Michael Raymond Johnston v State of New South Wales
[2017] NSWSC 235
•08 March 2017
Supreme Court
New South Wales
Medium Neutral Citation: Michael Raymond Johnston v State of New South Wales [2017] NSWSC 235 Hearing dates: 8 March 2017 Date of orders: 08 March 2017 Decision date: 08 March 2017 Jurisdiction: Common Law Before: Campbell J Decision: Motion adjourned for determination by trial judge on 13 March 2017. Costs reserved.
Catchwords: CIVIL PROCEDURE – motion seeking leave to rely on evidence served out of time – filing of medical reports described as “supplementary reports” – leave not required under the Uniform Civil Procedure Rules 2005 (NSW) if medical reports “merely update” previous reports – whether the motion ought to be dealt with by the trial judge – where no actual prejudice or injustice suffered by the defendant upon whom the material is served – held that motion to be heard by the trial judge Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Act 2005 (NSW)Category: Procedural and other rulings Parties: Michael Raymond Johnston (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
Solicitors:
P. Bingham (Plaintiff)
D. Dinnen (Defendant)
Maurice Blackburn Lawyers (Plaintiff)
Lander & Rodgers (Defendant)
File Number(s): 2016/00018535
ex tempore judgment - revised
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This matter has been transferred to this Court from the Industrial Court. It is listed for hearing for three days commencing on 13 March 2017.
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The plaintiff has by motion belatedly sought leave to rely upon evidence served on the defendant outside the timetable previously fixed for the exchange of evidence in the Industrial Court.
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The matter was case-managed by the President of the Industrial Court, Walton J, who is now a judge of this Court. It may be that he will be the trial judge next week, but my enquiries in that regard have been unable to confirm that.
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The matters in respect of which the plaintiff seeks leave are some medical reports described by the plaintiff as “supplementary reports”. If the reports are truly supplementary, and I am unable to determine that without considering the whole of the evidence in the case which is inappropriate to do in the context of this interlocutory application, no leave is required having regard to the provisions of r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW). Those rules permit reports which “merely update” a previous expert's report. On the other hand, if they contain new material not previously the subject of the expert's report, leave is required.
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There is also a supplementary affidavit from the plaintiff and an affidavit from a lay witness, Mr Waters, sworn on 31 January 2017.
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The matters come before the Court by way of a motion filed on 2 March. The defendant objects to the motion being dealt with today and submits that the matter ought properly be determined by the trial judge, who may or may not be Walton J.
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It is the defendant's contention that at the time his Honour made orders on 5 August 2016 by consent giving effect to an amended timetable, he remarked that no further evidence should be served without leave (see para 13 of the affidavit of Ms A J Anderson affirmed on 7 March 2017). Such additional remark is not an order, however, given the requirements of the efficiency provisions of the Civil Procedure Act 2005 (NSW), and having regard to the requirements of the Rules in relation to experts' reports, there is much to be said for the argument that, absent the defendant's consent, a prompt application should have been made to the Court for leave to rely upon the additional material.
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I accept the force of Mr Bingham's argument that the defendant has not pointed to any actual prejudice should the plaintiff be permitted to rely upon the additional evidence. However, given the fact that the matter has been closely case-managed, strictly speaking the defendant is entitled to signify its objection to material served out of time, and the plaintiff in those circumstances in my judgment should have immediately applied for any required leave.
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I do not accept that there is any injustice to the defendant in having this matter brought before me today. As I remarked to Ms Dinnen of counsel, I found that argument entirely extravagant.
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In any event, I am persuaded that in the circumstances the matter ought to be determined by the trial judge, especially if that is Walton J who has been case-managing the matter, because that judge will be in a better position than me to adjudge the significance of the evidence and the requirements of the interests of justice in relation to its admission having regard to the case as a whole.
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Mr Bingham submits that the matter should be dealt with today to avoid the incurring of any unnecessary costs in relation to the attendance of witnesses from Coffs Harbour. It seems to me, however, that the potential for wasted costs has really arisen out of what is the lateness of this application, and that is a matter that the plaintiff and his legal advisers will have to bear, if necessary. The defendant has quite clearly indicated at all times that if the plaintiff obtains any necessary leave to rely upon this additional evidence, the witnesses involved will all be required for cross-examination. This seems hardly surprising.
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In the circumstances I propose to adjourn the notice of motion filed on 2 March 2017 for hearing by the trial judge on 13 March 2017.
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I reserve the question of costs for consideration by the trial judge.
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Decision last updated: 14 March 2017
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