Rose v Western Sydney Health District

[2024] NSWSC 136

Supreme Court

New South Wales

Medium Neutral Citation:

Rose v Western Sydney Health District [2024] NSWSC 136

Hearing dates:

In Chambers – on the papers

Date of orders:

19 February 2024

Decision date:

19 February 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) The hearing fixed to commence on 8 April 2024 is vacated.

(2) The costs of each party thrown away are that party’s costs in the cause.

Catchwords:

CIVIL PROCEDURE – hearings – adjournment – relevant factors – where plaintiff died before commencement of hearing – new causation issues arising from the death – insufficient time to prepare expert reports – vacating hearing dates warranted

Legislation Cited:

Civil Liability Act 2002 (NSW), Pt 3

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2

Uniform Civil Procedure Rules 2005 (NSW), rr 6.30, 7.10(2)

Category:

Procedural rulings

Parties:

Linton Rodney Rose bhnf Jennifer Cheri Rose (Plaintiff)
Jennifer Cheri Rose (Plaintiff)
Western Sydney Local Health District (First Defendant)
Metro North Hospital and Health Service (Second Defendant)

Representation:

Counsel:
A Ramesh (Solicitor) (Plaintiffs)
R McEwen (First Defendant)
LP McFee (Second Defendant)

Solicitors:
Gerard Malouf Partners (Plaintiffs)
Norton Rose Fulbright (First Defendant)
Barry Nilsson (Second Defendant)

File Number(s):

2020/99103; 2020/99105

JUDGMENT

1. These are related matters. The first is a claim for damages for personal injuries caused by the alleged medical negligence of the defendants, brought on behalf of Mr Rose by his tutor, his wife. The second is Ms Rose’s claim for nervous shock damages within the meaning of Part 3 of the Civil Liability Act 2002 (NSW). The matters have been listed for hearing with an estimate of 15 days commencing before me on 8 April 2024. The matters came before me on 9 February 2024 for directions to check readiness to proceed. On the same day, a Notice of Motion brought on behalf of the plaintiff in the medical negligence claim came before me. The Notice of Motion was filed on 22 December 2023 seeking an order under rr 6.30 and 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) that Ms Rose be appointed as the representative of the Estate of Mr Rose (the “Motion”), him having died on 17 November 2023.

2. The parties were represented by Ms Ramesh, solicitor, Ms McEwen of counsel, and Ms McFee of counsel, respectively. It soon became apparent to me that neither the Motion appointing Ms Rose as a representative nor the hearing fixed to commence on 8 April 2024 were ready to proceed, largely due to circumstances arising out of Mr Rose’s death.

3. So far as the Motion is concerned, Mr Rose died intestate, a Will made in Queensland on 9 March 1988 held by the Public Trustee of Queensland has been presumptively revoked by the marriage of the late Mr Rose and Ms Rose. However, as the defendants pointed out without casting any aspersion upon any person, there is no direct evidence of the marriage or of the date of the marriage. This matter no doubt could easily be remedied. However, it is also apparent that there are two adult children from a previous marriage. Ms Rose has instructed her solicitors that neither wishes to make any claim against their father’s estate. The only potential asset seems to be the proceeds of a successful outcome of his claim for damages for medical negligence. But as the defendants again argued, there is no direct evidence from either of those persons confirming this and, naturally, Ms Rose has a contrary interest were they to make a claim. Finally, to the extent to which the Estate of Mr Rose is located in New South Wales and given his intestacy, the New South Wales Trustee and Guardian is likely to have an interest in the matter and there is no evidence as to its attitude to the application. I should also say that although Ms Rose has instructed the solicitors that she intends to instruct other experienced solicitors to make an application for letters of administration of the Estate, this is not yet advanced. On 9 February 2024, I made directions for the filing of further evidence by 1 March 2024 and listed the matter for a further directions hearing on 8 March 2024.

4. Turning to the need to adjourn the principal proceedings, while I am confident that the issue of representation of the Estate could be overcome one way or another prior to 8 April 2024, other more significant problems have emerged. First, Mr Rose’s death brings into play s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). It is asserted that Mr Rose’s untimely death is a consequence of the alleged negligence of the defendants, a contention which derives some support from the content of his Death Certificate. However, proof of that matter will involve further expert evidence yet to be obtained and served by the plaintiff. It cannot be assumed that the proposition will be uncontentious and each of the defendants will need to obtain the opinion of one or more of their qualified experts to meet that new aspect of the case for each plaintiff.

5. Yet more significantly is the consideration that the required joint conferences of many expert witnesses going to liability and damages were postponed in the expectation that the matter may settle at a mediation which has been arranged for 23 November 2023. The principal plaintiff’s death derailed not only the question of representation for his proceedings and the mediation but, as I have said, has given rise to a fresh issue as to the cause of his death and its relationship with any medical negligence ultimately proved at the trial. The evidence before me indicates that six expert conclaves involving twelve or thirteen specialists are required. Even assuming representation and cause of death issues could be sorted out in the very near future, I am satisfied, as the parties submit, that there is insufficient time to arrange the necessary expert conferences in this relatively complex medical negligence case. When the matter was before me on 9 February 2024, each party accepted that this was so. However, I considered it appropriate that a Notice of Motion should be filed in each matter seeking the required adjournment, which I would deal with in Chambers. The expected Notice of Motion and affidavit in support of the solicitor for the first defendant, Ms Kate Hickey, affirmed on 13 February 2024 was received in my Chambers today, 19 February 2024.

6. For the reasons given, I make the following orders in each matter:

1. The hearing fixed to commence on 8 April 2024 is vacated;

2. The costs of each party thrown away are that party’s costs in the cause.

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Decision last updated: 23 February 2024