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Hastwell v Parmegiani

Hastwell v Parmegiani

Case [2023] NSWSC 1016 24 August 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Hastwell v Parmegiani [2023] NSWSC 1016
Hearing dates: 8 August 2023
Date of orders: 24 August 2023
Decision date: 24 August 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Leave is granted to amend the statement of claim.
(2) Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.
(3) The plaintiff is to pay the defendant’s costs.

Catchwords:
NEGLIGENCE — claim against medicolegal expert arising out of content of report – scope of witness immunity – motion to dismiss – bound to fail

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 s 60
Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 6, 7, 8, 8(1)(c), 8(1)(d), 8(1)(e)
Federal Court Rules 2011 (Cth)
Uniform Civil Procedure Rules 2015 (NSW), rr 13.4, 14.28

Cases Cited:
A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Limited v A Lawyer (a pseudonym) [2020] NSWSC 1713
AB(A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41
Commonwealth of Australia v Griffiths & Anor (2007) 70 NSWLR 268; [2007] NSWCA 370
Darker & Ors v Chief Constable of the WestMidlands Police [2001] 1 AC 435
Donnellan v The Public Trustee (No 2) [2010] WASC 214
D'Orta‑Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Hastwell v Kott Gunning (No 5) [2020] FCA 621 Hastwell v Kott Gunning [2021] FCAFC 70
Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398
Jovanovic & Anor v Woods & Ors(No 3) [2001] TASSC 96
R v Beydoun (1990) 22 NSWLR 256
Sovereign Motor Inns v Howarth Asia Pacific [2003] NSWSC 1120
Spellson v George (1992) 26 NSWLR 666; [1992] NSWCA 254
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Symonds v Vass (2009) 257 ALR 689; [2009] NSWCA 139
Young v Hones [2014] NSWCA 337

Category: Procedural rulings
Parties: Mr Haydyn Hastwell (Plaintiff)
Dr Julian Parmegiani (Defendant)
Representation:
Counsel:
J Louis Polese (Plaintiff)
A Munro (Defendant)
Solicitors:
Blackstone Legal (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2022/190697
Publication restriction: Nil

JUDGMENT

The plaintiff pursues proceedings against the defendant, a psychiatrist, who examined the plaintiff in 2016 on the instructions of his then solicitors. He sues the defendant in negligence, breach of fiduciary duty and for breaches of the consumer guarantees as set out in Sch 2, s 60 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law” or “ACL”).
On 7 June 2016, the plaintiff's former solicitors, Harmers Workplace Lawyers (“Harmers”), instructed the defendant to provide a medicolegal report (“the report”)…

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 Hastwell v Parmegiani

Details

AGLC: Hastwell v Parmegiani [2023] NSWSC 1016
Case: [2023] NSWSC 1016
Decision Date: 24 August 2023

CaseChat Overview and Summary

In Hastwell v Parmegiani, the plaintiff sought to hold the defendant medicolegal expert liable for damages arising from the content of a report prepared by the defendant in the course of a personal injury claim. The defendant moved to have the claim dismissed on the basis of the immunity afforded to expert witnesses. The Federal Circuit Court was required to determine whether the immunity extended to claims of negligence arising from the content of a report prepared by an expert witness, and if so, whether the claim could be dismissed at the pleadings stage.

The court held that the immunity provided to expert witnesses under the Uniform Law was broad, extending to the preparation of the report and the opinions contained therein. The court found that the immunity was not limited to the conduct of the expert in court but rather encompassed the entire process of preparing and delivering the report. Given that the immunity was absolute and not limited to the conduct of the expert in court, the court found that the claim was bound to fail. The court held that the motion to dismiss was well-founded and dismissed the claim with costs.

The court further found that the plaintiff had failed to identify any exception to the immunity provided to expert witnesses. The court noted that the immunity was intended to ensure that expert witnesses could provide objective and unbiased opinions without fear of litigation, and that any limitation on that immunity could undermine the effectiveness of the expert witness system. The court held that the plaintiff had failed to identify any circumstances in which the immunity should not apply, and therefore the claim was properly dismissed.

Orders