DIGITAL EQUIPMENT CORPORATION (AUSTRALIA) PTY LTD v SPATARO [1993] NSWCA 82

DIGITAL EQUIPMENT CORPORATION (AUSTRALIA) PTY LTD v SPATARO

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY ACJ, SHELLER and POWELL JJA 1 November 1993, 1 November 1993 [1993] NSWCA 82

PRACTICE and PROCEDURE — medical examination — new area of expertise — rehabilitation specialist's examination requested — seventeen experts examine plaintiff- judge in practice list of Common Law Division refuses defendant's belated application to order examination by rehabilitation expert — on application for leave to appeal to the Court of Appeal — held: (Kirby ACJ; Sheller JA and Powell JA concurring): The application for leave to appeal should be refused because (a) no error of principle or relevant serious injustice was shown in the primary judge's decision; (b) although the application could be granted without disrupting the hearing of the claim, it was extremely belated and would involve inconvenience which could be obviated; (c) the provisions in Pt25 R7B SCR were irrelevant.

Supreme Court Rules Pt25 R7. ORDERS Summons dismissed with costs.

Kirby ACJ Before the Court is a summons for leave to appeal.

By agreement, the parties have argued the substance of the appeal in case leave might be granted. They have done so because it is the wish of both parties not to interfere with the current listing of the matter in the special sittings of damages cases. That list begins on 29 November 1993. The Court has been informed that the proceedings have been allocated priority number 3 in that list. Accordingly, the proceedings between the parties will, in the ordinary course of events, begin on 29 November 1993. It is desirable that this Court should do nothing that would disturb that priority, at least unnecessarily.

In form, the application is for leave to appeal from an order made by Abadee J on 18 October 1993. On that date, his Honour was sitting in a busy practice list. He had before him a motion for orders that Mr Anthony Spataro, (the opponent) should submit to two medical examinations by Professor Jones and Dr Morris.