Salzke v Khoury

The case of *Salzke v Khoury* concerned an appeal to the Supreme Court of New South Wales from decisions of a Judicial Registrar of the District Court. The plaintiff, Ms Salzke, had her case dismissed by the Judicial Registrar under rule 31.36 of the Uniform Civil Procedure Rules 1999 (NSW) following motions brought by the defendants, Dr Khoury and others. The dismissal related to the service and content of expert reports in professional negligence claims, specifically whether Ms Salzke had complied with the requirements of rule 31.36 and whether there had been undue delay in serving the expert reports. A further issue was whether the expert's report adequately "supported" the plaintiff's case, and whether the Judicial Registrar had failed to consider the prejudice Ms Salzke would suffer if her claim were dismissed.

The legal issues before the Supreme Court were whether the Judicial Registrar had erred in dismissing Ms Salzke's claim. This involved determining whether the expert reports served by Ms Salzke complied with the requirements of rule 31.36, particularly concerning the content and the obligation for the report to "support" the plaintiff's case. The court also considered the impact of any delays in serving these reports and whether the Judicial Registrar had properly assessed the prejudice to the plaintiff. Additionally, the court considered an application to adduce further evidence, comprising additional expert reports that were intended to supplement and clarify an earlier report which had allegedly generated misunderstanding.

The Supreme Court, comprising Ipp JA, Basten JA, and Gzell J, found that the applications for leave to appeal should be granted and that the appeals should be upheld. The court reasoned that the Judicial Registrar had erred in dismissing the plaintiff's claim. The court set aside the orders made by the Judicial Registrar and the respondents' motions to dismiss Ms Salzke's claim. The court ordered that Ms Salzke's claim be reinstated and awarded costs to Ms Salzke, with Dr Khoury to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.