Smith v Ulan Coal Mines Limited [2019] NSWSC 1263

Supreme Court New South Wales

Medium Neutral Citation: Smith v Ulan Coal Mines Limited [2019] NSWSC 1263 Hearing dates: 20 September 2019 Date of orders: 23 September 2019 Decision date: 23 September 2019 Jurisdiction: Common Law Before: Campbell J Decision: See paragraph [37] Catchwords: CIVIL PROCEDURE – Trial issues – grant of leave – issue of primary fact as to circumstances – non-compliance with UCPR 31.23 – export report fails to acknowledge rules of UCPR – whether report should be excluded – Court retains discretion to exclude report – substantial compliance with the Code; impartiality, independence, assistance to Court.

CIVIL PROCEDURE – Non-compliance UCPR 31.28 – serving report in accordance with code, practice note or law – no later than 28 days before date of hearing – three expert reports – held take evidence of the liability experts individually

CIVIL PROCEDURE – Grant of leave – whether plaintiff should be granted leave to rely upon amended statement – whether exceptional circumstances have been made out – primary records available to both parties since 2016 – consideration of "fairness" – allow amended statement but refuse leave to run case based upon expert's opinion and usage of "interference" Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 31.23, (3), r 31.28, (4) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Hannaford v Commonwealth of Australia [2014] NSWCA 297 TNT Pty Ltd v Christie (2001) 65 NSWLR 1; NSWCA 47 Category: Procedural and other rulings Parties: S. Smith (Plaintiff) Ulan Coal Mines Ltd (Defendant) Representation: Counsel: P. Webb QC (Plaintiff) A. Cameron (Defendant)