Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433

Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433

Leave to serve the Dohrmann Consulting report out of time was granted because the proposed expert evidence was arguably in a different field from the plaintiff's earlier expert evidence, the plaintiff gave a limited but sufficient explanation for obtaining and serving the report late, there was no hearing date to be vacated, the defendant would suffer no real prejudice beyond the ordinary need to consider obtaining a response report, and r 31.28(4) did not require proof of exceptional circumstances for an extension of time to serve the report before hearing. The order did not determine the admissibility of the report.

Jurisdiction
Australia
Judgment Date
17 October 2019
Procedural Posture
Civil Proceedings Alleging Negligence and Breach of Statutory Duty Arising From Injury Sustained While Working as a Fuel Tanker Driver / Interlocutory Motion by the Plaintiff for Leave or Extension of Time to Serve an Expert Report
Outcome
Leave granted to the plaintiff to serve the expert report out of time; plaintiff ordered to pay the defendant's costs of the motion.
Legal Topics
['extension of Time' 'expert Evidence' 'service of Expert Reports' 'case Management' 'exceptional Circumstances Under R 31.28 of the Uniform Civil Procedure Rules 2005 (nsw)']
['civil Procedure' 'evidence'] ['extension of Time' 'expert Evidence' 'service of Expert Reports' 'case Management' 'exceptional Circumstances Under R 31.28 of the Uniform Civil Procedure Rules 2005 (nsw)']

Case Brief

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Procedural Posture

Civil Proceedings Alleging Negligence and Breach of Statutory Duty Arising From Injury Sustained While Working as a Fuel Tanker Driver / Interlocutory Motion by the Plaintiff for Leave or Extension of Time to Serve an Expert Report

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to serve out of time the report of Dohrmann Consulting dated 4 April 2019.' 'Whether r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) required the plaintiff to demonstrate exceptional circumstances for leave to serve the expert report out of time.' 'Whether the defendant would suffer prejudice from the late service of the expert report, including because an expert conclave had already occurred.']

Ratio Decidendi

Leave to serve the Dohrmann Consulting report out of time was granted because the proposed expert evidence was arguably in a different field from the plaintiff's earlier expert evidence, the plaintiff gave a limited but sufficient explanation for obtaining and serving the report late, there was no hearing date to be vacated, the defendant would suffer no real prejudice beyond the ordinary need to consider obtaining a response report, and r 31.28(4) did not require proof of exceptional circumstances for an extension of time to serve the report before hearing. The order did not determine the admissibility of the report.

Court Disposition

Leave granted to the plaintiff to serve the expert report out of time; plaintiff ordered to pay the defendant's costs of the motion.

Orders

  • ['Leave granted for plaintiff to serve the expert report of Dohrmann Consulting dated 4 April 2019.' "Plaintiff to pay the costs of the defendant relating to the plaintiff's motion filed 25 September 2019, including the appearance at the hearing of 17 October 2019."]