Stambolziovski v Nestorovic

[2014] NSWDC 291

District Court

New South Wales

Medium Neutral Citation:	Stambolziovski v Nestorovic [2014] NSWDC 291
Hearing dates:	15 September 2014
Decision date:	15 September 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	I propose to allow counsel leave to further cross-examine the plaintiff. I reserve the question of costs of the application.
Catchwords:	EVIDENCE – cross-examination – expert report tendered – further report not served – whether “supplementary report” – initial report withdrawn – application to further cross-examine witness
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 31.28, r 31.34
Cases Cited:	Lucantonio v Kleinert [2009] NSWSC 1277
Texts Cited:	Ritchie's Uniform Civil Procedure NSW
Category:	Procedural and other rulings
Parties:	Blaga Stambolziovski (plaintiff) Lilly Nestorovic (first defendant/cross-claimant to second cross-claim) Camanaro Prestige Properties Pty Limited ACN 101 515 744 t/as Sydneyhome Real Estate Ramsgate Beach (second defendant) Sasha Stambolziovski (cross-defendant to second cross-claim)
Representation:	Counsel: Mr M Daley (plaintiff) Mr S C Ipp (first defendant/cross-claimant to second cross-claim) Solicitors: Brydens Compensation Lawyers (plaintiff) Gadens Lawyers (first defendant/cross-claimant to second cross-claim)
File Number(s):	2011/401832

Judgment

1. The hearing of this matter commenced on 18 August 2014. On the third day of the hearing, the first defendant was notified of a further report of Gerard Glancey, a psychologist who had prepared a report that was tendered by the plaintiff as part of the evidence in the proceedings. The first defendant sought a copy of that further report and it was provided on the fifth day of the hearing, 22 August 2014.

2. On the following Monday, the sixth day, the first defendant sought leave to have the plaintiff recalled to be further cross-examined. The plaintiff's evidence had concluded partway through the first week of the trial.

3. The further report of Mr Glancey is three pages in length. After referring to the report of Dr Roberts, the first defendant's expert, Mr Glancey writes, "One must concede that [the plaintiff] attempted to deceive myself and Dr Roberts, in respect of pre-existing anxiety and depressive disturbances".

4. The earlier report of Mr Glancey attributed the plaintiff's "anxiety and depression" to the incident in August 2009, the incident which is the subject of these proceedings.

5. During the course of argument, the plaintiff withdrew any claim for psychiatric or psychological damage as a result of the accident in August 2009.

6. The plaintiff also purported to withdraw the first report of Mr Glancey. In submissions she conceded that the more appropriate course was to seek leave to withdraw that report from the evidence. The first defendant did not indicate whether that application was consented to, not opposed or opposed.

7. The first defendant refers my attention to Part 31 r 28 and r 34, which deal with the disclosure of expert reports. Perhaps the more critical provision is r 31.34, which provides:

“31.34 Supplementary reports by expert witness

(cf SCR Part 36, rule 13C; DCR Part 28, rule 9C; LCR Part 23, rule 1D)

(1) If an expert witness provides a supplementary report to the party by whom he or she has been engaged, neither the engaging party nor any other party having the same interest as the engaging party may use:

(a) the supplementary report, or

(b) any earlier report affected by the supplementary report,

unless all of those reports have been served on all parties affected.

(2) For the purposes of this rule, supplementary report, in relation to an earlier report provided by an expert witness, includes any report by the expert witness that indicates that he or she has changed his or her opinion on a material matter expressed in the earlier report.

…”

8. The plaintiff says that no obligations on her arise from r 31.34 because this further report is not a "supplementary report". This further report of Gerard Glancey is dated 5 February 2014, some months after the first report. It is titled "supplementary report".

9. The plaintiff submits that the further report is only a supplementary report if it indicates that there is a change of an opinion. The further report states, "Her depressive disturbance appears an exacerbation of a pre-existing disorder”. That is different from the comment in the initial report of Mr Glancey that "she suffers anxiety and depression attributable to the accident of August 2009 and injuries sustained in that accident". This difference is underlined by the passage quoted in paragraph 3 above.

10. The plaintiff also submitted that the further report was not supplementary, even if it was different from the earlier report, because the difference was not attributable to further facts being established or further consideration or thought being given by Mr Glancey, but rather was attributable to an assumption by Mr Glancey accepting Dr Roberts' report.

11. In my view, the further report necessarily reflects further consideration being given by Mr Glancey, including consideration of the contents of Dr Roberts' report. That consideration has not, in my view, led Mr Glancey to express an opinion conditioned on the assumptions in or the truth of Dr Roberts’ report. Rather, Mr Glancey has drawn conclusions that accept certain propositions in Dr Roberts' report. His change of opinion is not merely conditional upon Dr Roberts' report being accepted, but reflects Mr Glancey's considered view.

12. The two passages I have quoted from the report are not conditioned on an assumption that Dr Roberts' report is accepted.

13. Also, r 31.34 does not require that the establishment of new facts cause a change in an expert report before the further report is a supplementary report.

14. The report of 5 February 2014 of Mr Glancey is a supplementary report because it is titled “SUPPLEMENTARY REPORT” and is a report that affects an earlier report. This is the test supported in paragraph [31.28.10] of Ritchie's Uniform Civil Procedure NSW and by the terms of r 31.34. In particular, the use of the word "includes" in r 31.34 indicates that there is no necessity for there to be a change in opinion in order for a subsequent report to be a supplementary report. It follows that the plaintiff has acted contrary to r 31.34 in tendering the initial report without serving the supplementary report of Mr Glancey.

15. The first defendant submits that the failure to comply with r 31.34 justifies a witness, in this case the plaintiff, being recalled for cross-examination. The final sentence of paragraph [31.28.10] of Ritchie's Uniform Civil Procedure NSW states, "Failure to serve the supplementary report will bar the use of the earlier report in the proceedings: see UCPR r 31.34". That, it seems, is the plain intent of r 31.34(1). The plaintiff says that this purpose of the rule is satisfied if the claim for psychiatric and psychological damage is withdrawn and no reliance is placed on the earlier report of Mr Glancey.

16. On the other hand, the first defendant submits that had the supplementary report been provided in a timely fashion, the course of cross-examination would have been different, and that the first defendant is entitled to an order that cures any prejudice resulting from that difference.

17. When the first report was tendered the plaintiff was under an obligation to serve the supplementary report, because of the terms of r 31.34(1). Had she complied with that obligation, there are reasons to believe that the course of cross-examination would have been different. First, the first defendant's counsel may have been satisfied, or more comfortably satisfied, that there was a proper basis for suggesting that a witness had engaged in dishonesty. Secondly, the existence of another report supporting some suggestion of dishonesty by the first defendant may have impacted on the forensic decision as to whether or not to put certain matters to the witness.

18. There is some force in the plaintiff's contention that the report of Dr Roberts contains similar conclusions about the plaintiff’s pre-existing condition as the conclusion of Mr Glancey in the supplementary report. But, there is also some significance in those matters being contained in a report by the plaintiff's expert. That is a matter that could reasonably impact upon counsel's decision as to what questions should be asked in cross-examination.

19. I was referred to the decision of Lucantonio v Kleinert [2009] NSWSC 1277 where a similar but not identical issue arose in the proceedings. In that case, a plaintiff wished to rely upon a document that it had not discovered. Brereton J at [8] determined that, "it is vastly preferable that the court proceed on a correct view of the facts, rather than on a false premise in resolving the question of causation". His Honour allowed the document to be tendered by the plaintiff, but on the condition that the defendant had an opportunity to further cross-examine certain witnesses.

20. The present case is different. The plaintiff is not seeking to rely upon documents she did not provide. On the contrary, she is content to withdraw them and has abandoned her claim for those types of damages referred to in the reports of Mr Glancey.

21. The course taken by the plaintiff cures some of the prejudice. If that course had been taken prior to the conclusion of the plaintiff's evidence, it may have been sufficient to remedy the default of tendering the first report without having served the second report. However, I think that, on balance, the proper course is that the first defendant should be given an opportunity to further cross-examine the plaintiff. There was an obligation to provide a report that might reasonably have impacted upon cross-examination and that report was not provided.

22. As the plaintiff decided to put the initial report in evidence without serving the supplementary report, it should bear the disadvantage that might flow from the first defendant having an opportunity to ask questions about the supplementary report now even though the first defendant might not have had that opportunity had the initial report not been put in evidence or it had been timeously withdrawn.

23. Accordingly, I propose to allow counsel leave to further cross-examine the plaintiff. I reserve the question of costs of the application.

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Decision last updated: 05 March 2015