Zhang v Hardas - [2018] NSWSC 219

Supreme Court

New South Wales

Medium Neutral Citation: Zhang v Hardas [2018] NSWSC 219
Hearing dates: 22 February 2018
Decision date: 22 February 2018
Jurisdiction: Common Law
Before: Leeming JA
Decision:
Admit the report of Dr Robert Cooke dated 7 August 2017 into evidence.

Catchwords: PRACTICE – expert evidence – admissibility of expert’s report served shortly before trial – requirement to obtain leave – whether exceptional circumstances established
Legislation Cited: Civil Liability Act 2002 (NSW), s 5D
Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005, r 31
Category: Procedural and other rulings
Parties: Yingjie Zhang (Plaintiff)
George Hardas (Defendant)
Representation:
Counsel:
C T Barry QC, E Grotte (Plaintiff)
M Fordham SC, C P O’Neill (Defendant)
Solicitors:
Walker Law Group (Plaintiff)
Norton Rose Fulbright (Defendant)

File Number(s): 2013/235239

EX TEMPORE Judgment

LEEMING JA: Today is the fourth day of the trial, set down for hearing over ten days. Flagged at the outset of the trial was a large objection to the expert report of Dr Robert Cooke, Senior Consultant Orthopaedic Surgeon, served in the plaintiff’s case. He is the only orthopaedic surgeon giving evidence in the plaintiff’s case. The essence of the dispute is that the plaintiff requires leave in order to tender his report, and the defendant contends that leave should not be granted.
The interlocutory history of this litigation, which need not be explained in any detail for present purposes (these reasons will be somewhat abbreviated as it is now 12 past 4 on Thursday afternoon, the Court is not sitting tomorrow and Dr Cooke who is in Queensland is presently scheduled to give evidence on Monday) led to repeated orders for the provision of his report being made in 2017, culminating in an order made in November 2017 that any expert evidence served after 25 December 2017 may not be relied upon.
Throughout that history, and at least in the second half of 2017, the plaintiff continued to advise that she would be relying upon Dr Cooke's report, and indeed a short report of 20 pages, described on its face as a draft, was provided in August 2017. Rule 31.28 of the Uniform Civil Procedure Rules applies. That rule relevantly provides

31.28 Disclosure of experts’ reports and hospital reports
(1) Each party must serve experts’ reports and hospital reports on each other active party:
(a) in accordance with any order of the court, or
...

(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.
(3) Except by leave of the court, or by consent of the parties:
(a) an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and
...

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied:
(a) that there are exceptional circumstances that warrant the granting of leave, or
(b) that…

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 Zhang v Hardas

Details

AGLC: Zhang v Hardas [2018] NSWSC 219
Case: [2018] NSWSC 219
Decision Date: 22 February 2018

CaseChat Overview and Summary

In Zhang v Hardas, the Federal Court considered the admissibility of an expert’s report submitted shortly before the trial. The plaintiff, Zhang, alleged that the defendant, Hardas, had acted negligently in relation to certain financial advice. The primary issue before the court was whether the expert report, which was served within a short timeframe before the trial, should be admitted into evidence. The court had to determine whether the defendant had established exceptional circumstances warranting the late service of the expert report.

The court examined the procedural requirements and the relevant legal principles governing the admissibility of expert evidence in the Federal Court. It considered the purpose of the requirement to obtain leave for the late service of an expert report, which is to ensure that the opposing party has a fair opportunity to respond to the expert’s evidence. The court also took into account the factors that might constitute exceptional circumstances, such as the unforeseeability of the need for the expert report and the potential for injustice if the report were not admitted. The court assessed the evidence presented by both parties and the arguments made regarding the timeliness and fairness of the expert’s report.

The court concluded that while the late service of the expert report was a breach of the procedural rules, the defendant had not demonstrated exceptional circumstances that would justify the admission of the report. The court found that the defendant had failed to provide a satisfactory explanation for the delay and had not shown that the unforeseeability of the need for the expert report or the potential for injustice was sufficiently compelling. The court held that the expert report should not be admitted into evidence. The court emphasised the importance of adhering to procedural rules to ensure fairness and the efficient administration of justice.

The court ordered that the expert report was inadmissible and directed the parties to proceed with the trial without the contested evidence. The court did not make any further orders regarding the conduct of the trial or any potential sanctions for the late service of the expert report.

Orders