Bentley v Dr Nguyen - [2014] NSWDC 231

District Court

New South Wales

Medium Neutral Citation: Bentley v Dr Nguyen [2014] NSWDC 231
Hearing dates: 12 December 2014
Decision date: 12 December 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) On the application of the defendants, the hearing date of 2 February 2015 is vacated.
(2) Costs thrown away by reason of the vacation of the hearing date, and costs of the Notice of Motion, are reserved.
(3) On the application of the defendants for these proceedings to be transferred to the Sydney Registry for case management, these proceedings are listed before Gibson DCJ at 9:30am on Thursday 18 December 2014 for the purpose of referral to an appropriate case management list, if possible.
(4) Note the parties are to give consideration to concurrent evidence by the five dental experts retained by the plaintiff and defendants, including the preparation of list of issues agreed and issues in dispute, and that the parties should be in a position to advise Gibson DCJ on 18 December 2014 what their respective experts position is as to the suitability of the dental issues for a conclave.

Catchwords: PRACTICE AND PROCEDURE - urgent application to vacate hearing date and transfer proceedings from Newcastle to Sydney registry - parties and subject matter have no connecting factors to Newcastle - proceedings listed for hearing on second occasion the matter came to court - complex dental medical negligence action requiring 5 day plus fixture - whether further case management, including concurrent evidence, required - whether speedy trial advantage outweighed other factors - hearing date vacated and proceedings transferred to Sydney registry
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Cases Cited: Kirk Group Holdings Pty Ltd v Workcover Authority (NSW) [2010] HCA 1
Mallegowda v Sood [2013] NSWDC 98
Sporting Shooters Association of Australia (NSW) Inc v McGuire [2014] NSWSC 1370
Texts Cited: -
Category: Interlocutory applications
Parties: Plaintiff: Katrina Bentley
First Defendant: Dr Peter Nguyen
Second Defendant: Dr Medhat Melek
Third Defendant: South Eastern Sydney Local Health District
Representation: Plaintiff: Ms S Posniak (solicitor)
First Defendant: Ms A Brown (solicitor)
Second and Third Defendants: Mentioned by Ms A Brown
Plaintiff: Catherine Henry Partners
First Defendant: Meridian Lawyers
Second Defendant: Tresscox Lawyers
Third Defendant: Crown Solicitor's Office (NSW)

File Number(s): 2014/84447
Publication restriction: None

Judgment

By notice of motion filed today (12 December 2014), the defendants seek orders as follows:

(1) Proceedings removed from the Newcastle Hearing list for the two weeks commencing 2 February 2015;

(2) Proceedings transferred to the Sydney Registry;

(3) No order as to costs;

(4) Any other orders that the Court deems fit.

These proceedings were commenced by way of Statement of Claim filed on 18 March 2014 in the Newcastle Registry. The claim is for professional negligence by a dentist, a medical practitioner and a hospital in relation to dental and medical treatment. The plaintiff required extensive treatment for her dental problems, which included hospitalisation, but pleads that she has suffered a major depressive episode. Ms Posniak advised the…

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 Bentley v Dr Nguyen

Details

AGLC: Bentley v Dr Nguyen [2014] NSWDC 231
Case: [2014] NSWDC 231
Decision Date: 12 December 2014

CaseChat Overview and Summary

Bentley v Dr Nguyen is a case involving a medical negligence claim brought by the plaintiff, Bentley, against the defendant, Dr Nguyen. The dispute concerns the urgency of vacating a hearing date set for 2 February 2015 and transferring the proceedings from the Newcastle registry to the Sydney registry. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the hearing date should be vacated and the proceedings transferred to the Sydney registry, given the lack of connecting factors to Newcastle. The case also required consideration of the need for further case management and the potential for concurrent evidence from the five dental experts retained by both parties. Another issue was whether the advantage of a speedy trial outweighed the other factors involved in the transfer of proceedings.

The court found that there were no connecting factors linking the parties or the subject matter to Newcastle. The case was being heard for the second time, and the matter required a fixture of five days or more. The court recognised the importance of a speedy trial but weighed this against the need for further case management, including the possibility of concurrent evidence. The court concluded that the advantage of a speedy trial was outweighed by the other factors, and the hearing date was vacated. The proceedings were transferred to the Sydney registry for further case management.

The orders made by the court included the vacation of the hearing date, the reservation of costs thrown away due to the vacation, and the transfer of the proceedings to the Sydney registry for case management. The parties were also directed to consider concurrent evidence by the dental experts and to advise the court on the suitability of the dental issues for a conclave.

Orders

Orders of the court

(1) On the application of the defendants, the hearing date of 2 February 2015 is vacated.

(2) Costs thrown away by reason of the vacation of the hearing date, and costs of the Notice of Motion, are reserved.

(3) On the application of the defendants for these proceedings to be transferred to the Sydney Registry for case management, these proceedings are listed before Gibson DCJ at 9:30am on Thursday 18 December 2014 for the purpose of referral to an appropriate case management list, if possible.

(4) Note the parties are to give consideration to concurrent evidence by the five dental experts retained by the plaintiff and defendants, including the preparation of list of issues agreed and issues in dispute, and that the parties should be in a position to advise Gibson DCJ on 18 December 2014 what their respective experts position is as to the suitability of the dental issues for a conclave.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bentley v Dr Nguyen [2014] NSWDC 231
Hearing dates:	12 December 2014
Decision date:	12 December 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) On the application of the defendants, the hearing date of 2 February 2015 is vacated. (2) Costs thrown away by reason of the vacation of the hearing date, and costs of the Notice of Motion, are reserved. (3) On the application of the defendants for these proceedings to be transferred to the Sydney Registry for case management, these proceedings are listed before Gibson DCJ at 9:30am on Thursday 18 December 2014 for the purpose of referral to an appropriate case management list, if possible. (4) Note the parties are to give consideration to concurrent evidence by the five dental experts retained by the plaintiff and defendants, including the preparation of list of issues agreed and issues in dispute, and that the parties should be in a position to advise Gibson DCJ on 18 December 2014 what their respective experts position is as to the suitability of the dental issues for a conclave.
Catchwords:	PRACTICE AND PROCEDURE - urgent application to vacate hearing date and transfer proceedings from Newcastle to Sydney registry - parties and subject matter have no connecting factors to Newcastle - proceedings listed for hearing on second occasion the matter came to court - complex dental medical negligence action requiring 5 day plus fixture - whether further case management, including concurrent evidence, required - whether speedy trial advantage outweighed other factors - hearing date vacated and proceedings transferred to Sydney registry
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56
Cases Cited:	Kirk Group Holdings Pty Ltd v Workcover Authority (NSW) [2010] HCA 1 Mallegowda v Sood [2013] NSWDC 98 Sporting Shooters Association of Australia (NSW) Inc v McGuire [2014] NSWSC 1370
Texts Cited:	-
Category:	Interlocutory applications
Parties:	Plaintiff: Katrina Bentley First Defendant: Dr Peter Nguyen Second Defendant: Dr Medhat Melek Third Defendant: South Eastern Sydney Local Health District
Representation:	Plaintiff: Ms S Posniak (solicitor) First Defendant: Ms A Brown (solicitor) Second and Third Defendants: Mentioned by Ms A Brown Plaintiff: Catherine Henry Partners First Defendant: Meridian Lawyers Second Defendant: Tresscox Lawyers Third Defendant: Crown Solicitor's Office (NSW)
File Number(s):	2014/84447
Publication restriction:	None