Philip Karadaghian v Big Beat (Australia) Pty Ltd & Ambiant Pty Limited [2014] NSWSC 1185

Philip Karadaghian v Big Beat (Australia) Pty Ltd & Ambiant Pty Limited [2014] NSWSC 1185

The first defendant had an adequate prior opportunity to obtain expert evidence and did not use it. Given the late timing, the likely further delay of at least 6 months and probably 12 months if the plaintiff responded to neuropsychological testing, the existence of psychiatric evidence already served, and the absence of detail showing what additional relevant material the proposed examination would produce or why it was necessary, the Court was not satisfied that the further examination and late report should be allowed.

Jurisdiction
Australia
Judgment Date
27 August 2014
Procedural Posture
Interlocutory Applications / First Defendant's Motion for Orders Requiring the Plaintiff to Undergo Psychological Examination by Professor Mattick and for Leave to Serve a Report Within 4 Weeks of the Appointments
Outcome
Prayers 1 and 2 of the first defendant's motion dismissed; costs are the plaintiff's costs in the cause.
Legal Topics
['medical Examination of a Party' 'expert Evidence' 'case Management' 'procedural Fairness' 'delay' 'costs in the Cause']
['civil Procedure'] ['medical Examination of a Party' 'expert Evidence' 'case Management' 'procedural Fairness' 'delay' 'costs in the Cause']

Case Brief

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Procedural Posture

Interlocutory Applications / First Defendant's Motion for Orders Requiring the Plaintiff to Undergo Psychological Examination by Professor Mattick and for Leave to Serve a Report Within 4 Weeks of the Appointments

Legal Issues

  1. 1 ['Whether the Court should exercise its power under Uniform Civil Procedure Rules 2005 (NSW), r 23.4 to require the plaintiff to undergo a further psychological examination more than 2 years after the report should have been filed.' 'Whether leave should be granted for the first defendant to serve a further report after the proposed examination.' 'Whether the likely delay and absence of detail about the proposed testing outweighed any probative value or prejudice to the first defendant.']

Ratio Decidendi

The first defendant had an adequate prior opportunity to obtain expert evidence and did not use it. Given the late timing, the likely further delay of at least 6 months and probably 12 months if the plaintiff responded to neuropsychological testing, the existence of psychiatric evidence already served, and the absence of detail showing what additional relevant material the proposed examination would produce or why it was necessary, the Court was not satisfied that the further examination and late report should be allowed.

Court Disposition

Prayers 1 and 2 of the first defendant's motion dismissed; costs are the plaintiff's costs in the cause.

Orders

  • ["Prayers 1 and 2 of the first defendant's motion, notice of which was filed on 26 September 2012, be dismissed;" "Costs are the plaintiff's costs in the cause."]