McNamara v Nagel [2016] NSWSC 529

Supreme Court New South Wales

Medium Neutral Citation: McNamara v Nagel [2016] NSWSC 529 Hearing dates: 15 – 18 February 2016 Date of orders: 29 April 2016 Decision date: 29 April 2016 Jurisdiction: Equity Before: Robb J Decision: 1. Defendants' application for an adjournment of the hearing rejected. Catchwords: PRACTICE AND PROCEDURE – defendants' application for adjournment on the last day of hearing – purpose to call evidence from treating geriatrician – doctor's statement served on second last day of hearing – plaintiff's case closed – cross-examination of medico-legal experts completed – doctor had been given copies of medico legal reports before statement prepared – whether the doctor should be qualified as an expert witness – discretionary power of the court – case management principles considered – court considered factors including unfairness to the plaintiff due to the need for a new hearing and for experts to be re-qualified to deal with a fundamental change in the defendants' evidentiary case – consideration of substantial cost and delay – consideration that the doctor's evidence will not be conclusive to the determination of the deceased's testamentary capacity in any event – HELD on balance, prejudicial effect outweighs probative value of allowing the doctor's evidence – HELD defendants' application for an adjournment rejected Cases Cited: Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Samsung Electronics Co Ltd v Apple Inc [2013] FCA 1142 Category: Procedural and other rulings Parties: Kylie Ann McNamara (plaintiff) Alan Robert Nagel (first defendant) Gai Lorraine Costa (second defendant) Representation: Counsel: C Wilson (plaintiff) A Hill (defendants)