Kalache v Secureclean Pty Ltd (No 1)

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kalache v Secureclean Pty Ltd (No 1) [2019] NSWDC 716

Hearing dates:

14 August 2019

Date of orders:

14 August 2019

Decision date:

14 August 2019

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

The application by the second defendant is rejected.

Catchwords:

Evidence. Admissibility of medical report served on the evening before the commencement of the hearing. Prejudice suffered by other party. Whether omission to serve report by oversight “exceptional circumstances”.

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Griffith v Kerkemeyer [1977] HCA 45
New South Wales v Tyszyk [2008] NSWCA 107

Category:

Procedural and other rulings

Parties:

Klaudette Kalache (Plaintiff)

  Secureclean Pty Ltd (Second Defendant)

Representation:

Counsel:

 

R. Lynch (Plaintiff)

 

O. Dinkha (Second Defendant)

 

Solicitors:

 

Gerard Malouf and Partner (Plaintiff)

  HBA Legal (Second Defendant)

File Number(s):

2017/00220928

Publication restriction:

Nil.

Judgement

1. HIS HONOUR: The current proceedings concern an event which occurred on 14 June 2016 when the plaintiff was walking in the Stockland Mall at Wetherill Park. According to par 6 of the further amended statement of claim upon which the plaintiff relies, on that day the plaintiff and her husband were lawfully upon the premises for the purpose of shopping. As she walked within the common area of the shopping centre, she slipped on a liquid substance causing her to fall. The plaintiff brings an action for damages for personal injury. Initially, the only defendant was the occupier of the shopping centre. Those proceedings were commenced on 20 July 2017. On 3 September 2018 the plaintiff filed an amended statement of claim which inter alia joined the current defendant, originally the second defendant Secureclean Pty Ltd which company admits in the defence for further amended statement of claim that it was the contracted cleaning company at all material times at the shopping centre in which the plaintiff fell.

2. The plaintiff's solicitors qualified Dr Y Kai Lee an orthopaedic surgeon who prepared a report dated 19 October 2017. One would infer that the doctor examined the plaintiff on that day or shortly prior there to. The first defendant qualified Dr Seamus Dalton, a consultant in rehabilitation medicine. He examined the plaintiff on 26 June 2018 and prepared a report dated 30 July 2018. That report was addressed to the first defendant's solicitors. Clearly, that report was obtained prior to the joining of the current defendant, the second defendant. The first defendant's solicitors provided to the second defendant's solicitors a copy of Dr Dalton's report on 4 October 2018 and that can be ascertained from par 5 of the affidavit of Ms Natasha Fiodoroff affirmed on 14 August 2019 which is exhibit 1-1 on this application. On 17 December 2018 Ms Fiodoroff instructed a paralegal in her firm to serve a copy of the report of Dr Dalton on the plaintiff. That unfortunately was overlooked by the paralegal and that omission was not detected by Ms Fiodoroff.

3. In the meantime, the plaintiff and the first defendant reached agreement. A…