Salzke v Khoury [2009] NSWCA 195

Reported Decision: 74 NSWLR 580

New South Wales Court of Appeal

CITATION: Salzke v Khoury [2009] NSWCA 195 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7 July 2009

JUDGMENT DATE: 10 August 2009

JUDGMENT OF: Ipp JA at 1; Basten JA at 113; Gzell J at 124

(a) The applications for leave to appeal are granted. (b) The appeals are upheld with costs. DECISION: (c) The orders made by the Judicial Registrar on 29 July 2008 are set aside. (d) The respondents' motions to dismiss Ms Salzke's claim are set aside with costs. (e) Dr Khoury to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

CATCHWORDS: PROCEDURE - miscellaneous procedural matters - other matters - leave to appeal and appeal from Judicial Registrar of the District Court - where Judicial Registrar granted motions to dismiss the plaintiff's case under UCPR r 31.36 - service and content of experts' reports in professional negligence claims - whether plaintiff complied with r 31.36 - delays in serving expert's reports - requirement that expert's report "support" plaintiff's case - omission of Judicial Registrar to refer expressly to the prejudice that the plaintiff would suffer were motions to dismiss granted. - PROCEDURE - miscellaneous procedural matters - other matters - motion to adduce further evidence on application for leave to appeal - additional expert's reports - where additional reports supplement and clarify earlier report - where earlier report generated misunderstanding.

Civil Procedure Act 2005 District Court Rules 1973 Disrict Court Rule (Professional Negligence Claims) 1999 Health Services Act 1997 LEGISLATION CITED: Legal Profession Act 2004 Practice Note 104: Professional Negligence List (23 December 1998) Suitors' Fund Act 1951 Supreme Court Rules 1970 Supreme Court Rules (Amendment No. 325) 1998 Uniform Civil Procedure Rules 2005