Gershowitz v Kaye [2021] NSWDC 128

District Court New South Wales

Medium Neutral Citation: Gershowitz v Kaye [2021] NSWDC 128 Hearing dates: 1 April 2021 Date of orders: 1 April 2021 Decision date: 01 April 2021 Jurisdiction: Civil Before: Wilson SC DCJ Decision: 1. the Plaintiff's amended notice of motion seeking leave to rely upon the late-served report of Dr Ngu is dismissed; 2. the Plaintiff is to pay the costs of the 1st and 3rd Defendants of the Notice of Motion; 3. I confirm the hearing date of 31 May 2021 with an estimate of 4 days; 4. I order the Parties to participate in mediation no later than Friday 30 April 2021. Catchwords: CIVIL – practice and procedure – leave sought to rely upon late-served report – whether to engage UCPR 1.12 or 31.28 Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 61 Evidence Act 1995 (NSW) s 79 Uniform Civil Procedure Rules 2005 ss 1.12, 31.28, 31.36 Cases Cited: Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 Category: Procedural rulings Parties: Galit Gershowitz (Plaintiff) Alan Kaye (First Defendant) A.C.N 604 384 661 Pty Ltd (Third Defendant) Representation: Counsel: Mr Cohen (Plaintiff) Ms Oldfield (First Defendant) Ms Berberian (Third Defendant) File Number(s): 2019/00368432 Publication restriction: None

Judgment 1. The amended notice of motion (31 March 2021) sought leave for the Plaintiff to serve the report of Dr Ngu dated 21 December 2020. Dr Ngu is an obstetrician and gynaecologist but also qualified in a sub-specialty in ultrasound. His opinion, essentially, is that the Third Defendant's employee ought to have noticed and reported upon the absence of toes in the scan which would have permitted a diagnosis of bilateral foetal abnormality in the antenatal period. He also expressed the opinion that the treating obstetrician had no role to play in the misdiagnosis. 2. The latter aspect of the opinion perhaps explains the attitude of the First Defendant to the Plaintiff's application for leave. He neither consented to nor opposed leave being granted. 3. The Third Defendant opposed leave being granted, principally upon the bases that the proceedings are listed for hearing on 31 May 2021, and that the plaintiff has failed to serve the report in accordance with orders previously made by the Court. 4. In support of her application, the Plaintiff relied upon the following evidence: 1. affidavit of Sharron Vogel, sworn 22 March 2021 (Exhibit A); 2. affidavit of Ms Vogel, sworn 31 March 2021 (Exhibit B); and 3. affidavit of Ms Vogel, also 31 March 2021 (Exhibit C). 1. Before turning to that evidence, I note that relevant orders were made by the Court as follows: 1. on 17 March 2020 the Plaintiff was ordered to complete service of her expert liability and medical evidence by 19 June 2020; 2. on 5 May 2020 the Court ordered that the Plaintiff was to advise the Defendants of the identity and the specialty of all its liability and medical experts by 15 May 2020; 3. on 13 October 2020, the matter was fixed for hearing and the Standard Orders for Hearing (Annexure to Practice Note DC Civil 1). 1. In paragraph 3 of Exhibit A, the solicitor for the Plaintiff incorrectly stated that "the Court ordered that the Plaintiff was to file and serve any further primary evidence by 4 December 2020". No such order was made. 2. In paragraph 4 of Exhibit A, the solicitor for the Plaintiff sets out what I understand to be the reason for requesting a report for Dr Ngu at the time at which she did: We previously served our expert obstetric report of Dr Peter Wein but we established that we required an additional foetal radiologist report when we received the Defendant's expert report of Professor Hyett on 17 August 2020. Professor Hyett specialises in Maternal and Foetal Medicine. This is a very niche specialty in which expertise is difficult to obtain. 1. In the course of addresses, counsel for the Plaintiff was asked to identify what it was about the report of Professor Hyett that made the Plaintiff's legal representatives realise that it was necessary to obtain a report from a foetal radiologist. The Court was directed to the following statement which appears at page 5 of the report by Professor Hyett: It is not the role of the obstetrician to personally interpret the imaging performed at the 20 week scan and this falls outside of the specialist training that most obstetricians receive. 1. Between 17 August 2020 and when Dr Ngu was engaged by letter of 9 November 2020, the solicitor for the Plaintiff undertook enquiries as to the availability and willingness of an expert to provide a report. 2. After he was retained, Dr Ngu requested clearer images of the foetal scans, which were then requested of the Third Defendant. Images were provided by the Third Defendant on 1 December 2020. Despite Dr Ngu's report being dated 21 December 2020 it was not received by the solicitor for the Plaintiff until it was sent by email on 12 January 2021. No explanation for that delay was provided. The report was then served on 13 January 2021. 3. Exhibit B is an affidavit of Ms Vogel filed 31 March 2021 at 1:37pm. The Plaintiff's solicitor corrected the misstatement made in the earlier affidavit and conceded that there had not been an order made for further evidence to be served by 4 December 2020, but, rather on 29 October 2020 the Judicial Registrar made an order that any application to rely upon further evidence by the Plaintiff be filed and served by 4 December 2020. It was also acknowledged that the Court previously ordered on 17 March 2020 that the Plaintiff complete service of her evidence by 19 June 2020. 4. Annexed to Exhibit B were the reports of Dr Hyett (10 August 2020) and Dr Wein (6 September 2019). 5. In the course of argument, it was submitted on behalf of the Plaintiff that although Dr Wein was an obstetrician and gynaecologist, he also was experienced in reading and interpreting radiological images. 6. It was that expertise which permitted Dr Wein to express the following opinion: As commented above, the Australian Society for Ultrasound and Medicine recommends that the feet and toes should be specifically identified on the morphology scan. If they are not able to be clearly identified, then this should be mentioned. I am accustomed to receiving reports which specifically mention the presence of feet and toes. There was no mention on the ultrasound report of a presence of toes. I agree that the image provided does not show feet or toes. 1. Dr Wein then goes on to explain what ought to have occurred in the event that toes were absent from the morphology scan. 2. It was submitted by counsel for the Plaintiff that the opinion of Dr Wein was "essentially identical" to the opinion of Dr Ngu. It became apparent that the reason for retaining Dr Ngu was a concern on the part of the Plaintiff that objection might be taken to the expertise of Dr Wein to express the opinion which he does. That question would be determined by consideration of s79 of the Evidence Act. That is whether Dr Wein has specialised knowledge based on his training, study or experience and whether his opinion is wholly or substantially based on that knowledge. 3. In the course of addresses, it was submitted for the Plaintiff that Dr Wein was an obstetrician who interpreted his own scans. It is apparent from his expert report (page 3) that he viewed and analysed the scans in question in this case, confirming that there no toes visible on the images of the feet. Without deciding the matter, it seems to me that Dr Wein is well qualified to express the expert opinion which he has, and to form that opinion based upon his specialised knowledge acquired by his training, study and experience. 4. Finally, Exhibit C is a further affidavit of Ms Vogel filed 31 March 2021 at 3:27pm attaching the report of Dr Ngu. 5. In hearing the motion, an issue arose as to whether the question of relief should be considered under Rule 1.12 or Rule 31.28 of the Uniform Civil Procedure Rules 2005 ('UCPR'). 6. Rule 1.12 is a general rule for the extension and abridgment of time, and provides as follows: (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. (2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires. 1. The test under Rule 31.28 is considerably more onerous. Rule 31.28 provides as follows: (1) Each party must serve experts' reports and hospital reports on each other active party— (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties— (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied— (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1). 1. As the Court had made orders for the service of the Plaintiff's evidence, and the report of Dr Ngu had been served outside of those orders, the report is, prima facie, not admissible except by leave of the Court (UCPR 31.28(3)). 2. In mandatory terms, the rule provides that leave is not to be given unless the Court is satisfied that there are exceptional circumstances. 3. In applying the rules, whether it be UCPR 1.12 or UCPR 31.28, the Court must have regard to the overriding purpose set out in s56 of the Civil Procedure Act 2005 (NSW) ('CPA'), that is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. By reason of s56(4) the solicitor and barrister for the Plaintiff had an obligation to ensure that, by their conduct, the proceedings do not breach the overriding purpose. 4. I also note the terms of s61 CPA. These proceedings had been case-managed by the Court with a view to achieving the overriding purpose, and "for the speedy determination of the real issues between the parties to the proceedings" (s61(1)). Section 61(3) sets out actions which the Court may take if a party, in this case the Plaintiff, has failed to comply with an order of the Court. That includes the dismissal of the proceedings (s61(3)(a)), and limiting any claim made by the Plaintiff (s61(3)(b)). Whilst, plainly, those extreme remedies are not called for in this particular case, the section demonstrates the seriousness with which the Court is to address the question of non-compliance with its orders. 5. In determining whether to approach the motion by UCPR 1.12 or UCPR 31.28, an issue arises as to the utility of extending the time for service under UCPR 1.12 in circumstances where, by reason of UCPR 31.28, the report sought to be relied upon by the Plaintiff is not admissible at the hearing set for 31 May 2021. By addressing the issue under UCPR 1.12, the Plaintiff seeks to make an inadmissible report admissible under UCPR 31.28. 6. As there is no limit upon the time in which an application for an extension of time under UCPR 1.12 may be made, there would be nothing to prevent a party from making an application before a judge hearing the matter for an extension of time in respect of a report which prima facie is not admissible by reason of UCPR 31.28. In that case, the intent of UCPR 31.28 would be subverted and have no work to do. The question then is, given the precise nature of UCPR 31.28 as it relates to expert reports, whether a party who has failed to comply with orders as to service of expert reports ought to be entitled to rely upon UCPR 1.12, rather than the more onerous 31.28. 7. In Addison v BHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433, Cavanagh J was asked to determine whether leave should be granted to rely upon a report from an expert served out of time. In the present case, counsel for the Plaintiff relied upon Addison in submitting that the question of leave ought to be dealt with under UCPR 1.12. 8. In paragraph 13 of his judgment, Cavanagh J set out the matters submitted on behalf of the plaintiff as relevant to the exercise of the Court's discretion. The first matter referred to was that the matter had not yet been listed for hearing. This figured in his Honour's reasoning, where he stated at [19] that: There being no hearing date which is to be vacated or any other timing issue, it does not seem to me that any of those cases dealing with the risk of a hearing date being vacated are relevant. 1. Cavanagh J rejected the defendant's submission that UCPR 31.28 had application in circumstances where the question to be determined was whether the plaintiff ought to be given leave under UCPR 1.12 to rely upon a late served report. In the course of rejecting the defendant's argument, his Honour stated "it may be surprising if a party was required to demonstrate exceptional circumstances to obtain leave to serve an expert's report when the case has not even been listed for hearing" (at [29]). 2. In those circumstances, the question of leave was determined by Cavanagh J under UCPR 1.12. 3. The difference of significance in the present case is that this application is made in the following circumstances: 1. the matter has been fixed for hearing; 2. the Plaintiff had previously been granted leave to file and serve a notice of motion seeking an extension of time to rely upon an additional expert report on or before 4 December 2020 but did not do so; and 3. the hearing is fixed to commence in about 6 weeks' time. 1. In the matter of Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506 Barrett J determined a notice of motion filed by the plaintiff on 13 May 2008 in circumstances where a hearing was scheduled to commence on 16 June 2008. The motion was heard on 22 May 2008 and judgment delivered 26 May 2008. The question was determined by the application of UCPR 31.28. His Honour had regard to the fact that the date was close and the parties had years to develop their cases and assemble evidence. The expert's opinion could have been obtained "years ago". His Honour found that the plaintiff had failed to demonstrate exceptional circumstances and the evidence was excluded. 2. In para 17 of the judgment, his Honour referred to the fact that the plaintiff sought, in the alternative, an extension of time for the service of the expert's reports. His Honour commented: That, however, would be to approach through the back door of Rule 1.12 something that should be approached through the front door of Rule 31.28. 1. I agree with the approach adopted Barrett J and proceed by distinguishing the decision of Cavanagh J in Addison on the basis that in that case, a hearing date had not been fixed. 2. In my opinion, to determine this question by reference to the broad discretion in UCPR 1.12 would render obsolete the specific rules prescribed by UCPR 31.28 which would require that exceptional circumstance be demonstrated in order for a party to rely upon a report not served in accordance with the Court's orders. 3. I also pause to observe that this Court engages in case management directed to meeting the overriding purpose in s56. To grant leave, by reference to the dictates of justice under UCPR 1.12, would be to render obsolete the case management principles of this Court. 4. Given the nature of the claim brought by the Plaintiff against the Third Defendant, it ought to have been apparent to those who represent the Plaintiff that it was necessary to retain an expert to express an opinion on the content of the duty of care owed by the Third Defendant and whether it was, in the circumstances, breached. If that required an expert obstetrician with a sub-specialty in ultrasound then such an expert ought to have been retained well before the date for hearing was fixed. On one view, compliance with UCPR 31.36 mandated the filing and service of a report from such an expert with the statement of claim commencing the proceedings. It may be, consistent with the preliminary view I expressed, that Dr Wein has sufficient specialised knowledge to express the opinions which he does, so as to satisfy the requirements of UCPR 31.36. 5. Turning then to the question of whether or not the discretion under UCPR 31.28 ought to be exercised, counsel for the Plaintiff identified the following matters as giving rise to exceptional circumstances: 1. the Plaintiff obtained a report from Dr Wein and then "investigated her prospects against the second defendant". The relevance of this submission is not apparent and was not made apparent in the course of submissions; 2. COVID-19; 3. the difficulty in obtaining a report from an expert in this field; 4. the fact that Dr Wein's expertise may be subject to challenge; 5. that Dr Hyett in his report of 10 August 2020 expressed the opinion that it was not the role of the obstetrician to interpret imaging; 6. that in light of the opinion of Dr Hyett the proceedings against the First Defendant may not proceed; 7. the prejudice which would be caused to the Plaintiff if leave was not granted; and 8. the fact that the Plaintiff already has an expert expressing the same opinion. 1. In my view, none of these factors either alone or together justify the favourable exercise of the discretion under UCPR 31.28. 2. COVID-19 became problematic in March 2020, well after the proceedings were commenced and, in any event, there is no evidence that it impacted upon the capacity of an expert to express an opinion on the papers as has occurred in this case. 3. As for the difficulty in obtaining an expert, that also is, in my opinion, not a sufficient basis upon which leave should be granted. It merely suggests that the search for an appropriate expert ought to have commenced much earlier. 4. The fact that Dr Wein's expertise may possibly be subject to challenge ought to have been apparent to the Plaintiff well before the service of the report by Dr Hyett. 5. The fact that the proceedings against the First Defendant may not proceed is not a relevant consideration under UCPR 31.28. The fact that the Plaintiff may be prejudiced if leave is not granted is relevant but not determinative of the application. 6. Finally, the fact that the Plaintiff already has an expert expressing the same opinion is a matter which, in my view, militates against the granting of leave. 7. The failure by legal representatives in proceedings in this Court to comply with the orders of the Court is becoming frequent and problematic. Whilst in appropriate cases leave under UCPR 31.28 to rely upon late-served reports will be granted, this is not such a case. 8. Accordingly, the Plaintiff's amended notice of motion is dismissed. 9. I order that the Plaintiff pay the costs of the First and Third Defendants in respect of the notice of motion.