Tomko v Tomko [2007] NSWSC 1486

New South Wales Supreme Court

CITATION : Tomko v Tomko [2007] NSWSC 1486

HEARING DATE(S) : 5 December 2007 JURISDICTION : Equity Division Probate List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 5 December 2007

DECISION : Questions disallowed. Leave to adduce evidence from another expert granted.

CATCHWORDS : EVIDENCE – Expert evidence – parties' single expert – questions to clarify report – leave to adduce evidence from another expert

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005, rr 31.37, 31.41, 41.44

CASES CITED : Cosgrove v Pattison [2001] CP Rep 68 Daniels v Walker [2000] 1 WLR 1382

John Graham Tomko (plaintiff/cross-defendant) PARTIES : Robert Garry Tomko (first defendant/cross-claimant) Lisa Tomko (second defendant)

FILE NUMBER(S) : SC 106310/07; 106311/07

COUNSEL : B Hocking (sol) (plaintiff/cross-defendant) Mr G W McGrath (defendants/cross-claimant)

SOLICITORS : Martin Place Lawyers (plaintiff/cross-defendant) Ren Zhou Lawyers (defendants/cross-claimant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

BRERETON J

Wednesday 5 December 2007

106310/07 John Graham Tomko v Robert Garry Tomko & Ors 106311/07 JUDGMENT (ex tempore) 1 HIS HONOUR: On 18 September 2007, I made an order pursuant to using (NSW) Uniform Civil Procedure Rules 2005, r 31.37 that an expert be engaged jointly by the plaintiffs and defendants in respect of the capacity of each of the deceased in each matter as at the date of the 2004 wills, and I reserved liberty for the parties to apply by arrangement with my associate in the event of any difficulty arising in the selection of the expert or preparation of the expert's report. On 10 October 2007, Hamilton J ordered that the expert engaged under r 31.37 be Dr Corinne Roberts, a neuropsychologist, and that she report by noon on 16 October 2007. Dr Roberts delivered a report dated 16 October 2007, the proceedings being listed for hearing before me on 18 October 2007. The defendants, for whom Mr McGrath appears, applied for an adjournment upon the grounds that they required further time to consider the report of Dr Roberts, and the formulation of questions to her as provided for by r 31.41; also, to have the opportunity of consulting with their own shadow expert, Professor Reid, in relation to the formulation of those questions, in relation to potential cross-examination of Dr Roberts, and, potentially, to determine whether to seek leave to adduce expert evidence from Professor Reid. 2 On 18 October, I read the affidavit evidence, ruled on objections and thereafter acceded to the application for an adjournment, adjourning the proceedings part heard before me to 21 December 2007 when it is anticipated that the hearing will be concluded. In respect of certain of the affidavit evidence where I granted leave to supplement, I directed that any supplementary affidavit be served by 30 November 2007. 3 On 16 November 2007, the defendant's solicitors sent to Dr Roberts a letter containing twenty questions said to be by way of clarification of her report; a copy was sent to the plaintiff's solicitors. On 19 November, the plaintiff's solicitors wrote to the defendant's solicitors, objecting that their unilateral approach to Dr Roberts for clarification was improper, and to Dr Roberts, requesting that she not act on the defendant's solicitors' request. As the parties were unable to resolve the impasse, the defendants have had the matter relisted before me for directions. 4 The objection that it was improper for the defendant's solicitors to seek clarification of Dr Roberts' report was misconceived and uncalled for; UCPR, r 31.41, authorises a party by notice in writing, sent to a parties' single expert, to seek clarification of any aspect of the report: 31.41 Parties may seek clarification of report