Alsuleiman by her tutor Haimour v George (No 2)

[2017] NSWDC 446

District Court

New South Wales

Medium Neutral Citation:	Alsuleiman by her tutor Haimour v George (No 2) [2017] NSWDC 446
Hearing dates:	9 November 2017
Date of orders:	09 November 2017
Decision date:	09 November 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	Dr Apler’s report admitted into evidence.
Catchwords:	EVIDENCE – expert – expert’s report – service of report - 28 days before the date of the hearing – “date of the hearing” - exceptional circumstances
Legislation Cited:	Civil Procedure Act 2005, s 56 Motor Accidents Compensation Act 1999, 59A Uniform Civil Procedure Rules 2005, r 31.18, 31.28
Cases Cited:	El-Mohamad v Celenk [2017] NSWCA 242
Category:	Procedural and other rulings
Parties:	Aisha Alsuleiman by her tutor Yasmin Haimour (plaintiff) Brett George (defendant)
Representation:	Counsel: Mr N Ghabar (plaintiff) Mr J Turnbull SC (defendant)   Solicitors: NSW Compensation Lawyers (plaintiff) Carroll & O’Dea (defendant)
File Number(s):	2017/101595
Publication restriction:	None

Judgment

1. Aisha Alsuleiman, a four-year-old girl, by her mother as tutor seeks damages for a psychiatric disorder arising from a car accident when she was a little over one year old.  She relies upon a psychiatrist report from Dr Leonard Lee, who diagnosed separation anxiety disorder. 

2. The defendant seeks to tender a MAS report by Dr Alex Apler.  The report was served on 11 October 2017, the first day of the hearing, and an argument about admissibility then commenced.  The proceedings were adjourned until today.  No issue is taken about the admissibility of MAS reports generally. [1]

   1. El-Mohamad v Celenk [2017] NSWCA 242.

3. The defendant concedes that the MAS report is an expert’s report as defined in r 31.18 of the Uniform Civil Procedure Rules 2005 and is within the terms of r 31.28. Accordingly, if the report is not served by not later than 28 days before the date of the hearing at which the report is to be used, [2] it is only admissible by leave since consent is not given. [3] And leave is not to be given unless, relevantly, the Court is satisfied of exceptional circumstances. [4]

   2. Rule 31.28(1)(c).

   3. See r 31.28(3)(a).

   4. Rule 31.28(4)(a).

The hearing date

4. The defendant submitted that r 31.28(1)(c) is satisfied because the report was served not later than, in fact exactly, 28 days before today, and today is when the report is to be used. But r 31.28(1)(c) defines the date to be "of the hearing" at which the report is to be used, not the date on which the report is used. The circumstance of service 28 days before tender may be a relevant circumstance for the purposes of subr (4), but it does not prove compliance with r 31.28(1)(c). In my view, "the date of the hearing" in this case means 11 October 2017, the date the matter was listed for hearing and when the hearing commenced. Accordingly, r 31.28(1) is not satisfied.

Exceptional circumstances

5. The report of Dr Apler is a MAS report prepared as a result of an application by Ms Alsuleiman for a MAS assessment, and was received by her many months ago. It was provided to Dr Leonard Lee to prepare a psychiatric report. Dr Lee commented on the report of Dr Apler giving reasons why he disagreed with Dr Apler's conclusions. Dr Apler is, under s 59A(2) of the Motor Accidents Compensation Act 1999, a competent but not a compellable witness.  Ms Alsuleiman took steps to procure the attendance of Dr Apler for cross‑examination, including by serving a subpoena. Dr Apler has not attended.

6. The defendant relies upon the circumstances of:

1. service 28 days before today;

2. Ms Alsuleiman having had access to Dr Apler's report, providing it to Dr Lee, and obtaining a report on it.  The defendant says that provision of the report to Dr Lee shows that Ms Alsuleiman had anticipated the defendant's reliance and ensured that no prejudice had occurred;

3. Ms Alsuleiman has had an opportunity to attempt to procure Dr Apler's attendance, which is said to be all that she could have done had she been served with the report earlier, so again there was no prejudice; and

4. Dr Apler's report is, in very brief terms, summarised by Dr Lee.

7. As to these matters, Ms Alsuleiman submits that service 28 days before today is not exceptional because not rarely do matters get stood over part heard, even if the Court's usual practice is to hear a matter on consecutive days to its conclusion.

8. In my view, because matters are generally heard until their conclusion, it is rare that service of a report will be well short of 28 days before the hearing date and yet more than 28 days before the proposed tender.

9. Ms Alsuleiman says that the service of Dr Apler’s report on Dr Lee did not necessarily reflect an expectation that the defendant would rely upon the report at the hearing, but could be for the purpose of a report about a further MAS assessment. That may be so, although Ms Alsuleiman did not call her solicitors to prove the purpose of the provision of the report to Dr Lee. As her solicitor is the only person who can clarify this uncertainty, I am disinclined to draw inferences in Ms Alsuleiman’s favour in the absence of evidence.

10. Ms Alsuleiman submits that there is nothing unusual about Dr Lee commenting on Dr Apler's report. I accept this submission. The exceptional nature of this circumstance, if it exists at all, comes from the circumstance that Dr Apler's report was commented on, but Dr Apler's report was not served. Non‑service alone cannot be a relevant circumstance for discretion in r 31.28(4).

11. Ms Alsuleiman submitted that the only unusual feature of this case was that the defendant sought to run a case contrary to Dr Lee's opinion without qualifying an expert and serving a report. I do not think that is an exceptional circumstance to satisfy r 31.28. That a qualified expert has not been retained and qualified, and has not reported for the defendant might be unusual, and it might indicate an omission of evidence in the defendant's case. It does not seem to be a proper factor in exercising a discretion in favour of the defendant.

12. Notwithstanding Ms Alsuleiman’s arguments, in my view, the circumstances that Dr Apler's report resulted from Ms Alsuleiman’s application, that Ms Alsuleiman has had an expert psychiatrist in Dr Lee refer to, summarise and comment on Dr Apler's report, that Ms Alsuleiman has had a copy of Dr Apler’s report for many months, that she has had an opportunity to attempt to procure Dr Apler's attendance at court, that the report was formally served 28 days ago, and that there is no possible prejudice for the late service, all taken together constitute exceptional circumstances allowing me to grant leave for the defendant to rely upon the report.

13. Given the obligation of the Court to construe and apply r 31.28 in accordance with the overriding purpose of s 56 in the Civil Procedure Act 2005 in determining the real issues quickly, cheaply and justly, granting leave to the defendant to rely on the report of Dr Apler enables the Court to see precisely what Dr Apler says rather than merely the conclusion expressed by Dr Lee about the report. This matter, together with the circumstances listed in the previous paragraph persuade me that on this occasion the discretion should be exercised in the defendant’s favour, leave should be given and the report should be admitted.

14. I therefore allow the report to be admitted as Exhibit 1 over objection.  What weight should be given to the report is a matter for final submissions.

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Endnotes

Decision last updated: 16 November 2018