MacQuarrie v Hunter New England Local Health District [2019] NSWCA 98

MacQuarrie v Hunter New England Local Health District [2019] NSWCA 98

The remittal order "for rehearing" did not constrain the Common Law Division to use only the District Court pleadings and evidence or otherwise limit the trial judge's powers, except as to the separate costs order. In the context of the parties' proposed order that the matter be reheard de novo and the grounds of appeal concerning expert evidence, medical records and amendment of the statement of claim, the omission of "de novo" did not alter the intended effect. Because there was no clerical mistake, accidental slip or omission needing correction, it was unnecessary to vary the order entered on 25 June 2018.

Jurisdiction
Australia
Judgment Date
07 May 2019
Procedural Posture
Civil Procedure Appeal Arising From District Court Medical Negligence Proceedings / On the Papers Request for the Court to Amend or Clarify a Consent Remittal Order Under the Slip Rule
Outcome
No order made; the Court held that it was not necessary to correct or vary the remittal order.
Legal Topics
['slip Rule' 'consent Orders' 'remittal for Rehearing' 'new Trial or Retrial' 'interlocutory Powers After Remittal']
['civil Procedure' 'appeals' 'medical Negligence'] ['slip Rule' 'consent Orders' 'remittal for Rehearing' 'new Trial or Retrial' 'interlocutory Powers After Remittal']

Case Brief

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Procedural Posture

Civil Procedure Appeal Arising From District Court Medical Negligence Proceedings / On the Papers Request for the Court to Amend or Clarify a Consent Remittal Order Under the Slip Rule

Legal Issues

  1. 1 ['Whether the Court should amend its consent order remitting the matter to the Common Law Division "for rehearing" so that it instead provided for a remittal "for a new trial".' 'Whether the word "rehearing" in a remittal order concerning a trial imposed any implied constraint requiring the further hearing to proceed only on the pleadings and evidence before the District Court.' 'Whether UCPR r 36.17 permitted or required correction of the remittal order as a clerical mistake, accidental slip or omission.']

Ratio Decidendi

The remittal order "for rehearing" did not constrain the Common Law Division to use only the District Court pleadings and evidence or otherwise limit the trial judge's powers, except as to the separate costs order. In the context of the parties' proposed order that the matter be reheard de novo and the grounds of appeal concerning expert evidence, medical records and amendment of the statement of claim, the omission of "de novo" did not alter the intended effect. Because there was no clerical mistake, accidental slip or omission needing correction, it was unnecessary to vary the order entered on 25 June 2018.

Court Disposition

No order made; the Court held that it was not necessary to correct or vary the remittal order.

Orders

  • ['No order made.']