Ralston and Collins v Chaffey [2018] NSWSC 1994

Supreme Court New South Wales

Medium Neutral Citation: Ralston and Collins v Chaffey [2018] NSWSC 1994 Hearing dates: 6 & 12 December 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Jurisdiction: Common Law Before: Davies J Decision: 1. Grant leave to the plaintiff to rely on the answer to question 1 in the report of Professor Kevin Spencer dated 1 September 2018.

2. Otherwise, I dismiss the plaintiff's amended notice of motion filed 26 September 2018.

3. The plaintiff is to pay the second defendant's costs of the motion.

4. The proceedings are stood over before Harrison J on 1 February 2019. Catchwords: EVIDENCE – discretions – exclusion of evidence – civil proceedings – action for wrongful birth and nervous shock resulting from alleged negligence in screening for Down Syndrome – UCPR r 31.28 – whether there were exceptional circumstances that warrant the grant of leave to rely on expert opinion as new evidence in chief – prior guillotine order for service of expert evidence in chief – order permitting evidence in reply – time limit for reply evidence not complied with - discretionary considerations – where plaintiff repeatedly failed to comply with directions – where proceedings commenced five years ago – where second defendant prejudiced by death of alleged tortfeasor whose conduct was impugned by expert opinion on which plaintiff sought to rely Legislation Cited: Civil Liability Act 2002 (NSW) s 5O Civil Procedure Act 2005 (NSW) ss 56-59 Uniform Civil Procedure Rules 2005 (NSW) rr 31.18 (repealed), 31.28, 31.36 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Texts Cited: Nil Category: Procedural and other rulings Parties: Malcolm Collins (Plaintiff) Jane Ralston (Plaintiff) Dr Heather Chaffey (First Defendant) Jillian Gai Walsh as Executor of the estate of the late Dr Deborah Wass (Second Defendant) Dr Jenny Gidden (Fourth Defendant) Dr Alison Green (Fifth Defendant) Victorian Clinical Genetics Services (Sixth Defendant) Representation: Counsel: A J Bartley SC & J Ronald (Plaintiffs) S King (First Defendant) J Sandford (Second Defendant) S Dow (Fourth, Fifth & Sixth Defendants)