Reported Decision: 74 NSWLR 580
New South Wales
Court of Appeal
CITATION: Salzke v Khoury [2009] NSWCA 195
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 7 July 2009
JUDGMENT DATE:
10 August 2009JUDGMENT OF: Ipp JA at 1; Basten JA at 113; Gzell J at 124 DECISION: (a) The applications for leave to appeal are granted.
(b) The appeals are upheld with costs.
(c) The orders made by the Judicial Registrar on 29 July 2008 are set aside.
(d) The respondents' motions to dismiss Ms Salzke's claim are set aside with costs.
(e) Dr Khoury to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.CATCHWORDS: PROCEDURE - miscellaneous procedural matters - other matters - leave to appeal and appeal from Judicial Registrar of the District Court - where Judicial Registrar granted motions to dismiss the plaintiff's case under UCPR r 31.36 - service and content of experts' reports in professional negligence claims - whether plaintiff complied with r 31.36 - delays in serving expert's reports - requirement that expert's report "support" plaintiff's case - omission of Judicial Registrar to refer expressly to the prejudice that the plaintiff would suffer were motions to dismiss granted. - PROCEDURE - miscellaneous procedural matters - other matters - motion to adduce further evidence on application for leave to appeal - additional expert's reports - where additional reports supplement and clarify earlier report - where earlier report generated misunderstanding. LEGISLATION CITED: Civil Procedure Act 2005
District Court Rules 1973
Disrict Court Rule (Professional Negligence Claims) 1999
Health Services Act 1997
Legal Profession Act 2004
Practice Note 104: Professional Negligence List (23 December 1998)
Suitors' Fund Act 1951
Supreme Court Rules 1970
Supreme Court Rules (Amendment No. 325) 1998
Uniform Civil Procedure Rules 2005CATEGORY: Principal judgment CASES CITED: Erhard v Bhatia [2002] NSWCA 388
Micallef v ICI Operations Pty Ltd [2001] NSWCA 274
National Justice Compania Naviera SA v Prudential Assurance Company Ltd (the "Ikarian Reefer") [1993] 2 Lloyds Rep 68
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
Pell v Hodges [2007] NSWCA 234
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Wickstead v Browne (1992) 30 NSWLR 1TEXTS CITED: Justice Abadee, "Commentary: the Professional Negligence List in the Common Law Division of the Supreme Court" (May 1999)
Lord Woolf, Access to Justice: final report (July 1996)PARTIES: Renate Salzke (Applicant)
Dr Elie Khoury (First Respondent)
Greater Southern Area Health Service (Second Respondent)FILE NUMBER(S): CA 40363/08; CA 40426/08 COUNSEL: E G Romaniuk (Applicant)
S M Kettle (First Respondent)
J Downing (Second Respondent)SOLICITORS: Taylor & Scott Lawyers (Applicant)
GIO General Insurance Law Department (Respondents)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 6067/06 LOWER COURT JUDICIAL OFFICER: Judicial Registrar McDonald LOWER COURT DATE OF DECISION: 29 July 2008
CA 40363/08, CA 40426/08
DC…
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- AGLC
- Salzke v Khoury [2009] NSWCA 195
- Case
- [2009] NSWCA 195
- Decision Date
CaseChat Overview and Summary
The case of *Salzke v Khoury* concerned an appeal to the Supreme Court of New South Wales from decisions of a Judicial Registrar of the District Court. The plaintiff, Ms Salzke, had her case dismissed by the Judicial Registrar under rule 31.36 of the Uniform Civil Procedure Rules 1999 (NSW) following motions brought by the defendants, Dr Khoury and others. The dismissal related to the service and content of expert reports in professional negligence claims, specifically whether Ms Salzke had complied with the requirements of rule 31.36 and whether there had been undue delay in serving the expert reports. A further issue was whether the expert's report adequately "supported" the plaintiff's case, and whether the Judicial Registrar had failed to consider the prejudice Ms Salzke would suffer if her claim were dismissed.
The legal issues before the Supreme Court were whether the Judicial Registrar had erred in dismissing Ms Salzke's claim. This involved determining whether the expert reports served by Ms Salzke complied with the requirements of rule 31.36, particularly concerning the content and the obligation for the report to "support" the plaintiff's case. The court also considered the impact of any delays in serving these reports and whether the Judicial Registrar had properly assessed the prejudice to the plaintiff. Additionally, the court considered an application to adduce further evidence, comprising additional expert reports that were intended to supplement and clarify an earlier report which had allegedly generated misunderstanding.
The Supreme Court, comprising Ipp JA, Basten JA, and Gzell J, found that the applications for leave to appeal should be granted and that the appeals should be upheld. The court reasoned that the Judicial Registrar had erred in dismissing the plaintiff's claim. The court set aside the orders made by the Judicial Registrar and the respondents' motions to dismiss Ms Salzke's claim. The court ordered that Ms Salzke's claim be reinstated and awarded costs to Ms Salzke, with Dr Khoury to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
The legal issues before the Supreme Court were whether the Judicial Registrar had erred in dismissing Ms Salzke's claim. This involved determining whether the expert reports served by Ms Salzke complied with the requirements of rule 31.36, particularly concerning the content and the obligation for the report to "support" the plaintiff's case. The court also considered the impact of any delays in serving these reports and whether the Judicial Registrar had properly assessed the prejudice to the plaintiff. Additionally, the court considered an application to adduce further evidence, comprising additional expert reports that were intended to supplement and clarify an earlier report which had allegedly generated misunderstanding.
The Supreme Court, comprising Ipp JA, Basten JA, and Gzell J, found that the applications for leave to appeal should be granted and that the appeals should be upheld. The court reasoned that the Judicial Registrar had erred in dismissing the plaintiff's claim. The court set aside the orders made by the Judicial Registrar and the respondents' motions to dismiss Ms Salzke's claim. The court ordered that Ms Salzke's claim be reinstated and awarded costs to Ms Salzke, with Dr Khoury to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
Orders
Orders of the court
(a) The applications for leave to appeal are granted. (b) The appeals are upheld with costs. (c) The orders made by the Judicial Registrar on 29 July 2008 are set aside. (d) The respondents' motions to dismiss Ms Salzke's claim are set aside with costs. (e) Dr Khoury to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
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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