Miski v Penrith Whitewater Stadium Ltd [2017] NSWDC 110

District Court New South Wales

Medium Neutral Citation: Miski v Penrith Whitewater Stadium Ltd [2017] NSWDC 110 Hearing dates: 22 May 2017 Date of orders: 23 May 2017 Decision date: 23 May 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff's notice of motion filed on 22 May 2017 granted, subject to the orders set out below. (2) The plaintiff has leave to rely upon the report of Associate Professor Eager dated 9 April 2017. (3) The Court notes that the plaintiff does not seek leave to amend the pleadings or to serve any further expert or medical evidence. (4) The defendant to serve any expert evidence in reply by 21 July 2017. (5) The trial date of 5 June 2017 is vacated and the proceedings listed for directions before the List Judge on Friday 26 May 2017, with liberty to apply to Gibson DCJ in chambers to change this date if not appropriate. (6) The plaintiff to pay the defendant's costs of and associated with: (a) The relisting of the proceedings; (b) The plaintiff's notice of motion filed in Court today; and (c) Thrown away by the vacation of the trial date, on an indemnity basis; and those costs are all payable forthwith, and to be assessed forthwith if not otherwise agreed to. (7) Liberty to apply on 3 days' notice. (8) The Court reserves for consideration at the conclusion of the proceedings the question of whether the plaintiff's solicitor should indemnify the plaintiff in respect of the costs order in order (6) above. Catchwords: PRACTICE AND PROCEDURE – claim for damages for white water rafting injury – circumstances of plaintiff's injury factually complex – plaintiff's expert liability report served less than 28 days prior to hearing and without leave – defendant unable to meet expert report in time – proceedings relisted by defendant for orders in relation to admissibility of the expert report prior to trial – plaintiff alternatively seeks adjournment of the hearing date – prior history of delay including prior adjourned trial date – balancing the justice of the case with the unfairness to the opponent – court resources issues – desirability of expert report for trial judge – adjournment of hearing date granted on terms, including payment of costs on an indemnity basis to be paid forthwith Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 and 99 Competition and Consumer Act 2010 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 31.28 Cases Cited: Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309 Lee v Keddie [2011] NSWCA 2 Motorcycling Events Group Australia Pty Ltd v Kelly (2012) 303 ALR 583 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Rodi v Gelonesi [2016] NSWCA 348 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Tong Hi To v Revro Pty Ltd; Tong Hi To v Gerard Lighting Pty Ltd [2016] NSWSC 467 Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 Category: Procedural and other rulings Parties: Plaintiff: Samahar Miski Defendant: Penrith Whitewater Stadium Ltd Representation: Counsel: Plaintiff: Mr L Robison Defendant: Mr D Lloyd