Donald v Rail Corporation of New South Wales (No 8) [2015] NSWSC 1935

Donald v Rail Corporation of New South Wales (No 8) [2015] NSWSC 1935

Rule 31.28 should be interpreted flexibly to require service on the other party at least 28 days before the tender of the report during a hearing, not strictly before the commencement of the trial. In the absence of unfairness and with no request for the attendance of the expert for cross-examination per r 31.29, the report is admissible.

Parties
Plaintiff: Alan Donald; First Defendant: Rail Corporation of New South Wales; Second Defendant: Workers Compensation Nominal Insurer
Jurisdiction
Australia
Judgment Date
10 November 2015
Procedural Posture
EVIDENCE – Admissibility of Expert Report / Ruling on Admissibility of Expert Evidence
Outcome
Report admitted as evidence
Legal Topics
Admissibility of Expert Reports, Application of R 31.28 Uniform Civil Procedure Rules 2005
Evidence Civil Procedure Admissibility of Expert Reports Application of R 31.28 Uniform Civil Procedure Rules 2005

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 1 Party arguments 2
Sign in to unlock

Parties

Alan Donald

Plaintiff

Rail Corporation of New South Wales

First Defendant

Workers Compensation Nominal Insurer

Second Defendant

Procedural Posture

EVIDENCE – Admissibility of Expert Report / Ruling on Admissibility of Expert Evidence

Legal Issues

  1. 1 Whether the expert report served less than 28 days before the hearing is admissible under r 31.28 Uniform Civil Procedure Rules 2005 (NSW)
  2. 2 Interpretation of the timing requirement in r 31.28 for service of expert reports

Ratio Decidendi

Rule 31.28 should be interpreted flexibly to require service on the other party at least 28 days before the tender of the report during a hearing, not strictly before the commencement of the trial. In the absence of unfairness and with no request for the attendance of the expert for cross-examination per r 31.29, the report is admissible.

Court Disposition

Report admitted as evidence

Orders

  • The report of Dr Mitchell and Ms Dillen of 2 May 2014 admitted as Exhibit 1D27