Sendy v Commonwealth of Australia [2002] NSWSC 1109

Sendy v Commonwealth of Australia [2002] NSWSC 1109

The communications between the plaintiff and Dr Phillips, as well as Dr Phillips’s notes and non-privileged opinion, are not protected by client legal privilege and may be adduced; the discretionary limit on the number of experts under Practice Note 70 does not preclude the plaintiff from calling Dr Phillips, and non-service of his reports may be excused by leave under SCR Pt 36, r 13A, as the defendant holds the reports and is not prejudiced.

Parties
Plaintiff: John Patrick Sendy; Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
20 November 2002
Procedural Posture
Evidence Objection (interlocutory) / Interlocutory Ruling
Outcome
Objection dismissed; plaintiff permitted to call Dr Phillips as a witness.
Legal Topics
Client Legal Privilege, Expert Witnesses, Admissibility of Evidence
Evidence Law Civil Procedure Client Legal Privilege Expert Witnesses Admissibility of Evidence

Case Brief

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Parties

John Patrick Sendy

Plaintiff

Commonwealth of Australia

Defendant

Procedural Posture

Evidence Objection (interlocutory) / Interlocutory Ruling

Legal Issues

  1. 1 Whether the plaintiff may call a psychiatrist engaged by the defendant as a witness despite claims of client legal privilege
  2. 2 Whether communications between the plaintiff and the psychiatrist and the psychiatrist’s notes and opinions are subject to privilege under the Evidence Act 1995 ss 117-119
  3. 3 Whether Practice Note 70 and SCR Pt 36, r 13A bar the evidence

Ratio Decidendi

The communications between the plaintiff and Dr Phillips, as well as Dr Phillips’s notes and non-privileged opinion, are not protected by client legal privilege and may be adduced; the discretionary limit on the number of experts under Practice Note 70 does not preclude the plaintiff from calling Dr Phillips, and non-service of his reports may be excused by leave under SCR Pt 36, r 13A, as the defendant holds the reports and is not prejudiced.

Court Disposition

Objection dismissed; plaintiff permitted to call Dr Phillips as a witness.

Orders

  • Plaintiff may call Dr Phillips and adduce his evidence, provided examination excludes privileged material not waived.
  • Leave granted to adduce evidence under Pt 36, r 13A despite reports not being served.