Nicol v Whiteoak & Anor [2011] NSWSC 1467

MFI 3 constitutes a hospital report, not an expert's report, was not served in compliance with the rules, no exceptional circumstances exist to grant leave under UCPR 31.28(4), and in any event, the material is highly prejudicial and inadmissible at the discretion of the Court under s 135 of the Evidence Act 1995 (NSW).

Parties: Plaintiff: Linda Nicol; First Defendant: Scott Whiteoak as executor of Estate of Steven Whiteoak; Second Defendant: Mohamed Mogharbel
Jurisdiction: Australia
Judgment Date: 29 November 2011
Procedural Posture: Interlocutory Application / Ex Tempore Decision on Admissibility of Evidence
Outcome: Leave to admit MFI 3 into evidence refused
Legal Topics: Evidence, Admission of Hospital Reports

Practice and Procedure Evidence Admission of Hospital Reports

Case Brief

Summary, issues, holding and outcome

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Parties

Linda Nicol

Plaintiff

Scott Whiteoak as executor of Estate of Steven Whiteoak

First Defendant

Mohamed Mogharbel

Second Defendant

Procedural Posture

Interlocutory Application / Ex Tempore Decision on Admissibility of Evidence

Legal Issues

1 Whether MFI 3, the St George Hospital file relating to the plaintiff, should be admitted into evidence as a hospital report under Uniform Civil Procedure Rule 31.28
2 Whether exceptional circumstances exist to grant leave for admission under UCPR 31.28(4)
3 Whether the evidence should nevertheless be excluded under s 135 of the Evidence Act 1995 (NSW)

Ratio Decidendi

Court Disposition

Leave to admit MFI 3 into evidence refused

Orders

Decline to grant leave for the admission of MFI 3, being the whole of the St George Hospital file relating to the plaintiff, into evidence