Gershowitz v Kaye [2021] NSWDC 128

Gershowitz v Kaye [2021] NSWDC 128

In circumstances where the proceedings have been listed for hearing and previous court orders for service of evidence have not been complied with, the discretion to grant leave to rely on a late expert report is to be exercised under UCPR 31.28, requiring the Plaintiff to demonstrate exceptional circumstances. The Plaintiff failed to establish such circumstances; therefore, leave is refused, and the report is inadmissible.

Jurisdiction
Australia
Judgment Date
01 April 2021
Procedural Posture
Civil / Ruling on Interlocutory Motion Regarding Late Expert Report
Outcome
Plaintiff's amended notice of motion dismissed; costs awarded to First and Third Defendants; further orders as to hearing and mediation made.
Legal Topics
['late Expert Evidence' 'case Management' 'admissibility of Expert Reports']
['civil Procedure'] ['late Expert Evidence' 'case Management' 'admissibility of Expert Reports']

Case Brief

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Procedural Posture

Civil / Ruling on Interlocutory Motion Regarding Late Expert Report

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted leave to rely upon a late-served expert report' 'Which procedural rule (UCPR 1.12 or UCPR 31.28) is applicable for granting leave to rely on a late-served expert report']

Ratio Decidendi

In circumstances where the proceedings have been listed for hearing and previous court orders for service of evidence have not been complied with, the discretion to grant leave to rely on a late expert report is to be exercised under UCPR 31.28, requiring the Plaintiff to demonstrate exceptional circumstances. The Plaintiff failed to establish such circumstances; therefore, leave is refused, and the report is inadmissible.

Court Disposition

Plaintiff's amended notice of motion dismissed; costs awarded to First and Third Defendants; further orders as to hearing and mediation made.

Orders

  • ["The Plaintiff's amended notice of motion seeking leave to rely upon the late-served report of Dr Ngu is dismissed." 'The Plaintiff is to pay the costs of the 1st and 3rd Defendants of the Notice of Motion.' 'The hearing date of 31 May 2021 with an estimate of 4 days is confirmed.' 'The Parties are ordered to...