Dickson v State of NSW - [2021] NSWSC 234

Supreme Court

New South Wales

Medium Neutral Citation: Dickson v State of NSW [2021] NSWSC 234
Hearing dates: 11 March 2021
Date of orders: 15 March 2021
Decision date: 15 March 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) I grant leave to the plaintiff to rely upon the expert reports of A/Professor Raftos dated 10 February 2020 and 24 June 2020.
(2) I order that the defendant pay the plaintiff’s costs of this notice of motion.

Catchwords:
CIVIL PROCEDURE – application for leave to reply on expert reports served out of time – proceedings in case management phase – no impending hearing date – reasonable time for defendant to obtain expert evidence in reply – prejudice - consideration of rr 31.28 and 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) – special circumstances – leave granted

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 31.28

Cases Cited:
Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12

Category: Procedural rulings
Parties: Robert Dickson (Plaintiff)
Hunter New England Local Health District (Defendant)
Representation:
Counsel:
M Daley (Plaintiff)
S Kettle (Defendant)
Solicitors:
Monaco Compensation Lawyers (Plaintiff)
NSW Crown Solicitors Office (Defendant)

File Number(s): 2017/101435
Publication restriction: Nil

Judgment

This matter is before me today to deal with a Notice of Motion filed by the plaintiff on 21 August 2020 seeking leave to rely upon two reports of Associate Professor Raftos, an emergency physician, dated 10 February 2020 and 24 June 2020.
The defendant opposes the application on the basis that first the reports were served late and outside the timetable provided by the Court and Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and second, the reports are irrelevant and otiose to the issues in the case. The relevant issues have already been the subject of expert reports served in the proceedings within the timetable set by the Court. A/Professor Raftos’ expertise is as an emergency physician and Mr Dickson’s case does not arise out of treatment in an emergency department.
For the reasons that follow, I have decided that I should grant leave to the plaintiff to rely on those reports.

Background

The proceedings were commenced by way of Statement of Claim on 4 April 2017. Mr Dickson was a patient at Armidale Hospital, having been admitted on 21 February 2015 with inflammation in his right knee. On 26 February 2015 he began to suffer, and he says, display, symptoms of a stroke. He alleges that there was delay in diagnosing the symptoms and delay in referring him for appropriate intravenous thrombolytic therapy and/or transferring him to a specialist unit for treatment.
Mr Dickson says that as a result of these failures, he sustained an injury to his brain and loss of sensation and movement on the right side.
It is fair to say that over…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 234
Decision Date: 15 March 2021

CaseChat Overview and Summary

The applicant, Dickson, sought leave to reply to expert reports that had been served out of time, as permitted under the Uniform Civil Procedure Rules 2005 (NSW). The dispute was between the applicant and the State of New South Wales. The matter was before the Supreme Court of New South Wales, which was required to determine whether the applicant should be granted leave to respond to the expert reports that had been served outside the usual timeframe. The court had to consider whether the applicant had acted within a reasonable time, whether there had been any prejudice to the respondent, and whether special circumstances existed that warranted granting the leave.

The legal issues at hand revolved around the interpretation and application of rules 31.28 and 1.12 of the Uniform Civil Procedure Rules 2005 (NSW). The court had to determine whether the applicant had acted within a reasonable time to respond to the expert reports, and whether any prejudice had been caused to the respondent by the delay. Additionally, the court had to consider whether any special circumstances existed that would justify the granting of leave to reply to the expert reports outside the usual timeframe.

The court found that the applicant had acted within a reasonable time to reply to the expert reports, and that there had been no prejudice to the respondent. Furthermore, the court held that special circumstances existed that warranted the granting of leave. The court considered the nature of the case, the complexity of the issues, and the need for a fair and just resolution of the matter. The court granted the applicant's application for leave to reply to the expert reports, allowing the matter to proceed to a later stage in the proceedings.

The court's final orders were that the applicant's application for leave to reply to the expert reports served out of time was granted. The applicant was permitted to respond to the expert reports, and the matter was allowed to proceed to the next stage of the proceedings. The court's decision demonstrated a balanced approach to the application of the Uniform Civil Procedure Rules 2005 (NSW), taking into account the particular circumstances of the case and the need for a fair and just resolution of the dispute.

Orders