Chaina v Presbyterian Church (NSW) Property Trust (No. 20)

[2013] NSWSC 1629

Supreme Court

New South Wales

Medium Neutral Citation:	Chaina v Presbyterian Church (NSW) Property Trust (No. 20) [2013] NSWSC 1629
Hearing dates:	6 November 2013
Decision date:	06 November 2013
Jurisdiction:	Common Law
Before:	Davies J
Decision:	The Plaintiffs are not permitted to serve or rely on the further report of Dr Richardt of November 2013
Catchwords:	EVIDENCE - expert evidence - evidence in reply - late service of report by Plaintiffs - no explanation for late request to expert - where Plaintiff have other reports in reply to the same evidence
Cases Cited:	Chaina v The Presbyterian Church (NSW) Property Trust (No 16) [2013] NSWSC 1494
Category:	Interlocutory applications
Parties:	Mathew Chaina (First Plaintiff) and ors Presbyterian Church (NSW) Property Trust (First Defendant) and ors
Representation:	Counsel: In person (Plaintiffs) R Stitt QC, G L Turner & H Stitt (Defendants) Solicitors: In person (Plaintiffs) Curwoods Lawyers (Defendants)
File Number(s):	2002/69354

Judgment

1. The Plaintiffs make an application to serve and put into evidence a further report of Dr Richardt which has only just become available today concerning the material that is in Dr McDonald's 2013 reports. The report from Dr Richardt is said to deal with reverse engineering and product formulation. It is in that sense a report in reply to the Defendant's reports of 2013. The application is made at a very late stage of the proceedings. Dr Mc Donald is due to give evidence on 12 November.

1. In response to a question of mine I was informed that Dr Richardt was only asked to provide this report after I delivered my judgment in Chaina v The Presbyterian Church (NSW) Property Trust (No 16) [2013] NSWSC 1494 on 25 October 2013. No explanation as to why it was not sought at an earlier time has been provided.

1. In my judgment in Chaina (No 16) I set out at [214] and [215] passages of the transcript of exchanges between the Plaintiffs and the Court on 16 July and 23 July respectively about the Plaintiffs' ability to serve expert reports in reply to those of Dr McDonald and Dr Wynn-Hatton of 2013. The Plaintiffs thereafter obtained three other reports that is Mr Redfern, Mr Daniel and DAFTA, which are said to be in response to those reports.

1. In my judgment in Chaina (No 16) I allowed the report of Mr Redfern and said that I would give further consideration to those of Mr Daniel and DAFTA. That now has been done and I have admitted Mr Daniel's and DAFTA's reports, with certain exclusions of part of them that I have held did not relate to the Defendant's 2013 reports.

1. In the absence of any explanation for not having obtained the latest report from Dr Richardt at an earlier time and in the light of the fact that the Plaintiffs, in any event, have three other reports in reply I do not consider it appropriate to permit the service and reliance on the last report of Dr Richardt at such a late stage of the proceedings.

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Decision last updated: 08 November 2013