Mazzella v Al Muderis [2014] NSWSC 1087

Supreme Court New South Wales

Medium Neutral Citation: Mazzella v Al Muderis [2014] NSWSC 1087 Hearing dates: 28/07/2014 Decision date: 28 July 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Pursuant to r 12.7 of the Uniform Civil Procedure Rules, that the Amended Statement of Claim dated 13 October 2011 be, and hereby is, dismissed. (2) Order the plaintiff to pay the costs of the whole proceedings, including all reserved costs, and including the costs of this Notice of Motion. (3) Vacate the dates of 30 July 2014 and 1 August 2014 when the matter is listed for directions. (4) Vacate the hearing date of 18 August 2014. Catchwords: PROCEDURE - summary disposal - dismissal - Uniform Civil Procedure Rules 2005; r 12.7 - dismissal of proceedings for want of due despatch - proceedings commenced in the District Court of NSW - non-compliance by plaintiff with Court orders - current hearing date is the third set down - prejudice to defendant - significant costs incurred by defendant -whether dismissal would further the overriding purpose of Civil Procedure Act 2005 - interests of justice Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Gerardo Mazzella (P) Munjed Al Muderis (D) Representation: Counsel: No appearance (P) M Windsor SC (D) Solicitors: HWL Ebsworth Lawyers (D) File Number(s): 2011/00318504

ex tempore Judgment - application to dismiss 1On 16 March 2010, the plaintiff, Mr Gerardo Mazzella, who is also known as Gerard Duncan, underwent a hip arthroscopy. The defendant, an orthopaedic surgeon, performed that surgery.