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AA v Kesby

AA v Kesby

Case [2019] NSWSC 1711 3 December 2019

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AA v Kesby [2019] NSWSC 1711
Hearing dates: 20 November 2019
Date of orders: 03 December 2019
Decision date: 03 December 2019
Jurisdiction: Common Law
Before: Wright J
Decision:
In relation to the plaintiffs’ application brought by the amended notice of motion filed on 20 November 2019:
(1)   The plaintiffs have leave to file their proposed further amended statement of claim.
(2)   The plaintiffs are to pay the defendant’s costs, if any, thrown away because of the amendment, as agreed or assessed.
(3) The defendant is limited to relying on the evidence of two of the experts retained by the defendant, for the purposes of both the joint experts’ conference and the witnesses to be called, in relation to the breach of duty issue (which includes the s 5O of the Civil Liability Act issue).
(4) On or before a date agreed between the parties, a joint experts’ conference concerning the breach of duty issue (which includes the s 5O of the Civil Liability Act issue), is to be conducted in two parts:
(a)   part 1 involving the defendant’s two obstetricians and gynaecologists with a subspecialty in maternal foetal medicine and Drs Farine and Keenan, which addresses questions related only to radiology; and
(b)   part 2 not involving Dr Keenan, which addresses all of the other questions concerning breach of duty set out in the attachment to the amended notice of motion,
but if a two part conference is not possible or practicable, the joint experts’ conference concerning breach of duty is to be limited to the defendant’s two obstetricians and gynaecologists with a subspecialty in maternal foetal medicine and Dr Farine, dealing with all of the questions concerning breach of duty which either party wishes to have considered by the experts.
(5)   A joint report is or joint reports are to be delivered to the Court and the parties on a date to be agreed between the parties.
(6)   The costs of the application are to be each party’s costs in the cause.
(7)   The parties have liberty to apply on 2 days’ notice if the parties cannot reach agreement or there are other difficulties in relation to the orders and directions in (4) and (5) above.
In relation to the defendant’s application brought by the notice of motion filed on 25 October 2019:
(8)   The application is dismissed.
(9)   The defendant is to pay the plaintiffs’ costs of the application as agreed or assessed.
Catchwords: CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — No additional cost or delay and no prejudice identified — Leave to amend granted
CIVIL PROCEDURE — Directions as to conduct of hearing and joint experts’ conferences — Application seeking direction to limit number of Defendant’s experts on breach of duty — No suggestion of any relevant differences or nuances in experts’ experience or evidence — Defendant limited to calling evidence from no more than two experts on breach of duty

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AA v Kesby

Details

AGLC: AA v Kesby [2019] NSWSC 1711
Case: [2019] NSWSC 1711
Decision Date: 03 December 2019

CaseChat Overview and Summary

The case of AA v Kesby involved the plaintiff seeking to amend their pleadings late in the proceedings. The dispute was before the Supreme Court of New South Wales. The plaintiff, AA, sought to amend their pleadings to include additional claims, despite the statutory time limits having expired. The legal issues before the court were whether leave should be granted for the late amendment of pleadings, whether the court should direct the number of experts the defendant could call, and whether the court should exercise its inherent jurisdiction to stay the proceedings until the plaintiffs consented to interviews with their treating doctors.

The court found that there were no additional costs or delays caused by the late application for amendment, and no prejudice to the defendant was identified. Therefore, the court granted leave for the plaintiff to amend their pleadings. Regarding the expert evidence, the court noted that there was no suggestion of any relevant differences or nuances in the experts' experience or evidence. Consequently, the defendant was limited to calling evidence from no more than two experts on breach of duty. Lastly, the court considered whether to exercise its inherent jurisdiction to stay the proceedings until the plaintiffs consented to interviews with their treating doctors. The court held that the refusal to grant a stay would result in an unfair trial and that declarations should be made that the defendant was entitled to interview the treating doctors. The decision in Richards v Kadian (2005) 64 NSWLR 204 was applied.

The court granted leave for the plaintiff to amend their pleadings, limited the defendant to calling evidence from no more than two experts on breach of duty, and made declarations that the defendant was entitled to interview the treating doctors.

Orders