Supreme Court New South Wales Medium Neutral Citation: Mahony v Branley [2014] NSWSC 1521 Hearing dates: 29 October 2014 Decision date: 31 October 2014 Before: Harrison J Decision: (1)Upon the condition that the defendants agree that they will not rely upon any available limitation defence in the event that the plaintiff seeks to commence fresh proceedings, the proceedings are dismissed. (2)Subject to orders 3 and 4, order the plaintiff to pay the defendants' costs. (3)The defendants are not entitled to enforce order 2 except in the event that the plaintiff seeks to commence fresh proceedings. (4)In the event that the plaintiff seeks to commence fresh proceedings he must comply with order 2 hereof as a condition of so doing. Catchwords: PROCEDURE - pleadings - medical negligence - strike out - whether proceedings should be dismissed - orders conditional on agreement by defendants not to rely on limitation defence in future proceedings Cases Cited: Mahony v Branley [2013] NSWSC 1835 Category: Procedural and other rulings Parties: Denis Mahony (Plaintiff) Dr Michael Branley (First Defendant) Dr Ron Woodey (Second Defendant) Dr John Downie (Third Defendant) Herglen Pty Limited t/as Hunters Hill Private Hospital (Fourth Defendant) Northern Sydney Local Health District (Fifth Defendant) Representation: Counsel: L Young (First to Fifth Defendants) Solicitors: L Kearney (First, Second and Third Defendants) HWL Ebsworth (Fourth Defendant) Curwoods Legal Services (Fifth Defendant) File Number(s): 2012/223077 Publication restriction: Nil Judgment 1HIS HONOUR: On 11 December 2013 I published reasons for judgment dealing with an application by the defendants variously to strike out the pleadings or dismiss the proceedings and other associated prayers for relief: see Mahony v Branley [2013] NSWSC 1835. Those reasons for judgment should be read in conjunction with these reasons. 2I indicated at that time that I was inclined to dismiss the proceedings in their entirety provided that the defendants were prepared to accept, as a condition of that result, that they would not rely on any otherwise available limitation defence in the event that Mr Mahony later chose to commence the proceedings afresh in a proper form. In those circumstances I invited the parties to bring in short minutes of order giving effect to my reasons and to the orders that I indicated I was prepared to make. 3So far as this court is concerned, nothing happened thereafter until the defendants filed notices of motion in identical terms on 23 October 2014 seeking, in effect, identical relief to that dealt with by me in my previous judgment. Why that approach was adopted remains unclear to me. In the events that occurred, the defendants' notices of motion were heard by me on 29 October 2014. 4Before that occurred, on 19 May 2014, the defendants wrote to Mr Mahony "without prejudice save as to costs" in the following relevant terms: "We write to you on behalf of all the defendants. Our purpose is to propose a way of resolving outstanding issues in the current proceedings, and to seek your consent to the orders that the defendants propose. As you know, the matter came before his Honour Justice Harrison at the Supreme Court on Friday 6 December 2013. In his written judgment dated 11 December 2013, his Honour stated that he is prepared to: 1. Strike out the pleadings forthwith 2. Agree to the defendants' application to dismiss the proceedings in their entirety on the condition that they agree to not rely in [sic, on] a limitation defence if you choose to commence proceedings in a proper form sometime in the future, and hear the parties on the question of costs if so required. All defendants have received instructions to forgo any future defence under the Limitation Act 1969 on the basis that the following orders be agreed to by you: 1. The pleadings are struck out. 2. The proceedings are dismissed. 3. The plaintiff to pay the defendants' costs. 4. Costs not to be pursued by any defendant unless the plaintiff seeks to commence further proceedings; and 5. All defendants' costs to be paid by the plaintiff prior to the commencement of further proceedings. It would be preferable to agree costs rather than undergo a lengthy assessment process. ... We enclose a copy of the proposed orders. You may wish to obtain independent legal advice in regard to the proposed orders. If you agree to the proposed orders, please sign and date them and return the original to Lyn Kearney in the Express Post envelope enclosed. Please keep a copy for yourself. We put you on notice that, in the event we have had no response to this letter within 28 days of its date, that is, by Monday 9 June 2014, we will seek instructions to have the matter listed before his Honour to seek further orders. Such a step will, of course, cause our clients to incur further legal costs. We look forward to receiving your response." 5The consent orders to which the letter refers mirror the orders which it summarised. I was informed in the course of the proceedings by Ms Young of counsel, who appears for all defendants, that they remained content for me to make orders in the same terms if I were so minded, and to agree not to rely upon any otherwise available limitation defence. 6Mr Mahony appeared once again without legal representation. He had provided me with an affidavit sworn by him on 27 October 2014 which I have read. He also made extensive oral submissions outlining his current position. Mr Mahony was, however, unable to provide me with any satisfactory reason why the orders proposed by the defendants should not now be made. 7I indicated that I proposed to make the orders sought by the defendants. There has been no significant change of any kind in the circumstances attending this case since prior to 11 December 2013 with the exception of the matters to which I have just referred. Mr Mahony has not since then sought to plead his cause of action in a proper manner and in my opinion he is never likely to do so. 8When I dealt with the matter in October last year I anticipated that, even if the proceedings were dismissed, Mr Mahony may nevertheless seek to commence fresh proceedings. He may yet be inclined to do so. However, the defendants are entitled in my opinion to the certainty of having these proceedings dismissed and to have their costs paid as a precondition to the commencement of any further proceedings based upon the same facts or circumstances by Mr Mahony in the future. The defendants' agreement to forego their costs of the present proceedings upon the conditions offered is to my mind a generous and appropriate concession to Mr Mahony's personal position and unrepresented status. 9I make the following orders: (1)Upon the condition that the defendants agree that they will not rely upon any available limitation defence in the event that the plaintiff seeks to commence fresh proceedings, the proceedings are dismissed. (2)Subject to orders 3 and 4, order the plaintiff to pay the defendants' costs. (3)The defendants are not entitled to enforce order 2 except in the event that the plaintiff seeks to commence fresh proceedings. (4)In the event that the plaintiff seeks to commence fresh proceedings he must comply with order 2 hereof as a condition of so doing. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2014