MD v Sydney South West Area Health Service (2) [2009] NSWDC 23

New South Wales District Court

CITATION: MD v Sydney South West Area Health Service (2) [2009] NSWDC 23

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

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: Application for stay of proceedings dismissed

CATCHWORDS: PRACTICE AND PROCEDURE - Stay of proceedings - Interlocutory point

LEGISLATION CITED: Civil Liability Act 2002 Criminal Appeal Act 1912

CASES CITED: Partnership Pacific Ltd v Killen NSWCA 10 April 1979

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: The defendant's application is based on the principle that the disposition of the appeal point at this stage, however the Court of Appeal were to determine it, would result in the proceedings being terminated more quickly and conveniently than if the case were to run to a conclusion and then an appeal was taken. There is no doubt that the Court has the power to grant a stay, but the question is whether it should do so in the circumstances. This case has been run by the plaintiff on the basis that the issue for determination is one of fact, namely whether either the plaintiff or the second defendant said or did certain things. The issue that arises under s 5O of the Civil Liability Act is part of the defendant's planned defence, although it was not pleaded.