Burke v Humphrey Summary

[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

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.

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.

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.

CaseChat Overview and Summary

The case of Burke v Humphrey involved a claim by Suzanne Mary Burke against Dennis Charles Humphrey, alleging professional negligence in relation to gynaecological procedures. The plaintiff claimed that the defendant had failed to properly carry out a tubal ligation and had not provided appropriate advice on alternative methods of contraception. The defendant denied the allegations of negligence. The plaintiff sought an order under Rule 518 of the Supreme Court Rules for the proceedings to be referred for mediation, despite the defendant's refusal to consent.

The primary legal issue before the Court was whether Rule 518 of the Supreme Court Rules permitted a judge to order mediation without the consent of both parties. The rule explicitly stated that a judge could order mediation at any stage with or without consent. However, the Court examined whether this power was validly granted under the Supreme Court Civil Procedure Act 1932 or any other legislation, finding that it was not. Consequently, the rule was deemed beyond the authority of the Court in that regard.

The Court further considered the context of the case, noting that extensive expert evidence had already been exchanged between the parties and that the defendant had communicated their most favourable settlement position to the plaintiff's advisers. The defendant's instructions came from London, and they had been directed not to proceed beyond their current stance. Given these circumstances, the Court found little prospect of mediation achieving any meaningful result. Consequently, the application for mediation was refused.

The Court's decision highlighted the limitations of Rule 518 in mandating mediation without consent and underscored the importance of legislative authority in judicial rule-making. The Court's refusal to order mediation in this case was based on the practical realities of the litigation and the limited likelihood of achieving a resolution through that process.

Burke v Humphrey

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established