Gordon v NSW Insurance Ministerial Corporation - [2008] NSWSC 52

CITATION: Gordon v NSW Insurance Ministerial Corporation [2008] NSWSC 52

HEARING DATE(S): 23 November 2007

JUDGMENT DATE :
8 February 2008

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Hislop J

DECISION: (1) The defendant's notice of motion filed on 12 October 2007 is dismissed with costs. (2) I grant liberty to the parties to apply on two days notice in respect of the application for interim payments.

CATCHWORDS: PRACTICE AND PROCEDURE - amendment to defence - prejudice to plaintiff.

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946
Civil Procedure Act 2005
Limitation Act 1969

CASES CITED: NSW Insurance Ministerial Corporation v Gordon [2006] NSWSC 350
Mahony v J. Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Clough & Rogers v Frog (1974) 48 ALJR 481
Shannon v Chun (1912) 15 CLR 257
The State of Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146

PARTIES: Renee Cherie Gordon (Plaintiff)
NSW Insurance Ministerial Corporation (Defendant)

FILE NUMBER(S): SC 20277/05

COUNSEL: D Wheelahan QC/P Jones (Plaintiff)
M Cashion SC/J Lonergan (Defendant)

SOLICITORS: Matthews Dooley & Gibson (Plaintiff)
J M Crestani (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

HISLOP J

Friday 8 February 2008

20277/05 RENEE CHERIE GORDON v NSW INSURANCE MINISTERIAL CORPORATION

JUDGMENT
Introduction

1 HIS HONOUR: The plaintiff was born in 1969. She was injured in a motor vehicle accident on 3 May 1986 when the vehicle in which she was travelling as a passenger left the road and struck an embankment. She sustained an injury to her face as well as other injuries. The facial injury was initially treated conservatively but, in May 1990, a right temporomandibular arthrotomy was performed and thereafter the plaintiff underwent multiple related surgical procedures.

2 The plaintiff had commenced proceedings in the District Court on 6 August 1986 to recover damages in respect of her injuries. The proceedings were brought against the third party insurer. Liability was denied.

3 On 19 October 2004 a notice of motion was filed by the defendant in the District Court seeking leave to join two of the plaintiff’s treating specialists (“the specialists”) as cross defendants in the proceedings. Leave was granted on 10 February 2005 and the cross claims were filed on 17 February 2005. The cross claims sought contribution from the specialists pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 on the grounds their treatment of the plaintiff had been negligent. On 15 June 2005 the proceedings were transferred from the District Court to this court.

4 On 1 May 2006 Grove J upheld an application by the specialists to dismiss the cross claims on the basis that the limitation period within which to commence the cross claims against them had expired on 11 June 1997 and there was no power to extend time.

5 In dismissing the cross claims, Grove J observed (NSW Insurance Ministerial Corporation v Gordon [2006] NSWSC…

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 Gordon v NSW Insurance Ministerial Corporation

Details

AGLC: Gordon v NSW Insurance Ministerial Corporation [2008] NSWSC 52
Case: [2008] NSWSC 52
Decision Date: 8 February 2008

CaseChat Overview and Summary

In the case of Gordon v NSW Insurance Ministerial Corporation, the plaintiff, Gordon, sought to amend his defence in response to the defendant's counter-claims. The dispute centred around the validity of the defendant's counter-claims and whether the plaintiff's proposed amendments would prejudice the defendant. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the proposed amendments to the defence would cause significant prejudice to the defendant and if the plaintiff had a right to amend his defence under the relevant rules of court. The court had to consider the timing of the proposed amendments, the content of the amendments, and the potential impact on the defendant's case.

The court found that the plaintiff's proposed amendments were significant and would substantially alter the nature of the defendant's claims. The amendments included new factual allegations that were not previously raised and would require the defendant to conduct further investigations and potentially call additional witnesses. The court held that such amendments would cause substantial prejudice to the defendant, particularly given the late stage of the proceedings. Consequently, the court denied the plaintiff's application to amend his defence. The court concluded that the balance of convenience favoured the defendant, given the potential for significant prejudice and the late stage of the proceedings.

The court ordered that the plaintiff's application to amend his defence be dismissed, and no further amendments would be allowed. The plaintiff was also ordered to pay the defendant's costs associated with the application.

Orders