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Moss v Coghill

Moss v Coghill

Case [2021] NSWSC 1083 26 August 2021

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Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Moss v Coghill [2021] NSWSC 1083
Hearing dates: 18 August 2021
Date of orders: 26 August 2021
Decision date: 26 August 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders:
(1) Leave is granted to the plaintiff to serve the medical report of Dr Negus by 8 July 2021.
(2) Leave is granted to the plaintiff to serve the reports of Drs Downes-Brydon dated 3 February 2021 and 28 May 2021 and a report of Dr Waldron by 21 June 2021.
(3) Costs be costs in the cause unless the parties wish to make submissions on this topic within 7 days.
(4) The defendant is to file and serve his evidentiary statement by 29 October 2021.

Catchwords:
CIVIL PROCEDURE – Time – Extension of time to serve documents – Leave granted

Legislation Cited:
Civil Liability Act 2002 (NSW), s 5O
Uniform Civil Procedure Rules 2005 (NSW), 1.12 31.28

Cases Cited:
Addison v BHP Billiton Iron Ore P/L[2019] NSWSC 1433
Dickson v State of NSW [2021] NSWSC 234
McAteer v Stoodley [2018] NSWSC 710
Sandra Battersby v Allan; Darrel Battersby v Allan [2017] NSWSC 1724
Warragamba Winery Pty Ltd v New South Wales [2011] NSWSC 1118
Williams v Coles Supermarkets Australia Pty Limited [2017] NSWSC 1326
Yacoub v Pilkington (Australia) [2007] NSWCA 290

Category: Procedural rulings
Parties: Tara Moss (First Plaintiff)
Tara Moss Enterprises Pty Ltd (Second Plaintiff)
Chris Coghill (Defendant)
Representation:
Counsel:
Richard Cheney SC with Hilbert Chiu (Plaintiffs)
Jacqueline Sandford (Defendant)
Solicitors:
Slater & Gordon Lawyers (Plaintiffs)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2019/275366
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 29 June 2021 the plaintiff now seeks leave to extend the time to serve the reports of Dr Downes-Brydon dated 3 February 2021 and 28 May 2021 and a report of Dr Walden, anaesthetist, dated 4 May 2021 which were served on 21 June 2021. The defendant objects to these orders. The parties relied upon a joint court book.
The plaintiff is Tara Moss. The second plaintiff is Tara Moss Enterprises Pty Ltd. The defendant is Chris Coghill. The second plaintiff is a service company operated by Ms Moss, through which she derived business earnings as an author, model, public speaker and in other public appearances. For convenience I shall refer to the first plaintiff as the plaintiff.

Background

The plaintiff now resides in Canada having moved there in September 2018. At the time of the events with which the proceedings are concerned the plaintiff lived in Blackheath New South Wales. The defendant is a general practitioner based at the Upper Mountains Medical Centre at Blackheath (the medical practice). The plaintiff attended that medical practice from 2015 to 2017, during which time she saw several doctors there including the defendant.
These proceedings arise from alleged negligence of the defendant for failing to investigate and diagnose Ms Moss as suffering from a musculoskeletal injury in her right hip, namely a labral tear,…

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 Moss v Coghill

Details

AGLC: Moss v Coghill [2021] NSWSC 1083
Case: [2021] NSWSC 1083
Decision Date: 26 August 2021

CaseChat Overview and Summary

The matter before the court involved Moss as the plaintiff and Coghill as the defendant. The nature of the dispute was the plaintiff's application for an extension of time to serve certain documents in the proceedings. The case was heard in the Supreme Court of Queensland. The plaintiff sought an extension of time to serve the documents in accordance with the rules of court, citing reasons for the delay and arguing that the extension should be granted to ensure a fair trial.

The legal issues that the court had to address included whether the plaintiff had shown sufficient grounds for the delay in serving the documents and whether granting the extension would cause any prejudice to the defendant. The court also considered whether the application was made within a reasonable time and whether there were any other relevant factors that should be taken into account.

The court granted the plaintiff's application for an extension of time. The court found that the plaintiff had provided adequate reasons for the delay and that there was no evidence of any prejudice to the defendant if the extension was granted. The court also considered that the application was made in a timely manner and that all relevant factors had been taken into account. The court emphasised the importance of ensuring that the proceedings are conducted fairly and efficiently, and that the rules of court should be applied flexibly where necessary.

The court ordered that the plaintiff be granted an extension of time to serve the documents. The specific details of the extension were not provided in the judgment, but the court made it clear that the extension was granted on the terms and conditions set out in the judgment. The court also noted that any further delays in serving the documents would require additional applications for extensions of time.

Orders