District Court
New South Wales
Medium Neutral Citation: Zheng v Ianni & Ors [2021] NSWDC 492 Hearing dates: 15 – 16 September 2021 Date of orders: 16 September 2021 Decision date: 16 September 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 18 – 20
Catchwords: PRACTICE AND PROCEDURE – civil – expert medical evidence – application by third and fourth defendants for leave to rely upon expert medical report prepared for first and second defendants – no notification of tender until trial – relevance of plaintiff’s late settlement of claim against first and second defendants – whether leave should be granted – whether “exceptional circumstances” – permitted use of report to challenge credit of plaintiff
Legislation Cited: Civil Procedure Act 2005 (NSW) s 58
Evidence Act 1995 (NSW) s 136
Uniform Civil Procedure Rules 2005 (NSW) rr 31.17, 31.19, 31.28, 31.29
Cases Cited: San v Rumble (No 2) (2007) NSWCA 259
Texts Cited: Nil
Category: Procedural rulings Parties: Buzhong Zheng (plaintiff)
Najib Daoud (third defendant)
Leila Daoud (fourth defendant)
Fred Daoud (fifth defendant)Representation: Counsel:
Solicitors:
Mr J Phillips SC with Mr L Robison for the plaintiff
Ms F Sinclair for the third and fourth defendants
No appearance for the fifth defendant
MGL Lawyers for the plaintiff
George Khoury & Co for the third and fourth defendants
File Number(s): 2019/00181425
EX TEMPORE REASONS FOR Judgment
BACKGROUND
-
This proceeding involves a claim by the plaintiff, who is a tiler by trade, for damages for personal injuries he suffered following a fall through the void of a bathroom in premises at Drummoyne on 12 April 2018.
-
The plaintiff commenced this suit on 11 June 2019. His pleading, as amended, featured claims against five defendants: the first and second defendants were owner occupiers of the premises; the third and fourth defendants had been performing construction works; and the fifth defendant was also someone who had allegedly performed some works. It is a matter of controversy what the relationship was between the third and fourth defendants and the fifth defendant, who happens to be their son; albeit that Counsel for the third and fourth defendants described him as being “estranged” from the third and fourth defendants.
-
Less than a week before the trial, the plaintiff settled his claim against the first and second defendants. Previously, the plaintiff obtained a default judgment against the fifth defendant, with damages to be assessed.
-
What is presently in issue is a tender by Counsel for the third and fourth defendants of a report by Dr Seamus Dalton, a consultant physician, dated 2 October 2020 as an expert report [1] . Dr Dalton had been engaged by solicitors for the first and second defendants. Amongst other things, Dr Dalton referred to and commented upon an expert report of Dr Giblin, an orthopaedic surgeon engaged by the plaintiff, which report was prepared on 15 April 2019.
1. Initially, Counsel for the third and fourth defendants argued that it could be admissible…
Keep reading for free
Create a free CaseChat account to read Zheng v Ianni and Ors and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] NSWDC 492
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the third and fourth defendants should be granted leave to rely on the expert medical report, which was prepared for the first and second defendants and not disclosed until the trial. The court had to consider whether the circumstances were exceptional enough to justify permitting the late use of the report and whether it was relevant to challenge the plaintiff's credibility. The court also had to assess the implications of the plaintiff’s settlement with the first and second defendants on the admissibility of the report.
The court found that the circumstances were not exceptional enough to justify the late introduction of the expert medical report. It held that the report could not be used to challenge the plaintiff’s credibility due to the lack of notification to the plaintiff and the late stage of proceedings at which it was tendered. The court emphasised the importance of timely disclosure and the potential unfairness to the plaintiff in allowing such a late submission. The court also noted that the settlement with the first and second defendants did not impact the admissibility of the report in this context. Consequently, the application for leave to rely on the expert medical report was dismissed.
The court made orders that the third and fourth defendants were not granted leave to rely on the expert medical report. The plaintiff's claim against the third and fourth defendants was to proceed without the contested report. The court also directed that the third and fourth defendants bear their own costs associated with the application.
Orders
Orders of the court
See paragraphs 18 – 20
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.