Barakat v Mastroianni [2016] NSWDC 122

Barakat v Mastroianni [2016] NSWDC 122

The combination of the change of solicitor in July 2016, service of the occupational therapist report almost seven weeks before trial, the age of the expert-report service order, the plaintiff's evidence that two occupational therapists were available to provide reports for defendants, and the absence of persuasive evidence that the defendants could not obtain a responsive report amounted to exceptional circumstances under r 31.28. Applying the overriding purpose in s 56 of the Civil Procedure Act 2005, the defendants should at least have considered steps to avoid prejudice, and their claimed prejudice was unpersuasive because no attempt to obtain a report was shown. Leave was therefore...

Jurisdiction
Australia
Judgment Date
14 October 2016
Procedural Posture
Civil Procedure Motion in Negligence Proceedings / Notice of Motion for Leave to Rely on a Late Served Occupational Therapist's Expert Report Before Trial
Outcome
Plaintiff granted leave to rely on the late served occupational therapist's report; costs of the motion ordered to be costs in the proceedings; defendants granted leave to rely on a responding report served by the specified time.
Legal Topics
['late Filing and Service of Expert Report' 'exceptional Circumstances' 'leave to Rely on Expert Report' 'overriding Purpose' 'costs of Motion']
['civil Procedure' 'evidence' 'personal Injury Negligence'] ['late Filing and Service of Expert Report' 'exceptional Circumstances' 'leave to Rely on Expert Report' 'overriding Purpose' 'costs of Motion']

Case Brief

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Procedural Posture

Civil Procedure Motion in Negligence Proceedings / Notice of Motion for Leave to Rely on a Late Served Occupational Therapist's Expert Report Before Trial

Legal Issues

  1. 1 ["Whether the plaintiff should be granted leave under r 31.28 of the Uniform Civil Procedure Rules 2005 to rely on an occupational therapist's report served after the court-ordered date for expert reports." 'Whether exceptional circumstances existed to warrant leave to rely on the late served expert report.' 'Whether the defendants would suffer prejudice because of inability to obtain a responding occupational therapist report before trial.' 'What costs order should be made on the motion.']

Ratio Decidendi

The combination of the change of solicitor in July 2016, service of the occupational therapist report almost seven weeks before trial, the age of the expert-report service order, the plaintiff's evidence that two occupational therapists were available to provide reports for defendants, and the absence of persuasive evidence that the defendants could not obtain a responsive report amounted to exceptional circumstances under r 31.28. Applying the overriding purpose in s 56 of the Civil Procedure Act 2005, the defendants should at least have considered steps to avoid prejudice, and their claimed prejudice was unpersuasive because no attempt to obtain a report was shown. Leave was therefore...

Court Disposition

Plaintiff granted leave to rely on the late served occupational therapist's report; costs of the motion ordered to be costs in the proceedings; defendants granted leave to rely on a responding report served by the specified time.

Orders

  • ['Plaintiff be granted leave pursuant to r 31.28 of the Uniform Civil Procedure Rules 2005 to rely upon the report of Kate Dawson dated 31 August 2016 notwithstanding it was served upon the defendants after 22 January 2016.' 'Costs of the motion be costs in the proceedings.' "Grant leave to the defendants to rely on...