Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265

Jackson v Johnson & Johnson Medical Pty Ltd [2020] NSWSC 265

The application was to be determined as a conventional extension of time application rather than as an admissibility application requiring exceptional circumstances under r 31.28(4). The first and second defendants' objections based on possible inadmissibility and potential prejudice in the expert conclave did not justify refusing leave, particularly where admissibility was not before the Court, the plaintiff no longer relied on the earlier affidavit, the implant could be made available for examination, and the experts could be expected to perform their duties to the Court.

Jurisdiction
Australia
Judgment Date
17 March 2020
Procedural Posture
Civil Procedure Motion for Leave to Serve and Rely on an Expert Report Out of Time / Pre Trial Interlocutory Application Before Hearing Listed to Commence 27 April 2020
Outcome
Leave granted to the plaintiff to serve the expert report out of time; costs to be costs in the cause.
Legal Topics
['extension of Time' 'service of Expert Report Out of Time' 'expert Evidence' 'uniform Civil Procedure Rules 2005 (nsw) R 31.28']
['civil Procedure'] ['extension of Time' 'service of Expert Report Out of Time' 'expert Evidence' 'uniform Civil Procedure Rules 2005 (nsw) R 31.28']

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Procedural Posture

Civil Procedure Motion for Leave to Serve and Rely on an Expert Report Out of Time / Pre Trial Interlocutory Application Before Hearing Listed to Commence 27 April 2020

Legal Issues

  1. 1 ["Whether the plaintiff needed to demonstrate exceptional circumstances under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) to obtain leave to serve Associate Professor Paul Miniter's expert report out of time." "Whether leave should be granted to serve the report out of time notwithstanding the first and second defendants' claimed prejudice and admissibility concerns." "Whether Associate Professor Miniter's late participation in the expert conclave would prejudice or subvert the conclave process."]

Ratio Decidendi

The application was to be determined as a conventional extension of time application rather than as an admissibility application requiring exceptional circumstances under r 31.28(4). The first and second defendants' objections based on possible inadmissibility and potential prejudice in the expert conclave did not justify refusing leave, particularly where admissibility was not before the Court, the plaintiff no longer relied on the earlier affidavit, the implant could be made available for examination, and the experts could be expected to perform their duties to the Court.

Court Disposition

Leave granted to the plaintiff to serve the expert report out of time; costs to be costs in the cause.

Orders

  • ['That leave be granted to the plaintiff to serve the report of Associate Professor Paul Miniter dated 10 February 2020.' 'That an extension of time be granted for service of that report until 4.00pm on Tuesday 17 March 2020.' 'That costs be costs in the cause.']