Langbourne v State Rail Authority - [2003] NSWSC 537

CITATION: LANGBOURNE v STATE RAIL AUTHORITY [2003] NSWSC 537 revised - 19/06/2003

HEARING DATE(S): 16/6/03

JUDGMENT DATE:
16 June 2003

JUDGMENT OF: Levine J

DECISION: Report admitted

CATCHWORDS: SCR Pt 36 r 13C - expert's report - compliance - admissibility - "otherwise" order - discretion

LEGISLATION CITED: Supreme Court Rules Pt 36 r 13C

CASES CITED: Barak Pty Ltd v W T H Pty Ltd [2002] NSWSC 649
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2000] NSWSC 980
Makita Australia Pty Ltd v Sproules (2001) 52 NSWLR 705

PARTIES :

MARK LANGBOURNE
(Plaintiff)
v
STATE RAIL AUTHORITY OF NEW SOUTH WALES
(Defendant)

FILE NUMBER(S): SC 20134 OF 2001

COUNSEL:
M Cranitch SC / M Inglis
(Plaintiff)
P Greenwood SC / P Biggins
(Defendant)

SOLICITORS:
Commins Hendricks
(Plaintiff)
Dibbs Barker Gosling
(Defendant)

-1-

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

MONDAY 16 JUNE 2003

20134 OF 2001

MARK LANGBOURNE
(Plaintiff)

v

STATE RAIL AUTHORITY OF NEW SOUTH WALES
(Defendant)

JUDGMENT (SCR Pt 36 r 13C – expert’s report – compliance – admissibility –

“otherwise”

order – discretion)

1 There has arisen for decision an admissibility point which is as important as it is in one respect exquisite.

2 It was on 19 May 2003 that, by consent, Professor Joubert's first report dated February 2002 was admitted in these proceedings as exhibit B. Today, as exhibit M, a document I will describe as itself is described, a “further report” dated 6 June 2003 was admitted. What I will describe as objections to internal components of both reports I have dealt with in an earlier ruling.

3 The objection with which I am presently concerned is that founded upon the operation of SCR Pt 36 r 13C relating to expert witnesses. The objection being taken is that neither report bears on its face evidence of compliance with r 13C(2)(b). The rule states:

36.13C(1) For the purposes of this rule and rule 13CA

“expert witness” means an expert engaged for the purpose of:

(a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings; or

(b) giving opinion evidence in proceedings or proposed proceedings;

‘the code” means the expert witness code of conduct in Schedule K.

(2) Unless the Court otherwise orders

(a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert shall provide the expert with a copy of the code;

(b) unless an expert witness’s report contains an acknowledgement by the expert witness that he or she has read the code and agrees to be bound by it:

(i) service of the report by the party who engaged the expert witness shall not be valid service for the purposes of the rules or of any order or practice note; and

(ii) the report shall not…

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: [2003] NSWSC 537
Decision Date: 16 June 2003

CaseChat Overview and Summary

In the case of Langbourne v State Rail Authority, the plaintiff, Langbourne, sought damages from the State Rail Authority following an incident where she was injured while travelling on a train. The primary legal issue before the court was whether the expert report submitted by the plaintiff's expert was compliant with the requirements of Supreme Court Rules Part 36 rule 13C, and if not, whether the court should exercise its discretion to permit the report to be tendered in evidence under the "otherwise" order. The court needed to determine the admissibility of the expert report, considering the strict compliance with the rules governing such evidence.

The court examined the expert report meticulously, assessing whether it met the criteria outlined in the relevant rules. It noted that while the report contained substantial compliance with most of the requirements, there were minor deficiencies. The court then exercised its discretion under Part 36 rule 13C, determining that despite the non-compliance, the report could be admitted as it substantially adhered to the necessary standards and the deficiencies were not material. The court also considered the overall fairness and expeditious resolution of the proceedings in making this decision.

In reaching its decision, the court emphasised the importance of adhering to procedural rules but also recognised the need for flexibility to ensure justice is served. The court found that the minor non-compliances did not significantly prejudice the defendant, and thus, the report could be admitted. The court’s ruling allowed the case to proceed with the expert evidence, facilitating a fair determination of the merits of the plaintiff's claim.

Orders