Hardwick v McSwiney (No 2) [2009] NSWSC 1318

Hardwick v McSwiney (No 2) [2009] NSWSC 1318

Because the defendant's ultimate liability was directly relevant to the plaintiff's application for interim payment under s 82(3)(c), it was reasonable to allow the defendant an opportunity to obtain and rely on expert evidence on liability. However, given evidence of urgency, the application should be adjourned only briefly for continuation on 7 December 2009. The expert reports objected to by the defendant were admissible for the interlocutory application, with their weight to be determined later.

Jurisdiction
Australia
Judgment Date
25 November 2009
Procedural Posture
Medical Negligence / Interlocutory Application by Plaintiff for Expedition and Interim Payment of Damages; Defendant's Application for Adjournment
Outcome
Application adjourned to 7 December 2009; costs reserved; expert reports admitted.
Legal Topics
['expedition of Hearing' 'interim Payment of Damages' 'expert Evidence' 'adjournment' 'civil Procedure Act 2005 S 82(3)(c)']
['practice and Procedure' 'medical Negligence'] ['expedition of Hearing' 'interim Payment of Damages' 'expert Evidence' 'adjournment' 'civil Procedure Act 2005 S 82(3)(c)']

Case Brief

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Procedural Posture

Medical Negligence / Interlocutory Application by Plaintiff for Expedition and Interim Payment of Damages; Defendant's Application for Adjournment

Legal Issues

  1. 1 ["Whether the plaintiff's application for expedition and an interim payment of damages should proceed immediately or be adjourned to allow the defendant to consider and rely on expert evidence on liability." 'Whether, for the purposes of s 82(3)(c), the Court should be satisfied that if the proceedings went to trial the plaintiff would obtain judgment for substantial damages against the defendant.' 'Whether the plaintiff should be permitted to rely on expert reports objected to by the defendant in an interlocutory application.']

Ratio Decidendi

Because the defendant's ultimate liability was directly relevant to the plaintiff's application for interim payment under s 82(3)(c), it was reasonable to allow the defendant an opportunity to obtain and rely on expert evidence on liability. However, given evidence of urgency, the application should be adjourned only briefly for continuation on 7 December 2009. The expert reports objected to by the defendant were admissible for the interlocutory application, with their weight to be determined later.

Court Disposition

Application adjourned to 7 December 2009; costs reserved; expert reports admitted.

Orders

  • ["The plaintiff's application is adjourned for continuation before Harrison J at 9.30am on Monday 7 December 2009." "Costs for 25 November 2009 are reserved until final decision of the plaintiff's application." 'The reports respectively marked A and B to the affidavit of Ms Booth are admissible and admitted.']