Schofield v Serenity 5 Pty Ltd [2017] NSWSC 1168

Schofield v Serenity 5 Pty Ltd [2017] NSWSC 1168

A combination of circumstances, including the complexity and evolving nature of the plaintiff’s injuries, representative error causing the evidentiary gap, and the necessity of the expert reports to properly advance the plaintiff’s case, established exceptional circumstances justifying leave to serve the late expert evidence; however, the hearing needed to be vacated to allow the defendant a fair opportunity to respond, as justice required.

Jurisdiction
Australia
Judgment Date
01 September 2017
Procedural Posture
Notice of Motion in Personal Injury Proceedings / Interlocutory Application Prior to Hearing
Outcome
Leave to rely on expert reports granted; hearing dates vacated; parties directed to confer on further timetable and costs order.
Legal Topics
['expert Evidence' 'admissibility of Expert Reports' 'vacating Hearing Dates' 'costs' 'exceptional Circumstances']
['civil Procedure' 'personal Injury'] ['expert Evidence' 'admissibility of Expert Reports' 'vacating Hearing Dates' 'costs' 'exceptional Circumstances']

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Procedural Posture

Notice of Motion in Personal Injury Proceedings / Interlocutory Application Prior to Hearing

Legal Issues

  1. 1 ['Whether leave should be granted to rely on late expert reports' 'Whether hearing dates should be vacated as a result of late service of reports' 'Whether exceptional circumstances existed to justify admitting the new evidence']

Ratio Decidendi

A combination of circumstances, including the complexity and evolving nature of the plaintiff’s injuries, representative error causing the evidentiary gap, and the necessity of the expert reports to properly advance the plaintiff’s case, established exceptional circumstances justifying leave to serve the late expert evidence; however, the hearing needed to be vacated to allow the defendant a fair opportunity to respond, as justice required.

Court Disposition

Leave to rely on expert reports granted; hearing dates vacated; parties directed to confer on further timetable and costs order.

Orders

  • ['Leave granted to plaintiff to rely on expert reports served out of time.' 'Hearing dates vacated.' 'Parties to confer as to a further timetable and the appropriate costs order.']