Kanar Saber v Omar Ali and the Nominal Defendant (No 2) [2011] NSWDC 189

District Court New South Wales

Medium Neutral Citation: Kanar Saber v Omar Ali and the Nominal Defendant (No 2) [2011] NSWDC 189 Decision date: 05 October 2011 Jurisdiction: Civil Before: Cogswell SC DCJ Decision: Leave is refused. Catchwords: CIVIL - application by plaintiff to ask expert psychiatrist questions based on exhibits tendered in proceedings - reports contained in exhibits pre-date first consultation between plaintiff and expert - exceptional circumstances for leave not made out Legislation Cited: UCPR 31.28 Category: Procedural and other rulings Parties: Kanar Saber Omar Ali The Nominal Defendant Representation: Ms EEJ Welsh for the plaintiff Mr J Guihot for the first defendant Mr SE Torrington for the second defendant File Number(s): 2010/301783

Judgment 1. Ms Welsh has applied to ask an expert psychiatrist, Dr Thomas Oldtree Clark, questions based upon exhibits which have been tendered in the proceedings so far. 2. Dr Clark has provided two reports which have been admitted as part of exhibit K. The first is dated 20 May 2010 and the second 17 August 2011. They were based upon consultations with the plaintiff on 20 April 2010 and 17 August 2011. 3. The material which Ms Welsh wants to show Dr Clark comprise, I apprehend, at least exhibits A to J in the proceedings which are all medical reports for one purpose or another. All of those reports pre-date the first consultation between the plaintiff and Dr Clark. 4. Mr Guihot for the first defendant, supported by Mr Torrington for the second defendant, objects to that course. The objection is based upon UCPR 31.28. Mr Guihot argues that what Ms Welsh is attempting to do is elicit from Dr Clark oral expert evidence in chief without a report having been served containing the substance of the matters sought to be adduced. 5. Ms Welsh has tendered as VDA a letter which suggests that Dr Clark was provided the day before the consultation with certain documents which, as Mr Torrington points out, are not specified. Indeed as Mr Torrington points out, most of the material which Ms Welsh wishes to show Dr Clark predates the accident. 6. It seems to me that there is no reason why the material might not have been shown to Dr Clark in advance and a report obtained and provided to the defendants, if it was to be relied upon. In my opinion nothing tendered or put to me by Ms Welsh amounts to exceptional circumstances warranting the granting of leave. 7. It did occur to me that the questions may have represented an update of earlier reports. However I accept Mr Guihot's argument that an update should really be focused upon events which have occurred since the last report rather than material which existed before both reports, indeed before the accident. 8. I am therefore not satisfied of either of the conditions in UCPR 31.28(4) and leave is refused.