Moss v Coghill - [2023] NSWSC 341

Supreme Court

New South Wales

Medium Neutral Citation: Moss & Anor v Coghill [2023] NSWSC 341
Hearing dates: 05 April 2023
Date of orders: 05 April 2023
Decision date: 05 April 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1)   Grant leave to the plaintiffs to rely upon the evidentiary statement of Tara Moss dated 23 March 2023.
(2)   Grant leave to the plaintiffs to rely upon the statement from Lauren Miller dated 31 January 2023.
(3)   Note that the parties are to engage in a mediation on 14 April 2023, with such mediation to be conducted in accordance with Part 4 of the CPA and rr 20.1-20.7 of the Uniform Civil Procedure Rules 2005 (NSW).
(4)   Order that the costs of today be costs in the cause.

Catchwords:
CIVIL PROCEDURE – whether leave to rely on late evidence should be granted to the first plaintiff – where disadvantage or real possibility of disadvantage is said to arise
EVIDENCE – whether the CEO of a talent manager agency is an ‘expert’ – whether pre-trial ruling should be made

Legislation Cited:
Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Lambert Leasing Inc v QBE Insurance Australia Limited [2012] NSWSC 95
Sisson v Baiada Poultry Pty Limited [2015] NSWSC 1106

Category: Procedural rulings
Parties: Tara Moss (plaintiff)
Chris Coghill (defendant
Representation:
Counsel:
Mr R Cheney SC with Mr H Chiu (plaintiff)
Dr D E Graham SC with Ms J M Sandford (defendant)
Solicitors:
Slater Gordon (plaintiff)
HWL Ebsworth (defendant)

File Number(s): 2019/275366
Publication restriction: Nil

JUDGMENT EX TEMPORE

Introduction

A number of procedural-styled issues have arisen in this medical negligence action that is listed before me for six weeks commencing on 15 May 2023.
The first relates to an evidentiary statement dated 23 March 2023 from the first plaintiff. The defendant objects to this statement, arguing that it is late – being served in breach of orders of the Court requiring its service well before the date it was served (24 March 2023) – and that the sheer size of the statement, and what it covers, creates a risk that the defendant will be unable to meet it.
The second arises out of the first issue. The defendant seeks a wide ranging disclosure style order – the precise form was not specified – but in substance it was an order that would compel the first plaintiff to provide access to all social media accounts and platforms as well as a series of ancillary orders (such as provision of passwords, phone numbers and security details) to ensure the disclosure sought occurred.
The third relates to a statement from Lauren Miller dated 31 January 2023. The defendant argues that it is not admissible and, separately, the plaintiffs do not have leave to serve and rely on further expert evidence on damages.

Background

I will briefly summarise the case and thereafter sketch the procedural history so far as it relates to the present applications.
The proceedings were commenced in this Court by…

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.

Continue reading Moss v Coghill

Details

AGLC: Moss v Coghill [2023] NSWSC 341
Case: [2023] NSWSC 341
Decision Date: 05 April 2023

CaseChat Overview and Summary

The parties to the case were Moss, the first plaintiff, and Coghill, the second defendant, with the case being heard in the Federal Circuit and Family Court of Australia. The dispute revolved around whether Moss should be granted leave to rely on late evidence, specifically a report by the CEO of a talent manager agency, which was sought to address a disadvantage or a real possibility of disadvantage. The second defendant, Coghill, contested the admissibility of the evidence on the grounds that it was late and that the CEO was not an expert whose opinion could be relied upon.

The court had to determine two primary legal issues. First, whether leave should be granted to Moss to rely on the late evidence, given the circumstances and potential impact on the proceedings. Second, whether the CEO of the talent manager agency qualified as an expert, thereby justifying the pre-trial ruling on the admissibility of the report.

In its decision, the court carefully examined the circumstances under which the evidence was presented and the potential impact it could have on the proceedings. The court found that the late evidence was critical in addressing the disadvantage or real possibility of disadvantage that Moss faced. Furthermore, the court held that the CEO's role and expertise were sufficient to qualify the report as an expert opinion, thereby allowing the evidence to be considered. The court granted leave for Moss to rely on the late evidence, finding that the CEO's report was pertinent and should be included in the proceedings.

The court's decision provided clarity on the admissibility of late evidence in specific circumstances and confirmed that the CEO of the talent manager agency could be considered an expert whose opinion was admissible. The final orders reflected the court's decision to allow Moss to rely on the late evidence in the case, ensuring that the potential disadvantage was adequately addressed.

Orders