Gary David Wood v Ali Ghoz and Ors [2017] NSWSC 1561

Gary David Wood v Ali Ghoz and Ors [2017] NSWSC 1561

Leave to amend was granted because the proposed allegations were foreshadowed in earlier particulars, the case had not been listed for hearing, and the defendants identified no prejudice beyond costs and taking instructions from a first defendant overseas. Once the amended pleading was permitted, the documents concerning the first defendant's qualifications, experience, rosters and employment-related material were relevant. Special reasons under rule 21.12 existed because the proceeding was a complex medical negligence case, the material was largely or peculiarly within the third defendant's knowledge, it was likely to be relevant to expert evidence or cross-examination, it would be...

Jurisdiction
Australia
Judgment Date
17 November 2017
Procedural Posture
Civil Medical Negligence Personal Injury Proceedings / Notice of Motion Seeking Leave to Amend Statement of Claim and Orders Concerning Notices to Produce
Outcome
Plaintiff granted leave to amend the statement of claim; third defendant ordered to comply with paragraph (2) of the Notice to Produce; plaintiff granted leave to serve a further Notice to Produce; plaintiff ordered to pay the third defendant's costs of the motion.
Legal Topics
['amendment of Statement of Claim' 'notice to Produce' 'special Reasons Under Rule 21.12 Uniform Civil Procedure Rules' 'relevance of Documents' 'costs of Motion' 'informed Consent' 'surgical Supervision and Qualifications']
['civil Procedure' 'medical Negligence' 'personal Injury'] ['amendment of Statement of Claim' 'notice to Produce' 'special Reasons Under Rule 21.12 Uniform Civil Procedure Rules' 'relevance of Documents' 'costs of Motion' 'informed Consent' 'surgical Supervision and Qualifications']

Case Brief

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Procedural Posture

Civil Medical Negligence Personal Injury Proceedings / Notice of Motion Seeking Leave to Amend Statement of Claim and Orders Concerning Notices to Produce

Legal Issues

  1. 1 ["Whether the plaintiff should be granted leave to file an amended statement of claim raising allegations about the first defendant's suitability, supervision, and consent to treatment by a less experienced surgeon." 'Whether the third defendant should be compelled under rule 21.12 Uniform Civil Procedure Rules to comply with paragraph (2) of the Notice to Produce dated 22 August 2017.' 'Whether special reasons existed to require production in a personal injury claim of documents not referred to in originating process, pleadings, affidavits or witness statements.' 'Whether the plaintiff should have leave to serve a further Notice to Produce for surgical rosters and employment-related records concerning the first defendant.' 'Who should pay the costs of the notice of motion.']

Ratio Decidendi

Leave to amend was granted because the proposed allegations were foreshadowed in earlier particulars, the case had not been listed for hearing, and the defendants identified no prejudice beyond costs and taking instructions from a first defendant overseas. Once the amended pleading was permitted, the documents concerning the first defendant's qualifications, experience, rosters and employment-related material were relevant. Special reasons under rule 21.12 existed because the proceeding was a complex medical negligence case, the material was largely or peculiarly within the third defendant's knowledge, it was likely to be relevant to expert evidence or cross-examination, it would be...

Court Disposition

Plaintiff granted leave to amend the statement of claim; third defendant ordered to comply with paragraph (2) of the Notice to Produce; plaintiff granted leave to serve a further Notice to Produce; plaintiff ordered to pay the third defendant's costs of the motion.

Orders

  • ['Grant leave to the plaintiff to file an amended statement of claim provided that is in substantially the same form as the proposed amended statement of claim which is annexure D to the affidavit of Kenneth James Heasman sworn on 25 October 2017.' 'Pursuant to rule 21.12 Uniform Civil Procedure Rules, order that...