Prestwidge v Coldwell - [2024] NSWSC 1279

Supreme Court

New South Wales

Medium Neutral Citation: Prestwidge v Coldwell [2024] NSWSC 1279
Hearing dates: 1 October 2024
Date of orders: 1 October 2024
Decision date: 15 October 2024
Jurisdiction: Common Law
Before: Davies J
Decision:
1. That the Defendant be released from the implied “Harman” undertaking in respect of the documents specified in paragraph 22 of the affidavit of Lauren Christina Biviano sworn 20 September 2024 so that it may respond to the plaintiff’s complaints and the complaint of Holly Martin about the defendant to AHPRA, the HCCC and to any other regulatory body investigating the complaints.1.
2. Pursuant to sections 61(1), 61(2) and 62(1) of the Civil Procedure Act 2005 (NSW) directions be given that the plaintiff be required to give further evidence under cross-examination at the resumption of the hearing on 14 October 2024.
3. Pursuant to sections 61(1), 61(2) and 62(1) of the Civil Procedure Act 2005 (NSW) directions be given that Holly Joy Martin (DOB: 3 January 1991) be required to give further evidence under cross-examination at the resumption of the hearing on 14 October 2024.

Catchwords:
CIVIL PROCEDURE – cross-examination – leave to recall plaintiff for further cross-examination – medical negligence claim – plaintiff’s evidence completed – where plaintiff made multiple complaints about defendant to regulatory bodies during an adjournment of the proceedings – where plaintiff’s motivation in doing so in issue – where defendant sought to have plaintiff recalled for further cross-examination – fairness to plaintiff before adverse findings made
CIVIL PROCEDURE – documents – where defendant sought to be released from Harman undertaking to answer plaintiff’s complaints to regulatory bodies – where application not opposed

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 61, 62
Uniform Civil Procedure Rules 2005 (NSW) r 21.7

Cases Cited:
Home Office v Harman [1983] 1 AC 280
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1985] HCA 19

Texts Cited:
Nil

Category: Procedural rulings
Parties: Jackson Prestwidge (Plaintiff)
Jonathan Coldwell (Defendant)
Representation:
Counsel:
E F Anderson (Plaintiff)
M Hutchings (Defendant)
Solicitors:
Gerard Malouf and Partners (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2023/35364
Publication restriction: Nil

Judgment

In these proceedings the plaintiff sought damages from the defendant, who was his general practitioner, for the alleged failure of the defendant to identify, and arrange for treatment of a rectal carcinoma. The plaintiff alleged that, by the time the carcinoma was found by a gastroenterologist, Dr Butchers on 30 July 2021, it was at stage 3 disease, meaning it had penetrated through the bowel wall and lymph nodes were present.
The plaintiff had first consulted the defendant in respect of blood associated with defecation on 15 November 2018.
The plaintiff consulted the defendant on three further occasions in February 2019 and once in March 2019, although the clinical notes made by the defendant suggested not all of the consultations concerned the bleeding issue for which the plaintiff had consulted the defendant in November 2018.
The plaintiff also consulted Dr Emma Coldwell, the defendant’s wife, who…

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 Prestwidge v Coldwell

Details

AGLC: Prestwidge v Coldwell [2024] NSWSC 1279
Case: [2024] NSWSC 1279
Decision Date: 15 October 2024

CaseChat Overview and Summary

The case of Prestwidge v Coldwell involved a medical negligence claim, where the plaintiff sought to hold the defendant liable for alleged breaches of duty. The court had to consider whether the plaintiff should be recalled for further cross-examination after having already completed their evidence. This issue arose due to the plaintiff making multiple complaints to regulatory bodies about the defendant during an adjournment of the proceedings, and the defendant sought to have the plaintiff recalled to address the motivations behind these complaints. The court had to balance the fairness to the plaintiff against the defendant's right to challenge the credibility and motivations of the plaintiff.

The primary legal issue before the court was whether the plaintiff should be recalled for further cross-examination after having already provided their evidence, specifically in light of the plaintiff's complaints to regulatory bodies during the adjournment. The court had to consider the principles of fairness and procedural justice, ensuring that the plaintiff had an opportunity to respond to the defendant's allegations and that the defendant's right to challenge the plaintiff's credibility was not unduly restricted. Additionally, the court had to decide on the defendant's application to be released from a Harman undertaking to answer the plaintiff's complaints to regulatory bodies, which was not opposed by the plaintiff.

The court held that the plaintiff should be recalled for further cross-examination to allow the defendant to address the plaintiff's complaints to regulatory bodies and to explore the plaintiff's motivations. The court found that it was in the interests of fairness and justice for the plaintiff to be given an opportunity to respond to these complaints before any adverse findings were made. Furthermore, the court granted the defendant's application to be released from the Harman undertaking, as this application was not opposed by the plaintiff. The court considered this to be a matter of procedural fairness, as the plaintiff had not raised any objection to the defendant's request to be released from the undertaking.

The court ordered that the plaintiff be recalled for further cross-examination to address the complaints made to regulatory bodies and to allow the defendant to explore the plaintiff's motivations. Additionally, the court granted the defendant's application to be released from the Harman undertaking, as this application was not opposed by the plaintiff. These orders were made to ensure that the proceedings were conducted fairly and justly, allowing both parties to present their respective cases fully and effectively.

Orders