MD v Sydney South West Area Health Service [2009] NSWDC 22

New South Wales District Court

CITATION: MD v Sydney South West Area Health Service [2009] NSWDC 22

HEARING DATE(S): 9 - 11, 13 February 2009 EX TEMPORE JUDGMENT DATE : 13 February 2009

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: Application for leave to file amended defence refused

CATCHWORDS: PRACTICE AND PROCEDURE - Pleading - whether defence under Civil Liability Act 2002 s 5O must be pleaded and particularised

Civil Liability Act 2002 LEGISLATION CITED: Workers Compensation Act 1987 Uniform Civil Procedure Rules

Dobler v Halverson (2007) 70 NSWLR 151 CASES CITED: Rogers v Whitaker (1992) 175 CLR 479 Port Stephens Council v Theodorakakis [2006] NSWCA 70 Benton v Scott's Refrigerated Freightways [2008] NSWCA 143

MD (Plaintiff) PARTIES: Sydney South West Area Health Service (First Defendant) Ian Fulcher (Second Defendant)

FILE NUMBER(S): 215 of 2007

COUNSEL: A Lidden SC with E E Welsh (Plaintiff) K Burke (First and Second Defendant)

SOLICITORS: Bryden's Law (Plaintiff) TressCox Lawyers (First and Second Defendant)

JUDGMENT

1 HIS HONOUR: This matter arises because when the defendants sought to tender the reports of Dr Reid and Dr Boshell, objection was taken on the basis that those reports largely addressed a defence raised under s 5O of the Civil Liability Act and that defence had not been pleaded. Therefore, in the plaintiff's submission, those reports were not relevant and therefore not admissible.

2 Before I go any further, I should comment. I note that Dr Reid is a very close colleague of the second defendant, in that they are both members of the same department at the same hospital, and while it is up to the defendant to obtain expert opinion from whoever he likes, I must say that that was something that struck me, notwithstanding that Dr Reid, I am sure, acknowledged that he read the code of conduct, but there is a question of the appearance of fairness and lack of bias. I simply want to raise that as a matter of comment.