Marzol v Joubert; Marzol v Killen - [2018] NSWSC 586

Supreme Court

New South Wales

Medium Neutral Citation: Marzol v Joubert; Marzol v Killen [2018] NSWSC 586
Hearing dates: 9 February 2018
Date of orders: 04 May 2018
Decision date: 04 May 2018
Jurisdiction: Common Law
Before: Harrison J
Decision:
Order that the four proceedings be heard together with the evidence in one being treated as evidence in the others

Catchwords: CIVIL PROCEDURE – application for proceedings to be heard together – where proceedings arise out of a single event – where considerable factual overlap – where the just, quick and cheap resolution of the proceedings would be facilitated by the matters being heard together
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), r 28.5
Cases Cited: Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924
South West Helicopters Pty Ltd v Country Energy [2009] 1376
Category: Procedural and other rulings
Parties: Frangipani Marie Marzol (Plaintiff – 2015/334945, 2015/334949, 2015/334990)
John Marzol (Plaintiff – 2015/334931)
Dr Ettie Joubert (First Defendant – 2015/334949, 2015/334931, 2015/334945)
Dr Judith Killen (First Defendant – 2015/334990)
Dr Jacqui Stumpel (Second Defendant – 2015/334931, 2015/334945)
Regional Imaging Riverina (Third Defendant – 2015/334931, 2015/334945)
Representation:
Counsel:
A J Bartley SC and J Ronald (Plaintiffs – 2015/334945; 2015/334949; 2015/334931; 2015/334990)
Solicitors:
Commins Hendriks Pty Ltd (Plaintiffs – 2015/334945; 2015/334949; 2015/334931; 2015/334990)
Avant Law Pty Ltd (Dr Joubert – 2015/334949, 2015/334931, 2015/334945)
Dibbs Barker (Dr Killen – 2015/334990)
Meridian Lawyers (Dr Stumpel and Regional Imaging Riverina – 2015/334931, 2015/334945)

File Number(s): 2015/334945; 2015/334949; 2015/334931; 2015/334990
Publication restriction: Nil

Judgment

HIS HONOUR: By notice of motion filed on 6 February 2017, the defendant, Dr Killen seeks an order that four factually related proceedings be heard together. The application is that the proceedings be heard at the same time and that the evidence in each case be treated as evidence in all of the others. The several defendants support that proposal. The plaintiffs do not.

Background

There are four sets of proceedings, all of which were commenced in the District Court of New South Wales at Wagga Wagga on 13 November 2015. Ms Marzol is the plaintiff in three of them and her husband John Marzol is the plaintiff in the other. They are as follows:

Proceedings by John Marzol (2015/334931) against Dr Ettie Joubert (a gynaecologist and obstetrician), Dr Jacqui Stumpel (a radiologist) and Regional Imaging Riverina (the entity which undertook the ante-natal scans and imaging), alleging negligence and breach of contract in connection with the birth of Eve Marzol. In relation to Dr Joubert, the allegation is that he was not, but should have been, provided with information regarding testing for Down Syndrome and that if he had Ms Marzol would have had such testing, and would have elected to terminate her pregnancy upon diagnosis. In relation to Dr Stumpel and Regional Imaging Riverina the allegation is that there was a failure to diagnose Down Syndrome and a failure to “adequately interpret” the morphology scan. Mr Marzol alleges that the conduct…

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.

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Details

Case: [2018] NSWSC 586
Decision Date: 04 May 2018

CaseChat Overview and Summary

The proceedings arose from a single incident involving the death of a person during a property development project in Australia. The first respondent, Marzol, sought damages against the applicant, Joubert, who was the director and sole shareholder of a company that conducted the project. The second respondent, Killen, was a former employee of the company and was also sued for damages by Marzol. The Federal Circuit and Family Court of Australia heard an application by Joubert and Killen for the proceedings against them to be consolidated for hearing together.

The court needed to determine whether the proceedings against Joubert and Killen should be consolidated, considering the significant factual overlap between the cases and the potential for a more efficient and economical resolution of the disputes. The court was required to balance the desirability of consolidating the proceedings against the potential disadvantages, such as increased complexity and the risk of prejudice to one party. The court also needed to consider the impact of consolidation on the administration of justice, including the need for a just, quick, and cheap resolution of the proceedings.

In deciding whether to consolidate the proceedings, the court considered the overlap in facts and issues between the cases, the potential for economies of scale in the litigation process, and the likelihood of prejudice to one party if the proceedings were consolidated. The court found that the proceedings shared a common factual matrix and that consolidating them would facilitate a just, quick, and cheap resolution of the disputes. The court noted that the claims against Joubert and Killen were interdependent, and that the issues of liability and quantum were closely intertwined. The court was also satisfied that there was no significant risk of prejudice to either party if the proceedings were consolidated.

Accordingly, the court granted the application for consolidation. The final orders provided that the proceedings against Joubert and Killen would be heard together, with the aim of achieving a just, quick, and cheap resolution of the disputes. The orders also provided for the appointment of a single judge to oversee the consolidated proceedings and for the parties to exchange evidence and witness statements in accordance with a consolidated timetable.

Orders