Kelly v Thorn; Monteleone v Thorn [2020] NSWSC 1933

Kelly v Thorn; Monteleone v Thorn [2020] NSWSC 1933

Although impecuniosity alone was not sufficient to establish exceptional circumstances, exceptional circumstances were shown by the combination of factors in the case, including the plaintiff's explanation for late service, the high relevance of Professor Brew's report to the real issues, the extraordinary position that the plaintiff otherwise had no up-to-date medical evidence supporting substantial damages for severe arm injuries, and the ability to ameliorate prejudice to the defendant by conditions allowing best endeavours to obtain a responsive report.

Jurisdiction
Australia
Judgment Date
17 November 2020
Procedural Posture
Procedural Ruling in Common Law Personal Injury Proceedings / Application by Ross Monteleone for Leave to Rely on the Report of Professor Bruce Brew Served Out of Time During the Hearing
Outcome
Leave granted to the plaintiff to rely on Professor Brew's report, subject to conditions.
Legal Topics
['admissibility of Expert Report' 'service Out of Time' 'leave Under R 31.28 of the Uniform Civil Procedure Rules 2005 (nsw)' 'exceptional Circumstances' 'impecuniosity']
['civil Procedure' 'expert Evidence' 'personal Injury'] ['admissibility of Expert Report' 'service Out of Time' 'leave Under R 31.28 of the Uniform Civil Procedure Rules 2005 (nsw)' 'exceptional Circumstances' 'impecuniosity']

Case Brief

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Procedural Posture

Procedural Ruling in Common Law Personal Injury Proceedings / Application by Ross Monteleone for Leave to Rely on the Report of Professor Bruce Brew Served Out of Time During the Hearing

Legal Issues

  1. 1 ["Whether the plaintiff should be granted leave to rely on Professor Brew's medico-legal report despite late service." 'Whether exceptional circumstances under UCPR r 31.28(4) were shown.' "Whether the plaintiff's impecuniosity and other factors justified granting leave subject to conditions."]

Ratio Decidendi

Although impecuniosity alone was not sufficient to establish exceptional circumstances, exceptional circumstances were shown by the combination of factors in the case, including the plaintiff's explanation for late service, the high relevance of Professor Brew's report to the real issues, the extraordinary position that the plaintiff otherwise had no up-to-date medical evidence supporting substantial damages for severe arm injuries, and the ability to ameliorate prejudice to the defendant by conditions allowing best endeavours to obtain a responsive report.

Court Disposition

Leave granted to the plaintiff to rely on Professor Brew's report, subject to conditions.

Orders

  • ['Leave be granted to the plaintiff to rely on the report of Professor Brew subject to the following conditions:' 'The solicitors for the defendant use their best endeavours to obtain a report in response to the report of Professor Brew prior to 20 November 2020.' 'If, having used their best endeavours, the...