Sydney South West Area Health Service v MD [2009] NSWCA 343

New South Wales Court of Appeal

CITATION: Sydney South West Area Health Service v MD [2009] NSWCA 343

HEARING DATE(S): 16 September 2009

JUDGMENT DATE: 16 September 2009

JUDGMENT OF: Allsop P at [1], [49], [66]; Hodgson JA at [2]; Sackville AJA at [57]

EX TEMPORE JUDGMENT DATE: 16 September 2009

1. Appeal on liability dismissed. 2. Appeal on costs allowed; and order 2 made on 19 March 2009 set aside and in lieu thereof order that the plaintiff pay the costs of the first defendant of the proceedings. 3. Appeal as to non-publication order allowed, the non-publication order set aside and in lieu thereof order that the anonymization of the name of the plaintiff in the judgments be maintained and order that there be no publication in the media of names of plaintiff, her children or their father; and direct that there be a note placed on the file clearly recording that this order has been made. DECISION: ________ 4. The second appellant pay the respondent's costs of his appeal on liability. 5. The respondent pay the costs of the first appellant, Health Service, of its appeal in relation to costs. 6. The respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified in relation to the costs of the first appellant's appeal.

CATCHWORDS: PROCEDURE – Pleading – Whether necessary for defendant to plead s 5O of the Civil Liability Act 2002 or material facts referred to in that section. - PROCEDURE – Amendment – Whether amendment should be allowed where other party intends to raise issue that it does not communicate – Trial by ambush. - PROCEDURE – Appeal – Error shown – Whether new trial should be ordered – Whether substantial miscarriage of justice shown.