Morgan v Norton [2018] NSWSC 434

Supreme Court New South Wales

Medium Neutral Citation: Morgan v Norton [2018] NSWSC 434 Hearing dates: 9 April 2018 Date of orders: 10 April 2018 Decision date: 10 April 2018 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The Defendant's notice of motion is dismissed.

(2) The Defendant is to pay the Plaintiff's costs of the notice of motion. Catchwords: EVIDENCE – expert evidence – expertise – whether author of report holds expertise – expert witness conclaves – whether author of report should participate in expert conclave Legislation Cited: Civil Liability Act 2001 (NSW) ss 5K, 5L, 5M Civil Procedure Act 2005 (NSW) ss 56, 59 Evidence Act 1995 (NSW) ss 76, 79, 192, 192A Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Category: Procedural and other rulings Parties: Nina Morgan (Plaintiff/Respondent) Sharon Norton (Defendant/Applicant) Representation: Counsel: L King SC; R Regattieri (Plaintiff/Respondent) M McCulloch SC; S J Maybury (Defendant/Applicant)

Solicitors: Shanahan Tudhope Lawyers (Plaintiff/Respondent) William Roberts Lawyers (Defendant/Applicant) File Number(s): 2015/81669

Judgment 1. The Defendant seeks a preliminary ruling pursuant to s 192A of the Evidence Act 1995 (NSW) that the report of an expert witness, Mrs Smyth, of 8 June 2016 is inadmissible in whole or in part, and in the alternative, an order that no conclave between liability witnesses is required. 2. The proceedings involve a transaction regarding a horse sold by the Defendant to the Plaintiff on or around 24 March 2012. The Plaintiff alleges that she was induced to buy the horse by various misrepresentations made by the Defendant regarding the horse's background, training and qualities. Other grounds include breach of warranty and breach of contract. The Defendant denies, in effect, most if not all the representations that form the basis of the Plaintiff's cause of action, asserts that the Plaintiff was given an opportunity to inspect the horse and was an experienced rider and pleads caveat emptor and various defences under the Civil Liability Act 2001 (NSW). 3. The Plaintiff's case is that the day after purchase, whilst appropriately preparing the horse to be ridden, it bucked and ran, throwing her from the horse and causing her a very serious spinal injury. 4. The matter is listed for hearing for two weeks starting on 18 June 2018. The application came before me yesterday as duty judge and needs urgent consideration given the pressing hearing date, the nature of the orders sought and their potential effect on the current timetabling for expert witness conclave and the ongoing conduct and preparation of the proceedings.