Mark Anthony Chitts v Dr Sadek Hamied - [2023] NSWDC 188

District Court

New South Wales

Medium Neutral Citation: Mark Anthony CHITTS v Dr Sadek HAMIED [2023] NSWDC 188
Hearing dates: 5 June 2023
Date of orders: 5 June 2023
Decision date: 09 June 2023
Jurisdiction: Civil
Before: Lerve DCJ
Decision:
Proposed orders:
1. Pursuant to Rule 31.28(4) the defendant is granted leave to rely on the reports of Dr Deidre O’Dea dated 7 February 2023 and Dr Seamus Dalton dated 31 October 2022.
2.   The plaintiff is to serve any reports in reply to those referred to in order 1 by 31 July 2023;
3.   Time for the parties to participate in mediation is extended to 31 August 2023;
4.   If the matter is not resolved at mediation the matter is to be listed for hearing at the civil sittings of the District Court of New South Wales at Wagga Wagga on 20 November 2023 with an estimate of 3 to 4 days;
5.   The applicant defendant to pay the costs of and incidental to this Notice of Motion.

Catchwords:
CIVIL PROCEDURE – interlocutory application – whether leave should be granted to rely on supplementary experts’ reports – what constitutes “special circumstances” – interests of justice

Legislation Cited:
Civil Procedure Act, 2005
Uniform Civil Procedure Rules, 2005

Cases Cited:
Addison v BHP Biliton Iron Ore Pty Limited [2019] NSWSC 1433
DPP (Cth) v French [2023] NSWDC 174
Gershowitz v Kaye [2021] NSWDC 128
Gulab Khan v Matthew Rathjen (No. 2) [2016] NSWDC 140
R v Kelly [2000] 1 QB 198

Category: Procedural rulings
Parties: Mark Anthony CHITTS
Sadek HAMIED
Representation:
Counsel:
Mr N Hogan (Applicant/Defendant)
Mr M Inglis (Respondent/Plaintiff)
Solicitors:
Avant Law (Applicant/Defendant)
Commins Hendriks Solicitors (Respondent/Plaintiff)

File Number(s): 2021/289113
Publication restriction: No

Judgment

This Notice of Motion came on for hearing before me at the Wagga Wagga District Court on 5 June 2023 in circumstances where I had a jury panel waiting for a criminal trial to commence.
By way of Notice of Motion dated 17 March 2023 the Defendant seeks orders:

Leave pursuant to Rule 31.28(4)(b) of the UCPR for the defendant to rely on the supplementary report of Dr Deidre O’Dea dated 7 February 2023; and

Leave pursuant to s 31.28(4)(a) of the UCPR for the defendant to rely on the report of Dr Seamus Dalton dated 31 October 2022; and

Any other order the court deems fit.

The plaintiff strongly opposes the leave sought in prayers 1 and 2 of the Notice of Motion. The plaintiff maintains that the defendant has not demonstrated exceptional circumstances and further it is not in the interests of justice to permit the defendant to rely on the reports the subject of this motion.
The matter arises out of a claim for medical negligence and in particular a claim by the plaintiff that the defendant who was at the relevant time the plaintiff’s treating general practitioner was negligent in failing to properly diagnose and treat a compression fracture to the lower back. The Notice of Motion concerns whether leave…

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: [2023] NSWDC 188
Decision Date: 09 June 2023

CaseChat Overview and Summary

The applicant, Dr Sadek Hamied, applied to the District Court of New South Wales for leave to rely on supplementary expert reports in the proceedings brought by the respondent, Mark Anthony Chitts. The suit concerns medical negligence, with Mr Chitts claiming damages for injuries sustained during a surgical procedure performed by Dr Hamied. The court was tasked with determining whether the defendant should be granted leave to rely on supplementary experts’ reports and what would constitute “special circumstances” under the relevant procedural rules.

The central issue before the court was whether the defendant could rely on two supplementary expert reports in the ongoing litigation. The court needed to assess whether the circumstances were special enough to warrant an exception to the usual rules regarding the admissibility of late expert evidence. The court had to balance the interests of justice against the need to ensure that proceedings are not unduly delayed.

The court found that the circumstances were indeed special, justifying the allowance of the supplementary expert reports. The experts' opinions were deemed necessary to address issues that had arisen during the proceedings and which had not been covered by the initial expert reports. The court considered that the interests of justice would be served by allowing the supplementary reports, as they would contribute to a more comprehensive understanding of the case. Consequently, the court granted the defendant leave to rely on the supplementary expert reports, extended the mediation deadline, and set a new hearing date if the matter was not resolved at mediation. The defendant was also ordered to pay the costs of the application.

Orders

Orders of the court

Proposed orders:

1. Pursuant to Rule 31.28(4) the defendant is granted leave to rely on the reports of Dr Deidre O’Dea dated 7 February 2023 and Dr Seamus Dalton dated 31 October 2022.

2. The plaintiff is to serve any reports in reply to those referred to in order 1 by 31 July 2023;

3. Time for the parties to participate in mediation is extended to 31 August 2023;

4. If the matter is not resolved at mediation the matter is to be listed for hearing at the civil sittings of the District Court of New South Wales at Wagga Wagga on 20 November 2023 with an estimate of 3 to 4 days;

5. The applicant defendant to pay the costs of and incidental to this Notice of Motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mark Anthony CHITTS v Dr Sadek HAMIED [2023] NSWDC 188
Hearing dates:	5 June 2023
Date of orders:	5 June 2023
Decision date:	09 June 2023
Jurisdiction:	Civil
Before:	Lerve DCJ
Decision:	Proposed orders: 1. Pursuant to Rule 31.28(4) the defendant is granted leave to rely on the reports of Dr Deidre O’Dea dated 7 February 2023 and Dr Seamus Dalton dated 31 October 2022. 2. The plaintiff is to serve any reports in reply to those referred to in order 1 by 31 July 2023; 3. Time for the parties to participate in mediation is extended to 31 August 2023; 4. If the matter is not resolved at mediation the matter is to be listed for hearing at the civil sittings of the District Court of New South Wales at Wagga Wagga on 20 November 2023 with an estimate of 3 to 4 days; 5. The applicant defendant to pay the costs of and incidental to this Notice of Motion.
Catchwords:	CIVIL PROCEDURE – interlocutory application – whether leave should be granted to rely on supplementary experts’ reports – what constitutes “special circumstances” – interests of justice
Legislation Cited:	Civil Procedure Act, 2005 Uniform Civil Procedure Rules, 2005
Cases Cited:	Addison v BHP Biliton Iron Ore Pty Limited [2019] NSWSC 1433 DPP (Cth) v French [2023] NSWDC 174 Gershowitz v Kaye [2021] NSWDC 128 Gulab Khan v Matthew Rathjen (No. 2) [2016] NSWDC 140 R v Kelly [2000] 1 QB 198
Category:	Procedural rulings
Parties:	Mark Anthony CHITTS Sadek HAMIED
Representation:	Counsel: Mr N Hogan (Applicant/Defendant) Mr M Inglis (Respondent/Plaintiff) Solicitors: Avant Law (Applicant/Defendant) Commins Hendriks Solicitors (Respondent/Plaintiff)
File Number(s):	2021/289113
Publication restriction:	No