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 402Category: 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.
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CaseChat Overview and Summary
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
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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