Dwyer v Browning [2011] NSWSC 445

Supreme Court New South Wales

Medium Neutral Citation: Dwyer v Browning [2011] NSWSC 445 Hearing dates: 12/05/2011 Decision date: 18 May 2011 Jurisdiction: Common Law Before: Harrison J Decision: Parties to bring in short minutes of order to give effect to these reasons Catchwords: PRACTICE AND PROCEDURE - Civil Procedure Act 2005 - application for interim payment - whether an order for interim payment could be made that does not exceed a reasonable proportion of the damages that might be recoverable - order for interim payment of $35,000 Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Renee Carmel Dwyer (First Plaintiff) Kurt Franklin (Second Plaintiff) Dr David Browning (Defendant) Representation: Counsel: A G J Foel (Plaintiffs) J L A Lonergan (Defendant) Solicitors: Galland Elder Lulham (Plaintiffs) GILD Insurance Litigation (Defendant) File Number(s): 2007/265193

Judgment 1HIS HONOUR : Renee Dwyer and Kurt Franklin seek an order for an interim payment pursuant to s 82 of the Civil Procedure Act 2005 . They have sued Dr David Browning for damages following a failed sterilisation procedure performed by him on Ms Dwyer in June 2004. Ms Dwyer became pregnant with her son Serge following that procedure and gave birth to him on 23 June 2005. Serge was born with severe disabilities which Ms Dwyer and Mr Franklin claim have resulted, and will continue to result, in them incurring additional costs associated with rearing or maintaining him. Dr Browning has made some interim payments already but opposes the application that he should do so again.