Gershowitz v Kaye

The case of Gershowitz v Kaye involved the plaintiff, Gershowitz, seeking leave to rely on a late-served medical report from Dr Ngu. The defendants, Kaye and two other defendants, opposed the application. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the plaintiff's application to rely on the late-served report should be governed by Uniform Civil Procedure Rules 1.12 or 31.28. This distinction was crucial as it determined the appropriate standard of proof and the likely outcome of the application.

The court examined the applicable rules and found that Rule 1.12 provides for relief from the consequences of a procedural default, while Rule 31.28 specifically addresses the late service of expert evidence. The court held that the correct rule to apply was Rule 31.28, which requires the plaintiff to demonstrate that the delay was not wilful and that the delay would not cause substantial injustice to the opposing party. The court found that the plaintiff had failed to satisfy this standard, as the delay was significant and had caused substantial prejudice to the defendants.

As a result, the court dismissed the plaintiff's amended notice of motion seeking leave to rely upon the late-served report of Dr Ngu. The court also ordered the plaintiff to pay the costs of the 1st and 3rd defendants and confirmed the hearing date of 31 May 2021 with an estimated duration of 4 days. Furthermore, the court mandated that the parties participate in mediation no later than Friday 30 April 2021. This decision underscores the importance of adhering to procedural rules and the potential consequences of failing to do so in civil litigation.