Panagiotopoulos v Rajendram - [2005] NSWCA 58

CITATION:
Panagiotopoulos v Rajendram & Anor [2005] NSWCA 58

HEARING DATE(S):
10/03/2005

JUDGMENT DATE:

6 April 2005

JUDGMENT OF:
Mason P at 1; Hodgson JA at 3; Pearlman AJA at 4

DECISION:
1. The appeal is upheld.

CATCHWORDS:
PRACTICE and PROCEDURE - Dismissal of application for adjournment - dismissal of proceedings for failure to comply with rules - whether Health Care Complaints Commission peer review report available for tender - whether appellant's case hopeless and incurably hopeless - whether trial judge's discretion miscarried by reason of error - whether self executing order for dismissal appropriate.

LEGISLATION CITED:
District Court Rules 1973
Health Care Complaints Act 1993

CASES CITED:
Elliott v Bickerstaff (1999) 48 NSWLR 214
General Steel Industries Inc v Commissioner of Railways (NSW) & Ors (1964) 112 CLR 125
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
House v The King (1936) 55 CLR 499

PARTIES:
Periklis Panagiotopoulos Appellant
Dr N Rajendram Respondents
Dr Hugh Carmalt

FILE NUMBER(S):
CA 40142/2005

COUNSEL:
Ms J. Merkel Applicant
Mr S Donaldson SC Respondent

SOLICITORS:
Blake Dawson Waldron Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 3158/03

LOWER COURT JUDICIAL OFFICER:
Williams DCJ

CA 40142/04
MASON P
HODGSON JA
PEARLMAN AJA

Wednesday, 6 April, 2005

PANAGIOTOPOULOS v RAJENDRAM & ANOR

Judgment

1 MASON P: I agree with Pearlman AJA, subject to one additional observation.

2 Section 30(5) of the Health Care Complaints Act 1993, which is set out in her Honour’s reasons, precludes a person whose report is obtained by the Health Care Complaints Commission from being “compelled to produce the report or to give evidence in relation to the report or its contents”. In my view it is arguable that this preclusion should be read narrowly, since it restricts the availability of presumptively relevant evidence. It may be that the provision prevents the person concerned from disclosing the substance or form of the report, while leaving him or her available to give evidence that happens to coincide or overlap with the contents of the report. In other words, the section does not appear to go so far as to render the circumstances under which a report is prepared themselves privileged. There is no property in an expert witness. This issue was not debated before us and these views are necessarily tentative.

3 HODGSON JA I agree with Pearlman AJA.

4 PEARLMAN AJA

Introduction

Following leave granted on 21 July 2004, the appellant has appealed against the decision of Williams DCJ dismissing the appellant’s proceedings in the District Court.

5 The proceedings below involved a claim by the appellant for damages for nervous shock. As pleaded in his statement of claim, the appellant claimed that he had suffered severe nervous shock as a result of the death of his wife, Angela Panagiotopoulos, and that her death had been occasioned by the negligence of the first and second respondents.

6 The background to those proceedings is as follows. On 11 June 1996, Mrs Panagiotopoulos had consulted…

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 Panagiotopoulos v Rajendram

Details

AGLC: Panagiotopoulos v Rajendram [2005] NSWCA 58
Case: [2005] NSWCA 58
Decision Date: 6 April 2005

CaseChat Overview and Summary

The appeal in *Panagiotopoulos v Rajendram* concerned an application for an adjournment of proceedings and the subsequent dismissal of those proceedings for failure to comply with court rules. The appellant sought to tender a peer review report from the Health Care Complaints Commission, the availability of which was central to the adjournment application.

The primary legal issues before the Court of Appeal were whether the trial judge erred in dismissing the application for adjournment, whether the appellant's case was "hopeless and incurably hopeless," and whether the trial judge's discretion miscarried due to error. The court also considered the appropriateness of a self-executing order for dismissal.

The Court of Appeal found that the trial judge had erred in dismissing the adjournment application and, consequently, the proceedings. The court determined that the appellant's case was not so hopeless as to warrant dismissal and that the trial judge's discretion had miscarried. The availability of the Health Care Complaints Commission peer review report was a significant factor in this determination.

The appeal was upheld.

Orders

Orders of the court

1. The appeal is upheld.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Panagiotopoulos v Rajendram & Anor [2005] NSWCA 58
HEARING DATE(S):	10/03/2005
JUDGMENT DATE:	6 April 2005
JUDGMENT OF:	Mason P at 1; Hodgson JA at 3; Pearlman AJA at 4
DECISION:	1. The appeal is upheld.

CATCHWORDS:	PRACTICE and PROCEDURE - Dismissal of application for adjournment - dismissal of proceedings for failure to comply with rules - whether Health Care Complaints Commission peer review report available for tender - whether appellant's case hopeless and incurably hopeless - whether trial judge's discretion miscarried by reason of error - whether self executing order for dismissal appropriate.
LEGISLATION CITED:	District Court Rules 1973 Health Care Complaints Act 1993
CASES CITED:	Elliott v Bickerstaff (1999) 48 NSWLR 214 General Steel Industries Inc v Commissioner of Railways (NSW) & Ors (1964) 112 CLR 125 Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 House v The King (1936) 55 CLR 499
PARTIES:	Periklis Panagiotopoulos Appellant Dr N Rajendram Respondents Dr Hugh Carmalt
FILE NUMBER(S):	CA 40142/2005
COUNSEL:	Ms J. Merkel Applicant Mr S Donaldson SC Respondent
SOLICITORS:	Blake Dawson Waldron Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3158/03
LOWER COURT JUDICIAL OFFICER:	Williams DCJ