Gulab Khan v Matthew Rathjen (No. 2)

District Court

New South Wales

Medium Neutral Citation:	Gulab Khan v Matthew Rathjen (No. 2) [2016] NSWDC 140
Hearing dates:	3 February 2016
Date of orders:	03 February 2016
Decision date:	05 February 2016
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Leave granted to plaintiff to adduce medical report.
Catchwords:	“Exceptional circumstances”
Legislation Cited:	Civil Liability Act 2002 Civil Procedure Act 2005 Health Insurance Act 1973 (Cth) Motor Accidents Compensation Act 1999
Cases Cited:	Australian Securities & Investments Commission v Rich [2005] NSWSC 706 Ho v Professional Services Review Committee No. 295 (2007) FCA 388 R v Kelly (Edward) [2000] 1QB 198 San v Rumble (No. 2) [2007] NSWCA 259
Texts Cited:	Uniform Civil Procedure Rules New South Wales
Category:	Procedural and other rulings
Parties:	Gulab Khan (Plaintiff) Matthew Rathjen (Defendant)
Representation:	Counsel: R O’Keefe (Plaintiff) N E Chen (Defendant)   Solicitors: Turner Freeman HWL Ebsworth Lawyers
File Number(s):	14/157331
Publication restriction:	Nil

Judgment ON APPLICATION by plaintiff for leave to rely on report of dr peter hay dated 9 march 2015

Introduction

1. The plaintiff sought leave to adduce into evidence the report of Dr Hay dated 9 March 2015. Leave was required as the report had been served late, in breach of a consent order made on 29 July 2014 by the Registrar of the Court, requiring the plaintiff to serve his expert evidence on quantum and liability by 23 September 2014.

2. The application was opposed by the defendant on the basis that the plaintiff had not demonstrated “exceptional circumstances”, which were required so as to warrant the grant of leave, and further, that the report constituted a second substantive report by an expert on liability, as, at the time of service, the plaintiff had previously served a report of Dr James Jeong with his Statement of Claim. The defendant relied on an affidavit sworn by Neroli Jane Martin, solicitor, on 1 February 2016, which set out the history of the matter.

3. On 2 February I granted the leave sought, and, with the consent of the parties, deferred delivering my reasons so that evidence in the trial could proceed. These are my reasons.

Background

4. The relevant history contained the following chronology:

26 May 2014 – Plaintiff’s Statement of Claim filed

29 July 2014 – Consent Orders as to service of evidence, referred to above

21 November 2014 – Defence filed

9 March 2015 – Plaintiff serves report of Dr Hay and defendant solicitor objects by email on ground that the report is served out of time and that the plaintiff already had a peer review opinion from Dr Jeong

30 March 2015 – Mediation takes place

2 April 2015 – Judicial Registrar appoints a hearing date commencing on 1 February 2016

5 November 2015 – Directions Hearing before Judicial Registrar to confirm hearing date. Defendant solicitor seeks order requiring the plaintiff to seek leave to rely on the report of Dr Hay before the hearing, whereas plaintiff’s legal representative advises Registrar that the plaintiff proposes to leave the matter to…