Byers v Frith [2016] NSWDC 209

Byers v Frith [2016] NSWDC 209

Although the plaintiff provided no satisfactory explanation for late service and prejudice was conceded, the plaintiff's withdrawal of all material thought to be prejudicial, including further material identified by the defendants, cured the prejudice to a fair trial and constituted sufficient material to establish exceptional circumstances; costs occasioned by the late service could be cured by an order.

Jurisdiction
Australia
Judgment Date
30 August 2016
Procedural Posture
Civil Proceeding; Notice of Motion Concerning Expert Evidence / Second Day of Trial; Application to Extend Time to Serve Expert Evidence in Reply or Alternatively for Leave to Rely on Expert Evidence Not Served in Accordance With a Previous Order
Outcome
Orders 1 and 2 sought in the notice of motion were granted; the plaintiff was ordered to pay costs occasioned by the late service of the Llewellyn report, including the costs of one day of the trial.
Legal Topics
['late Service of Expert Evidence' 'prejudice' 'exceptional Circumstances' 'extension of Time' 'costs Occasioned by Late Service']
['practice and Procedure' 'civil Procedure' 'expert Evidence'] ['late Service of Expert Evidence' 'prejudice' 'exceptional Circumstances' 'extension of Time' 'costs Occasioned by Late Service']

Case Brief

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Procedural Posture

Civil Proceeding; Notice of Motion Concerning Expert Evidence / Second Day of Trial; Application to Extend Time to Serve Expert Evidence in Reply or Alternatively for Leave to Rely on Expert Evidence Not Served in Accordance With a Previous Order

Legal Issues

  1. 1 ['Whether time should be extended to serve the Llewellyn expert report in reply or leave should be given to rely on expert evidence not served in accordance with a previous order.' 'Whether prejudice caused by late service on the second day of trial was cured by the plaintiff not pressing significant parts of the report.' 'Whether exceptional circumstances existed for the purposes of r 31.28(4) of the Uniform Civil Procedure Rules 2005.' 'What costs order should be made for costs occasioned by the late service of the report.']

Ratio Decidendi

Although the plaintiff provided no satisfactory explanation for late service and prejudice was conceded, the plaintiff's withdrawal of all material thought to be prejudicial, including further material identified by the defendants, cured the prejudice to a fair trial and constituted sufficient material to establish exceptional circumstances; costs occasioned by the late service could be cured by an order.

Court Disposition

Orders 1 and 2 sought in the notice of motion were granted; the plaintiff was ordered to pay costs occasioned by the late service of the Llewellyn report, including the costs of one day of the trial.

Orders

  • ['Grant orders 1 and 2 sought in the notice of motion filed today.' 'Order the plaintiff pay the costs occasioned by the late service of the Llewellyn report which includes the costs of 1 day of the trial.']