Ankomah v Kaur [2019] NSWDC 803

Ankomah v Kaur [2019] NSWDC 803

Because the plaintiff has legitimate forensic reasons to access the audio and visual recording of the medical examination by Dr Rhys Gray, including the potential to pursue issues of bias and cross-examination regardless of whether the defendant relies on the latest report, production must occur. The classical approach to evidence is no longer sufficient under modern litigation rules. The defendant is ordered to provide the recording to the plaintiff by 4pm on the date of the order.

Parties
Plaintiff: Samuel Ankomah; Defendant: Surinder Kaur
Jurisdiction
Australia
Judgment Date
01 November 2019
Procedural Posture
Civil / Interlocutory (ruling on Notice of Motion Regarding Production of Audio and Visual Recording)
Outcome
Application ore tenus to set aside subpoenas dismissed; notice of motion granted
Legal Topics
Subpoenas and Notice to Produce, Expert Evidence, Production of Documents, Medical Examination, Bias and Cross Examination
Practice and Procedure Personal Injury Subpoenas and Notice to Produce Expert Evidence Production of Documents Medical Examination Bias and Cross Examination

Case Brief

Summary, issues, holding and outcome

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Parties

Samuel Ankomah

Plaintiff

Surinder Kaur

Defendant

Procedural Posture

Civil / Interlocutory (ruling on Notice of Motion Regarding Production of Audio and Visual Recording)

Legal Issues

  1. 1 Whether the defendant must produce the audio and visual recording of the medical examination of the plaintiff conducted by Dr Rhys Gray on 3 October 2019
  2. 2 Whether a notice to produce is sufficient in lieu of a subpoena for production addressed to the defendant and its insurer
  3. 3 Whether the plaintiff is entitled to access to the recording to pursue allegations of bias or for legitimate forensic purpose even if the defendant does not rely on Dr Gray's report

Ratio Decidendi

Because the plaintiff has legitimate forensic reasons to access the audio and visual recording of the medical examination by Dr Rhys Gray, including the potential to pursue issues of bias and cross-examination regardless of whether the defendant relies on the latest report, production must occur. The classical approach to evidence is no longer sufficient under modern litigation rules. The defendant is ordered to provide the recording to the plaintiff by 4pm on the date of the order.

Court Disposition

Application ore tenus to set aside subpoenas dismissed; notice of motion granted

Orders

  • The defendant is to provide the plaintiff by 4pm today a copy of the audio and visual recording of the medical examination by Dr Rhys Gray on 3 October 2019.
  • The defendant is to pay the plaintiff's costs of the notice of motion filed on 28 October 2019.