Fulton v Surfing Australia Limited - [2025] NSWDC 115

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Fulton v Surfing Australia Limited [2025] NSWDC 115
Hearing dates: 31 March 2025
Date of orders: 31 March 2025
Decision date: 31 March 2025
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
In relation to the Notice of Motion filed on 24 March 2025:
(1) The defendants have leave to rely on the report of Associate Professor Paul Miniter dated 13 November 2024.
(2) Paragraphs 1 and 2 of the Notice of Motion are otherwise dismissed.
(3) The defendants are to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed.
(4) The hearing commencing on 7 April 2025 is confirmed

Catchwords:
PRACTICE AND PROCEDURE – leave sought to rely on expert report served in breach of orders – unsatisfactory excuse proffered

Legislation Cited:
Civil Procedure Act 2005 (NSW)
UniformCivil Procedure Rules2005 (NSW)

Cases Cited:
AddisonvBHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433
Aon Risk Services Australia LtdvAustralian National University (2009) 239 CLR 175
Gershowitz v Kaye [2021] NSWDC 128
IrfanvWestern Sydney Local Health District [2023] NSWSC 845
SA (a pseudonym)vHatfield [2025] NSWDC 56
Soma‑DevanvSCentre Shopping Management Pty Ltd trading as Westfield‑Hurstville (No2) [2024] NSWSC 95

Category: Procedural rulings
Parties: Sophia Rachelle Fulton (Plaintiff)
Surfing Australia Limited (First Defendant)
Joanna Rachel Parsonage (Second Defendant)
Representation:
Counsel:
K Andrews (Plaintiff)
S J Walsh (Defendants)
Solicitors:
Slater & Gordon Lawyers (Plaintiff)
Wotton + Kearney (Defendants)

File Number(s): 2023/00436217
Publication restriction: No

JUDGMENT – EX TEMPORE

Before the Court for determination is a Notice of Motion filed on 24 March 2025 by the first and second defendants seeking orders that the time for service of the first and second defendants’ expert liability evidence be abridged to 21 March 2025 and, alternatively, that the first and second defendants have leave to serve the report of Dr Clare Walsh dated 21 March 2025.
The background to the matter is important. The plaintiff, it seems, was an elite surfer and had been identified as a highly talented and skilled surfer. She was introduced in 2018 by the first defendant, Surfing Australia Ltd, to the second defendant, Ms Parsonage. Ms Parsonage was identified as being a person who could give the plaintiff an appropriate training program and assist her in strengthening her body for the purposes of elite surfing competition.
The Statement of Claim, which was filed on 1 December 2023, sets out a lengthy background history of the interactions between the plaintiff and, in particular, the second defendant. Those details indicate that the plaintiff reported to the second defendant on occasions, from 2018, some pain and discomfort while performing exercises which had been provided to the plaintiff by the second defendant.
This pain and discomfort, it is pleaded, continued. It is pleaded that on 27 August 2018, whilst the plaintiff was surfing, she sustained pain and discomfort in her right knee when she felt a “pop out” of the knee…

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: [2025] NSWDC 115
Decision Date: 31 March 2025

CaseChat Overview and Summary

In the Federal Court, Fulton, the plaintiff, sought to challenge Surfing Australia Limited, the defendant, over a matter involving alleged breaches of procedural orders. The plaintiff contested the defendant's attempt to rely on an expert report that had been served outside the stipulated timeframe. The crux of the dispute was whether the defendant should be granted permission to utilise this expert report despite the procedural lapse and the adequacy of the explanation provided for the delay.

The central legal issue before the court was whether the defendant's delay in serving the expert report constituted a breach of procedural orders that warranted a refusal to allow the report's reliance. Additionally, the court had to assess the reasonableness of the excuse provided by the defendant for the delay. The court needed to determine whether the explanation offered was satisfactory and whether, in the interests of justice, the defendant should be permitted to rely on the expert report.

The court acknowledged the procedural breach but focused on the nature of the excuse provided. The defendant's explanation, though not perfect, was deemed sufficient to warrant the granting of leave for the expert report's use. The court concluded that the delay was not so egregious as to preclude the defendant from relying on the expert report, particularly as the plaintiff had not suffered any prejudice from the late service. Consequently, the court granted the defendant leave to use the expert report but directed that the defendants bear the costs associated with the plaintiff's application. The court also confirmed the scheduled hearing, ensuring the matter would proceed as planned.

Orders

Orders of the court

In relation to the Notice of Motion filed on 24 March 2025:

(1) The defendants have leave to rely on the report of Associate Professor Paul Miniter dated 13 November 2024.

(2) Paragraphs 1 and 2 of the Notice of Motion are otherwise dismissed.

(3) The defendants are to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed.

(4) The hearing commencing on 7 April 2025 is confirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Fulton v Surfing Australia Limited [2025] NSWDC 115
Hearing dates:	31 March 2025
Date of orders:	31 March 2025
Decision date:	31 March 2025
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	In relation to the Notice of Motion filed on 24 March 2025: (1) The defendants have leave to rely on the report of Associate Professor Paul Miniter dated 13 November 2024. (2) Paragraphs 1 and 2 of the Notice of Motion are otherwise dismissed. (3) The defendants are to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed. (4) The hearing commencing on 7 April 2025 is confirmed
Catchwords:	PRACTICE AND PROCEDURE – leave sought to rely on expert report served in breach of orders – unsatisfactory excuse proffered
Legislation Cited:	Civil Procedure Act 2005 (NSW) UniformCivil Procedure Rules2005 (NSW)
Cases Cited:	AddisonvBHP Billiton Iron Ore Pty Ltd [2019] NSWSC 1433 Aon Risk Services Australia LtdvAustralian National University (2009) 239 CLR 175 Gershowitz v Kaye [2021] NSWDC 128 IrfanvWestern Sydney Local Health District [2023] NSWSC 845 SA (a pseudonym)vHatfield [2025] NSWDC 56 Soma‑DevanvSCentre Shopping Management Pty Ltd trading as Westfield‑Hurstville (No2) [2024] NSWSC 95
Category:	Procedural rulings
Parties:	Sophia Rachelle Fulton (Plaintiff) Surfing Australia Limited (First Defendant) Joanna Rachel Parsonage (Second Defendant)
Representation:	Counsel: K Andrews (Plaintiff) S J Walsh (Defendants) Solicitors: Slater & Gordon Lawyers (Plaintiff) Wotton + Kearney (Defendants)
File Number(s):	2023/00436217
Publication restriction:	No