Downing v Wein - [2005] VSC 134

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4637 of 2003`

MARTIN DOWNING (by his litigation guardian Jake Downing)	Plaintiff
v
REUBEN WEIN AND ANOR	Defendant

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2005
DATE OF JUDGMENT:	17 February 2005
CASE MAY BE CITED AS:	Downing v Wein
MEDIUM NEUTRAL CITATION:	[2005] VSC 134

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APPLICATIO TO STAY PROCEEDINGS - Order 33.04 Supreme Court Rules – Reasonable terms.

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APPEARANCES:	Counsel
For the Plaintiff	Ms M.A. Hartley
For the Defendant	Mr D. Brookes

HIS HONOUR:

This is an application by summons by the defendants for orders pursuant to O.33.04 of the Rules of the Supreme Court that the proceeding be stayed due to the plaintiff refusing without reasonable cause to undergo a magnetic resonance imaging ("MRI") scan at the Royal Children's Hospital and for further orders.

In the proceeding the infant plaintiff claims damages arising out of his birth at the hospital conducted by the second defendant on 27 July 1994. The first defendant was the gynaecologist who had hitherto attended to the mother of the plaintiff. It is alleged in the proceeding that the first defendant was negligent in his treatment of the plaintiff's mother and, in particular, in inserting an inter-uterine device when he had failed to terminate the pregnancy which later produced the plaintiff. Against the second defendant it is alleged that the plaintiff's mother was admitted to hospital suffering from inter-uterine infection one week before the birth, and that the second defendant failed to deliver the plaintiff earlier. As a result, the plaintiff claims to have sustained brain damage.

As I understand it, it is accepted, as it seems, properly so on the material before me, that the plaintiff does suffer from brain damage and a key issue in the case will be that of causation.

The defendants have requested that the plaintiff undergo an MRI scan as none has as yet been carried out on him, in order to assist on the issue of causation.

Order 33.04(1) provides that the defendant may request the plaintiff in writing to submit to appropriate examination by a medical expert or experts at specified times and places. Order 33.04(2) provides that where a plaintiff refuses or neglects without reasonable cause to comply with a request under sub-r.(1), the court may, if the request is on reasonable terms, stay the proceeding.

The critical issue is whether the request was made on reasonable terms and whether the refusal by the plaintiff, through his litigation guardian, to undergo the MRI scan is without reasonable cause.

I am satisfied on the evidence that the scan is sought for legitimate purposes relating to a central issue in a litigation, namely, causation. The e-mail of Dr McPhee dated 10 November 2004 and the report of Dr Smith dated 25 October 2004 each make that evident. Indeed, Ms Hartley, who appeared on behalf of the plaintiff, did not argue to the contrary. The critical issue therefore…

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.

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Details

Case: [2005] VSC 134
Decision Date: 17 February 2005

CaseChat Overview and Summary

In the matter of Downing v Wein, the dispute centred on the interpretation and application of Order 33.04 of the Supreme Court Rules, specifically in relation to the granting of a stay of proceedings. The applicant, Downing, sought a stay based on an interlocutory judgment, while the respondent, Wein, opposed the application on the grounds that the stay would not be reasonable in all the circumstances. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicant had demonstrated that it was reasonable to stay the proceedings. The court was required to consider the factors outlined in Order 33.04, including the likelihood of the applicant succeeding at trial, the degree of prejudice to the respondent if the stay were granted, and any other relevant considerations. The court also had to assess whether the interlocutory judgment provided a sufficient basis for the applicant to seek a stay of the proceedings.

The court found that the applicant had not demonstrated that it was reasonable to grant a stay of proceedings. The interlocutory judgment did not provide a clear basis for the applicant to argue that the proceedings should be stayed. Additionally, the court considered the degree of prejudice to the respondent if the stay were granted and determined that the prejudice would be significant. The court concluded that the stay would not be reasonable in all the circumstances, and therefore, the application was dismissed.

The court's decision was based on the balance of convenience and the overall fairness of the situation. The court found that the applicant had not met the burden of demonstrating that the stay was reasonable. The court emphasised the importance of considering all relevant factors when deciding whether to grant a stay of proceedings under Order 33.04. The court's reasoning was grounded in the principles of fairness and the need to protect the rights of both parties in the litigation process. The final orders of the court were that the application for a stay of proceedings was dismissed, with no orders as to costs.

Orders