Kelly v Thorn; Monteleone v Thorn [2020] NSWSC 1933

Supreme Court New South Wales

Medium Neutral Citation: Kelly v Thorn; Monteleone v Thorn [2020] NSWSC 1933 Hearing dates: 17 November 2020 Date of orders: 17 November 2020 Decision date: 17 November 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) Leave be granted to the plaintiff to rely on the report of Professor Brew subject to the following conditions: (a) The solicitors for the defendant use their best endeavours to obtain a report in response to the report of Professor Brew prior to 20 November 2020; (b) If, having used their best endeavours, the solicitors for the defendant are unable to obtain such a report then they should prepare and provide an affidavit setting out the efforts they have made and the reasons why no such report will be available. Catchwords: CIVIL PROCEDURE — admissibility of expert report — service out of time — leave — where necessary to demonstrate exceptional circumstances under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) — whether exceptional circumstances shown — impecuniosity Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 31.28 Cases Cited: Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Category: Procedural rulings Parties: Proceedings 2015/326714 William Andrew Kelly (First Plaintiff) William Richard Kelly (Second Plaintiff) Margaret Jane Kelly (Third Plaintiff) Andrew Thorn (First Defendant) Thorn Transport Pty Limited (Second Defendant)

Proceedings 2016/74936 Ross Monteleone (formerly Poyser) (Plaintiff) Andrew Thorn (First Defendant/First Cross-Claimant) Thorn Transport Pty Limited (Second Defendant/Second Cross-Claimant) William Andrew Kelly (First Cross-Defendant) William Richard Kelly (Second Cross-Defendant) Representation: Counsel: Proceedings 2015/326714 L D Robison (Plaintiffs) M T McCulloch SC with D P Kelly (Defendants)