Wallace v South East Sydney Local Health District [2021] NSWSC 867

Supreme Court New South Wales

Medium Neutral Citation: Wallace v South East Sydney Local Health District [2021] NSWSC 867 Hearing dates: 16 July 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Common Law Before: Johnson J Decision: 1. The hearing of the proceedings are expedited. 2. The parties are to provide Short Minutes of Orders to progress the litigation, with further orders to be made in chambers. 3. The costs of the Notice of Motion be costs in the cause. Catchwords: CIVIL PROCEDURE – application for expedited hearing – proceedings for medical negligence – Plaintiff with cancer – expedition granted with parties to take necessary steps to progress litigation towards timely hearing Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Johnston v Elsworth [2018] NSWSC 1844 Texts Cited: --- Category: Procedural rulings Parties: David Wallace (Plaintiff) South Eastern Sydney Local Health District (Defendant) Representation: Counsel: Mr M Perry (Plaintiff) Ms T Berberian (Defendant)

Solicitors: Gerard Malouf & Partners (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2021/59537 Publication restriction: ---

Judgment 1. JOHNSON J: By Notice of Motion filed on 3 June 2021, the Plaintiff, David Wallace, in proceedings commenced against the Defendant, South Eastern Sydney Local Health District, seeks an order that the hearing of the proceedings be expedited or, in the alternative, an order that there be an examination of the Plaintiff otherwise than at trial pursuant to Rule 24.3 Uniform Civil Procedure Rules 2005. 2. It has been made clear at the hearing of the Notice of Motion that the claim pressed today by the Plaintiff is the claim for an expedited hearing. 3. In these proceedings, the Plaintiff alleges that the Defendant was negligent in failing to diagnose and treat his appendiceal cancer on 15 July 2017 and from 21 and 29 January 2019 when he presented to St George Hospital. He alleges that these failures caused him to suffer metastasised Stage-4 goblet cell carcinoid-adenocarcinoma, and the need to undergo surgical treatment and reduced life expectancy. 4. The proceedings were commenced by Statement of Claim filed on 2 March 2021. A Defence was filed on 2 June 2021. 5. At the hearing of the Notice of Motion, the Plaintiff relied upon the affidavit of Jonathon Tannous dated 4 June 2021, which provided some history of the proceedings and annexed a number of medical reports. The Defendant relied upon the affidavit of Ann-Maree Pascoli dated 9 July 2021, which referred to the history of the proceedings and various steps which have been taken to progress the litigation. 6. At the outset, I should indicate that the position of the Defendant is not to oppose the reasonable expedition of the final hearing of the Plaintiff's claim. 7. The issues for determination are whether the Court should expedite the hearing of the matter and, if an order for expedition is made, the practical consequences of such an order in the sense of the potential timing of an expedited hearing. 8. The Court has power under s.61 Civil Procedure Act 2005 to make orders for the speedy determination of the real issues between the parties to the proceedings, and this has been recognised as extending to the power to order an expedited hearing. Clearly, where an application for an expedited hearing is made, the Court needs to assess, in the circumstances of the case, the claim for expedition, in this case due to the state of health of the Plaintiff. 9. The Plaintiff was born in June 1966 and is now 55 years of age. There is no issue that he suffers from cancer, as described earlier (at [3]). It is not necessary, for present purposes, to expand upon the nature of his claim with respect to liability or quantum. 10. The medical evidence before the Court does not suggest that the Plaintiff is at risk of death in the near future. That is not to say that the Plaintiff's position will not deteriorate at some point. At present, there is treatment being provided to him, which no doubt operates within the practical limits of treatment available for a condition such as that from which he suffers. 11. Accordingly, the evidence does not point to the need for an expedited hearing in the near future. Rather, the material before the Court points to the Plaintiff being unwell, suffering from a very serious condition, so that the Court should have regard to that factor in seeking to accelerate the hearing of the proceedings in this Court. The approach which the Court should take where an expedited hearing is sought depends upon the evidence in the particular case, as McCallum J observed in Johnston v Elsworth [2018] NSWSC 1844 at [5]. It may be that a significant measure of expedition may be appropriate, depending upon the evidence in the particular case. 12. I should note that there are a number of outstanding steps to be taken in the proceedings. Although the Plaintiff has served a number of reports upon the Defendant in May and June 2021, there is an outstanding request for particulars with respect to liability, that request being made on 11 May 2021. Clearly, the legal representatives for the Plaintiff need to respond to that request as a matter of urgency. Where a party to civil proceedings seeks an expedited hearing, it is essential that the legal representatives for that moving party themselves take all necessary steps to accelerate their side of preparation of the case. 13. In addition, there is an outstanding request for particulars as to quantum, that request having been made on 23 March 2021. I note, in that respect, that the solicitor for the Plaintiff has provided a number of reports to the solicitors for the Defendant. 14. However, it is clear from what I have said that these proceedings, which have been on foot now for four and a half months, are still at an early stage. 15. I am satisfied that the Court should make an order for expedition in the proceedings. What will be involved, as a consequence of that order, is that the parties proceed with appropriate dispatch to attend to the various steps required to prepare for a hearing. The Court will not today, of course, be fixing a hearing date, nor will it be referring the matter to the Registrar to obtain an urgent hearing date. 16. Rather, the Court, having made an order for expedition, will make consequential orders for the parties to progress the litigation in a timely fashion. As part of that process, I may, at least for the next appearance, retain conduct of the proceedings so that the parties are assisted to keep the matter moving. 17. With respect to costs, it is appropriate that the order that the Court will make is that the costs of today's Notice of Motion be costs in the cause. Accordingly, I make the following orders: 1. The hearing of the proceedings are expedited. 2. The parties are to provide Short Minutes of Orders to progress the litigation, with further orders to be made in chambers. 3. I order that the costs of the Notice of Motion be costs in the cause. [POSTSCRIPT: On 19 July 2021, the Court made the following additional orders with the consent of the parties: 1. The Court notes that an order for expedition of these proceedings was made on 16 July 2021. 2. The Plaintiff is to answer, by 23 July 2021, the Defendant's requests for further particulars, by letters dated 23 March 2021 and 11 May 2021. 3. The Plaintiff is to file and serve evidentiary statements from the Plaintiff and any lay witnesses by 30 July 2021 (noting the Plaintiff has completed his expert evidence in chief). 4. The proceedings are to be listed before the Registrar at 9.00 am on 3 September 2021 for the allocation of a hearing date to give effect to the order for expedition made on 16 July 2021. 5. The Defendant is to complete its expert evidence by 30 September 2021. 6. The Plaintiff is to complete any expert evidence in reply by 28 October 2021. 7. The case is to be listed for mention before Johnson J at 9.00 am on 3 November 2021. 8. The parties are to arrange for a mediation to be completed by 30 November 2021. 9. The parties have liberty to apply to the Court if circumstances necessitate any significant alteration to these orders.] ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2021