The challenge of obtaining pre-trial rulings on admissibility of evidence

In this recent Supreme Court of NSW application [Eastbury v  Genea Limited (formerly known as Sydney IVF Limited) [2017] NSWSC 1289]Dr Curtotti, the second defendant, sought orders concerning the admissibility and use of portions of an expert report served by Genea, in advance of the trial pursuant to s192A of the Evidence Act 1995. Dr Curtotti argued that the expert had commented beyond his area of expertise, which related to genetic testing, by offering an opinion on the standard expected of a general practitioner.

In the substantive proceedings, the plaintiffs bring claims for nervous shock claims and the costs associated with the rearing and maintaining of their children, who suffered from a genetic condition known as Fragile X Syndrome. The claim is made against Genea Limited (formerly known as Sydney IVF Limited) in respect of the testing of a blood sample for Fragile X and Dr Curtotti, a GP, in respect of a consultation and pathology referral.

Dr Curtotti submitted that obtaining a ruling on the admissibility of certain portions of the expert report in advance of the trial was necessary to facilitate the “overriding purpose” set out in s56 of the Civil Procedure ActThat is, the just, quick and cheap resolution of the real issues in the proceedings. It was Dr Curtotti’s position that the objected portions of the expert report would require a response from an individual with relevant area of expertise to comment on the conduct of general practitioners and that this may threaten the arrangement of expert conclaves which are to take place before the trial.

Genea submitted that without having heard detailed openings, considering the lay evidence and the outstanding expert evidence, the Court should not embark upon a substantive consideration of the admissibility of the objected to portions of the expert report and that there will be no real prejudice to Dr Curtotti if a ruling is not made ahead of the trial.

Noting Dr Curtotti had been allowed to obtain evidence in response to the expert report in question and that such an expert would participate in any expert joint conference, the Court saw no particular difficulty flowing to Dr Curtotti by denying the application. The Court accepted that without the benefit of having heard the openings, lay evidence and the balance of expert evidence, the admissibility of the objected to portions of the expert report could potentially result in an adverse effect on the administration of justice.

As a result, the Court refused to make a pre-trial ruling on the admissibility of the objected portions of the expert report. This interlocutory decision suggests that unless an applicant can demonstrate real prejudice in the event that a pre-trial ruling concerning the admissibility of evidence, the Court will be reluctant to make such an order. That is because such orders are required to be made in the absence of the parties openings and evidence, which opens up the possibility that the administration of justice will be adversely affected.

Post by Faizah Khan and Karen Kumar 

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