Hardwick v McSwiney (No 3) [2010] NSWSC 3

Hardwick v McSwiney (No 3) [2010] NSWSC 3

Given the conflict between expert opinions and absence of cross-examination or resolution of factual contest, the court is not satisfied that the plaintiff would obtain judgment for substantial damages if the matter went to trial, and accordingly the application for interim payment must be dismissed.

Jurisdiction
Australia
Judgment Date
12 January 2010
Procedural Posture
Motion / Interlocutory Application for Interim Payment
Outcome
Motion dismissed
Legal Topics
['interim Payment' 'professional Negligence' 'medical Follow Up After Surgery' 'expert Evidence' 'satisfaction Under S 82(3)(c) Civil Procedure Act 2005']
['practice and Procedure' 'medical Negligence'] ['interim Payment' 'professional Negligence' 'medical Follow Up After Surgery' 'expert Evidence' 'satisfaction Under S 82(3)(c) Civil Procedure Act 2005']

Case Brief

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Procedural Posture

Motion / Interlocutory Application for Interim Payment

Legal Issues

  1. 1 ['Whether the court can be satisfied under s 82(3)(c) Civil Procedure Act 2005 that if proceedings went to trial the plaintiff would obtain judgment for substantial damages' 'Whether defendant was negligent in treatment and follow up after excision of tongue lesion' "Whether defendant's conduct was widely accepted as competent professional practice (s 5O Civil Liability Act 2002)"]

Ratio Decidendi

Given the conflict between expert opinions and absence of cross-examination or resolution of factual contest, the court is not satisfied that the plaintiff would obtain judgment for substantial damages if the matter went to trial, and accordingly the application for interim payment must be dismissed.

Court Disposition

Motion dismissed

Orders

  • ["The plaintiff's application for an interim payment is dismissed." "The costs of the plaintiff's application for interim payment should be costs in the proceedings."]