Smith v Ulan Coal Mines Limited [2019] NSWSC 1263

Smith v Ulan Coal Mines Limited [2019] NSWSC 1263

Exceptional circumstances justified granting leave in part because Mr Koppe's primary records had been available to both parties since 2016, it was always expected that he would give evidence, he was known to be an expert, opinion evidence would almost inevitably have emerged from him at trial, and a detailed statement in advance enhanced fairness. However, parts of the report and pleading amendments that were speculative, vague, raised new design allegations, or could suggest a deliberate cover-up should be excluded or constrained to avoid unfair prejudice. Preserving the hearing date and managing the evidence individually was fairer and less disruptive than refusing leave or adjourning...

Jurisdiction
Australia
Judgment Date
23 September 2019
Procedural Posture
Personal Injury Damages Claim; Procedural Ruling on Leave to Rely on Expert Evidence and Further Amended Statement of Claim / Notice of Motion Before Final Hearing
Outcome
Plaintiff granted leave in part to rely on the Further Amended Statement of Claim and amended expert statement/report; parts of the report and proposed particulars excluded; defendant's application for adjournment refused; costs in the cause.
Legal Topics
['leave to Rely on Expert Report' 'non Compliance With Expert Code Acknowledgment Requirements' 'late Service of Expert Report' 'exceptional Circumstances Under UCPR 31.28(4)' 'amendment of Pleadings' 'case Management' 'expert Conclaves and Joint Reports']
['civil Procedure' 'personal Injury' 'expert Evidence'] ['leave to Rely on Expert Report' 'non Compliance With Expert Code Acknowledgment Requirements' 'late Service of Expert Report' 'exceptional Circumstances Under UCPR 31.28(4)' 'amendment of Pleadings' 'case Management' 'expert Conclaves and Joint Reports']

Case Brief

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Procedural Posture

Personal Injury Damages Claim; Procedural Ruling on Leave to Rely on Expert Evidence and Further Amended Statement of Claim / Notice of Motion Before Final Hearing

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to rely on the amended evidentiary statement or expert report of Wouter Johan Koppe despite non-compliance with UCPR 31.23 and UCPR 31.28.' 'Whether exceptional circumstances under UCPR 31.28(4) warranted leave for late service of the expert report.' "Whether parts of Mr Koppe's opinions raised new matters or caused unfair forensic prejudice to Ulan." 'Whether the plaintiff should be granted leave to rely on the Further Amended Statement of Claim, including new particulars of breach of duty.' 'Whether expert conferences, joint reports and concurrent evidence should be dispensed with to preserve the hearing date.']

Ratio Decidendi

Exceptional circumstances justified granting leave in part because Mr Koppe's primary records had been available to both parties since 2016, it was always expected that he would give evidence, he was known to be an expert, opinion evidence would almost inevitably have emerged from him at trial, and a detailed statement in advance enhanced fairness. However, parts of the report and pleading amendments that were speculative, vague, raised new design allegations, or could suggest a deliberate cover-up should be excluded or constrained to avoid unfair prejudice. Preserving the hearing date and managing the evidence individually was fairer and less disruptive than refusing leave or adjourning...

Court Disposition

Plaintiff granted leave in part to rely on the Further Amended Statement of Claim and amended expert statement/report; parts of the report and proposed particulars excluded; defendant's application for adjournment refused; costs in the cause.

Orders

  • ['Grant leave to the plaintiff to proceed on the basis of the further amended statement of claim relying upon particulars of breach of duty of the first defendant in paragraphs [7] and [8], but not paragraphs [9] and [10].' 'Grant leave under Rule 31.28(4) Uniform Civil Procedure Rules 2005 (NSW) to the plaintiff to...