Mammo v Savills (NSW) Pty Ltd [2023] NSWDC 332

Mammo v Savills (NSW) Pty Ltd [2023] NSWDC 332

The plaintiff had repeatedly breached directions for service of expert liability evidence, including a guillotine order requiring completion of expert evidence by 11 November 2022, and had not sought leave to rely on Mr Burn's reports. The reports were of limited expert significance because key conclusions recited the plaintiff's anticipated evidence or depended on facts not provided to the expert, while the defendants had reasonably chosen not to obtain expert liability evidence and would be prejudiced shortly before trial if the reports were allowed. In those circumstances, and also having regard to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW), it was appropriate to make an...

Jurisdiction
Australia
Judgment Date
15 August 2023
Procedural Posture
Civil Proceedings Alleging Negligence Arising Out of a Slip and Fall / First Defendant's Notice of Motion for an Advance Ruling Under S 192 a of the Evidence Act 1995 (nsw) Before Trial
Outcome
First defendant's notice of motion granted; plaintiff prohibited from tendering or relying on Mr Ian Burn's reports at trial, with costs ordered against the plaintiff and a reserved question about whether those costs should ultimately be borne by the plaintiff's solicitor personally.
Legal Topics
['advance Ruling on Admissibility or Use of Evidence' 'expert Evidence' 'guillotine Order' 'late Service of Expert Reports' 'case Management Directions' 'costs of Notice of Motion']
['evidence' 'civil Procedure' 'negligence'] ['advance Ruling on Admissibility or Use of Evidence' 'expert Evidence' 'guillotine Order' 'late Service of Expert Reports' 'case Management Directions' 'costs of Notice of Motion']

Case Brief

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Procedural Posture

Civil Proceedings Alleging Negligence Arising Out of a Slip and Fall / First Defendant's Notice of Motion for an Advance Ruling Under S 192 a of the Evidence Act 1995 (nsw) Before Trial

Legal Issues

  1. 1 ["Whether the court should make an advance ruling under s 192A of the Evidence Act 1995 (NSW) that the plaintiff cannot tender or rely on Mr Ian Burn's expert reports at trial." "Whether the plaintiff's late-served expert reports could be used where prior expert evidence directions, including a guillotine order, had been breached and no leave had been sought." 'Whether admitting the late expert reports would cause prejudice to the defendants and risk wasting the listed trial date.']

Ratio Decidendi

The plaintiff had repeatedly breached directions for service of expert liability evidence, including a guillotine order requiring completion of expert evidence by 11 November 2022, and had not sought leave to rely on Mr Burn's reports. The reports were of limited expert significance because key conclusions recited the plaintiff's anticipated evidence or depended on facts not provided to the expert, while the defendants had reasonably chosen not to obtain expert liability evidence and would be prejudiced shortly before trial if the reports were allowed. In those circumstances, and also having regard to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW), it was appropriate to make an...

Court Disposition

First defendant's notice of motion granted; plaintiff prohibited from tendering or relying on Mr Ian Burn's reports at trial, with costs ordered against the plaintiff and a reserved question about whether those costs should ultimately be borne by the plaintiff's solicitor personally.

Orders

  • ['Order pursuant to s 192A of the Evidence Act 1995 (NSW) that the plaintiff cannot tender or otherwise rely upon the reports of Mr Ian Burn dated 31 March 2023 or 19 April 2023 at the trial of these proceedings listed to commence on 28 August 2023.' "Order the plaintiff to pay the first defendant's costs of and...