AA v Kesby [2019] NSWSC 1711

AA v Kesby [2019] NSWSC 1711

Leave granted to file further amended statement of claim as the amendments do not introduce substantial new facts, cause of action arises from the same facts, no material prejudice shown; defendant limited to two experts on breach of duty to avoid unnecessary duplication and cost; no justification for ordering stay or permitting pre-trial interviews of treating doctors as fair trial can be achieved through existing means (subpoena, evidence at trial).

Jurisdiction
Australia
Judgment Date
03 December 2019
Procedural Posture
Civil (medical Negligence and Related Claims) / Interlocutory Applications Before Final Hearing; Case Management Orders
Outcome
Plaintiffs' application for leave to amend granted with costs thrown away; defendant limited to two experts for breach issue; no joint expert conference on causation; defendant's application for stay and declarations dismissed with costs.
Legal Topics
['amendment of Pleadings' 'directions Concerning Expert Evidence' 'confidentiality and Pre Trial Interviews of Medical Practitioners' 'stay of Proceedings' 'professional Negligence' 'australian Consumer Law Claims in Medical Context']
['civil Procedure' 'tort Law' 'contract Law' 'consumer Law'] ['amendment of Pleadings' 'directions Concerning Expert Evidence' 'confidentiality and Pre Trial Interviews of Medical Practitioners' 'stay of Proceedings' 'professional Negligence' 'australian Consumer Law Claims in Medical Context']

Case Brief

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Procedural Posture

Civil (medical Negligence and Related Claims) / Interlocutory Applications Before Final Hearing; Case Management Orders

Legal Issues

  1. 1 ['Whether plaintiffs should have leave to file further amended statement of claim including Australian Consumer Law causes of action' "Whether to limit number of defendant's experts on breach of duty issue" 'Whether to direct joint conferences of experts and their scope' 'Whether defendant entitled to stay of proceedings or to declarations permitting interviews with treating doctors before trial']

Ratio Decidendi

Leave granted to file further amended statement of claim as the amendments do not introduce substantial new facts, cause of action arises from the same facts, no material prejudice shown; defendant limited to two experts on breach of duty to avoid unnecessary duplication and cost; no justification for ordering stay or permitting pre-trial interviews of treating doctors as fair trial can be achieved through existing means (subpoena, evidence at trial).

Court Disposition

Plaintiffs' application for leave to amend granted with costs thrown away; defendant limited to two experts for breach issue; no joint expert conference on causation; defendant's application for stay and declarations dismissed with costs.

Orders

  • ['Leave granted to plaintiffs to file further amended statement of claim.' "Plaintiffs to pay defendant's costs, if any, thrown away by the amendment, as agreed or assessed." 'Defendant limited to evidence of two experts on breach of duty issue, including s 5O Civil Liability Act issue, both for joint conference and...