Tanya Leonhardt v Louise Hosford

[2010] NSWDC 338

CITATION:	TANYA LEONHARDT v LOUISE HOSFORD [2010] NSWDC 338
JUDGMENT DATE:	26 May 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I am not satisfied there are exceptional circumstances and I reject the tender.
CATCHWORDS:	CIVIL LAW - admissibility of psychologist's report - plaintiff objection to opinion contained in report - report not served in time - test whether there are exceptional circumstances warranting the granting of leave to waive the requirements of service within time
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005, 31.18, 31.28
PARTIES:	Tanya Leonhardt Louise Hosford
FILE NUMBER(S):	2007/294929
COUNSEL:	Mr AJ Lidden SC for the plaintiff Mr AJJ Renshaw for the defendant

JUDGMENT

1. Mr Renshaw, counsel for the defendant in these proceedings, tenders a report by a psychologist, Dr Fox. The report was produced relating to proceedings other than these proceedings. Mr Lidden S.C. who appears for the plaintiff does not object to the tendering of material contained in the report which amounts to history given by his client but does object to it being tendered for any opinion expressed in it. Mr Lidden relies in his objection on P 31 R 28 of the Uniform Civil Procedure Rules 2005. His point simply is that the report was not served in time.

2. I am of the opinion that the report tendered by Mr Renshaw does fall within the definition of expert’s report contained in UCPR 31.18 because the expert does not have to be an expert in these proceedings. Mr Renshaw does not submit that the report was served within time in accordance with the UCPR. He therefore must argue, as he does, that in accordance with UCPR 31.28(4)(a) there are “exceptional circumstances that warrant the granting of leave”. I should add he does not rely on cl (b) of that provision.

3. The exceptional circumstances he said are these. Exhibit M is a statement by the plaintiff in proceedings concerning victim’s compensation related to an incident unrelated to this case. Exhibit M was tendered on behalf of the plaintiff. It was not objected to and admitted into evidence. Part of exhibit M are reports by experts including a psychologist including the opinions.

4. Mr Renshaw’s point is that for me to reject the tender of Dr Fox’s report would not be in the interests of justice and would be one sided in the sense that it would enable Mr Lidden to rely upon the opinions expressed in the reports as part of exhibit M but not what Mr Renshaw described as the antidote which is contained in the report of Dr Fox. My understanding is that the report of Dr Fox relates to the same incident as the reports which are part of exhibit M. Mr Renshaw argues that I need complete data in order to resolve this case which of course is a proposition which carries much weight. He also argues that Mr Lidden has to point to a detriment which the plaintiff would suffer if I were to allow Dr Fox’s report into evidence.

5. That however is not the test. The test is as I said that Mr Renshaw has to demonstrate exceptional circumstances granting leave to waive the Rule requiring service within time.

6. The report which Mr Renshaw tenders was apparently produced under subpoena. The subpoena was returnable in April this year and issued on behalf of the defendant. Access was granted to the plaintiff on 16 April 2010 and to Mr Renshaw’s client on 23 April 2010. These proceedings commenced yesterday, on 24 May 2010. There was therefore on one view an opportunity to comply with the provision of the Rule. I accept what Mr Renshaw says, that it was obviously the case that advice of counsel should be obtained, or would be obtained in the normal course, before serving the documents. The documents were in fact served by Mr Renshaw’s client on 18 May 2010. Nevertheless, I think Mr Renshaw has not made out the exceptional circumstances which would warrant the granting of leave.

7. The Rules are in place to effect the efficient administration of justice so far as civil proceedings are concerned and the purpose of the Rule is to ensure that the respective parties have sufficient advance notice of material which will be relied upon by their opponents. As I said, the earlier report - that is the reports contained in exhibit M - was admitted without objection by Mr Renshaw and it does not demonstrate exceptional circumstances that Mr Renshaw permitted admission into evidence of the report which is part of exhibit M but that Mr Lidden objects to this report.

8. I am not satisfied there are exceptional circumstances and I reject the tender.

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