CIVIL PROCEDURE — defendant’s application under r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) for leave to rely on late-served expert evidence — where the defendant had received numerous extensions for the service of evidence and made the forensic decision not to secure expert evidence — highly unsatisfactory instances of non-compliance with Court orders — whether late service would cause unfairness to the plaintiff
Quick Take
1A party seeking an extension of time to serve late evidence must explain both why the action is now sought and why it was not taken when it should have been; a bare chronology of minimal steps does not constitute a satisfactory explanation for delay.
2A forensic decision to defer retaining an expert 'to save costs' does not excuse non-compliance with court orders for service of evidence, and the resulting delay will weigh heavily against the defaulting party in the exercise of the court's discretion.
3Where late-served expert evidence is material and its exclusion would cause prejudice, the court may permit reliance on it but will protect the opposing party's right to a fair opportunity to respond, including by vacating the hearing date and imposing costs consequences on the defaulting party.
