Chambeyron v Dr Redgment (NSWDC 2021)

Link to Decision

Key Takeaways

It is important to comply with orders made for the service of evidence in court proceedings. Parties should not assume an extension of time will be granted to serve medical or expert liability reports, particularly once a substantive hearing date has been set.

Administrative oversight is not an adequate explanation for a failure to serve evidence in time when the opposing party will be prejudiced if the reports are allowed into evidence. Practitioners should ensure dates for the service of evidence are diarised, letters of instructions are sent in a timely manner, and any experts briefed are followed up well before evidence is due to be served.

Brief Facts

The defendant filed a Notice of Motion seeking leave to rely on two supplementary medico-legal reports, in addition to a fresh forensic accounting report, in medical negligence proceedings that had been commenced by the plaintiff in the NSWDC.

At a number of case management directions throughout 2020 and 2021, the defendant sought orders for the extension of time for the service of expert liability and quantum evidence. The defendant was ordered to complete service of his expert liability and quantum evidence by 5 February 2021, with the matter being listed for hearing in Wagga Wagga in the November 2021 sittings.

According to Affidavit evidence sworn by the defendant’s solicitor, due to a number of ‘oversights’:

1. A medical report obtained on 4 February 2021 was not served until 9 August 2021.
2. There was a delay of approximately four months between receipt of the plaintiff’s expert liability report and instructions being provided to the defendant’s liability expert to prepare a report in reply.
3. A forensic accountant was not instructed until 13 August 2021, some 15 months after receipt of the plaintiff’s accounting report and only three months prior to the November hearing.

DCJ Gibson was required to consider whether Uniform Civil Procedure Rules 1.12 or 31.28 would apply, and if leave could reasonably be granted to the defendant to rely on the late reports.

The rules allow for the court to extend the time for the service of evidence either before or after the time has expired. Leave should not be granted to rely on late expert reports unless there are exceptional circumstances.

Judgment

DCJ Gibson found that costs orders alone ‘will not remedy the kind of prejudice and delay that is caused by this kind of last-minute preparation, not only of a report in reply, but also changes to the proposed conclave evidence as a result’.

DCJ Gibson also addressed oral submissions made about the impact of the Covid-19 pandemic and subsequent operational difficulties. Again, these submissions were rejected, with DCJ Gibson noting that this was ‘a two-edged sword, in that, just as the pandemic has contributed to delays and oversights in legal offices, the difficulties caused by the pandemic will contribute to the compliance with the very considerable timetable changes and extra expenses that would be incurred if the defendant were in fact granted leave to rely upon these reports’.

Ultimately, DCJ Gibson was satisfied that the prejudice to the defendant in proceeding to trial without these reports was not outweighed by the prejudice to the plaintiff having to address these reports only three months out from the hearing. DCJ Gibson also noted that the failure by legal representatives in proceedings in court to comply with the orders of the court is becoming ‘frequent and problematic’. The application was dismissed with the defendant ordered to pay the plaintiff’s costs.

Implications

This case serves as a reminder for practitioners to carefully determine the precise evidence required to defend a matter at the earliest possible opportunity.