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Pryce v Dunlap

Pryce v Dunlap

Case [2016] ACTSC 338 16 November 2016

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pryce v Dunlap
Citation:	[2016] ACTSC 338
Hearing Date:	16 November 2016
DecisionDate:	16 November 2016
Before:	Mossop AsJ
Decision:	Application dismissed. The plaintiff is to pay the defendants’ costs of the application, not to be assessed until the proceedings end.
Catchwords:	PRACTICE AND PROCEDURE – Application for leave to tender medical reports at hearing – Court Procedures Rules 2006 (ACT), r 1241 – Meaning of “exceptional circumstances” – Whether “exceptional circumstances” established – Where reports went to utility of horse riding as a form of treatment – Significant benefit for the plaintiff in being able to rely on additional expert evidence – Where reliance on reports would require vacation of hearing date – Where pain medicine specialist not previously been qualified by either party – Whether prejudice suffered by defendant from inability to obtain opinion in response prior to hearing – Significance of statements in First Directions Hearing Questionnaire and Listing Hearing Questionnaire that experts briefed, expert reports served and counsel’s advice obtained– Application dismissed
Legislation Cited:	Bail Act 1992 (ACT) Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), r 1241
Cases Cited:	AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Ho v Professional Services Review Committee No 295 [2007] FCA 388 In the matter of an application for bail by Allen [2009] ACTSC 64 In the matter of an application for bail by Massey [2008] ACTSC 145 Khan v Rathjen (No 2) [2016] NSWDC 140 King v Nolan [1992] 2 Qd R 498 R v Kelly [2000] 1 QB 198 Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
Parties:	Cheryl Ann Pryce (Plaintiff) Juliana Dunlap (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant)
Representation:	Counsel L E Edwards (Plaintiff) B Wilson (Defendants)
Solicitors Maliganis Edwards Johnson (Plaintiff) Moray & Agnew (Defendants)
File Number:	SC 447 of 2015

MOSSOP AsJ:

The application

The plaintiff has applied for leave under r 1241 of the Court Procedures Rules 2006 (ACT) (CPR) to tender at the hearing the reports of Dr David Champion dated 27 September 2016 and 14 October 2016.

The grounds for the application are identified as follows:

1. The plaintiff has obtained reports from Dr David Champion rheumatologist dated 27 September 2016 and 14 October 2016 (served 11 October and 26 October 2016 respectively)
2.The plaintiff advised the defendants on 9 August 2016 of the reason for, and the fact of, obtaining reports from Dr David Champion, identifying his area of expertise.
3.The plaintiff serve the reports of Dr Champion on the defendants in time for them to be provided to the defendant experts and commented on in their review reports.
4. It is necessary and reasonable for the plaintiff to serve expert evidence from a rheumatologist/chronic pain specialist due to her chronic pain; and to obtain Dr Champion’s opinion about particular issues that have become contentious point the parties.
5.…

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 Pryce v Dunlap

Details

AGLC: Pryce v Dunlap [2016] ACTSC 338
Case: [2016] ACTSC 338
Decision Date: 16 November 2016

CaseChat Overview and Summary

In the matter of Pryce v Dunlap, the plaintiff sought to tender medical reports at the hearing in the ACT Magistrates Court. The dispute involved the interpretation of the Court Procedures Rules 2006 (ACT), specifically rule 1241, which requires leave to be obtained from the court to tender medical reports at a hearing under “exceptional circumstances.” The plaintiff argued that exceptional circumstances were present due to the utility of horse riding as a form of treatment and the significant benefit for the plaintiff in being able to rely on additional expert evidence. The defendant opposed the application, arguing that they would suffer prejudice from the inability to obtain an opinion in response prior to the hearing. The court was required to decide whether the plaintiff had established the presence of exceptional circumstances and whether the defendant would suffer prejudice if the application was allowed.

The court considered the significance of the statements in the First Directions Hearing Questionnaire and Listing Hearing Questionnaire that experts had been briefed, expert reports had been served, and counsel's advice had been obtained. The court found that the plaintiff had not established the presence of exceptional circumstances, as the reports went to a matter that could have been addressed through the usual discovery process. The court also found that the defendant would suffer prejudice if the application was allowed, as they would be unable to obtain an opinion in response prior to the hearing. The court dismissed the application, and the plaintiff was ordered to pay the defendants' costs of the application, not to be assessed until the proceedings end.

This decision highlights the importance of ensuring that all relevant evidence is disclosed and considered before a hearing. It also emphasizes the need for parties to carefully consider the timing of their applications and the potential prejudice that may be suffered by the opposing party. The decision underscores the importance of following the proper procedures and timelines in order to ensure a fair and just outcome.

Orders

Orders of the court

Application dismissed. The plaintiff is to pay the defendants’ costs of the application, not to be assessed until the proceedings end.

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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Pryce v Dunlap [2016] ACTSC 338

Most Recent Citation

Sayeda Safina Alam v Australian Capital Territory [2019] ACTSC 153

Cases citing this decision · 8 of 8 shown

Milhem v Sam's Carpentry Pty Ltd (in liquidation) & IC
[2023] ACTSC 51 Para 1

…The late briefing of Senior Counsel is not an adequate explanation for the delay in filing Dr McIntosh’s report. As Mossop J held in Pryce v Dunlap [2016] ACTSC 338 at [49]:…
Sawkins v Australian Capital Territory
[2023] ACTSC 73 Para 1

…ied upon r 1401 which is the general directions making power of the court. The relationship between r 1401 and r 1241 was explained in Pryce v Dunlap [2016] ACTSC 338 at [7] and Smith v Children Australia Inc [2022] ACTSC 310 at [9]. Rule 1205 seems to be in the same position as r 1401, namely a directions making p…
McCloskey v Nexis Accountants Pty Ltd
[2023] ACTSC 41 Para 1

…of the Court may seek a further direction for the service of expert reports under rr 1205 or r 1401 of the Court Procedure Rules : see Pryce v Dunlap [2016] ACTSC 338 at [7]; Glover v Fuller [2022] ACTSC 144 at [7]; Smith v Children Australia Inc at [9]. However, where (as here) the application is brought at a time…
Smith v Children Australia Inc
[2022] ACTSC 310 Para 1

…As explained by Mossop J in Pryce v Dunlap [2016] ACTSC 338 at [6], r 1241(4) (which imposes the requirement to establish exceptional circumstances) speaks to the point at which a part seeks to tender the report. I respectfully agree with his Honour’s observation at [7] that:…
Glover v Fuller
[2022] ACTSC 144 Para 1

…herwise should bring the circumstances within the scope of r 1241(3). In any event, as Mossop AsJ (as his Honour then was) observed in Pryce v Dunlap [2016] ACTSC 338 at [7], the constraints in r 1241(3) are subject to the orders of the Court: r 1241(5). The present application was made at a stage in proceedings su…
Russell v Glenn
[2020] ACTSC 81 Para 1

…e's report and has not to date indicated that they would have difficulty doing so. The applicant relied on the decision of Mossop J in Pryce v Dunlop [2016] ACTSC 338.…
De Gruchy v The Owners - Units Plan No. 3989
[2020] ACTSC 65

…ler Steamship Co. Pty Limited (Wagon Mound (No. 2)) [1966] UKPC 1; (1967) 1 AC 617 Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381 Pryce v Dunlap [2016] ACTSC 338 Quick v Alpine Nurseries [2010] NSWSC 1248 Reliance Finance Corporation Pty Ltd v Orwin Walshe & Ward [1964] 5 NSWR 970 Roberts v Rodier [2006] NSWSC…
Sayeda Safina Alam v Australian Capital Territory
[2019] ACTSC 153

…Pryce v Dunlap [2016] ACTSC 338…

View all 8 citing cases →

Cases cited in this decision · 13 of 13 shown

Gulab Khan v Matthew Rathjen (No. 2)
[2016] NSWDC 140 Para 1

…I was also referred to the decision in Khan v Rathjen (No 2) [2016] NSWDC 140 which involved an application to tender an expert report served outside the scope of directions made by the Court, although I note that the application was one made during the course of, rather than in advance of, the trial. In that case…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 1

…peditious disposition of cases and, in particular, the decision of the High Court in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.…
In the matter of an application for bail by Allen
[2009] ACTSC 64 Para 1

…ances” in In the matter of an application for bail by Massey [2008] ACTSC 145 at [7]-[8] and in In the matter of an application for bail by Allen [2009] ACTSC 64 at [9]. The test in r 1241 is a more stringent one than that referred to in the Bail Act 1992 (ACT). That is because the test in r 1241 does not include…
In the matter of an application for bail by Massey
[2008] ACTSC 145 Para 1

…he decisions of this Court in relation to the phrase “special or exceptional circumstances” in In the matter of an application for bail by Massey [2008] ACTSC 145 at [7]-[8] and in In the matter of an application for bail by Allen [2009] ACTSC 64 at [9]. The test in r 1241 is a more stringent one than that referred…
State of NSW v Tyszyk
[2008] NSWCA 107 Para 188

…e notice of its likely tender … and the tender would not give rise to significant prejudice (New South Wales v Tyszyk [2008] NSWCA 107 at [188] – [208].”…
Yacoub v Pilkington (Australia) Ltd
[2007] NSWCA 290 Para 1

…o a similarly drafted provision of the Uniform Civil Procedure Rules 2005 (NSW). I was referred to the summary in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]:…
San v Rumble (No 2)
[2007] NSWCA 259

…66 Another question of construction concerned “exceptional circumstances” in rule 31.18(4).In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in fu…
Ho v Professional Services Review Committee No 295
[2007] FCA 388 Para 1

…the judgment of Lord Bingham CJ in R v Kelly [2000] 1 QB 198 at [208], the statement of Rares J in Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [27] as well as the decisions of this Court in relation to the phrase “special or exceptional circumstances” in In the matter of an application fo…
ASIC v Rich
[2005] NSWSC 706

…n to grant leave is the “just determination of the proceedings” – see Australian Securities & Investments Commission v Rich [2005] NSWSC 706. The learned authors go on to state: “Consequently, principled exercise of the discretion will require consideration of the timing of any disclosure of the report, the reason…
[2000] 1 QB 198
[2000] 1 QB 198 Para 1

…ul summary of authorities, it is also consistent with the description of what constitutes exceptional in the judgment of Lord Bingham CJ in R v Kelly [2000] 1 QB 198 at [208], the statement of Rares J in Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [27] as well as the decisions of this Cour…
[2000] 1 WLR 1262
[2000] 1 WLR 1262

…by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913). (c)Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a com…
[1996] 2 NZLR 184
[1996] 2 NZLR 184

…her exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).…
Cropper v Smith
(1884) 26 ChD 701

…It is significant that there is no provision anywhere in the rule which 10 gives the court the power to exclude evidence when a defendant breaches the obligation imposed by para. (e). The sanction which prima facie prevents the calling of evidence (unless the court for special reason gives leave) is…

Legislation cited in this decision · 4

Court Procedures Act 2004 (ACT)
5A 2 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
1241 2 mentions (from Para 1)
Bail Act 1992 (ACT)
1 mention (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 1)