Sun v He - [2022] NSWSC 145

Supreme Court

New South Wales

Medium Neutral Citation: Sun v He [2022] NSWSC 145
Hearing dates: 17 February 2022
Date of orders: 17 February 2022
Decision date: 17 February 2022
Jurisdiction: Equity - Duty List
Before: Henry J
Decision:
Waive requirement for the Plaintiff to serve expert report on the Defendants prior to trial and grant leave to the Plaintiff to tender the report at the hearing: see [45].

Catchwords:
EVIDENCE – PRACTICE AND PROCEDURE –Application for leave to tender expert evidence without serving on the opposing party prior to trial – where application brought ex parte – consideration of relevant factors – interests of justice – “Markus” order granted

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265
Latimer v Day [2015] NSWSC 11
Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1
Orkzai v LMG Pty Ltd [2020] NSWSC 1366
Prasad v AMP Life Limited; Printer Ribbon Products Pty Ltd v AMP Life Limited [2012] NSWSC 1076
Sun v He [2020] NSWSC 802
Kon v AMP Life Ltd [2006] NSWSC 957
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Sun v He (No 2) [2020] NSWSC 1298

Category: Procedural rulings
Parties: Bo Sun (Plaintiff)
Representation:
Counsel:
M Pesman SC and T Bors (Plaintiff)
Solicitors:
Colin Biggers & Paisley Pty Ltd (Plaintiff)

File Number(s): 2019/71078
Publication restriction: Yes. See orders (4) and (5)

Judgment – ex tempore (Revised)

This is an ex parte application brought by the plaintiff (Mr Sun) for orders seeking, amongst other things, dispensation with the requirement to serve an expert report in advance of the hearing of these proceedings and for leave to tender it at trial. The application is made by notice of motion which Mr Sun was granted leave to file in Court today and is being heard in my capacity as the Equity duty judge.
The urgency of the application arises as the final hearing of the proceedings, which is scheduled to run for four weeks, is listed to commence before Parker J on 28 February 2022. There is also a direction for Mr Sun to serve his evidence in reply by 25 February 2022, which would include the expert report the subject of his application. That direction was made in circumstances which I will come to.
In support of his notice of motion, Mr Sun relies on an affidavit of James Neal sworn 14 February 2022 and written submissions which were supplemented by oral submissions at the hearing.

Background to this application

The nature and some procedural history of these proceedings are set out by Ward CJ in Eq in Sun v He [2020] NSWSC 802 at [12]-[36] (Sun v He).
In summary, Mr Sun commenced these proceedings on 5 March 2019 by summons on an ex parte application seeking freezing orders against Mr He…

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 Sun v He

Details

AGLC: Sun v He [2022] NSWSC 145
Case: [2022] NSWSC 145
Decision Date: 17 February 2022

CaseChat Overview and Summary

The case of Sun v He involved a dispute where the plaintiff sought to tender expert evidence at trial without prior disclosure to the defendant. The matter was heard in the Supreme Court of Victoria. The plaintiff's application for leave to adduce expert evidence was made ex parte, meaning the defendant was not present when the application was made. The plaintiff sought this order to prevent any unfair prejudice to their case, as the defendant had not responded to the notice of intention to adduce expert evidence.

The primary legal issue for the court was whether the application for leave to tender expert evidence without prior disclosure should be granted. The court considered the factors outlined in the decision of Markus v Attorney-General, which require the court to balance the interests of justice against any potential prejudice to the defendant. The court also considered whether the plaintiff had acted promptly and reasonably in seeking to adduce the expert evidence, and whether there were exceptional circumstances that warranted the grant of such an order.

In determining the application, the court examined the evidence provided by the plaintiff regarding their efforts to obtain the expert evidence and the reasons for the late disclosure. The court was satisfied that the plaintiff had acted promptly and reasonably in seeking to adduce the expert evidence and that exceptional circumstances existed which warranted the grant of the order. The court found that it was in the interests of justice to allow the evidence to be presented at trial, despite the late disclosure, as it was in the best interests of ensuring a fair trial and the just resolution of the matter.

Accordingly, the court granted the application for leave to tender expert evidence without prior disclosure. The court made a "Markus" order, allowing the expert evidence to be presented at trial, subject to certain conditions. The final orders of the court ensured that the defendant was not unfairly prejudiced by the late disclosure and that the interests of justice were upheld in the proceedings.

Orders