Boral Transport Pty Ltd v Gulic [2013] NSWCA 150

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boral Transport Pty Ltd v Gulic [2013] NSWCA 150 Hearing dates: 31 May 2013 Decision date: 31 May 2013 Before: Basten JA at [1], [27]; Meagher JA at [26] Decision: (1) Grant leave to Boral Transport Pty Ltd to appeal against the judgment and orders of Sorby DCJ delivered and made on 7 February 2013. (2) Direct that the applicant file within seven days a notice of appeal in the form of the draft notice of appeal appearing in the white folder. (3) Upon the undertaking by the solicitor for the applicant that the notice of appeal will be filed and any necessary fees paid, allow the appeal and set aside the orders made in the District Court on 7 February 2013. (4) In lieu thereof, make the following orders: (a) pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005, order that the plaintiff submit himself for an MRI examination of his lumbar and lumbar-sacral spine by City X-Ray within 28 days of the date of these orders; (b) stay the proceedings in the District Court pending the plaintiff's compliance with order (a), and (c) order that the plaintiff pay the defendant's costs of and incidental to the motion in the District Court. (5) Order that the respondent pay the applicant/appellant's costs in this Court. (6) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - interlocutory issues - defendant sought order for plaintiff to undergo MRI examination of lumbar spine - whether court should make order - where plaintiff brought action for damages for 2010 injury to upper spine - where previous injury to lumbar spine - where state of lumbar spine relevant to determining extent to which 2010 injury caused incapacity - where plaintiff's medical evidence deficient - where other supportive evidence available to defendant - where possible consequential use of evidence sought for credibility purpose - Uniform Civil Procedure Rules, r 23.4 Legislation Cited: Supreme Court Act 1970 (NSW), s 46A Uniform Civil Procedural Rules 2005 (NSW), rr 20.26, 23.4 Cases Cited: Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Rowlands v State of New South Wales [2009] NSWCA 136; 74 NSWLR 715 Watts v Rake [1960] HCA 58; 108 CLR 158 Category: Principal judgment Parties: Boral Transport Pty Ltd (Applicant) Marinko Gulic (Respondent) Representation: Counsel: