Ralston and Collins v Chaffey [2018] NSWSC 1994

Ralston and Collins v Chaffey [2018] NSWSC 1994

The plaintiff did not establish exceptional circumstances under UCPR r 31.28. The Chow reports were obtained through an improper and unsatisfactory briefing process, were not truly responsive to Dr Sinosich's report, and amounted largely to new evidence in chief raising new allegations. Even if exceptional circumstances had been shown, leave would have been refused because the second defendant would suffer marked prejudice from Dr Wass's death, the proceedings had been delayed for years, and the plaintiff had repeatedly failed to comply with procedural directions. Leave was granted only for the unopposed answer to question 1 in Professor Spencer's report.

Jurisdiction
Australia
Judgment Date
21 December 2018
Procedural Posture
Civil Proceedings for Wrongful Birth and Nervous Shock Resulting From Alleged Negligence in Screening for Down Syndrome / Plaintiff's Amended Notice of Motion Seeking Leave to Rely on Expert Reports Under UCPR R 31.28 After Prior Orders for Service of Expert Evidence
Outcome
Plaintiff's amended notice of motion dismissed except for limited leave to rely on Professor Spencer's answer to question 1; plaintiff ordered to pay the second defendant's costs of the motion.
Legal Topics
['expert Evidence' 'exclusion of Evidence' 'exceptional Circumstances Under UCPR R 31.28' 'case Management and Overriding Purpose' 'wrongful Birth' 'nervous Shock' 'prejudice From Death of Alleged Tortfeasor']
['evidence' 'civil Procedure' 'medical Negligence'] ['expert Evidence' 'exclusion of Evidence' 'exceptional Circumstances Under UCPR R 31.28' 'case Management and Overriding Purpose' 'wrongful Birth' 'nervous Shock' 'prejudice From Death of Alleged Tortfeasor']

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Procedural Posture

Civil Proceedings for Wrongful Birth and Nervous Shock Resulting From Alleged Negligence in Screening for Down Syndrome / Plaintiff's Amended Notice of Motion Seeking Leave to Rely on Expert Reports Under UCPR R 31.28 After Prior Orders for Service of Expert Evidence

Legal Issues

  1. 1 ["Whether exceptional circumstances warranted granting leave under UCPR r 31.28 for the plaintiff to rely on reports of Dr Steven Chow and parts of Professor Kevin Spencer's report served after guillotine and reply evidence orders." "Whether the reports were properly characterised as reply evidence to Dr Michael Sinosich's report or as new evidence in chief." "Whether leave should be refused as a matter of discretion because of prejudice to the second defendant, delay, and the plaintiff's repeated non-compliance with directions."]

Ratio Decidendi

The plaintiff did not establish exceptional circumstances under UCPR r 31.28. The Chow reports were obtained through an improper and unsatisfactory briefing process, were not truly responsive to Dr Sinosich's report, and amounted largely to new evidence in chief raising new allegations. Even if exceptional circumstances had been shown, leave would have been refused because the second defendant would suffer marked prejudice from Dr Wass's death, the proceedings had been delayed for years, and the plaintiff had repeatedly failed to comply with procedural directions. Leave was granted only for the unopposed answer to question 1 in Professor Spencer's report.

Court Disposition

Plaintiff's amended notice of motion dismissed except for limited leave to rely on Professor Spencer's answer to question 1; plaintiff ordered to pay the second defendant's costs of the motion.

Orders

  • ['Grant leave to the plaintiff to rely on the answer to question 1 in the report of Professor Kevin Spencer dated 1 September 2018.' "Otherwise, I dismiss the plaintiff's amended notice of motion filed 26 September 2018." "The plaintiff is to pay the second defendant's costs of the motion." 'The proceedings are...