Gershowitz v Kaye

[2021] NSWDC 128

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gershowitz v Kaye [2021] NSWDC 128

Hearing dates:

1 April 2021

Date of orders:

1 April 2021

Decision date:

01 April 2021

Jurisdiction:

Civil

Before:

Wilson SC DCJ

Decision:

1. the Plaintiff’s amended notice of motion seeking leave to rely upon the late-served report of Dr Ngu is dismissed;

2. the Plaintiff is to pay the costs of the 1st and 3rd Defendants of the Notice of Motion;

3. I confirm the hearing date of 31 May 2021 with an estimate of 4 days;

4. I order the Parties to participate in mediation no later than Friday 30 April 2021.

Catchwords:

CIVIL – practice and procedure – leave sought to rely upon late-served report – whether to engage UCPR 1.12 or 31.28

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 61

Evidence Act 1995 (NSW) s 79

Uniform Civil Procedure Rules 2005 ss 1.12, 31.28, 31.36

Cases Cited:

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

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506

Category:

Procedural rulings

Parties:

Galit Gershowitz (Plaintiff)
Alan Kaye (First Defendant)
A.C.N 604 384 661 Pty Ltd (Third Defendant)

Representation:

Counsel:
Mr Cohen (Plaintiff)
Ms Oldfield (First Defendant)
Ms Berberian (Third Defendant)

File Number(s):

2019/00368432

Publication restriction:

None

Judgment

1. The amended notice of motion (31 March 2021) sought leave for the Plaintiff to serve the report of Dr Ngu dated 21 December 2020. Dr Ngu is an obstetrician and gynaecologist but also qualified in a sub-specialty in ultrasound. His opinion, essentially, is that the Third Defendant’s employee ought to have noticed and reported upon the absence of toes in the scan which would have permitted a diagnosis of bilateral foetal abnormality in the antenatal period. He also expressed the opinion that the treating obstetrician had no role to play in the misdiagnosis.

2. The latter aspect of the opinion perhaps explains the attitude of the First Defendant to the Plaintiff’s application for leave. He neither consented to nor opposed leave being granted.

3. The Third Defendant opposed leave being granted, principally upon the bases that the proceedings are listed for hearing on 31 May 2021, and that the plaintiff has failed to serve the report in accordance with orders previously made by the Court.

4. In support of her application, the Plaintiff relied upon the following evidence:

1. affidavit of Sharron Vogel, sworn 22 March 2021 (Exhibit A);

2. affidavit of Ms Vogel, sworn 31 March 2021 (Exhibit B); and

3. affidavit of Ms Vogel, also 31 March 2021 (Exhibit C).

5. Before turning to that evidence, I note that relevant orders were made by the Court as follows:

1. on 17 March 2020 the Plaintiff was ordered to complete service of her expert liability and medical evidence by 19 June 2020;

2. on 5 May 2020 the Court ordered that the Plaintiff was to advise the Defendants of the identity and the specialty of all its liability and medical experts by 15 May 2020;

3. on…