Supreme Court
New South Wales
Medium Neutral Citation: Fletcher v Hamilton-Gibbs & another [2013] NSWSC 77 Hearing dates: 5-6 March 2013 Decision date: 14 March 2013 Before: Adamson J Decision: (1) Order that the proceedings be dismissed.
(2) Unless an application is made in writing to my Associate within seven days of the date hereof for a different order, order the plaintiff to pay the defendants' costs of the proceedings, including the costs of the notices of motion.
Catchwords: PRACTICE AND PROCEDURE- summary dismissal of claim as abuse of process-prejudicial effect of delay-whether fair trial possible when evidence lost or unreliable by reason of effluxion of time
PRACTICE AND PROCEDURE- summary dismissal of claim for want of due despatchLegislation Cited: - Limitation Act 1969, s 26, s 52
- Civil Procedure Act 2005, s 56, s 57, s 58
- Uniform Civil Procedure Rules 2005, r 12.7, r 13.4, r 14.28Cases Cited: - Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
- Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541
- Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62
- Fletcher v Besser & anor [2004] NSWCA 132
- Fletcher v Besser & Anor [2005] HCATrans 99
- Fletcher v Besser [2010] NSWCA 30
- Fletcher v Hamilton-Gibbs & ors [2002] NSWSC 899
- Fletcher v Hamilton-Gibbs & ors [2009] NSWSC 124
- General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
- Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
- Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522
- Newcastle City Council v Batistatos [2005] NSWCA 20
- Spellson v George [1992] NSWCA 254; 26 NSWLR 666
- State of New South Wales v Plaintiff A [2012] NSWCA 248Category: Interlocutory applications Parties: Joanna Fletcher (Plaintiff/Respondent)
Peter Hamilton-Gibbs (First Defendant/Applicant)
Peter Durey (Second Defendant/Applicant)Representation: Counsel:
J V Agius SC/C Dobraszczyk Plaintiff/Respondent)
A C A Bridge SC (First Defendant/Applicant)
D F Villa (Second Defendant/Applicant)
Solicitors:
Graham Billing & Co (Plaintiff/Respondent)
DibbsBarker Lawyers (First Defendant/Applicant)
Kennedys Lawyers (Second Defendant/Applicant)
File Number(s): 92/28054 Publication restriction: Nil
Judgment
Introduction
By notice of motion filed on 8 March 2011, the second defendant seeks orders in the alternative that the proceedings be dismissed, the statement of claim be struck out or that the proceedings be permanently stayed. These orders are sought principally on the grounds that the plaintiff has not prosecuted the proceedings with due despatch or that their continuance amounts to an abuse of process.
By notice of motion filed on 11 October 2012, the first defendant seeks similar orders on a similar basis.
Facts
The plaintiff's case
The plaintiff alleges that in the period from February 1975 until 1982, she sought and obtained advice and treatment from Dr Hamilton-Gibbs (the first defendant), a general practitioner who practised at the Young Boorowa Street…
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Details
- AGLC
- Fletcher v Hamilton-Gibbs [2013] NSWSC 77
- Case
- [2013] NSWSC 77
- Decision Date
CaseChat Overview and Summary
The matter of Fletcher v Hamilton-Gibbs came before the court concerning a claim for damages against two defendants, arising from alleged medical negligence. The plaintiff, Fletcher, sought compensation for injuries she claimed to have suffered during medical consultations in 1982. The court was required to address the defendants' application to dismiss the claim for want of due despatch and as an abuse of process, due to the significant delay in bringing the case to court and the resultant unreliability of evidence.
The central legal issues the court had to determine included whether the plaintiff's delay in filing the claim constituted an abuse of process and whether the unreliability of the evidence due to the passage of time made it impossible for Fletcher to have a fair trial. Additionally, the court needed to assess whether the defendants' application for summary dismissal for want of due despatch should be upheld.
In considering these issues, the court noted that the plaintiff had delayed in filing her claim for many years, which led to the loss or unreliability of crucial evidence. The court found that this significant delay prejudiced the defendants' ability to mount an effective defence, as key evidence had been lost or became unreliable. The court also held that the plaintiff's inconsistent reporting of her medical history further complicated the assessment of the claims against the defendants. Given these factors, the court concluded that the plaintiff's claim should be dismissed as an abuse of process and for want of due despatch, as the conditions for a fair trial were no longer met.
The court ultimately ordered the dismissal of Fletcher's claim against both defendants, finding that the prejudicial effect of the delay and the unreliability of the evidence warranted such a decision. This ruling underscored the importance of timely litigation to ensure that all parties have access to reliable evidence and can defend themselves effectively.
The central legal issues the court had to determine included whether the plaintiff's delay in filing the claim constituted an abuse of process and whether the unreliability of the evidence due to the passage of time made it impossible for Fletcher to have a fair trial. Additionally, the court needed to assess whether the defendants' application for summary dismissal for want of due despatch should be upheld.
In considering these issues, the court noted that the plaintiff had delayed in filing her claim for many years, which led to the loss or unreliability of crucial evidence. The court found that this significant delay prejudiced the defendants' ability to mount an effective defence, as key evidence had been lost or became unreliable. The court also held that the plaintiff's inconsistent reporting of her medical history further complicated the assessment of the claims against the defendants. Given these factors, the court concluded that the plaintiff's claim should be dismissed as an abuse of process and for want of due despatch, as the conditions for a fair trial were no longer met.
The court ultimately ordered the dismissal of Fletcher's claim against both defendants, finding that the prejudicial effect of the delay and the unreliability of the evidence warranted such a decision. This ruling underscored the importance of timely litigation to ensure that all parties have access to reliable evidence and can defend themselves effectively.
Orders
Orders of the court
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Background
Background to the litigation
The plaintiff's narrative of facts with which every expert except Dr Wilson has been briefed (Narrative of Facts) states, in relation to alleged consultations between the plaintiff and the first defendant in 1982: Notwithstanding the reference to accidents in the extract, the plaintiff in her letter of particulars dated 18 September 1992, denied that she had ever been involved in a motor vehicle accident. It is common ground that the plaintiff saw the second defendant for the first time in March 1982. Relevantly his clinical notes record: In the statement of claim the plaintiff alleges that she sought treatment from the second defendant for neck pain, headaches, weakness, episodes of collapse, unconsciousness and unsteadiness in walking as well as bladder incontinence. In the particulars dated 18 September 1992, the plaintiff confirms that she complained of each of these symptoms on each of the occasions on which she consulted the second defendant, which, by inference, includes the consultation in March 1982. In the particulars dated 18 September 1992, the plaintiff said that she consulted the second defendant in respect of the following symptoms in March 1982: The Narrative of Facts states: The second defendant submitted that the entry "stress incontinence" in the March 1982 note is consistent with a later reference to "bulky uterus" and "cystocoele" in the note for June 1982. Cystocoele is a prolapse in the base of the bladder which is usually caused by weakness in the pelvic floor after childbirth and causes bulging of the anterior wall of the vagina on straining. It may cause stress incontinence, which is the leak of urine on coughing and straining. This is to be distinguished from overflow incontinence, which is leakage from a full bladder and occurs in patients with neurological conditions affecting bladder control. There were, in any event, significant inconsistencies within the plaintiff's contemporaneous reporting of her history as well as between such reports and the case she maintains against both defendants. For example, Dr Whiley's letter of referral to Dr Gordon of 20 September 1982 reports: Dr Gordon, in a consultation on 22 September 1982 at the Orange Base Hospital, noted that she was a vague historian and very slow. He records a six month history of: These two reports are to be contrasted with the history the plaintiff is recorded as having given the second defendant in March 1982 (set about above) that indicates that the collapse when getting up from a seated position dates from March 1981. These histories are also to be contrasted with the history she gave to Dr Besser at RPA on 23 September 1982 that she had a history of sudden falls for at least ten months. She said that she suffered occipital headaches and urinary incontinence for four to six months. These periods are at odds with the substantially longer periods alleged in the statement of claim. The disparity in the reporting of these periods is of substantial significance to a determination whether either, both, or neither, defendant is liable.
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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