Lang v Ansari

Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Fulton v Surfing Australia Limited [2025] NSWDC 115
Irfan v Western Sydney Local Health District [2023] NSWSC 845
Soma‑Devan v Scentre Shopping Management Pty Ltd t/as Westfield Hurstville (No 2) [2024] NSWSC 95
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

Category: Procedural rulings

Parties: Cherie Lang (Plaintiff)
Masood Ansari (Defendant)

Representation: Counsel:
T Berberian (Defendant)
Solicitors:
In Person (Plaintiff)
HWL Ebsworth Lawyers (Defendant)
L Power (amicus curiae)

File Number(s): 2023/00345851

Publication restriction: No

JUDGMENT – EX TEMPORE

1. Before the Court for determination are two Notices of Motion, one filed by the plaintiff and one filed by the defendant.

2. The defendant’s Notice of Motion was filed on 31 March 2025 and seeks orders for an extension of time for the defendant to rely upon expert liability and expert causation/quantum evidence. In the alternative, an order vacating the hearing date is sought.

3. The plaintiff’s Notice of Motion dated 7 April 2025 seeks orders that certain expert reports which the defendant seeks leave to rely on be excluded from the defendant’s evidence and not admitted at the proceedings, and various other procedural orders. A further order is sought vacating the hearing and for the matter to be transferred to Gosford District Court.

4. At the hearing of the Notices of Motion, Ms Berberian of counsel appeared for the defendant and the plaintiff appeared in person. A representative from the plaintiff’s former law firm, Mr Power, appeared as amicus in the matter and was of some assistance in pointing out matters to the plaintiff in the course of argument.

5. It is clear from the interaction in the court that the plaintiff is an intelligent woman and has firm views in relation to her case. She believes that she was poorly treated by the defendant in the course of the medical treatment provided to her. She has terminated the retainer of her former solicitors and is currently appearing for herself. The Court took time to explain in some detail to the plaintiff the disadvantages of appearing for herself and the advantages of having alternative legal representation.

6. The defendant read the affidavits of Brit Marit Mainhoff dated 28 March 2025 and 7 April 2025. The plaintiff read her own affidavit dated 7 April 2025. The delay in the service of the defendant’s expert evidence is explained in considerable detail in the two affidavits of Ms Mainhoff I have referred to.

7. The background to the matter is that the plaintiff alleges medical negligence against the defendant doctor, who is a cosmetic surgeon, in relation to treatment and surgery which was provided to the plaintiff in the period 2020‑2021. The defendant doctor denies liability.

8. The evidence establishes that the defendant’s insurer has declined to provide insurance cover and the defendant is therefore self-insured. The defendant has retained an experienced firm of solicitors that has considerable expertise in medical and medical disciplinary matters.

9. The affidavits of Ms Mainhoff, as I indicated, set out in some substantial detail the course of the briefing and retaining of three expert medical specialists and the course of ultimately obtaining reports from those specialists which were served.

10. The evidence establishes that orders were made on at least two occasions for the defendant to serve liability and quantum evidence in the latter part of 2024. On 18 September 2024, the Judicial Registrar set the matter down for hearing on 28 April 2025 with an estimate of four days and also ordered the defendant to file his liability and quantum evidence by 31 October 2024. This date was extended in relation to liability evidence from 2 September 2024 to 31 October 2024.

11. The reports in question of Dr Ron Bezic (cosmetic surgeon), Associate Professor Philip Truskett (general surgeon), and Dr Anthony Samuels (psychiatrist) were served at various dates in February and early March 2025.

12. The detail in the affidavits of Ms Mainhoff establishes that all three specialists were retained before the date of 31 October 2024 which the Court set for service of the reports but that Associate Professor Truskett was only instructed shortly before, on 23 October 2024. Dr Samuels and Dr Bezic were briefed sometime before the relevant date.

13. It seems to be a fair summary from all of the evidence in Ms Mainhoff’s affidavits that the delays in the provision of the reports to the defendant’s solicitors were primarily due to the experts themselves. The evidence establishes that the experts were briefed and were diligently followed up by the solicitors for the defendant but that there were delays caused by the experts’ availability, other professional commitments, the Christmas break and recreational leave for the experts.

14. I am satisfied from all of the evidence that there was diligence in following up the reports. I am also not satisfied, having regard to the complex nature of the matter, that the delays would easily have been remedied by other experts being retained on behalf of the defendant. I am concerned by the delays in service of a copy of the reports by Associate Professor Truskett and Dr Samuels. In my view, the reports could have been served a few weeks earlier and it is not apparent to me why it took the time that it took to serve them.

15. The plaintiff, Ms Lang, opposes the leave sought. The Notice of Motion relied on by the defendant refers to Part 31.28 of the Uniform Civil Procedure Rules 2005 (NSW). That rule provides as follows:

“31.28 Disclosure of experts’ reports and hospital reports

(1) Each party must serve experts’ reports and hospital reports on each other active party—

(a) in accordance with any order of the court, or

(b) if no such order is in force, in accordance with any relevant practice note, or

(c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used.

(2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion.

(3) Except by leave of the court, or by consent of the parties—

(a) an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule, and

(b) without limiting paragraph (a), an expert’s report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and

(c) the oral expert evidence in chief of any expert is not admissible unless an expert’s report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence.

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied—

(a) that there are exceptional circumstances that warrant the granting of leave, or

(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).”

16. The issue arises as to what is meant in Part 31.28(4) by “exceptional circumstances.” That has been considered a number of times by the courts. I refer, in particular, to Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66]. Essentially, exceptional circumstances include those which are “out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare ….”

17. Ms Berberian acknowledged that there were different views expressed in a number of cases as to whether Part 31.28 is applicable only to admissibility or also to extensions of time.

18. I considered the authorities in some detail in Fulton v Surfing Australia Limited [2025] NSWDC 115. I repeat the view which I expressed in that case that I prefer the approach that has been taken in the Common Law Division of the Supreme Court: see Fulton at paragraphs 21-24.

19. In my view, there is much to be said for the view of Harrison CJ at CL in Irfan v Western Sydney Local Health District [2023] NSWSC 845 at [40] that the rules including Part 31.28 “should be our servants, not our masters” and that they are “designed to promote fairness, or more particularly so as to avoid unfairness, to all parties in the conduct of litigation.”

20. However, I also agree with the comments of Dhanji J in Soma*‑Devan v* Scentre Shopping Management Pty Ltd t/as Westfield Hurstville (No 2) [2024] NSWSC 95 at [28] that Part 31.28 is “at least informative of the approach which a court should take.”

21. I take into account also the analysis by the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 as to the need for a proper explanation for a delay in taking early procedural steps and to ss 56 to 59 of the Civil Procedure Act 2005 (NSW) and the obligation in s 56, as well as the requirement in s 58, to act in accordance with the dictates of justice.

22. Ms Lang submits, in summary, as follows:

(a) That orders were made for the filing of evidence by the defendant; (b) He has not complied with those orders; (c) That the defendant’s solicitors should have taken earlier steps to brief the experts to ensure that the reports would be provided on time; (d) That she as plaintiff has complied with orders for service of her reports; and (e) That in substance it would be prejudicial to her for the defendant to be given leave to rely on the reports so close to the hearing date.

23. Ms Berberian on behalf of the defendant submits:

(a) That the delays in the service of the reports are substantially due to the experts themselves; (b) That without leave being granted to rely on the reports, the defendant would not have expert evidence which would be severely prejudicial to the defendant; (c) This is particularly the case where the defendant is not insured and is an individual; (d) The delays had nothing to do with the defendant himself or with the conduct of his solicitors; (e) In all the circumstances, it would be against the interests of justice and highly prejudicial to the defendant not to allow the reports; and (f) There is a remedy available in the payment of costs and also for the plaintiff to have leave to put on reply evidence if needed and a vacation of the hearing date.

24. I take into account the submissions made by the parties orally and I also take into account the detail explaining the background to the matter and the delays in the Mainhoff affidavits. It is important, of course, for court orders to be complied with. Sometimes it is difficult for orders to be complied with for reasons outside of the control of a party. I emphasise that in those circumstances a party should relist the matter and make an early applications for an extension of time.

25. That did not occur in the present case and I note that I frequently see this on the part of defendants who, it seems, do not wish to bring their default to the attention of the Court early but to proceed with obtaining the reports and then making any application. I do not know whether that approach was adopted here but it is an approach which should not gather favour. Early application should be made for an extension of time with the circumstances established to justify it.

26. I take into account:

(a) The breach of the orders made by the defendant; (b) The explanation in the Mainhoff affidavits for the delays; (c) The dilatoriness in briefing, in particular, Associate Professor Truskett. He should have been briefed earlier; (d) Some minor delay in obtaining instructions from the defendant as to the finalised reports and their service; (e) The fact that the solicitors were diligent in following up the reports; (f) The fact that it seems that it was the fault of the experts, not the defendant or the solicitors, for the delay; and (g) The relative prejudice to each party for the purposes of determining whether leave should be granted.

27. It seems to me that there are exceptional circumstances in the present case due to the fault of the experts and not of the defendant or his instructing solicitors. If I am wrong in that analysis and I look at what is in the interests of justice taking into account Part 31.28 as suggested by Dhanji J in Soma-Devan, I would still be of the view that it is in the interests of justice to give the extension in the present case. That is primarily because it seems that the delays were the fault of the experts and not the defendant or the solicitors acting for him.

28. In substance, in Aon terms, there has been an adequate explanation for the delay but not for all of the delay. In those circumstances, in my view the extension should be granted.

29. However, the delay was not the fault of the plaintiff and there is no reason why the plaintiff should be out of pocket at all in terms of costs. Similarly, I am of the view that the plaintiff should be given a full and adequate opportunity to seek and obtain reply evidence and for the hearing to be vacated as it cannot reasonably proceed on 28 April 2025. In my view, a costs order should be made again the defendant in relation to the Notice of Motion and the costs thrown away by the vacation of the hearing date.

30. That accordingly deals with the Notice of Motion relied on by the defendant. The orders should therefore be as follows:

(3) Leave is granted to the defendant to rely on the reports of:

(a) Dr Ron Bezic dated 22 December 2024; (b) Associate Professor Philip Truskett dated 2 February 2025; and (c) Dr Anthony Samuels dated 21 January 2025.

(4) The defendant is to pay the plaintiff’s costs of the Notice of Motion filed on 31 March 2025 and any costs of the plaintiff thrown away by the vacation of the hearing date.

(5) The hearing commencing 28 April 2025 is vacated.

31. In relation to the plaintiff’s Notice of Motion filed in court today, there are a number of orders sought. In relation to prayers for relief 1 to 3, whether the expert reports referred to there, which were the subject of the defendant’s Motion, are admitted into evidence in the proceedings is a matter for the trial judge. I have allowed those reports to be relied on for the purposes of the proceedings. To the extent there are reasons for those reports not to be admitted into evidence, that is a matter for the trial judge to determine.

32. In prayers for relief 4 and 5, the plaintiff seeks orders that Associate Professor Truskett and Dr Bezic be ordered to attend court to give evidence for cross-examination by the plaintiff. The plaintiff can request an expert to be made available for cross-examination. Generally, in professional negligence cases and according to the usual order of the Court, there are conclave meetings between experts and a report is prepared in relation to the matters on which they agree and disagree. Other than that, it is for the party seeking the attendance of the medical practitioner in question to cause their attendance under the Uniform Civil Procedure Rules as applicable in this Court.

33. In prayer for relief 6, the plaintiff seeks essentially a vacation of the hearing date and the matter being put over for a number of months. I have already agreed that the matter should be vacated and I will deal with the issue of a new hearing date and the period of delay at the end of these reasons.

34. Prayer for relief 7 seeks an order that the proceedings be transferred to the Gosford registry of the District Court. The plaintiff in her affidavit dated 7 April 2025 in paragraph 33 refers to her concern that four hours travel each day to court will exacerbate her injuries and cause financial hardship. There is not sufficient evidence in the affidavit to justify those claims. I am not aware of the financial hardship referred to or how the travel would exacerbate her injuries. The plaintiff would need much more detailed evidence to substantiate that and I cannot accept from the bar table the plaintiff’s evidence on those issues.

35. Accordingly, in relation to the plaintiff’s Notice of Motion filed on 8 April 2025:

36. Paragraphs 1 to 5 are dismissed.

37. Paragraph 7 is dismissed.

38. In relation to the question of costs, in my view the costs of the Notice of Motion of the plaintiff, despite the plaintiff being unsuccessful on a number of the orders sought, should be costs in the cause and counsel for the defendant does not oppose that.

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