Forster v Hunter New England Area Health Service

In *Forster v Hunter New England Area Health Service*, the applicants sought an interim payment from the respondent in proceedings before the Court of Appeal of New South Wales. The dispute concerned the respondent's liability to make such a payment under section 82 of the *Civil Procedure Act 2005* (NSW).

The primary legal issue before the Court of Appeal was the proper construction and application of section 82(3)(c) of the *Civil Procedure Act 2005*, which governs the circumstances in which an interim payment can be ordered. This involved determining the evidential threshold required to satisfy the court that there is "no reasonable defence" to a claim for a specified amount. A related issue was the weight to be given to expert evidence that lacked sufficient reasoning.

The Court of Appeal reasoned that the judge at first instance had erred in ordering an interim payment. It held that the expert evidence relied upon by the applicants was insufficient to establish that the respondent had no reasonable defence to the claim for a specified amount. The Court emphasised that expert evidence must provide a reasoned basis for its conclusions, and that evidence devoid of such reasoning should be given no weight. Applying this principle, the Court found that the applicants had not discharged the burden of proof required by section 82(3)(c).

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders made at first instance. The Court ordered that the respondent pay the applicants $20,000 by way of an interim payment, and ordered the respondent to pay the applicants' costs of the proceedings at first instance and on appeal.