MD v Sydney South West Area Health Service (2)

[2009] NSWDC 23

CITATION:	MD v Sydney South West Area Health Service (2) [2009] NSWDC 23
HEARING DATE(S):	9-11, 13 February 2009
EX TEMPORE JUDGMENT DATE:	13 February 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Application for stay of proceedings dismissed
CATCHWORDS:	PRACTICE AND PROCEDURE - Stay of proceedings - Interlocutory point
LEGISLATION CITED:	Civil Liability Act 2002 Criminal Appeal Act 1912
CASES CITED:	Partnership Pacific Ltd v Killen NSWCA 10 April 1979
PARTIES:	MD (Plaintiff) Sydney South West Area Health Service (First Defendant) Ian Fulcher (Second Defendant)
FILE NUMBER(S):	215 of 2007
COUNSEL:	A Lidden SC with E E Welsh (Plaintiff) K Burke (First and Second Defendant)
SOLICITORS:	Bryden's Law (Plaintiff) TressCox Lawyers (First and Second Defendant)

JUDGMENT

1 HIS HONOUR: The defendant’s application is based on the principle that the disposition of the appeal point at this stage, however the Court of Appeal were to determine it, would result in the proceedings being terminated more quickly and conveniently than if the case were to run to a conclusion and then an appeal was taken. There is no doubt that the Court has the power to grant a stay, but the question is whether it should do so in the circumstances. This case has been run by the plaintiff on the basis that the issue for determination is one of fact, namely whether either the plaintiff or the second defendant said or did certain things. The issue that arises under s 5O of the Civil Liability Act is part of the defendant’s planned defence, although it was not pleaded.

2 The defendant says that that matter is central to the way it has run the case, although it is apparent to me that the defendant also canvassed the factual issues upon which the plaintiff relies and those are definitely before the Court. The defendant says that if the matter were to go to the Court of Appeal and it were to lose, the matter would simply come back to me to hear submissions. If its application for leave to appeal and the appeal itself were successful, the matter would then come back to me, and the defendant anticipates applications by the plaintiff to call further evidence from its expert, and that is something that I think is clearly on the cards. In either case, the defendant says that the proceedings would be resolved in total more quickly if I were to grant the stay now.

3 The plaintiff has referred me to a decision of the Court of Appeal on 10 April 1979, an extract which of appears in Uniform Civil Procedure Practice Decisions at reference 456,165 p 230,331. That was a case of Partnership Pacific Ltd v Killen, in which the Court of Appeal rejected an application against an interlocutory decision given by a judge of the Supreme Court. Moffitt P said this:

“We express some concern at proceedings being interrupted or sought to be interrupted by the kind of procedures were sought to be invoked in this court in this instance. Regrettably some changed methods sought to be adopted by some counsel in the conduct of trials or proceedings at first instance all too frequently both in respect of committal proceedings to which we recently referred and now apparently extending into civil trials is such that intermediate decisions at first instance is sought to be litigated on appeal and the proceedings at first instance delayed while these detracting diversions are indulged in. The present application falls into this class”.

4 The Court dismissed the application. It is certainly true that, since that decision in criminal matters statutory provision has been made for the determination of interlocutory matters where they concern the admissibility of evidence which is crucial to the prosecution case. There is a special provision in the Criminal Appeal Act dealing with that. There is no such provision in the legislation dealing with civil appeals. In my view, the decision that I rendered on the interlocutory point is one that certainly excludes some evidence upon which the defendant seeks to rely, but no purpose would be served by staying the proceedings at this stage. If the defendant is dissatisfied with my decision, it will and should appeal, and if the Court of Appeal agrees with its submissions the matter would probably be remitted so that the evidence that was excluded could be re-heard.

5 I must consider the interests of the plaintiff in this case as well as those of the defendant. In view of the ruling I gave earlier, it would not be unfair to the defendant to require it to proceed and I therefore dismiss the application for the stay.

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