Kim Fisher v Sandara Rotheraine [2009] NSWDC 270

Reported Decision : 10 DCLR (NSW) 26

New South Wales District Court

CITATION: Kim Fisher v Sandara Rotheraine [2009] NSWDC 270

JUDGMENT DATE: 31 August 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Medical reports from medical practitioners to insurers or solicitors are not admissible. Medical reports from medical practitioners to other medical practitioners are admissible.

CATCHWORDS: CIVIL LAW - evidence - admissibility of medical reports from one medical practitioner to another and medical reports from medical practitioners to insurers or solicitors - argument that reports are admissible under business records exception to hearsay rule - argument that reports were not served in accordance with UCPR 31.28

LEGISLATION CITED: Evidence Act 1995 s 63, s 66A, s 69 Uniform Civil Procedure Rules 2005 r 31.28

PARTIES: Kim Fisher Sandara Rotheraine

FILE NUMBER(S): 2622/05

COUNSEL: Ms Welsh Mr B Kelleher

JUDGMENT

1. Mr Kelleher for the defendant has tendered two bundles of documents. One comprises medical reports from one medical practitioner to another. I marked that bundle MFI 4A. The second bundle, which I marked MFI 4B, comprised medical reports from medical practitioners to insurers or solicitors.

2. As for MFI 4B, Mr Kelleher relies upon the exception to the hearsay rule contained in s 69 of the Evidence Act 1995, which deals with business records. It is apparent that all of the documents in MFI 4B were prepared or obtained for the purpose of conducting or in contemplation of or in connection with legal proceedings. Mr Kelleher realistically submitted that that must be the inference from the documents themselves and had nothing further to say about their admissibility under s 69.