Supreme Court New South Wales Medium Neutral Citation: Donald v Rail Corporation of New South Wales (No 8) [2015] NSWSC 1935 Hearing dates: 20 – 23; June 2015; 2 – 5; 9 – 10 November 2015 Date of orders: 10 November 2015 Decision date: 10 November 2015 Jurisdiction: Common Law Before: Campbell J Decision: I admit the report of Dr Mitchell and Ms Dillen of 2 May 2014 as Exhibit 1D27 Catchwords: EVIDENCE – admissibility of expert report – application of r 31.28 Uniform Civil Procedure Rules 2005 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Alan Donald (Plaintiff) Rail Corporation of New South Wales (First Defendant) Workers Compensation Nominal Insurer (Second Defendant) Representation: Counsel: DR Campbell SC with S Longhurst (Plaintiff) RJ Burbidge QC with A Casselden (First Defendant) M Windsor SC with R Perla (Second Defendant) Solicitors: Acorn Lawyers (Plaintiff) Hicksons Lawyers (First Defendant) Moray & Agnew Lawyers (Second Defendant) File Number(s): 2010/349997 ex tempore judgment (revised) 1. Mr Burbidge QC has tendered a report of 2 May 2014 prepared jointly by Dr Robyn Mitchell, a specialist in occupational medicine and Ms Jelena Dillen, a person with qualifications as a psychologist, but working in the vocational area rather than the therapeutic area. 2. The report was served, I am informed, a few days before the commencement of the trial before me on 20 July 2015. That is to say, less than 28 days before the commencement of the trial. Mr Campbell SC objects to the tender of the report on a number of bases. First, he says that the report was served outside the time fixed by r 31.28 Uniform Civil Procedure Rules 2005 (NSW). Secondly, it was served late in the sense that the defendant had the report available to it since May 2014, but chose not to serve it previously and that the circumstances of service of the report are unfair in as much as, if, contrary to his submission, I hold it is within time, it was served in circumstances where compliance with the rule would accrue only after the plaintiff had given evidence and been fully cross‑examined such that it would be unfair to require the plaintiff to deal with the report now. 3. Rule 31.28, so far as material is in the following terms: Disclosure of experts' reports and hospital records (1) Each party must serve experts' reports and hospital reports on each other active party … (c) … not later than 28 days before the date of the hearing at which the report is to be used. 1. Mr Campbell submits that that phrase "before the date of the hearing at which the report is to be used" means the commencement of the trial, regardless of the course the trial follows after its commencement. Mr Burbidge submits that the rule should be understood as requiring service 28 days before the date on which the report is tendered and that the hearing is continuous and the "use" referred to in the rule is its admission as evidence, and accordingly, in the circumstances the service of the report is well within time. 2. It seems to me, that the interpretation that Mr Burbidge contends for it is to be preferred. Generally speaking, in the Supreme Court, at any rate, cases commenced continue until they are concluded, however, it is not unusual that a case will follow the course this case has followed, that after the time originally fixed for hearing has been exhausted, the matter will be stood over for some months before further dates fixed for the resumed hearing. 3. A certain degree of flexibility is to be adopted in the interpretation of the rule. The requirement of service in advance of a hearing is essentially one of fairness so that the opposing parties will know the nature of the expert evidence that a party intends to lead. If a report is served to which the party objects, prior notice enables the party to raise the objection and also to require the author of the report to attend for cross‑examination in accordance with the requirements of r 31.29. 4. Unfortunately, in this case, Mr Campbell is unable to point to any notice given in accordance with r 31.29(3) or otherwise for the attendance of these experts to give evidence for cross‑examination. It seems to me that always accepting that the Court has ample power to control its own procedure and to take steps, even outside the express provisions of the rules to ensure fairness between the parties, the overriding purpose is better serviced by adopting the interpretation of r 31.28, which is flexible, and provides sufficient time for the parties served to respond, rather than to adopt an interpretation which is fixed in time and may lead to procedural inconvenience, notwithstanding the power of the Court to extend time (bearing in mind that time may only be extended if the Court is satisfied that exceptional circumstances warrant that order). Normally the interest of the receiving party can be looked after by giving notice for the attendance for cross‑examination. 5. The evidence is potentially cogent. I do not accept that the evidence establishes that the first defendant deliberately withheld the report for the purpose of surprising the plaintiff, and although the circumstances of service may mean, as Mr Campbell submits, that the plaintiff may lose a tactical advantage if he needs to elect to give evidence in reply to meet the contents of the report, I am not of the view that that consideration is one which, in this case, should deprive the first defendant on the benefit of the report. 6. I accept the force of the submission that given Mr Donald's change of circumstances since the report was prepared, including the very relevant consideration that he has moved from the Wollongong area to north‑western New South Wales, some of the assessments made by the experts, if I accept them, may be undermined. However, that is a common enough consideration in the case of any expert's report and, as I have remarked in other decisions in disputes about expert evidence, the validity of opinions tends to depend upon the consideration that the facts assumed are sufficiently like the facts found to render the opinion persuasive. 7. In my judgment, the report is admissible. I admit the report of Dr Mitchell and Ms Dillen of 2 May 2014 as Exhibit 1D27. ********** 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: 16 December 2015