Wadsworth v Hamilton

The plaintiff, Mr. Wadsworth, initiated proceedings against the defendants, Mr. Hamilton and another, seeking damages for personal injuries sustained in an incident. The case was heard in the Supreme Court of New South Wales. The dispute centred on the admissibility of expert evidence provided by the plaintiff's rehabilitation expert, who subsequently passed away before the trial, leaving only a report for consideration. The defendants argued that the deceased expert's unavailability for cross-examination would result in unfair prejudice, invoking Section 135 of the Evidence Act. Additionally, they contended that the cost of responding to two expert reports was excessive due to the Practice Note that limits parties to one expert per specialty. The second defendant, who had yet to obtain its expert evidence, filed a premature application under Section 192A of the Act, seeking to exclude the plaintiff's expert report.

The court needed to determine whether the deceased expert's report could be admitted despite the expert's unavailability for cross-examination. It also had to consider the implications of the cost of responding to two expert reports and the applicability of the Practice Note in this context. Furthermore, the court had to assess whether the second defendant's application to exclude the plaintiff's expert report was premature and, if so, whether it warranted dismissal.

The court found that the deceased expert's report could be admitted under Section 135 of the Evidence Act, as the plaintiff had demonstrated that the expert was unavailable due to death and that it was not due to the plaintiff's want of diligence. The court held that the cost of responding to two expert reports was not sufficient grounds to exclude the report, as the Practice Note was not intended to limit the number of experts but rather to control costs. The court also dismissed the second defendant's application as premature, as the defendant had not yet obtained its own expert evidence. Consequently, the notice of motion was dismissed.

The court's final orders were that the deceased expert's report was to be admitted as evidence, the second defendant's application was dismissed, and the defendants were to bear their own costs associated with the premature application.