Polsen v Harrison [2020] NSWSC 1167

Supreme Court New South Wales

Medium Neutral Citation: Polsen v Harrison [2020] NSWSC 1167 Hearing dates: 16 July 2020 Date of orders: 31 August 2020 Decision date: 31 August 2020 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) Leave is granted to file and serve the amended statement of claim filed 26 May 2020. (2) The amended statement of claim is to be filed and served within 14 days. (3) The registrar's orders made on 16 April 2020 are set aside and the following orders are made in lieu: (a) that the time for service by the plaintiff of the following reports of Dr Smith dated 4 December 2019; Professor Morris dated 21 November 2019; and Dr Miller (two) dated 14 December 2019 are extended to 23 December 2019; (b) that time for service by the plaintiff of the report of Dr Mar Fan dated 10 December 2019 be extended to 21 April 2020; (c) that time for service by the plaintiff of the report of Mr Jenkinson dated 20 April 2020 be extended to 11 May 2020; (d) that time for service by the plaintiff of the reports of Drs Miller, Mar Fan and/or Professor Morris be extended to 19 June 2020; and (e) that the plaintiff be granted leave to serve the quantum refresher report of Dr Smith dated 19 March 2020 and served on 17 April 2020. (4) The costs of the plaintiff's amended notice of motion filed 26 May 2020 are costs in the cause. (5) The plaintiff is to pay the defendant's costs thrown away by the amendments to the statement of claim. Catchwords: ADMINISTRATIVE LAW – Judicial review – Rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) – Review of the decision of the registrar – Where the registrar determined that the plaintiff's expert reports were not "in reply" despite not having the defendant's primary reports – Review upheld PRACTICE AND PROCEDURE – Application for leave to file an amended statement of claim – Where the plaintiff sustained injury after undergoing a gastric sleeve procedure – Whether the proposed amendments plead a novel case Legislation Cited: Civil Procedure Act 2005 (NSW), s 13, 56, 57, 58, 64 Supreme Court Rules 1970 (NSW), r 3B Uniform Civil Procedure Rules 2005 (NSW), rr 31.20, 49.19 Cases Cited: Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Cropper v Smith (1884) 26 ch D700 Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265 Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666 Namberry Craft Pty Ltd v Watson [2011] VSC 136 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 115 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Solarus Projects Pty Ltd v Vero Insurance Ltd [2013] NSWSC 328 Tomko v Palasty (No 2) [2007] NSWCA 369 Category: Procedural and other rulings Parties: Katrina Marie Polsen (Plaintiff) Richard Harrison (First Defendant) Representation: Counsel: JA Hillier (Plaintiff) M Windsor SC (Defendant)