Australia, May 9 -- New South Wales Land and Environment Court issued text of the following judgement on April 9:

1. This notice of motion by the plaintiff in a suit alleging malicious prosecution against the State of New South Wales came before me in the duty list yesterday, on 8 April, at about 2pm in circumstances of great urgency. The motion sought orders that:

1) The report of Louise Parry dated 20 March 2025 be included as part of the bundle to be provided to the experts' conclave which is scheduled for 4pm on 8 April 2025.

2) The plaintiff be permitted to rely on the report of Louise Parry dated 20 March 2025 at the hearing of this matter which is listed on 5 May 2025.

2. The reference to the "experts' conclave" was a reference to a meeting of two psychiatrists who have provided reports at the request of each of the parties. Those experts are Dr Alex Apler, who prepared a report at the request of the defendant, and Dr Stephen Allnutt, who prepared a report at the request of the plaintiff.

3. By the time the matter came before me, the extent of the urgency was reduced somewhat because the conclave of experts had been moved to this Friday, 11 April. However, the parties needed a decision quickly so that the questions to be provided to the doctors could be settled. Because the defendant filed an affidavit of 143 pages, including annexures, about 20 minutes before I came on to the bench, I adjourned the matter overnight for decision after hearing the submissions of counsel. I should say that observation is not meant in any way to be a criticism of the defendant or its solicitor. It is simply the reality of the urgency of matters that come before the duty list which places great pressure on the lawyers for parties to provide the Court with the information needed to make a decision.

4. Ms Parry is a senior clinical neuropsychologist and provided her report dated 20 March 2025 at the request of the plaintiff. The report was directed to the question of whether the plaintiff had pre-existing frontal lobe damage and, if so, what (if any) role that may have played in relation to the plaintiff's current symptoms, injuries and disabilities or medical conditions identified by the two psychiatrists.

5. On my limited understanding of the case and the issues, the relevance of this opinion is three-fold. First, it may impact on the assessment of whether the acts of the defendant, if proved, exacerbated a pre-existing condition in the plaintiff. Secondly, it may affect a determination of whether the plaintiff's current presenting symptoms were caused by the defendant's actions or were already present and unrelated to the trauma the plaintiff says he suffered. Thirdly and relatedly, it may impact on a proper assessment of damages.

6. The defendant's opposition to the use of Ms Parry's report, either at trial or to form part of the material to be considered at the conclave, is that it was served so late and in contravention of orders of the Court for service of expert reports. By r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW), the report is not admissible except by leave of the Court. By r 31.28(4), leave is not to be granted in the absence of exceptional circumstances. A significant issue raised by the defendant is that the late service of the report leaves the defendant with no time to retain a brief and obtain an opinion from an alternative neuropsychologist. A significant problem is that some of the testing undertaken by Ms Parry is of the kind that cannot be repeated for some months or, if it is, the results may not be reliable. [1]

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1966b4a49d466623aae69704)

Disclaimer: Curated by HT Syndication.