Burke v Humphrey

[2000] TASSC 178

[2000] TASSC 178

CITATION:            Burke v Humphrey [2000] TASSC 178

PARTIES:  BURKE, Suzanne Mary
  v
  HUMPHREY, Dennis Charles

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  307/1988
DELIVERED ON:  18 December 2000
DELIVERED AT:  Hobart
HEARING DATE:  4 December 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Plaintiff:  K J Monaghan
           Defendant:  A J Denehey
Solicitors:
           Plaintiff:  Gunson Pickard & Hann
           Defendant:  Murdoch Clarke

Judgment  Number:  [2000] TASSC 178
Number of paragraphs:  3

Serial No 178/2000
File No 307/1988

SUZANNE MARY BURKE v DENNIS CHARLES HUMPHREY

REASONS FOR JUDGMENT  COX CJ

18 December 2000

1. The plaintiff in this action sued the defendant for professional negligence in relation to certain gynaecological procedures alleging (inter alia) failure to properly carry out a tubal ligation and failure to give appropriate advice as to alternative methods of preventing conception.  The defendant denies negligence.  The plaintiff now seeks an order pursuant to Rules of the Supreme Court, r518, that the proceedings be referred for mediation notwithstanding that the defendant will not consent to that course.

1. Although r518 expressly provides that at any stage in a proceeding a judge, with or without the consent of any party, may order that the proceeding or any part of it be referred to arbitration, the power to make such an order without the consent of a party is not included in the rule-making provisions of the Supreme Court Civil Procedure Act 1932 or elsewhere and the rule is, in that respect, in my view, ultra vires.  Enabling legislation in expectation of which the rule was prematurely formulated has been sought but has not yet been enacted.

1. In any event, I have been informed by counsel for the defendant that extensive proofs of expert medical evidence have been exchanged and the position of the defendant most favourable to the plaintiff in respect of settlement has been communicated to her advisers.  Furthermore, the instructions of those having the carriage of the defendant's case come from London and they are not to proceed beyond the position to which I have referred.  In these circumstances, I think there is so little prospect of a mediation achieving anything that it would be inappropriate to order that the proceedings be referred for mediation.  The application is refused.