Rules of the Supreme Court of the Australian Capital Territory (Amendment) (Cth)

Statutory Rules 1990 No. 21

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Rules of the Supreme Court of the

Australian Capital Territory2 (Amendment)

WE, Judges appointed under subsection 7 (1) of the Australian Capital Territory Supreme Court Act 1933, hereby make the following Rules of Court under section 28 of that Act.

Dated 15 January 1990.

JEFFREY MILES

Chief Justice

J. F. GALLOP

Judge

J. CIRCOSTA

Acting Registrar

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Commencement

1. These Rules shall come into operation on 1 February, 1990.

Principal Rules

2. In these Rules, “Principal Rules” means the Rules of the Supreme Court of the Australian Capital Territory.

 

Interpretation

3. Rule 1a of Order 39 of the Principal Rules is amended by inserting each of the following definitions in its appropriate alphabetical position:

“‘expert’s report’ means a statement in writing by an expert and, where the expert has made more than one statement, each such statement which sets out the expert’s opinion and the facts on which the opinion is formed and which contains the substance of the expert’s evidence which the party serving the statement or statements intends to adduce in chief at the trial;

‘hospital report’ means a statement in writing concerning a patient made by or on behalf of a hospital which the party serving the statement intends to adduce in evidence in chief at the trial;”.

Power of Registrar to grant leave to inspect documents

4. After Rule 26 of Order 39 of the Principal Rules the following rule is inserted:

“26a. Unless the Court or a Judge otherwise orders, where the person named in a subpoena for production does not object to the documents produced by him or her being inspected by the parties to the proceedings, and no party to the proceeding objects, the Registrar may give the parties leave to inspect the documents.”.

5. After Division 5 of Order 39 of the Principal Rules the following Division is inserted:

“6 Disclosure of Experts’ Reports and Hospital Reports

Application

“45. The Rules contained in this Division apply:

(a) to proceedings in the Court in which a claim is made for damages for personal injuries or in respect of the death of a person; and

(b) to any other proceedings in which the Court may at any time on the application of a party or of its own motion direct that they shall apply.

“46. (1) Unless the Court otherwise orders, 56 days before the date fixed for determining the trial date the plaintiff, and 49 days before that date each other party, shall serve experts’ reports and hospital reports on parties to the proceedings who have an address for service.

“(2) Any report which becomes available after the date specified in the preceding subrule and:

(a) is purely responsive to another report served pursuant to this rule; or

(b) serves only to update a report previously served;

shall be served on the parties referred to in the preceding rule within three working days of its receipt by the party who commissioned it.

 

“47. (1) Except with the leave of the Court or by consent of the parties, the oral evidence in chief of any expert is not admissible unless that evidence is covered by the expert’s report served in accordance with the preceding rule.

“(2) For the purposes of subrule (1) evidence is covered by a report if the report contains the substance of the matters sought to be adduced in evidence.

“48. Where an expert’s report or hospital report is served in accordance with rule 46 or an order made under that rule or consent is given, the report is admissible as evidence of the author’s opinion and, where the author’s direct oral evidence of a fact upon which the opinion was formed would be admissible as evidence of that fact without further evidence, oral or otherwise, the report is admissible as evidence of that fact.

“49. (1) Unless the Court otherwise orders:

(a) a party may in any case, where the Court fixes a hearing date, not later than 49 days before the date fixed for trial require the attendance for cross-examination of the expert;

(b) a party who is served with an expert’s report may tender that report.

“(2) Where the attendance of an expert is required under subrule (1), his report shall not be tendered or otherwise used unless the expert attends or is dead or the Court grants leave to use it.”.

6. After Order 36 of the Principal Rules the following Order is inserted:

“ORDER 36a

STATEMENT OF PARTICULARS BEFORE TRIAL

Application

“1. This Order applies to an action in which a claim for damages for personal injury is made.”

Interpretation

“2. In this Order:

‘plaintiff’ includes a defendant counter-claiming damages for personal injury and ‘defendant’ includes a plaintiff against whom a counterclaim is made; and

‘earnings’ means gross earnings per week or other appropriate period and net earnings after taxation per week or other appropriate period, and ‘earned’ and ‘earning’ shall be construed accordingly.”

“3. (1) Unless the Court otherwise orders, 56 days before the date fixed for determining the trial date, the plaintiff shall file and serve on each other party a statement called ‘Statement of Particulars’ setting out:

(a) particulars of the injuries received;

 

(b) particulars of disabilities suffered since the accident and allegedly arising therefrom and continuing disabilities so arising;

(c) details of out-of-pocket expenses; and

(d) where any claim is made in respect of past loss of earning capacity:

(i) the name and address of each employer during the 12 months preceding the accident together with details of the periods of employment, capacity in which employed, and earnings during each period of employment;

(ii) the name and address of each employer since the accident together with details of the periods of employment, capacity in which employed, and earnings;

(iii) the amount claimed in respect of loss of earnings to the date of the statement by a comparision between what the plaintiff has earned since the accident and what he alleges he would have earned but for the accident, setting out, in respect of that allegation, particulars of that comparison, including, where appropriate, particulars of earnings of employees engaged in employment like that in which the plaintiff alleges he would have been engaged, and the identity of those employees, or particulars of payments which the plaintiff alleges he would have received under an award or industrial agreement (identifying that award or industrial agreement) applicable to the employment in which he alleges he would have been engaged; and

(iv) in the case of self-employed persons, such additional particulars as will achieve full disclosure of the basis of the claim for loss of earning capacity; and

(e) particulars of any alleged future loss of earning capacity and future economic loss.

“(2) With the statement the plaintiff shall serve, but not file, copies of all documents available to him in support of a claim for special damages and economic loss, whether past, present or continuing, including:

(a) hospital, medical or similar accounts;

(b) letters from a workmen’s compensation insurer indicating moneys paid on behalf of the plaintiff for hospital, medical, ambulance and the like expenses; and

(c) letters from employers, wage records, income records and group certificates.”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 25 January 1990.

2. Statutory Rules 1937 No. 85 as amended by 1938 No. 99; 1939 Nos. 48 and 61; 1950 No. 22; 1956 No. 135; 1958 No. 64; 1962 Nos. 47 and 76; 1966 No. 132; 1967 No. 68; 1968 No. 13; 1969 Nos. 57, 66, 221 and 222; 1972 No. 189; 1973 Nos. 95

NOTES—continued

and 149; 1974 Nos. 25, 60 and 197; 1975 No. 81; 1976 No. 190; 1977 No. 152; 1978 Nos. 86 and 173; 1980 Nos. 210 and 214; 1981 Nos. 104, 196, 296 and 328; 1982 Nos. 202, 316 and 365; 1983 Nos. 26, 27 and 228; 1984 Nos. 110, 281, 285, 313 and 405; 1985 Nos. 27 and 69; 1986 Nos. 8, 26, 86 and 349; 1987 Nos. 76, 93 and 219; 1988 Nos. 24, 145, 221, 257 and 331; 1989 Nos. 18, 30, 191 and 273.