Gulab Khan v Matthew Rathjen (No. 2) [2016] NSWDC 140

District Court New South Wales

Medium Neutral Citation: Gulab Khan v Matthew Rathjen (No. 2) [2016] NSWDC 140 Hearing dates: 3 February 2016 Date of orders: 03 February 2016 Decision date: 05 February 2016 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Leave granted to plaintiff to adduce medical report. Catchwords: "Exceptional circumstances" Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Health Insurance Act 1973 (Cth) Motor Accidents Compensation Act 1999 Cases Cited: Australian Securities & Investments Commission v Rich [2005] NSWSC 706 Ho v Professional Services Review Committee No. 295 (2007) FCA 388 R v Kelly (Edward) [2000] 1QB 198 San v Rumble (No. 2) [2007] NSWCA 259 Texts Cited: Uniform Civil Procedure Rules New South Wales Category: Procedural and other rulings Parties: Gulab Khan (Plaintiff) Matthew Rathjen (Defendant) Representation: Counsel: R O'Keefe (Plaintiff) N E Chen (Defendant)

Solicitors: Turner Freeman HWL Ebsworth Lawyers File Number(s): 14/157331 Publication restriction: Nil

Judgment ON APPLICATION by plaintiff for leave to rely on report of dr peter hay dated 9 march 2015

Introduction 1. The plaintiff sought leave to adduce into evidence the report of Dr Hay dated 9 March 2015. Leave was required as the report had been served late, in breach of a consent order made on 29 July 2014 by the Registrar of the Court, requiring the plaintiff to serve his expert evidence on quantum and liability by 23 September 2014. 2. The application was opposed by the defendant on the basis that the plaintiff had not demonstrated "exceptional circumstances", which were required so as to warrant the grant of leave, and further, that the report constituted a second substantive report by an expert on liability, as, at the time of service, the plaintiff had previously served a report of Dr James Jeong with his Statement of Claim. The defendant relied on an affidavit sworn by Neroli Jane Martin, solicitor, on 1 February 2016, which set out the history of the matter. 3. On 2 February I granted the leave sought, and, with the consent of the parties, deferred delivering my reasons so that evidence in the trial could proceed. These are my reasons.