Yang v New South Wales Land and Housing Corporation (No 3) [2021] NSWSC 1648

Supreme Court New South Wales

Medium Neutral Citation: Yang v New South Wales Land and Housing Corporation (No 3) [2021] NSWSC 1648 Hearing dates: 3 December 2021 Date of orders: 3 December 2021 Decision date: 03 December 2021 Jurisdiction: Common Law Before: Dhanji J Decision: No order made as to costs. Catchwords: COSTS – notice of motions – plaintiff successful on motions – regard to history – defendant rejected settlement of motions – no order made as to costs – orders made Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 31.28(1), 31.28(3), 31.28(3)(a) and 31.28(4) Cases Cited: Yang v New South Wales Land and Housing Corporation (No 2) [2021] NSWSC 1647 Category: Procedural rulings Parties: Yan Lim Yang (Plaintiff) New South Wales Land and Housing Corporation (Defendant) Representation: Counsel: N Obrart (Plaintiff) A Bhasin (Defendant)

Solicitors: Ayoub Lawyers (Plaintiff) Minter Ellison (Defendant) File Number(s): 2019/251487 Publication restriction: Nil

EX TEMPORE Judgment (REVISED) 1. HIS HONOUR: Earlier today I gave judgment in relation to motions brought by the defendant and by the plaintiff: see Yang v New South Wales Land and Housing Corporation (No 2) [2021] NSWSC 1647. The plaintiff was successful in resisting the defendant's motion. I also made orders as sought by the plaintiff in his motion although it should be noted that those orders were essentially orders seeking to accommodate the defendant in relation to any prejudice arising as a result of the plaintiff's reliance on the report of Dr Suman which the defendant by its motion sought to have excluded. 2. The issue now arises as to costs. Having regard to the issues and the fact that I have heard them, it is in my view desirable I resolve that issue as a part of these proceedings, rather than leaving it to another judge at a later stage to work out the merits or otherwise of the positions of the parties in relation to these motions. 3. It is fair to say that the plaintiff has, as a result of the orders I have made with respect to the motions, received a significant indulgence. The plaintiff was late serving the report of Dr Clark. The plaintiff persisted with Dr Clark despite the inadequacies in his report and, through no fault of the defendants, it finds itself faced with a further report from Dr Suman and having to go to the trouble of meeting that report, incurring the additional delay. 4. If it was simply that state of affairs, I would have ordered that the plaintiff pay the defendant's costs. The plaintiff, however, points out that by letter emailed 22 November 2021, the plaintiff sought to negotiate with the defendant in relation to the issues that I have decided. In short, the plaintiff acknowledged the issue that had arisen as a result of the engagement of Dr Suman and the fact that the defendant's expert had not consulted with the plaintiff. The plaintiff was willing to consent to the defendant being granted leave to file a response to the report of Dr Suman, pointing out the core of the difficulty that had arisen, that is that it was apparent that Dr Clark had not properly addressed the issues canvassed by the defendant's expert, Dr Jungfer. 5. In short, the plaintiff sought to avoid this hearing on the basis that the parties be allowed to move forward without the defendant being prejudiced other than as to the delay. 6. The defendant submits that that is no answer because the plaintiff required the leave of the Court and it was thus necessary in any event to bring the motion. Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) requires, in r 31.28(1) service of reports. In r 31.28(3), it is provided that "Except by leave of the Court or by consent of the parties" an expert's report or hospital report is not admissible unless it has been served in accordance with this rule (r 31.28(3)(a)). In r 31.28(4), which was at the centre of the argument on the motion, provides leave is not to be given, as referred to in r 31.28(3) unless the Court is satisfied of certain matters. However, it is clear from the terms of r 31.28(3) that no issue as to leave arises in circumstances where there is the consent of the parties. In other words, I do not accept that the matter had to come before the Court in any event because leave was required. That is had the defendant consented, the report would have been admissible with no question arising as to leave. 7. While the plaintiff has been successful on the motions, having regard to the history, I do not view it as appropriate that the plaintiff should have an award of costs. On the other hand, the defendant has not been successful and, moreover, rejected a settlement of the motions in circumstances where it was, in my view, open to it to agree to what was proposed by the plaintiff without the need for these proceedings. 8. In those circumstances, it is my view that each party should pay their own costs. I therefore make no order as to costs. 9. I make the following orders: 1. The plaintiff is to submit to examination by Dr Jungfer, psychiatrist, at 12 Railway Parade, Burwood, NSW, 2134 or by tele-health audio visual on 6 December 2021 at 8am. 2. The defendant to serve any evidence in response to the report of Dr Suman on or before 18 February 2022. 3. The plaintiff to pay the defendant's costs of the examination and report referred to in orders 1 and 2 above. 4. The plaintiff to serve any evidence in reply to the defendant's further evidence five weeks after service of the defendant's evidence referred to in order 2, and is not entitled to rely on any expert evidence in reply on the separate question served after that date without leave of the Court.