Nurrish v McDonald
[2013] NSWSC 420
•24 April 2013
Supreme Court
New South Wales
Medium Neutral Citation: Nurrish v McDonald [2013] NSWSC 420 Hearing dates: 24 April 2013 Decision date: 24 April 2013 Jurisdiction: Common Law Before: Schmidt J Decision: 1. That the claim against the third and fourth defendants be separated from the proceedings 2011/00394733 and separately determined.
2. That the claim against the third and fourth defendants be heard after the claim against the first and second defendants.
3. That the two claims be case managed together.
4. The costs of this motion be costs in the cause.
Catchwords: PROCEDURE - notice of motion - severance - orders sought granted Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Stephen Nurrish by his tutor Janice Nurrish (Plaintiff)
Mathew McDonald (First Defendant)
Healthe Care Lingard Pty Ltd (AN 117 484 438) t/a Lingard Private Hospital (Second Defendant)
Andreas Schwander (Third Defendant)
Merlene Thrift (Fourth Defendant)Representation: Solicitors:
Slater and Gordon Lawyers (Plaintiff)
Avant Law Pty Ltd (First Defendant)
Minter Ellison (Second Defendant)
HWL Ebsworth Lawyers (Third Defendant)
Meridian Lawyers (Fourth Defendant)
File Number(s): 2012/394733 Publication restriction: None
EXTEMPORE Judgment
These proceedings were commenced in 2011 by a statement of claim filed on 6 December 2011. They are now pursued by way of a further amended statement of claim filed on 12 November 2012, whereby the third and fourth defendants were added as parties to the proceedings.
When commenced the proceedings concerned an injury which the plaintiff sustained to his spine in 2008. He suffered a further injury in 2012 which resulted in a stroke. The further amended statement of claim advances claims against the third and fourth defendants in respect of the 2012 injury.
By way of notice of motion filed on 20 March 2013 by the fourth defendant, orders are sought that the claim against the third and fourth defendants be severed from the proceedings and separately determined.
The parties all support the making of the orders proposed in the motion. It is supported by an affidavit sworn by Mr Grant, the fourth defendant's solicitor, on 22 March 2013 which outlines the circumstances which have given rise to the motion, and the common view of the parties that the orders there sought should be granted. They concern an acceptance that the allegations of negligence made against the third and fourth defendants are completely separate and distinct to the allegations made against the first and second defendants.
The other defendants have consented to the proposed orders, as has the plaintiff. In the case of the second defendant there has been a reservation of the right to issue a cross-claim against the other defendants. It has been clarified in submissions that on current medical investigation it is extremely unlikely that such a cross-claim would be brought, but it is a possibility which the second defendant seeks to guard against in circumstances where, as yet, all of the medical evidence is not in.
Having considered the motion, the supporting affidavit, and all that has fallen from the parties, I am satisfied that the Court's discretion to sever proceedings in the way proposed should be exercised. That accords with the requirements of the Civil Procedure Act 2005 which by s 56 provides that the Court should exercise its functions in order to achieve the overriding purpose, the just, quick and cheap resolution of the real issues in the proceedings.
The proposed orders in the circumstances seem to me to be designed to achieve that end. For those reasons, I make the following orders:
1. That the claim against the third and fourth defendants be separated from the proceedings 2011/00394733 and separately determined.
2. That the claim against the third and fourth defendants be heard after the claim against the first and second defendants.
3. That the two claims be case managed together.
4. The costs of this motion be costs in the cause.
I should add that the proposed orders suggested that the proceedings be heard by the same Judge. It does not seem to me in the circumstances to be necessary to make that order. The parties have differing views as to whether that is necessary, and it is an order which I think would be aspirational, and in the circumstances one not necessary to be made in the interests of justice, in the circumstances here before the Court.
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Decision last updated: 26 April 2013
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