DVD of birth: Viewable at conclave

Joseph Buksh v South Western Sydney Local Health Network; Rosemary Buksh v South Western Sydney Local Health Network; Stallone Buksh v South Western Sydney Local Health Network [2016] NSWSC 603.

A dispute arose between the parties as to whether or not an expert conclave of psychiatrists ought to have access to a DVD containing six minutes of footage depicting the birth of one of the plaintiffs, Joseph Buksh. The primary claim by the child had settled, leaving the mental harm claims by the parents to proceed to hearing.

The defendant argued that the DVD material was not sought to be placed before the experts earlier and, accordingly, the experts will not have an opportunity to both view the footage and re-examine each of the plaintiffs to question and examine them about any material which arises from the footage (without adjustment to the timetable).


The court allowed the material to be seen by the experts at the conclave already arranged, saying at [10]:

I accept the defendant’s contentions as to the lateness of the proposed provision of the DVD to the experts, and I acknowledge that it may be that the experts will consider that they are unable to make any sensible use of the material shown on the DVD without speaking to the respective plaintiffs and asking further questions of them. However, it seems to me perhaps a needlessly technical and restrictive approach to simply prevent the experts from seeing the material now and leaving the resolution of the issue until trial.

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