Thompson v Department of Defence t/as Commonwealth of Australia [2023] NSWDC 475

Thompson v Department of Defence t/as Commonwealth of Australia [2023] NSWDC 475

Although the plaintiff's application was late, the proposed expert evidence was not shown to be obviously irrelevant or inadmissible, and it related to a pleaded issue about whether the mobile phone was retained beyond the time reasonably necessary for data extraction. Any prejudice to the defendant could be managed by strict directions for service of the plaintiff's report, responsive evidence, an expert conclave and a joint report before trial, whereas the plaintiff could be prejudiced if refused permission to rely on the evidence.

Jurisdiction
Australia
Judgment Date
07 November 2023
Procedural Posture
Civil Proceeding Concerning Trespass to Goods, Detinue and Conversion Allegations Arising From Seizure and Retention of a Mobile Phone / Notice of Motion for Directions Under UCPR Rr 31.19 and 31.20 to Permit the Plaintiff to Adduce Expert Evidence at a March 2024 Hearing
Outcome
The plaintiff's notice of motion was granted in substance; the defendant's outright opposition failed, and directions were made permitting the plaintiff to adduce expert evidence subject to a timetable and leave requirement if the report was not served on time.
Legal Topics
['late Application for Expert Evidence Directions' 'expert Opinion Evidence' 'trespass to Goods' 'detinue and Conversion' 'search Warrant and Seizure of Mobile Phone' 'material Prejudice and Discretionary Case Management']
['civil Procedure' 'torts' 'evidence'] ['late Application for Expert Evidence Directions' 'expert Opinion Evidence' 'trespass to Goods' 'detinue and Conversion' 'search Warrant and Seizure of Mobile Phone' 'material Prejudice and Discretionary Case Management']

Case Brief

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Procedural Posture

Civil Proceeding Concerning Trespass to Goods, Detinue and Conversion Allegations Arising From Seizure and Retention of a Mobile Phone / Notice of Motion for Directions Under UCPR Rr 31.19 and 31.20 to Permit the Plaintiff to Adduce Expert Evidence at a March 2024 Hearing

Legal Issues

  1. 1 ['Whether the plaintiff should be permitted, despite lateness, to adduce expert evidence about the reasonable time required to extract data from the seized mobile phone.' 'Whether the proposed expert evidence was sufficiently relevant to issues raised by the amended pleading concerning retention of the mobile phone for longer than authorised or reasonably necessary.' "Whether objections based on potential inadmissibility under s 79 of the Evidence Act 1995 and the proposed expert's lack of military police experience justified refusing directions." 'Whether allowing expert evidence would materially prejudice the defendant given the proximity of the March 2024 hearing and the Court vacation.']

Ratio Decidendi

Although the plaintiff's application was late, the proposed expert evidence was not shown to be obviously irrelevant or inadmissible, and it related to a pleaded issue about whether the mobile phone was retained beyond the time reasonably necessary for data extraction. Any prejudice to the defendant could be managed by strict directions for service of the plaintiff's report, responsive evidence, an expert conclave and a joint report before trial, whereas the plaintiff could be prejudiced if refused permission to rely on the evidence.

Court Disposition

The plaintiff's notice of motion was granted in substance; the defendant's outright opposition failed, and directions were made permitting the plaintiff to adduce expert evidence subject to a timetable and leave requirement if the report was not served on time.

Orders

  • ['Subject to a qualification, pursuant to UCPR rr 31.19 and 31.20, the plaintiff is permitted to adduce expert opinion evidence from Forensic IT Solutions Pty Ltd and the expert Andrew Le on the questions identified in paragraph 6 of the draft letter prepared by the plaintiff\'s solicitors, with the third question...