Jeleskovic v Wagner [2020] NSWDC 116

District Court New South Wales

Medium Neutral Citation: Jeleskovic v Wagner [2020] NSWDC 116 Hearing dates: 8-9 April 2020 Date of orders: 09 April 2020 Decision date: 09 April 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 29 Catchwords: PRACTICE AND PROCEDURE – plaintiff's application to tender a medical report – report not served on the defendant in accordance with Court rules – whether 'exceptional circumstances' arise to justify admission of report – whether the admission of the report would be prejudicial to the defendant Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60 Uniform Civil Procedure Rules 2005 (NSW), r 31.28(4) Cases Cited: Yacoub v Pilkington [2007] NSWCA 290 Category: Procedural and other rulings Parties: Mr M Jeleskovic (Plaintiff) Ms N Wagner (Defendant) Representation: Counsel: Mr M Donovan for the Plaintiff Mr W Tuckey for the Defendant

Solicitors: Northern Coast Solicitors for the Plaintiff Beston Macken McManis Lawyers for the Defendant File Number(s): 2019/170835 Publication restriction: Nil

Judgment 1. The plaintiff brings an application under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) that a medico-legal report of Dr Bentivoglio dated 2 May 2018 be admitted notwithstanding that it was not served in compliance with the rules. 2. The application is brought against the background that day 2 has almost been completed of a trial that had been given a two day estimate. The trial commenced on 8 April 2020 after an unsuccessful application to vacate the hearing. The trial has been conducted in the Virtual Courtroom setting resultant from the Covid-19 pandemic; with all witnesses giving their evidence (and Counsel participating) by audio-visual link. 3. The nature of the proceeding is, simply speaking, that the plaintiff brings a claim against the defendant, his former wife or partner, for damages for personal injury occasioned by his falling down stairs which he says was caused by a push from the defendant whilst they were upstairs at the defendant's home.