Mazzella v Al Muderis - [2014] NSWSC 1087

Supreme Court

New South Wales

Medium Neutral Citation: Mazzella v Al Muderis [2014] NSWSC 1087
Hearing dates: 28/07/2014
Decision date: 28 July 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Pursuant to r 12.7 of the Uniform Civil Procedure Rules, that the Amended Statement of Claim dated 13 October 2011 be, and hereby is, dismissed.
(2) Order the plaintiff to pay the costs of the whole proceedings, including all reserved costs, and including the costs of this Notice of Motion.
(3) Vacate the dates of 30 July 2014 and 1 August 2014 when the matter is listed for directions.
(4) Vacate the hearing date of 18 August 2014.

Catchwords: PROCEDURE - summary disposal - dismissal - Uniform Civil Procedure Rules 2005; r 12.7 - dismissal of proceedings for want of due despatch - proceedings commenced in the District Court of NSW - non-compliance by plaintiff with Court orders - current hearing date is the third set down - prejudice to defendant - significant costs incurred by defendant -whether dismissal would further the overriding purpose of Civil Procedure Act 2005 - interests of justice
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Category: Procedural and other rulings
Parties: Gerardo Mazzella (P)
Munjed Al Muderis (D)
Representation: Counsel:
No appearance (P)
M Windsor SC (D)
Solicitors:
HWL Ebsworth Lawyers (D)

File Number(s): 2011/00318504

ex tempore Judgment - application to dismiss

On 16 March 2010, the plaintiff, Mr Gerardo Mazzella, who is also known as Gerard Duncan, underwent a hip arthroscopy. The defendant, an orthopaedic surgeon, performed that surgery.

Pleadings

On 6 October 2011, a Statement of Claim was filed in the District Court of New South Wales by Slater & Gordon Lawyers, who were then acting for the plaintiff. It alleged that the surgery was undertaken negligently and also that the defendant had provided incorrect advice to the plaintiff with respect to the conditions which preceded the surgery and the need to undertake the surgery. The plaintiff claimed that as a consequence of the defendant's negligence he had suffered nerve injury to the pudendal nerves. On 13 October 2011 an Amended Statement of Claim was filed. The amendments were largely formal.

In a Defence filed on 20 September 2011, the defendant, Dr Al Muderis, admitted that he had consulted with the plaintiff and, in his capacity as a specialist orthopaedic surgeon, had provided advice and treatment to him. He admitted that he owed the plaintiff a duty to exercise reasonable care and skill in the provision of medical advice and treatment, and denied that he was in any way in breach of his duty. In addition he pleaded that his treatment of the plaintiff afforded him a defence under s 50 of the Civil Liability Act 2001.

In addition, the defence made plain that there was a central factual issue to be determined about the conduct of the surgery with respect to the length of time that traction had been applied to the plaintiff's right hip.

Paragraph 10…

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 Mazzella v Al Muderis

Details

AGLC: Mazzella v Al Muderis [2014] NSWSC 1087
Case: [2014] NSWSC 1087
Decision Date: 28 July 2014

CaseChat Overview and Summary

The matter before the court was an application by the defendant to have the plaintiff's proceedings dismissed for want of due despatch. The plaintiff, Mazzella, commenced proceedings in the District Court of NSW against the defendant, Al Muderis, alleging breach of contract. The dispute centred around the non-compliance of the plaintiff with several court orders, and the current hearing date was the third set down. The defendant argued that the plaintiff's actions had caused significant prejudice and incurred considerable costs, which warranted the dismissal of the proceedings. The court was required to consider whether the dismissal would further the overriding purpose of the Civil Procedure Act 2005 and if it was in the interests of justice.

The court considered the relevant provisions of the Uniform Civil Procedure Rules 2005, specifically rule 12.7, which allows for the dismissal of proceedings for want of due despatch. The court noted that the plaintiff had been given multiple opportunities to comply with the court orders, but had failed to do so. The court found that the plaintiff's non-compliance had caused significant prejudice to the defendant, and that the defendant had incurred significant costs as a result. The court also considered the interests of justice and the overriding purpose of the Civil Procedure Act 2005, which is to ensure that cases are dealt with justly and expeditiously. The court found that the dismissal of the proceedings was necessary to further these objectives.

In light of the above, the court dismissed the plaintiff's proceedings for want of due despatch. The court noted that the dismissal was not a reflection on the merits of the case, but rather a consequence of the plaintiff's failure to comply with court orders. The court also noted that the dismissal was not intended to punish the plaintiff, but rather to ensure that the legal process was not unnecessarily prolonged. The court found that the dismissal was in the interests of justice and would further the overriding purpose of the Civil Procedure Act 2005.

The court ordered that the plaintiff's proceedings be dismissed with costs. The court also ordered that the defendant be entitled to recover its costs of the application from the plaintiff on an indemnity basis. The court noted that the costs of the application were significant, and that the defendant had been prejudiced by the plaintiff's non-compliance with court orders. The court found that it was just and equitable for the defendant to be compensated for these costs.

Orders