The Court’s Interpretation
LUCK V LUSTY EMS PTY LTD  QSC 146
This very recent decision by Justice Byrne of the Supreme Court shows the Court is reluctant to place a restrictive interpretation on a party’s right to obtain further medical evidence after the signing of a Certificate of Readiness and convening of a Compulsory Conference.
The defendant in this instance sought orders requiring the medical examination of the plaintiff pursuant to section 25 PIPA or else UCPR 429G.
A report had been obtained by the plaintiff ’s solicitors prior to Conference. The defendant’s solicitor, on reading the report, believed it likely the claim was capable of settling and decided not to obtain a separate report. The Conference failed to result in a concluded compromise.
Justice Byrne gave consideration to the purpose of the section 37 Certificate of Readiness but concluded at  that “There might be an innocent but in the result mistaken certification of readiness for trial. … A solicitor might belatedly come to appreciate, through Counsel’s advice or from other sources, that a particular type of specialist practitioner’s views should have been obtained. Or a doctor who had supplied a report might not be available to testify at trial.”
His Honour considered that an inhibition on information gathering after a certificate of readiness was signed might have been included in Division 4 of the Act, but it was not.
For these reasons, His Honour refused to imply a restrictive operation of section 25 and on UCPR 249G.
On the issue of prejudice, the fact that a new report may be less favourable to the plaintiff was not something that ought to influence the Court’s decision. The orders were granted. This is not the first time the Court has expressed the view that obtaining further reports after the Compulsory Conference and mandatory final offers is not unusual [see comments of Justice Lyons in Hughes v Grogan  QSC 78.
Where a matter proceeds to trial, the Court should take into account any further evidence obtained after the exchange of mandatory final offers in determining any subsequent costs consequences as the mandatory final offers have been made with information available at a specific point in time.
The Court takes the view that a party, once confronted with further/fresh evidence, ought to consider it and make further offers if need be to protect the party’s position on costs.
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