Supreme Court New South Wales Medium Neutral Citation: Chaina v Presbyterian Church (NSW) Property Trust (No. 20) [2013] NSWSC 1629 Hearing dates: 6 November 2013 Decision date: 06 November 2013 Jurisdiction: Common Law Before: Davies J Decision: The Plaintiffs are not permitted to serve or rely on the further report of Dr Richardt of November 2013 Catchwords: EVIDENCE - expert evidence - evidence in reply - late service of report by Plaintiffs - no explanation for late request to expert - where Plaintiff have other reports in reply to the same evidence Cases Cited: Chaina v The Presbyterian Church (NSW) Property Trust (No 16) [2013] NSWSC 1494 Category: Interlocutory applications Parties: Mathew Chaina (First Plaintiff) and ors Presbyterian Church (NSW) Property Trust (First Defendant) and ors Representation: Counsel: In person (Plaintiffs) R Stitt QC, G L Turner & H Stitt (Defendants) Solicitors: In person (Plaintiffs) Curwoods Lawyers (Defendants) File Number(s): 2002/69354 Judgment 1The Plaintiffs make an application to serve and put into evidence a further report of Dr Richardt which has only just become available today concerning the material that is in Dr McDonald's 2013 reports. The report from Dr Richardt is said to deal with reverse engineering and product formulation. It is in that sense a report in reply to the Defendant's reports of 2013. The application is made at a very late stage of the proceedings. Dr Mc Donald is due to give evidence on 12 November. 2In response to a question of mine I was informed that Dr Richardt was only asked to provide this report after I delivered my judgment in Chaina v The Presbyterian Church (NSW) Property Trust (No 16) [2013] NSWSC 1494 on 25 October 2013. No explanation as to why it was not sought at an earlier time has been provided. 3In my judgment in Chaina (No 16) I set out at [214] and [215] passages of the transcript of exchanges between the Plaintiffs and the Court on 16 July and 23 July respectively about the Plaintiffs' ability to serve expert reports in reply to those of Dr McDonald and Dr Wynn-Hatton of 2013. The Plaintiffs thereafter obtained three other reports that is Mr Redfern, Mr Daniel and DAFTA, which are said to be in response to those reports. 4In my judgment in Chaina (No 16) I allowed the report of Mr Redfern and said that I would give further consideration to those of Mr Daniel and DAFTA. That now has been done and I have admitted Mr Daniel's and DAFTA's reports, with certain exclusions of part of them that I have held did not relate to the Defendant's 2013 reports. 5In the absence of any explanation for not having obtained the latest report from Dr Richardt at an earlier time and in the light of the fact that the Plaintiffs, in any event, have three other reports in reply I do not consider it appropriate to permit the service and reliance on the last report of Dr Richardt at such a late stage of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2013