SW by her tutor TW v MK - [2018] NSWDC 504

District Court

New South Wales

Medium Neutral Citation: SW by her tutor TW v MK [2018] NSWDC 504
Hearing dates: 18 October 2018
Date of orders: 18 October 2018
Decision date: 18 October 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff’s Amended Notice of Motion filed on 18 October 2018 is stood over to the trial with costs served to the trial judge.
(2) The plaintiff be allowed to rely upon the report of Dr Rutvowski dated 4 October 2018, served on 10 October 2018.
(3) Confirm hearing date of 19 November 2018.
(4) Exhibits remain with the file.

Catchwords: PRACTICE AND PROCEDURE – Application for a ruling pursuant to s 192A of the Evidence Act 1995 (NSW) on the admissibility of a hospital record setting out details of a conversation between the plaintiff and her solicitor – whether the discretion to make an advance evidentiary ruling should be exercised – whether sufficient information before the court to make such a ruling – trial of proceedings imminent – application stood over to the trial judge
Legislation Cited: Evidence Act 1995 (NSW), s 192A
Federal Court of Australia Act 1976 (Cth), s 37M
Cases Cited: Bailey v Director‑General, Department of Natural Resources [2013] NSWSC 515
Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324
Category: Procedural and other rulings
Parties: Plaintiff: SW by her tutor TW
Defendant: MK
Representation:
Counsel:
Plaintiff: Mr R S McIlwaine SC / Ms N Compton
Defendant: Mr J M Morris SC / Mr A J Parker
Solicitors:
Plaintiff: Stacks Goudkamp
Defendant: McInnes Wilson

File Number(s): 2017/170506
Publication restriction: None

Judgment

HER HONOUR: These proceedings are fixed for hearing on 19 November 2018 for seven days. The application before me is for an advance ruling in relation to the admissibility of a particular document, namely exhibit A to the affidavit of the plaintiff’s tutor, TW, which is a progress note taken by a Ms Sidharta, on or about 22 December 2015 at 17:10 in the course of her duties at Sydney Children’s Hospital where the plaintiff was in hospital. I set out in the notice of motion filed on 18 October 2018 and are as follows:

The matter be listed for hearing seeking an advance ruling pursuant to s 192A of the Evidence Act 1995 (NSW) on the admissibility of a document.

The preliminary question listed or hearing with a one hour estimate.

That the document identified in the affidavit of TW sworn on 10 October 2018 as annexure A dated 22 December 2015 not be adduced in evidence in these proceedings pursuant to s 118 of the Evidence Act 1995 (NSW).

Costs of this motion to be costs in the course.

Such other order as the Court sees fit.

This is a claim for personal injury damages arising from a motor vehicle accident where the plaintiff, who is aged 15, suffered serious injuries, including quadriplegia for which she was treated at the Sydney Children’s Hospital at Randwick where she was admitted after…

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 SW by her tutor TW v MK

Details

AGLC: SW by her tutor TW v MK [2018] NSWDC 504
Case: [2018] NSWDC 504
Decision Date: 18 October 2018

CaseChat Overview and Summary

The case of SW by her tutor TW v MK involved an application for a ruling under section 192A of the Evidence Act 1995 (NSW) concerning the admissibility of a hospital record that detailed a conversation between the plaintiff and her solicitor. The dispute hinged on whether the court's discretion to make an advance evidentiary ruling should be exercised and whether there was sufficient information available to the court to make such a ruling. The matter was before the Supreme Court of New South Wales.

The legal issues that the court was required to decide included whether the court had enough information to make a ruling on the admissibility of the hospital record, and if not, whether the application should be stood over to the trial judge. The application was filed imminently before the trial, raising questions about the procedural fairness and the necessity of an immediate ruling.

The court determined that there was not sufficient information before it to make a ruling on the admissibility of the hospital record at that stage. The trial was imminent, and the application was stood over to the trial judge. The court also allowed the plaintiff to rely on the report of Dr Rutvowski dated 4 October 2018, which was served on 10 October 2018. The hearing date was confirmed for 19 November 2018, and the exhibits remained with the file.

The court’s decision to stand over the application ensured that the trial judge would have the opportunity to review the evidence and make a ruling in the context of the full trial proceedings. This approach allowed for a more informed decision based on the complete set of facts and evidence that would be presented during the trial.

Orders

Orders of the court

(1) Plaintiff’s Amended Notice of Motion filed on 18 October 2018 is stood over to the trial with costs served to the trial judge.

(2) The plaintiff be allowed to rely upon the report of Dr Rutvowski dated 4 October 2018, served on 10 October 2018.

(3) Confirm hearing date of 19 November 2018.

(4) Exhibits remain with the file.

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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Medium Neutral Citation:	SW by her tutor TW v MK [2018] NSWDC 504
Hearing dates:	18 October 2018
Date of orders:	18 October 2018
Decision date:	18 October 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s Amended Notice of Motion filed on 18 October 2018 is stood over to the trial with costs served to the trial judge. (2) The plaintiff be allowed to rely upon the report of Dr Rutvowski dated 4 October 2018, served on 10 October 2018. (3) Confirm hearing date of 19 November 2018. (4) Exhibits remain with the file.
Catchwords:	PRACTICE AND PROCEDURE – Application for a ruling pursuant to s 192A of the Evidence Act 1995 (NSW) on the admissibility of a hospital record setting out details of a conversation between the plaintiff and her solicitor – whether the discretion to make an advance evidentiary ruling should be exercised – whether sufficient information before the court to make such a ruling – trial of proceedings imminent – application stood over to the trial judge
Legislation Cited:	Evidence Act 1995 (NSW), s 192A Federal Court of Australia Act 1976 (Cth), s 37M
Cases Cited:	Bailey v Director‑General, Department of Natural Resources [2013] NSWSC 515 Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCA 324
Category:	Procedural and other rulings
Parties:	Plaintiff: SW by her tutor TW Defendant: MK
Representation:	Counsel: Plaintiff: Mr R S McIlwaine SC / Ms N Compton Defendant: Mr J M Morris SC / Mr A J Parker Solicitors: Plaintiff: Stacks Goudkamp Defendant: McInnes Wilson
File Number(s):	2017/170506
Publication restriction:	None