De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor [2012] NSWDC 125

De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor [2012] NSWDC 125

There were no exceptional circumstances warranting leave to admit Mr Birrell's further expert evidence. The proposed report was served very late, after Mr Birrell's cross-examination and after other witnesses had completed evidence relying on his earlier inconsistent evidence; it was not shown to be crucial, could cause prejudice and possible adjournment by requiring reply expert evidence and potentially further cross-examination, and Mr Birrell's health made further cross-examination problematic if not unlikely.

Jurisdiction
Australia
Judgment Date
22 August 2012
Procedural Posture
Procedural and Other Ruling / Application by Cross Claimants During Trial for Leave to Adduce Further Expert Evidence
Outcome
Leave refused.
Legal Topics
['application to Adduce Further Evidence' 'expert Evidence' 'late Service of Expert Report' 'exceptional Circumstances Under R 31.28']
['civil Procedure' 'evidence'] ['application to Adduce Further Evidence' 'expert Evidence' 'late Service of Expert Report' 'exceptional Circumstances Under R 31.28']

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Procedural Posture

Procedural and Other Ruling / Application by Cross Claimants During Trial for Leave to Adduce Further Expert Evidence

Legal Issues

  1. 1 ['Whether leave should be granted under r 31.28 of the Uniform Civil Procedure Rules 2005 to admit a further expert report of Mr Michael Birrell that had not been served in accordance with the rule.' 'Whether exceptional circumstances warranted the grant of leave, or whether the report merely updated an earlier version of a report.']

Ratio Decidendi

There were no exceptional circumstances warranting leave to admit Mr Birrell's further expert evidence. The proposed report was served very late, after Mr Birrell's cross-examination and after other witnesses had completed evidence relying on his earlier inconsistent evidence; it was not shown to be crucial, could cause prejudice and possible adjournment by requiring reply expert evidence and potentially further cross-examination, and Mr Birrell's health made further cross-examination problematic if not unlikely.

Court Disposition

Leave refused.

Orders

  • ['Refuse leave to admit the further evidence of Mr Birrell under r 31.28 of the Uniform Civil Procedure Rules 2005.']