Aduebe v Lim [2017] NSWSC 1459

Supreme Court New South Wales

Medium Neutral Citation: Aduebe v Lim [2017] NSWSC 1459 Hearing dates: 24 October 2017 Date of orders: 24 October 2017 Decision date: 24 October 2017 Jurisdiction: Common Law Before: Campbell J Decision: (1) Subject to compliance with the orders and directions made by the prothonotary on 26 October 2017, order that the hearing of these proceedings be expedited;

(2) Direct the legal representatives of the parties to confer with a view to reaching agreement on a common date for medical examination of the plaintiff in Sydney and for the preservation of his evidence lest he succumbs to his disease before a date for hearing might reasonably be fixed having regard to the order for expedition. Catchwords: CIVIL PROCEDURE – Personal injury – Hearings – Expedition – Expedited hearing ordered Category: Procedural and other rulings Parties: Mr Ezebilo Godwin Aduebe (Plaintiff) Mr Hardy Lim (Defendant) Representation: Counsel: S Woods (Plaintiff) S Kettle (Defendant)

Solicitors: Schreuders Compensation Lawyers (Plaintiff) Avant Law (Defendant) File Number(s): 2017/212202 Publication restriction: Nil

ex tempore Judgment (revised) 1. The plaintiff claims damages for personal injury arising out of what is said to be negligence of the defendant, a general practitioner, in failing to exercise reasonable care which the plaintiff says would have resulted in the early detection of his colon cancer which now seems to be terminal, in the sense that there is no doubt, despite surgery, it has metastasised and the treating oncologist had been suggesting earlier this year chemotherapy by way of palliative care. That same oncologist, it must be said writing with a palpable sense of frustration, proffered a prognosis of "some short months". That was in July and that period arguably has already passed so far as one can give it definite content. 2. On the evidence, the plaintiff, Nigerian by birth, has returned to his homeland. He has said that he declines to have chemotherapy because it is not curative. But Mr Kettle of Counsel points out for the defendant that he has apparently undergone some treatment in Rome and in Nigeria, the nature of which is not disclosed. Mr Woods of Counsel who appears for the plaintiff submits that, in all the circumstances, the case is suitable for expedition. 3. The prothonotary made case management orders which will bring the matter back before the Registrar to check on compliance on 5 December 2017. Although the proceedings have been on foot since July, it does seem to me that the timetable fixed by the prothonotary is as short as it could possibly be to give the defendant the opportunity, in accordance with the directions that she made, to prepare its case. 4. There is obviously a difficulty in bringing a matter back on 5 December. The Court just may have no capacity to grant a hearing date before the end of the year, notwithstanding any order for expedition I may make. 5. It seems to me that grounds for expedition, subject to the defendant's position, have been made out and I have raised with Counsel during the course of argument the suggestion for their consideration whether the plaintiff's evidence should be preserved by taking it on commission if he comes back to Australia to undergo further medical examination either at the request of his own solicitor or the defendant. I will leave that to the judgment of the experienced Counsel who have appeared before me rather than making an order in respect of it. 6. The order for expedition has to be provisional in the sense that the timetable has to be complied with and the Court has to have hearing dates available. It may well be when the matter will come back before the Registrar that no dates will be available before February. That rather enhances the suggestion that perhaps an alternative is preserving the plaintiff's evidence. 7. I make the following orders: 1. Subject to compliance with the orders and directions made by the Prothonotary on 26 October 2017, order that the hearing of these proceedings be expedited; 2. Direct the legal representatives of the parties to confer with a view to reaching agreement on a common date for medical examination of the plaintiff in Sydney and for the preservation of his evidence lest he succumbs to his disease before a date for hearing might reasonably be fixed having regard to the order for expedition.