Hayne v Nyst

Debbie Hayne, as a plaintiff in her own right and as the next friend of her daughter Robyn Hayne, an infant, has applied for leave to proceed with a claim against Phillip Edmund Joseph Nyst and Malcolm Stuart Nyst, who were her medical practitioners in September-October 1983. The plaintiff alleges that the defendants were negligent in advising her that the Rubella infection she had would not affect her unborn child, leading to the birth of Robyn with Rubella Embryopathy and subsequent severe disabilities. The defendants opposed the application, arguing that the delay in bringing the action has prejudiced them. The court was required to decide whether the plaintiff's application for leave to proceed should be granted, despite the expiration of more than three years since the last step was taken in the action.

The court considered the principles relevant to an application for leave to proceed under Order 90 rule 9, noting that a satisfactory explanation for the delay is not a condition precedent to granting leave. The court assessed the weight of various factors, including the significant delay in bringing the action, the lack of contemporaneous notes of the critical conversations, and the potential for prejudice to the defendants. The court concluded that the defendants have established that they are prejudiced by the inordinate and inexcusable delay on the part of the plaintiff in prosecuting the action. Applying the test from Dempsey v. Dorber, the court found that there was not a good reason for excepting this case from the general prohibition imposed by the rule.

The court emphasised that the plaintiff's allegations centre on conversations that occurred during consultations in September and October 1983. The precise wording of these conversations is critical to determining the issue of negligence, and the lack of recorded detail makes it difficult to accurately assess the plaintiff's state of mind at the material time. The court also noted that the plaintiff's decision to proceed is influenced by the recent decision in Veivers v. Connolly, but this cannot be significant in the determination of the application. The outcome of the case will depend on the precise advice given by the medical practitioners during those conversations, which highlights the possible prejudice created by the inordinate delay.

In conclusion, the court refused the plaintiff's application for leave to proceed, with costs awarded to the defendants. The court found that the inordinate delay and the potential for prejudice to the defendants outweighed any other considerations, and thus, the application should be dismissed.