LANGBOURNE v STATE RAIL AUTHORITY [2003] NSWSC 537

New South Wales Supreme Court

CITATION : LANGBOURNE v STATE RAIL AUTHORITY [2003] NSWSC 537 revised - 19/06/2003 HEARING DATE(S) : 16/6/03 JUDGMENT DATE : 16 June 2003

JUDGMENT OF : Levine J DECISION : Report admitted

CATCHWORDS : SCR Pt 36 r 13C - expert's report - compliance - admissibility - "otherwise" order - discretion LEGISLATION CITED : Supreme Court Rules Pt 36 r 13C Barak Pty Ltd v W T H Pty Ltd [2002] NSWSC 649 CASES CITED : Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2000] NSWSC 980 Makita Australia Pty Ltd v Sproules (2001) 52 NSWLR 705 MARK LANGBOURNE (Plaintiff)

PARTIES : v

STATE RAIL AUTHORITY OF NEW SOUTH WALES (Defendant) FILE NUMBER(S) : SC 20134 OF 2001 M Cranitch SC / M Inglis (Plaintiff) COUNSEL : P Greenwood SC / P Biggins (Defendant) Commins Hendricks (Plaintiff) SOLICITORS : Dibbs Barker Gosling (Defendant)

-1- DLJ 4 Ex tempore: revised

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUSTICE DAVID LEVINE

MONDAY 16 JUNE 2003

20134 OF 2001

MARK LANGBOURNE (Plaintiff)

v

STATE RAIL AUTHORITY OF NEW SOUTH WALES (Defendant)

JUDGMENT (SCR Pt 36 r 13C – expert's report – compliance – admissibility – "otherwise" order – discretion) 1 There has arisen for decision an admissibility point which is as important as it is in one respect exquisite. 2 It was on 19 May 2003 that, by consent, Professor Joubert's first report dated February 2002 was admitted in these proceedings as exhibit B. Today, as exhibit M, a document I will describe as itself is described, a "further report" dated 6 June 2003 was admitted. What I will describe as objections to internal components of both reports I have dealt with in an earlier ruling. 3 The objection with which I am presently concerned is that founded upon the operation of SCR Pt 36 r 13C relating to expert witnesses. The objection being taken is that neither report bears on its face evidence of compliance with r 13C(2)(b). The rule states: 36.13C(1) For the purposes of this rule and rule 13CA "expert witness" means an expert engaged for the purpose of: (a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings; or (b) giving opinion evidence in proceedings or proposed proceedings; 'the code" means the expert witness code of conduct in Schedule K. (2) Unless the Court otherwise orders (a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert shall provide the expert with a copy of the code; (b) unless an expert witness's report contains an acknowledgement by the expert witness that he or she has read the code and agrees to be bound by it: (i) service of the report by the party who engaged the expert witness shall not be valid service for the purposes of the rules or of any order or practice note; and (ii) the report shall not be admitted into evidence. (c) oral evidence shall not be received from an expert witness unless: (i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it; and (ii) a copy of the acknowledgement has been served on all parties affected by the evidence. (3) If an expert witness furnishes to the engaging party a supplementary report, including any report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report by the expert witness: (a) the engaging party must forthwith serve the supplementary report on all parties on whom the engaging party has served the earlier report; and (b) the earlier report must not be used in the proceedings by the engaging party, or by any party in the same interest as the engaging party on the question to which the earlier report relates, unless paragraph (a) is complied with. (4) This rule shall not apply to an expert engaged before this rule commences.