Eastbury v Genea Limited (Formerly Sydney IVF Limited) [2017] NSWSC 1289

Eastbury v Genea Limited (Formerly Sydney IVF Limited) [2017] NSWSC 1289

It was not appropriate to decide admissibility before trial because the impugned parts of the report raised a subtle issue about whether an expert in genetic testing could give evidence about what a testing agency understood to be the role of a referring general practitioner within the referral system. The Court lacked the benefit of openings, lay evidence and expert evidence, was unlikely to be the trial judge, and there was no real prejudice to Dr Curtotti because further responsive expert evidence and conclaves had been provided for.

Jurisdiction
Australia
Judgment Date
21 September 2017
Procedural Posture
Application for Ruling on Admissibility and Use of Expert Report Under S 192 a of the Evidence Act 1995 in Advance of Trial / Notice of Motion Filed 14 September 2017 Heard Before Trial
Outcome
The notice of motion filed 14 September 2017 was dismissed.
Legal Topics
['admissibility of Expert Evidence' 'advance Evidentiary Ruling' 'expert Report' 'expert Conclaves' 'costs of Motion']
['evidence' 'civil Procedure'] ['admissibility of Expert Evidence' 'advance Evidentiary Ruling' 'expert Report' 'expert Conclaves' 'costs of Motion']

Case Brief

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Procedural Posture

Application for Ruling on Admissibility and Use of Expert Report Under S 192 a of the Evidence Act 1995 in Advance of Trial / Notice of Motion Filed 14 September 2017 Heard Before Trial

Legal Issues

  1. 1 ["Whether it was appropriate under s 192A of the Evidence Act 1995 to rule in advance of trial on the admissibility and use of objected-to portions of Mr Purvis-Smith's report." "Whether the objected-to portions of Mr Purvis-Smith's report impermissibly travelled beyond his expertise concerning genetic testing into opinions about the proper standards expected of a general practitioner."]

Ratio Decidendi

It was not appropriate to decide admissibility before trial because the impugned parts of the report raised a subtle issue about whether an expert in genetic testing could give evidence about what a testing agency understood to be the role of a referring general practitioner within the referral system. The Court lacked the benefit of openings, lay evidence and expert evidence, was unlikely to be the trial judge, and there was no real prejudice to Dr Curtotti because further responsive expert evidence and conclaves had been provided for.

Court Disposition

The notice of motion filed 14 September 2017 was dismissed.

Orders

  • ['The Notice of Motion filed 14 September 2017 is dismissed.' "The second defendant to pay the first defendant's costs of the motion."]