Zakaria v Dr Noyce [2012] NSWSC 981

Zakaria v Dr Noyce [2012] NSWSC 981

There was no denial of procedural fairness in the making of the order dismissing the proceedings because the plaintiff and her counsel had an opportunity to make submissions, and the court properly delivered judgment on the material before it. The plaintiff failed to cure the default by not providing a compliant expert report under r 31.36 UCPR. The same default had been the subject of a prior unsuccessful application. Delay was extensive and unexplained, and no new circumstances justified a further rehearing. Accordingly, there were no grounds to set aside the order under r 36.15 or the inherent jurisdiction of the court.

Parties
Plaintiff: Elizabeth Zakaria; Defendant: Dr Peter Noyce
Jurisdiction
Australia
Judgment Date
12 October 2012
Procedural Posture
Interlocutory Application / Notice of Motion to Set Aside Order
Outcome
Notice of Motion dismissed; plaintiff to pay defendant's costs
Legal Topics
Setting Aside Judgment, Procedural Fairness, Expert Evidence, Professional Negligence
Civil Procedure Medical Negligence Setting Aside Judgment Procedural Fairness Expert Evidence Professional Negligence

Case Brief

Summary, issues, holding and outcome

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Parties

Elizabeth Zakaria

Plaintiff

Dr Peter Noyce

Defendant

Procedural Posture

Interlocutory Application / Notice of Motion to Set Aside Order

Legal Issues

  1. 1 Whether judgment dismissing negligence proceedings should be set aside under r 36.15 UCPR or inherent jurisdiction for denial of natural justice or procedural irregularity
  2. 2 Whether the plaintiff complied with r 31.36 UCPR requiring an expert report in medical negligence claims
  3. 3 Whether delay and previous unsuccessful application justified further consideration of setting aside the judgment

Ratio Decidendi

There was no denial of procedural fairness in the making of the order dismissing the proceedings because the plaintiff and her counsel had an opportunity to make submissions, and the court properly delivered judgment on the material before it. The plaintiff failed to cure the default by not providing a compliant expert report under r 31.36 UCPR. The same default had been the subject of a prior unsuccessful application. Delay was extensive and unexplained, and no new circumstances justified a further rehearing. Accordingly, there were no grounds to set aside the order under r 36.15 or the inherent jurisdiction of the court.

Court Disposition

Notice of Motion dismissed; plaintiff to pay defendant's costs

Orders

  • The Plaintiff's Notice of Motion filed 28 June 2012 is dismissed.
  • The Plaintiff is to pay the Defendant's costs.