CITATION: Panagiotopoulos v Rajendram & Anor [2005] NSWCA 58
HEARING DATE(S): 10/03/2005
JUDGMENT DATE:
6 April 2005JUDGMENT 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: 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 499PARTIES: Periklis Panagiotopoulos Appellant
Dr N Rajendram Respondents
Dr Hugh CarmaltFILE NUMBER(S): CA 40142/2005
COUNSEL: Ms J. Merkel Applicant
Mr S Donaldson SC RespondentSOLICITORS: Blake Dawson Waldron Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 3158/03
LOWER COURT JUDICIAL OFFICER: Williams DCJ
Wednesday, 6 April, 2005
MASON PCA 40142/04
HODGSON JA
PEARLMAN AJA
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…
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- AGLC
- Panagiotopoulos v Rajendram [2005] NSWCA 58
- Case
- [2005] NSWCA 58
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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