Hannam v State of New South Wales (No 2) [2022] NSWSC 461

Supreme Court New South Wales

Medium Neutral Citation: Hannam v State of New South Wales (No 2) [2022] NSWSC 461 Hearing dates: 1 April 2022 Date of orders: 14 April 2022 Decision date: 14 April 2022 Jurisdiction: Common Law Before: Dhanji J Decision: (1) The motion filed by the defendant on 7 March 2022 seeking an extension of time pursuant to r 31.28(1) of the Uniform Civil Procedure Rules 2005 (NSW) in which to serve the report of Professor Mark W Kroll dated 20 February 2022 and the supplementary report of Professor Mark W Kroll dated 2 March 2022, is dismissed. (2) The motion filed by the defendant on 7 March 2022 seeking rulings pursuant to s 192A of the Evidence Act 1995 (NSW) that the report of Professor Mark W Kroll dated 20 February 2022 and the supplementary report of Professor Mark W Kroll dated 2 March 2022 is admissible in the proceedings, is dismissed. (3) The defendant is to pay the plaintiff's costs of the motions on the ordinary basis as agreed or assessed. Catchwords: CIVIL PROCEDURE – notice of motion – extension of time to serve expert reports – r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether there are exceptional circumstances that warrant the grant of leave for service of expert reports five months out of time – defendant submitted that delay was partially attributable to plaintiff's communications and to COVID-19's impact on case preparation – expert available to be cross-examined – plaintiff submitted that defendant's delay was unjustifiable – report was deficient – "primary specialty in bioelectricity" or "the interaction of electricity and the body" – "arcane" expertise – unfair prejudice to plaintiff – no exceptional circumstances found – motion dismissed – costs CIVIL PROCEDURE – notice of motion – advance ruling on admissibility – s 192A of the Evidence Act 1995 (NSW) – purpose of s 192A not to evade Uniform Civil Procedure Rules – motion dismissed – costs Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60 District Court Rules 1973 (NSW) Evidence Act 1995 (NSW), ss 76, 79, 192A Evidence Amendment Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 31.28 Cases Cited: ASIC v Rich [2005] NSWSC 706 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Davaria Pty Limited v 7-Eleven Stores Pty Ltd (No 9) [2021] FCA 473 Hannam v State of New South Wales [2020] NSWSC 1492 Hopeshore Pty Ltd v Melroad Equipment Pty Ltd (2004) 212 ALR 66; [2004] FCA 1445 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Texts Cited: Australian Law Reform Commission, Uniform Evidence Law (Report No 102, December 2005) Category: Procedural rulings Parties: Andrew Robert John Hannam (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: JE Maconachie QC with P Tierney (Plaintiff) M Hutchings with RA Coffey (Defendant)