Chambeyron v Dr Redgment

[2021] NSWDC 795

District Court

New South Wales

Medium Neutral Citation:

Chambeyron v Dr Redgment [2021] NSWDC 795

Hearing dates:

26 August 2021

Date of orders:

26 August 2021

Decision date:

26 August 2021

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1)    Notice of Motion filed 18 August 2021 dismissed.

(2)   The defendant is to pay the plaintiff’s costs of the application and argument.

Catchwords:

PRACTICE AND PROCEDURE – leave sought to reply upon three late-served reports – whether to engage UCPR 1.12 or 31.28 – hearing of proceedings imminent – application refused

Legislation Cited:

UCPR rr 1.12 and 31.28

Cases Cited:

Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433

ASIC v Rich (2005) 218 ALR 764; [2005] NSWCA 152

Dickson v State of NSW [2021] NSWSC 234

Gershowitz v Kaye [2021] NSWDC 128

Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265

Category:

Procedural rulings

Parties:

Plaintiff/ Respondent to the NOM:
Geoffrey James Chambeyron

Defendant/ Applicant to the NOM:
Dr Andrew Redgment

Representation:

Counsel:
Plaintiff/ Respondent to the NOM: Ms J Hillier
Defendant/ Applicant to the NOM: Ms G Babe

Solicitors:
Plaintiff/ Respondent to the NOM:
Commins Hendriks Pty Ltd
Defendant/ Applicant to the NOM:
Moray & Agnew

File Number(s):

2019/00300134

Judgment

1. The defendant by notice of motion filed on 18 August 2021 seeks orders as follows:

1. An order pursuant to r 31.28(3) UCPR that the defendant have leave to rely on the supplementary reports of A/Professor Brett Courtenay dated 5 August 2021 and Dr Anthony Smith dated 4 February 2021.

2. An order that the defendant have leave to serve a forensic accountant report from Axiom Forensic Pty Ltd by 27 August 2021;

3. Any such further or other orders as the Court deems fit;

4. Costs in the cause.

2. The defendant relies upon two affidavits of Ms Marie Valerie Karine Marianne sworn on 18 and 25 August 2021.

3. The application is opposed by the plaintiff, who reads and relies upon two affidavits of Rebecca Collins sworn 11 and 23 August 2021.

4. Before considering the evidence, I will set out a short history of the commencement of these proceedings and the machinery orders made which I note were commenced on 25 September 2019, at which time the plaintiff served a report from Dr Peter Johnson, an orthopaedic surgeon, dated 5 January 2019 which is an exhibit to the affidavit of Ms Collins dated 11 August 2021.

5. That report sets out that it was Dr Johnson's medical opinion, having reviewed the appropriate documentation and radiographic imaging, that the overall appearance of the related knee-only X-rays of 25 February 2011, which take in the AP and lateral views, showed what appeared to be satisfactory placement of the femoral, tibial, and patellar components. There was, however, no skyline X-ray to look at the degree of patellar tilt. Dr Johnson went on to set out a careful consideration of long leg X-rays taken in 2013, a CT scan of 29 August 2013, further X-rays of 14 August 2012, and he concluded as…