Chambeyron v Dr Redgment [2021] NSWDC 795

Chambeyron v Dr Redgment [2021] NSWDC 795

The application was determined under UCPR r 31.28. The reports were sought to be relied upon or served very late despite earlier case management orders and the defendant having long had the relevant material. The explanations were repeated oversights, which did not amount to exceptional circumstances. The late reports would cause prejudice, delay, changed conclave evidence, additional expense, and difficulty for the plaintiff shortly before a three-day Wagga Wagga hearing. Costs orders would not sufficiently cure that prejudice. The discretion under UCPR r 31.28 was therefore not favourably exercised.

Jurisdiction
Australia
Judgment Date
26 August 2021
Procedural Posture
Civil Procedural Ruling / Notice of Motion Seeking Leave to Rely on Late Served Expert Reports and to Serve a Forensic Accountant Report Before an Imminent Hearing
Outcome
Notice of Motion filed 18 August 2021 dismissed; defendant ordered to pay the plaintiff's costs of the application and argument.
Legal Topics
['late Served Expert Reports' 'leave to Rely on Expert Reports' 'extension of Time' 'case Management' 'ucpr R 31.28' 'ucpr R 1.12']
['practice and Procedure' 'civil Procedure'] ['late Served Expert Reports' 'leave to Rely on Expert Reports' 'extension of Time' 'case Management' 'ucpr R 31.28' 'ucpr R 1.12']

Case Brief

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Procedural Posture

Civil Procedural Ruling / Notice of Motion Seeking Leave to Rely on Late Served Expert Reports and to Serve a Forensic Accountant Report Before an Imminent Hearing

Legal Issues

  1. 1 ['Whether the defendant should be granted leave to rely on the supplementary reports of A/Professor Brett Courtenay dated 5 August 2021 and Dr Anthony Smith dated 4 February 2021.' 'Whether the defendant should be granted leave to serve a forensic accountant report from Axiom Forensic Pty Ltd by 27 August 2021.' 'Whether the application should be determined under UCPR r 31.28 or UCPR r 1.12.' 'Whether exceptional circumstances or other discretionary considerations justified admitting or permitting service of the late expert evidence shortly before the hearing.']

Ratio Decidendi

The application was determined under UCPR r 31.28. The reports were sought to be relied upon or served very late despite earlier case management orders and the defendant having long had the relevant material. The explanations were repeated oversights, which did not amount to exceptional circumstances. The late reports would cause prejudice, delay, changed conclave evidence, additional expense, and difficulty for the plaintiff shortly before a three-day Wagga Wagga hearing. Costs orders would not sufficiently cure that prejudice. The discretion under UCPR r 31.28 was therefore not favourably exercised.

Court Disposition

Notice of Motion filed 18 August 2021 dismissed; defendant ordered to pay the plaintiff's costs of the application and argument.

Orders

  • ['Notice of Motion filed 18 August 2021 dismissed.' "The defendant is to pay the plaintiff's costs of the application and argument."]