Nguyen v Brown; Tran v Brown; Monica v Brown; Huggett v Brown [2017] NSWSC 162), is a reminder of UCPR 31.28, which provides rules in relation to the disclosure of expert reports and hospital records. The Rule aims to facilitate the just, quick and cheap resolution of the real issues in the proceedings. This Rule states that except by leave of the Court, an expert’s report or hospital notes are not admissible unless it has been served in accordance with the Rule. Leave is not to be granted by the Court unless it is satisfied that there are exceptional circumstances warranting the granting of leave or that the report is updating an earlier version of a report that has been served in compliance with the Rule.

This matter concerned an application by a defendant to serve further expert evidence outside of the timeframe ordered by the Court in circumstances of close proximity to the hearing and where the defendant had already served reports from three other experts in the same field of expertise. In the decision Justice McCallum referenced Practice Note SC CL 5, which provides that ordinarily a party should be confined to using two experts in any one field. In relation to medical experts however, the Practice Note states that ordinarily one expert per specialty should give evidence unless there is a substantial issue as to ongoing disability in which case two experts in any relevant specialty will be allowed to comment on disability. The Practice Note provides that when it is considered an unnecessary expert has been qualified the Court may reject the tendering of the report.

The Court rejected the application on the basis that to grant leave would prejudice one of the other defendants, even though it was not anticipated that allowing the report to be served would not result in the hearing date being vacated. The Court noted that service of the report would likely lead to amendments to the pleadings, identification of new issues, the need to revise material previously prepared and the incurring of additional costs whilst preparing for hearing.

The decision highlights the potential issues for parties who do not serve their expert evidence in accordance with the Court timetable. A failure to adhere to this can result in a party being unable to tender the evidence at hearing resulting in the costs of obtaining that evidence being thrown away and the potential to affect the outcome of the matter for that party.

Post by Karen Kumar

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