//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 650
Supreme Court of NSW
2026-06-05
Chen J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ghalandari v Wesdow Pty Limited [2026] NSWSC 650
Hearing dates: 05 June 2026
Date of orders: 05 June 2026
Decision date: 05 June 2026
Jurisdiction: Common Law
Before: Chen J
Decision: (1) Note that the plaintiff does not intend to tender, or to rely upon in any way, any expert reports from Dr Evan Dryson, consultant occupational physician.
(2) Revoke orders 3 and 5 made on 24 April 2026.
(3) Order the plaintiff to pay the defendant’s costs of, and incidental to, this application.
Catchwords: CIVIL PROCEUDRE – application in personal injury proceedings to revoke an order allowing the plaintiff to serve a further medical expert report – where the plaintiff had already secured medical opinions of the same discipline in the proceedings and sought to secure a further opinion – where the Court was not informed of the previous expert opinions when making the order for service – whether a party should be permitted to rely upon multiple experts of the same discipline addressing substantially the same issues – discussion of the obligations of parties in respect of the efficient case management of civil proceedings
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93
Texts Cited: Practice Note SC CL 01 – General
Category: Procedural rulings
Parties: Khodayar Ghalandari (plaintiff)
Wesdow Pty Ltd
Representation: Counsel:
S McCarthy (plaintiff)
W Reynolds (defendant)
Solicitors:
Benefit Legal Lawyers (plaintiff)
McMahons Lawyers (defendant)
File Number(s): 2023/00199022
Publication restriction: Nil.
These reasons address whether, in personal injury proceedings, a party should be permitted to rely, in and of itself, upon multiple experts of the same discipline addressing substantially the same issues – here, medical experts described as “occupational physicians”.
The defendant seeks orders that foreclose the plaintiff from securing a further opinion from an occupational physician and from relying upon the expert evidence of more than one occupational physician.
In support of these orders, the defendant read an affidavit of Andrew Clarke, sworn 11 May 2026. The plaintiff tendered a report of Dr Robin Mitchell, occupational physician, dated 17 July 2025.
The plaintiff commenced proceedings for damages against the defendant – the principal contractor in control of a development project in Croydon, NSW – alleging that the injuries and loss suffered by him, sustained in an accident at that site on 22 June 2020, were caused by its negligence.
Briefly, the accident is alleged to have occurred when he fell from scaffolding that he was using to undertake his painting work. He alleges that the scaffolding was supplied by the defendant, required to be used by him, but was not fit for its purpose because it was poorly erected and contained no ladders or stairs enabling its safe use.
The plaintiff’s case is that, in consequence of the physical and psychiatric injuries he sustained in the fall, he continues to suffer from a range of disabilities. The statement of particulars filed 27 March 2024 identifies the physical injuries as principally relating to his lower back and right knee and the psychiatric injury being post-traumatic stress disorder. He has served numerous expert reports from treating and qualified medical experts to substantiate his damages claim.
Relevantly here, the evidence includes reports from two occupational physicians – Dr Evan Dryson (report dated 16 May 2022) and Dr Andrew Porteous (report dated 19 March 2025).
In relation to these reports, it is presently sufficient to note the following:
First, each specialist addressed, and expressed opinions on, substantially the same issues – namely, diagnosis, prognosis, treatment needs, and “work capacity”.
Secondly, to the extent that Dr Porteous expressed an opinion on “domestic assistance” and Dr Dryson did not, I do not consider that of any moment, given the somewhat circumscribed nature of the opinion expressed by Dr Porteous and, further, the possible question about the form and the admissibility of this evidence: see generally Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [199].
Thirdly, to the extent that Dr Dryson expressed an opinion on permanent impairment and Dr Porteous did not, I also do not consider that to be of any moment. That is because what principally matters in the context of assessing damages at common law (including, where modified, by Part 2 of the Civil Liability Act 2002 (NSW)) is the nature and extent of the injuries and disabilities, rather than any assessment of impairment being the product of a statutory formula used for workers compensation purposes; and, further, because there is no suggestion that Dr Porteous could not, if he were asked to do so, express an opinion upon “permanent impairment”.
Fourthly, the plaintiff did not suggest that either expert lacked the necessary qualifications or expertise to express any of the opinions that they did.
The matter is listed for hearing for 5 days commencing on 7 December 2026. The parties are subject to final orders relating to the service of evidence and a mediation has been ordered to occur.
On 24 April 2026, when the matter was listed for judicial case management, the plaintiff sought – and the defendant did not object to – the following order (order 3):
“Order the plaintiff, if so advised, to serve any report from an occupational physician by 3 July 2026, 4pm.”
At that time, the plaintiff explained that the basis for seeking that order was because an appointment had been made for him to be assessed by an occupational physician, Dr Dias, on 23 June 2026. (I am told today that the appointment is intended to occur on 11 June 2026). The Court was not advised that the plaintiff had previously qualified two occupational physicians – Drs Dryson and Porteous – and served their reports upon, or otherwise provided a copy to, the defendant.
I accept that counsel for each party were unaware, when the order permitting the service of a report from Dr Dias was made, that the plaintiff had already secured reports from Drs Dryson and Porteous. I emphasise that counsel presently appearing for the plaintiff did not appear on the earlier listing when the challenged order was made.
I accept that the solicitor for the defendant, when first advised of the plaintiff’s intent to obtain further expert evidence from an additional occupational physician, attempted to discuss this with his counsel. However, he only received (as did his counsel) notification that the plaintiff would be seeking this order in the few minutes prior to its listing on 24 April 2026, thereby precluding the solicitor from advising his counsel that, inter alia, the plaintiff had already retained two occupational physicians and served, or at least provided, their reports. I also accept that, had this development been conveyed to him (and his counsel) in a timely way, the defendant would have opposed the order that was sought and, subsequently, made.
The solicitor for the defendant sought to address this matter with the plaintiff’s solicitor. It is unnecessary to canvass those efforts other than to say that they were made immediately following the directions hearing and in the week following, involving repeated attempts by him to discuss and clarify why they required a report from a further occupational physician but were unsuccessful.
The solicitor for the defendant then, very promptly, sought to have the matter relisted.
In personal injury proceedings being managed in the Common Law General List, if a party intends to adduce expert evidence at trial, or it becomes apparent to them that any other party intends to do so, they must seek directions from the Court permitting this: r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).
In the ordinary case, directions enabling parties to rely upon expert evidence are unexceptional, routinely made and reflect the basic yet fundamental principle that each party must be given a reasonable opportunity to present its case: r 31.20.
Where, however, a party intends to adduce evidence from a second or subsequent expert of the same discipline, addressing the same issues as the first, different considerations apply. In that situation, the Court has the power to limit the number of expert witnesses relied upon in the proceedings. Two sources of that power are s 62(3)(b) of the Civil Procedure Act 2005 (NSW) (‘CPA’) and r 31.20(2)(e) of the UCPR.
Section 62 of the CPA relevantly provides:
“62 Directions as to conduct of hearing
(1)
(2)
(3) Without limiting subsections (1) and (2), the court may, by order, give any of the following directions at any time before or during a hearing—
…
(b) a direction limiting the number of witnesses (including expert witnesses) that a party may call,
…
(4) A direction under this section must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity—
(a) to lead evidence, and
(b) to make submissions, and
(c) to present a case, and
(d) at trial, other than a trial before the Local Court sitting in its Small Claims Division, to cross-examine witnesses.
(5) In deciding whether to make a direction under this section, the court may have regard to the following matters in addition to any other matters that the court considers relevant—
(a) the subject-matter, and the complexity or simplicity, of the case,
(b) the number of witnesses to be called,
(c) the volume and character of the evidence to be led,
(d) the need to place a reasonable limit on the time allowed for any hearing,
(e) the efficient administration of the court lists,
(f) the interests of parties to other proceedings before the court,
(g) the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute,
(h) the court’s estimate of the length of the hearing.
(6) …”
“31.20 Court may give directions regarding expert witnesses
(1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings.
(2) Directions under this rule may include any of the following—
(a) a direction as to the time for service of experts’ reports,
(b) a direction that expert evidence may not be adduced on a specified issue,
(c) a direction that expert evidence may not be adduced on a specified issue except by leave of the court,
(d) a direction that expert evidence may be adduced on specified issues only,
(e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue,
…”
“…
(a) to ensure that the court has control over the giving of expert evidence,
(b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,
(c) to avoid unnecessary costs associated with parties to proceedings retaining different experts,
…”
As noted, the defendant seeks two orders: first, an order foreclosing the plaintiff from securing a further opinion from an occupational physician; and, secondly, an order precluding him from tendering expert evidence from more than one occupational physician.
The plaintiff opposes any of the limitations sought by the plaintiff arguing that, in relation to the report from Dr Dryson, that was secured for workers compensation purposes and, in any event, the plaintiff does not seek to rely upon (or to use) that report in the proceedings. That will be noted.
Nevertheless, the plaintiff persists in securing the further opinion from Dr Dias, arguing that the retention of that further expert is fully justified because, in short, the defendant’s occupation physician, Dr Robin Mitchell, in his report dated 17 July 2025, has expressed a firm opinion – apparently consistent with the other medical experts qualified by the defendant – to the effect that he has an undiminished work capacity. I disagree with the plaintiff’s characterisation of Dr Mitchell’s opinion: my assessment, and finding, is that his opinion is appreciably less emphatic than what was submitted.
I do not accept this is an appropriate case for the retention of a second occupational physician, as the plaintiff submitted. That is for the following reasons.
First, there is nothing in the expert evidence adduced on the application, nor from a survey of the pleadings and particulars filed, that suggests there is any particular matter that warrants the retention of two occupational physicians. My assessment is that the plaintiff’s injuries and disabilities – their nature and extent – do not involve any particular complexity. On the contrary, based upon the opinions expressed by Drs Dryson and Porteous (for the plaintiff) and Dr Mitchell (for the defendant), these issues are, I consider, relatively straightforward from the plaintiff’s perspective.
Secondly, there is no suggestion – say – that one occupational physician has slightly different qualifications which enable him to express an opinion in a discrete area that might justify the retention of more than one occupational physician in this case. Again, I emphasise, I consider the plaintiff’s damages claim to be a relatively straightforward one, as Mr Reynolds who appeared for the defendant submitted, and the issue that is said to warrant the further occupational physician being qualified is confined largely to the question of loss of earning capacity.
Thirdly, as the plaintiff confirmed during submissions, he has served other expert evidence – from treating and qualified orthopaedic surgeons – that also address, essentially, the same questions that the occupational physicians have been asked to address, and which, I infer, Dr Dias has been asked to address. No material disadvantage arises, given those circumstances. To be clear, the question of loss of earning capacity is not a question that is uniquely for the occupational physicians; the orthopaedic surgeons, by way of example, are –unsurprisingly, given the physical injuries allegedly suffered by the plaintiff in the accident – well-placed to address that question (which they have).
Fourthly, and, critically, the plaintiff’s justification for qualifying more than one occupational physician – essentially, that the issue of loss of capacity is a live issue in the proceedings and that the defendant’s qualified occupational physician has expressed an opinion that is contrary to the plaintiff’s case – falls appreciably short of warranting the Court sanctioning the retention of two experts in the same discipline addressing precisely the same issue.
For completeness, no discretionary factors tell against the orders sought. The defendant’s solicitor, once notified of order 3 made on 24 April 2026, moved promptly to communicate his concerns with the solicitor for the plaintiff, and to understand the ground or grounds upon which the order was sought – albeit unsuccessfully. Further, the defendant moved in a timely manner to have the matter relisted to ventilate its concerns with, and objection to, the order.
Further, broader case management considerations (ss 56-58 of the CPA) all point in the same direction. The interests of justice do not support the retention of multiple experts in the same discipline addressing the same questions in this case; on the contrary, they support the orders sought by the defendant.
There is a final matter. The efficient case management of proceedings is enhanced by the co-operation of the parties in those processes and by the parties assisting the Court in the exercise of its functions, consistent with their obligations in s 56(3) of the CPA. In a situation such as this, the unqualified expectation of the Court is twofold: first, a party seeking to retain a second or further expert in the same discipline will, prior to seeking such an order, disclose their intent to do so to the opposing party in a timely way, and provide a clear explanation for that proposed course; and, secondly, when seeking any directions for the service of expert evidence, the intent to qualify such second or further expert will be disclosed to the Court. Neither expectation was met in this case – thereby necessitating the current application.
For the above reasons, I make the following orders:
Note that the plaintiff does not intend to tender, or to rely upon in any way, any expert reports from Dr Evan Dryson, consultant occupational physician.
Revoke orders 3 and 5 made on 24 April 2026.
Order the plaintiff to pay the defendant’s costs of, and incidental to, this application.
**********
Ghalandari
Wesdow Pty Limited