Johnston v Elsworth

[2018] NSWSC 1844

Supreme Court

New South Wales

Medium Neutral Citation:	Johnston v Elsworth [2018] NSWSC 1844
Hearing dates:	30 November 2018
Date of orders:	30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Pursuant to s 61 of the Civil Procedure Act 2005 and r 2.1 of the Uniform Civil Procedure Rules 2005, the hearing of these proceedings is expedited; I fix hearing for 4 March 2019 with an estimate of five days; I direct the parties to bring in short minutes of order reflecting a timetable working backwards from that date; pursuant to s 26 of the Civil Procedure Act I refer the proceedings for mediation with a mediator to be agreed by the parties, such mediation to be held on or before 15 February 2019; I note the obligation of the parties under s 27 to participate in good faith in the mediation; in the event of any dispute as to the timetable or any other matter I grant liberty to apply to me up to and including 24 December 2018 after which any application is to be brought before the duty judge; I order that the costs of today’s application be costs in the cause.
Catchwords:	CIVIL PROCEDURE – application for expedited hearing – proceedings for medical negligence – plaintiff having poor prognosis – expedition not disputed subject to need to afford defendant an adequate opportunity to prepare
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 26
Category:	Procedural and other rulings
Parties:	Mark Johnston (plaintiff) Frank Elsworth (defendant)
Representation:	Counsel: D Graham SC (plaintiff) L M Jackson (defendant)   Solicitors: Turner Freeman (plaintiff) Makinson D’Apice Lawyers (defendant)
File Number(s):	2018/136798
Publication restriction:	None

Judgment ex tempore – revised

1. HER HONOUR: Before the Court is a notice of motion seeking expedition in proceedings commenced by Mr Mark Johnston against a medical practitioner, Frank Elsworth. The need for expedition is plain and is not disputed by the defendant. The only real contest at the hearing of the application this morning has been the extent of expedition which can fairly be allowed to the plaintiff consistent with the interests of the defendant in having an adequate opportunity to prepare for the hearing. In those circumstances, the defendant did not require the Court to give lengthy reasons. The outcome of the application can be explained very briefly.

2. There is material before the Court in one of the expert reports stating that Mr Johnston has been found to have lung nodules that have increased in size and that, although those have not been biopsied to confirm their nature, they are likely to be metastasis from his existing carcinoma.

3. The expert notes a median reported survival rate of approximately 12 months, with other reports suggesting a median survival rate of 32 months. On that basis, the expert estimates Mr Johnston's survival or prognosis to be between one and two years. That report was dated 31 July 2018.

4. It is well understood, I think, within the medical profession that a prognosis of that kind, based on median survival rates, is a very elastic figure and it may well be that the plaintiff's prognosis is significantly better. Certainly, there is evidence before the Court to suggest that he is a positive, stoic, optimistic man and those considerations augur well for his future.

5. However, from the Court's point of view in terms of determining an application for expedition, it is appropriate for me rather to have regard to the medical evidence and to give due weight to that assessment. On that basis, I am satisfied that the plaintiff should have a significant measure of expedition in the hearing of his claim against the risk of his health deteriorating significantly before any hearing can be held.

6. The dates I have been given by the list clerk in response to an enquiry I made in preparation for hearing the application today include a hearing date on 4 March 2019. After that there are dates in May. I appreciate that fixing the matter for hearing on 4 March will visit an intense period of preparation upon the parties and I am mindful of the position of the defendant in that context, but in all the circumstances I consider that the state of health of the plaintiff should be the primary consideration and that the parties should bend to that date.

7. For those reasons:

1. I make order 1, which is the order seeking that the hearing of the proceedings be expedited.

2. I fix the hearing for 4 March 2019 with an estimate of five days plus.

3. I direct the parties to bring in short minutes of order reflecting a timetable working backwards from what date.

4. I refer the proceedings to mediation pursuant to s 26 of the Civil Procedure Act2005 (NSW) with a mediator to be agreed upon by the parties. Such mediation to be held on or before 15 February 2019.

5. In the event of any dispute as to the timetable or any other matter I grant liberty to the parties to apply to me up to and including 24 December 2018 after which any application should be brought before the Duty Judge.

6. I order that the costs of today's application be costs in the cause.

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Decision last updated: 06 December 2018