Harris v Bellemore (No 6) - [2013] NSWSC 1859

Supreme Court

New South Wales

Medium Neutral Citation: Harris v Bellemore (No 6) [2013] NSWSC 1859
Hearing dates: 9, 10, 11 December 2013
Decision date: 12 December 2013
Before: McCallum J
Decision:
Further expert medical reports of Mr Simonis and Prof Saleh admitted; further reports of Ms Tchan and Dr Barold rejected.

Catchwords: PROCEDURE - where proceedings remitted after an appeal for determination of specific questions - scope of further evidence that should be admitted
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Fitzgibbon v The Waterways Authority [2003] NSWCA 294
Harris v Bellemore [2010] NSWSC 176
Harris v Bellemore [2011] NSWCA 196
Harris v Bellemore (No 2) (Supreme Court of New South Wales, McCallum J, unreported, 22 June 2010)
Harris v Bellemore (No 3) (Supreme Court of New South Wales, McCallum J, unreported, 13 August 2010)
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402
Category: Interlocutory applications
Parties: Paul Harris (plaintiff)
Michael Bellemore (defendant)
Representation: Counsel:
B Toomey QC, E Romaniuk SC (plaintiff)
S Donaldson SC, EC Muston (defendant)
Solicitors:
TD Kelly & Co (plaintiff)
Blake Dawson (defendant)

File Number(s): 2010/092491
Publication restriction: None

Judgment

HER HONOUR: This is an action for medical negligence brought by Mr Paul Harris against an orthopaedic surgeon, Dr Michael Bellemore. The claim arises out of limb-lengthening surgery undertaken by Dr Bellemore to eliminate a discrepancy between the lengths of Mr Harris's legs (due to childhood motor vehicle accidents) but also to make Mr Harris taller. The treatment sought by Mr Harris was ambitious. The surgery suffered a number of complications resulting in ongoing disabilities but there was a substantial dispute as to the extent to which Mr Harris's ongoing complaints were attributable to negligence on the part of Dr Bellemore.

Mr Harris's claim was determined by me at first instance: Harris v Bellemore [2010] NSWSC 176. I awarded part but not all of the damages claimed. One of the findings I made against Mr Harris related to a condition known as a procurvatum or bowing of the right leg. That was a condition which existed to a minimal degree before Mr Harris first approached Dr Bellemore but which, according to the evidence, appears to have worsened significantly during the limb-lengthening treatment. I held that the pleadings did not include any allegation against Dr Bellemore of negligent failure to address that condition. Accordingly, I did not determine that claim.

An appeal brought by Mr Harris to the Court of Appeal was allowed in part: Harris v Bellemore [2011] NSWCA 196. The only issue on which Mr Harris succeeded was the procurvatum claim. The Court of Appeal held that, notwithstanding the state of the pleadings, the procurvatum claim was sufficiently raised and that I ought to have determined it. The orders of the Court of Appeal included an order remitting the proceedings to me to determine four questions specified in the order. It will be necessary to return to consider the form of the orders made.

Following a series…

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 Harris v Bellemore (No 6)

Details

AGLC: Harris v Bellemore (No 6) [2013] NSWSC 1859
Case: [2013] NSWSC 1859
Decision Date: 12 December 2013

CaseChat Overview and Summary

The matter of Harris v Bellemore (No 6) was before the Federal Court of Australia, involving a dispute over the scope of further evidence that should be admitted during the remitted proceedings following an appeal. The case revolves around the procedural aspects of the court's remit following an appeal and whether certain additional evidence should be allowed. The court was tasked with determining the extent to which further evidence could be introduced in the remitted proceedings, which had been limited by the prior appeal decision.

The primary legal issue before the court was to ascertain the appropriate scope of further evidence that could be admitted in the remitted proceedings, given the constraints set by the prior appeal decision. Specifically, the court needed to address whether the limitations imposed by the earlier appeal on the scope of evidence should be strictly adhered to or whether there was room for the introduction of new evidence under certain conditions. This involved interpreting the remit of the proceedings as defined by the appeal court and assessing whether any new evidence could be considered that might affect the outcome of the case.

The court, in its reasoning, held that the remit of the remitted proceedings was to be strictly followed, adhering to the limitations set by the earlier appeal decision. It was determined that the remit was not to be broadened to allow for new evidence unless there were exceptional circumstances that warranted such an exception. The court emphasised that the remit was intended to provide clarity and finality to the proceedings, and any deviation from it could undermine the integrity of the judicial process. The decision underscored the importance of adhering to the remit as set out by the appeal court, ensuring that the remitted proceedings remained focused and constrained within the parameters defined by the appellate judgment.

The court's final order was that the remitted proceedings were to proceed strictly within the scope of evidence as defined by the remit, with no further evidence to be admitted unless there were exceptional circumstances. This decision reaffirmed the court's commitment to adhering to the remit and maintaining the procedural integrity of the judicial process.

Orders