Menz v Wagga Wagga Show Society Inc (No 2) [2018] NSWSC 1447

Supreme Court New South Wales

Medium Neutral Citation: Menz v Wagga Wagga Show Society Inc (No 2) [2018] NSWSC 1447 Hearing dates: 25 September 2018 Date of orders: 25 September 2018 Decision date: 25 September 2018 Jurisdiction: Common Law Before: Bellew J Decision: See [4] Catchwords: PRACTICE AND PROCEDURE – Service of medical report outside of timetable – Whether exceptional circumstances established justifying grant of leave to rely on report – Exceptional circumstances not established – Report excluded – No point of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Kerrie Anne Menz – Plaintiff Wagga Wagga Show Society Inc – Defendant Representation: Counsel: M Cranitch SC, M Inglis & R Wathukarage – Plaintiff J Sexton SC & D Kelly – Defendant

Solicitors: Commins Hendriks Solicitors – Plaintiff Mason Black Lawyers – Defendant File Number(s): 2015/285709 Publication restriction: Nil

Judgment – EX TEMPORE (REVISED) 1. Objection has been taken by senior counsel for the plaintiff to a report of Associate Professor Rosenfeld which is sought to be relied upon by the defendant. The report is dated 28 November 2017 and goes to the issue of the plaintiff's life expectancy. It is common ground that the report was not served until 11 December 2017 which was outside the timetable set by the Court. 2. Leave has been sought by the defendant to rely on the report pursuant to r 31.28(3) of the Uniform Civil Procedure Rules 2005 (NSW). The effect of r 31.28(3)(a) is that an expert report will not, except by leave, be admissible unless it has been served in accordance with the rule. Pursuant to r 31.28(4), leave is not to be granted unless the Court is satisfied that there are exceptional circumstances that warrant it, or unless the report merely updates earlier version of report served in accordance with the rules. As no earlier report of Professor Rosenfeld was served, the defendant must establish exceptional circumstances in order to obtain leave. 3. As I have noted, the report was served some time ago. However, the plaintiff's solicitors made it clear at that time that they proposed to object to its tender because it had been served out of time. That obviously necessitated the defendant making an application, either for a variation of the orders which had been made in relation to service of expert evidence, or for leave. No application for a variation was ever made. The application for leave has only been made today which is the second day of the hearing. Nothing which has been put on behalf of the defendant satisfies me that there is anything exceptional about the circumstances surrounding the late service of the report. In particular, no explanation has been advanced to explain why the defendant did not comply with the orders which were made for the service of expert evidence. 4. Accordingly, leave to rely on the report will be refused.