Jeleskovic v Wagner [2020] NSWDC 116

Jeleskovic v Wagner [2020] NSWDC 116

The plaintiff failed to establish exceptional circumstances because, even accepting solicitor inadvertence after the report was released, there was no explanation why the November 2019 direction to serve expert evidence did not prompt service, nor why the report was not served with the Statement of Particulars on 31 May 2019. In any event, the Court would not have exercised its discretion to admit the report because it went beyond a mere compilation of earlier medical material, contained examination, diagnosis, prognosis and opinions relevant to claimed losses, and its admission during trial would prejudice the defendant by requiring reopened cross-examination, depriving her of a...

Jurisdiction
Australia
Judgment Date
09 April 2020
Procedural Posture
Civil Personal Injury Damages Proceeding / Plaintiff's Application During Trial Under R 31.28(4) of the Uniform Civil Procedure Rules 2005 (nsw) to Admit a Medico Legal Report Not Served in Compliance With the Rules
Outcome
Plaintiff's application declined
Legal Topics
['late Service of Expert Evidence' 'admission of Medico Legal Report' 'exceptional Circumstances' 'case Management' 'prejudice to Defendant']
['civil Procedure' 'personal Injury'] ['late Service of Expert Evidence' 'admission of Medico Legal Report' 'exceptional Circumstances' 'case Management' 'prejudice to Defendant']

Case Brief

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Procedural Posture

Civil Personal Injury Damages Proceeding / Plaintiff's Application During Trial Under R 31.28(4) of the Uniform Civil Procedure Rules 2005 (nsw) to Admit a Medico Legal Report Not Served in Compliance With the Rules

Legal Issues

  1. 1 ["Whether exceptional circumstances were established under r 31.28(4) to justify admission of Dr Bentivoglio's medico-legal report despite non-compliance with service requirements" 'Whether the Court should exercise its discretion to admit the report having regard to the case management objectives in ss 56-60 of the Civil Procedure Act 2005 (NSW)' 'Whether admitting the report during trial would prejudice the defendant']

Ratio Decidendi

The plaintiff failed to establish exceptional circumstances because, even accepting solicitor inadvertence after the report was released, there was no explanation why the November 2019 direction to serve expert evidence did not prompt service, nor why the report was not served with the Statement of Particulars on 31 May 2019. In any event, the Court would not have exercised its discretion to admit the report because it went beyond a mere compilation of earlier medical material, contained examination, diagnosis, prognosis and opinions relevant to claimed losses, and its admission during trial would prejudice the defendant by requiring reopened cross-examination, depriving her of a...

Court Disposition

Plaintiff's application declined

Orders

  • ['The application under r 31.28(4)(a) is declined.']