Chaina v Presbyterian Church (NSW) Property Trust (No. 16) [2013] NSWSC 1494

Supreme Court New South Wales

Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 16) [2013] NSWSC 1494 Hearing dates: 8, 9, 14, 15 and 16 October 2013 Decision date: 25 October 2013 Jurisdiction: Common Law Before: Davies J Decision: On the Plaintiffs' Notice of Motion filed 8 October 2013 I make these orders: 1. The report of Professor Graham Dowling dated 4 August 2006 be admitted as evidence in the proceedings; (2) The Plaintiffs are permitted to serve and rely upon the following reports in reply: (a) Report of Dr Van Dyke 8 October 2013; (b) Report of David Redfern of 26 September 2013; (3) The Plaintiffs are not permitted to serve or rely upon the following reports in reply: (c) Professor Roger Layton; (d) Professor Graeme Dowling 12 August 2013; (4) In relation to the following reports in reply the Plaintiffs are only permitted to rely on those parts of the reports which respond to the Defendant's 2013 reports from Dr McDonald and Dr Wynn-Hatton: (e) Sam Daniel dated 7 October 2013; (f) Dafta Pty Ltd dated October 2013; (g) Dr Peter Richardt dated 27 September 2013 (5) Reserve consideration of prayer 4; (6) Otherwise dismiss the Plaintiffs' Notice of Motion. On the Defendant's Notice of Motion filed 3 September 2013 I make this order: The following reports not be admitted into evidence: (a) Dr Fong report dated 2 May 2012; (b) Dr Eduard Smulders reports dated 24 February 2010 and January 2012; (c) Kuo-Rann Lai report dated 2 March 2010; (d) Dr Lothar Motitschke report dated 18 March 2010; (e) Dr Peter Richardt report dated 19 December 2011; (f) The balance of the report of John Matheson dated 7 October 2005; (g) Ralph Moyle report dated 25 July 2012; (h) Dafta Pty Limited undated report. (i) Section 5.0 paragraphs 175 to 235 of the report of Pitcher Partners dated 31 August 2012 Catchwords: EVIDENCE - expert evidence - early determination - application to reinstate rejected evidence - need to reconsider earlier judgment - power to re-open and re-hear - whether misapprehension of fact or law PROCEDURE - application to serve further expert reports after trial well advanced - whether a re-casting of the case - case management principles - no explanation for delay in serving reports DAMAGES - loss of chance - absence of evidence of value of chance - whether court must do its best to assess damages Legislation Cited: Civil Procedure Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules Cases Cited: Aon Risk Services Aust Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 BestCare Foods Ltd v Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) [2013] NSWSC 1287 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Browne v Dunn (1893) 6 R 67 (HL) Chaina & Ors v The Presbyterian Church (NSW) Property Trust & Ors (No 3) [2009] NSWSC 1243 Chaina v Presbyterian Church (NSW) Property Trust (No. 6) [2012] NSWSC 1476 Chaina v Presbyterian Church (NSW) Property Trust (No. 7) [2013] NSWSC 139 Chaina v Presbyterian Church (NSW) Property Trust (No. 13) [2013] NSWSC 1057 Chen v Karandonis [2002] NSWCA 412 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 General Steel Industries Inc v Commissioner for Railways (NSW) (1965) 112 CLR 125 Gould v Vaggelas (1985) 157 CLR 215 Hillston v Bar-Mordecai [2002] NSWSC 477 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] 1 Ch 204 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Sydney Attractions Group Pty Ltd v Fredrick Schulman (No 2) 2013 NSWSC 1153 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Category: Interlocutory applications Parties: Mathew Chaina (First Plaintiff) and ors Presbyterian Church (NSW) Property Trust (First Defendant) and ors Representation: Counsel: Mr A Dawson (Plaintiffs) R Stitt QC, G L Turner & H Stitt (Defendants) Solicitors: In person (Plaintiffs) Curwoods Lawyers (Defendants) File Number(s): 2002/69354