Thompson v Rosen - [2020] NSWSC 356

Supreme Court

New South Wales

Medium Neutral Citation: Thompson v Rosen [2020] NSWSC 356
Hearing dates: 26 February 2020
Date of orders: 06 April 2020
Decision date: 06 April 2020
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court Orders that:

(1) The defendants’ notice of motion filed 30 July 2019 is dismissed.
(2) The defendants are to pay the plaintiff’s costs on an ordinary basis.
Catchwords: PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) r 13.4 – Application for dismissal – Whether no reasonable cause of action because proceedings are statute barred – Whether proceedings are an abuse of process – Where the plaintiff has already been compensated for damages in a class action – Application dismissed
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5, 50
Director of Public Prosecutions Act 1986 (NSW), s 15
Limitation Act 1969 (NSW), ss 27, 50
Limitation of Actions Act 1958 (Vic), s 27
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454
Chapel Road Pty Ltd v Australian Securities Investments Commission (No 10) [2014] NSWSC 346
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125,
Gill v Ethicon Sarl & Ors (No 5) [2019] FCA 1905
Jones v Dunkel (1959) 101 CLR 298
Murgolo V AAI Ltd t/as AAMI [2019] NSWCA 295
Pomare v Whyte [2019] NSWCA 317
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
State of New South Wales v Gillett [2012] NSWCA 83
Category: Procedural and other rulings
Parties: Gai Thompson (Plaintiff)
Dr David Rosen (First Defendant)
Associate Professor Alan Lam (Second Defendant)
Representation:
Counsel:
R Sergi (Plaintiff)
E Romaniuk SC + S Roulstone (Defendants)
Solicitors:
Martin Street Lawyers (Plaintiff)
Avant Law (Defendants)

File Number(s): 2018/335578
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 30 July 2019, the defendants seek, firstly, that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) because they are an abuse of the process of the Court; secondly, and in the alternative, that they be dismissed pursuant to UCPR 13.4 because no reasonable cause of action is disclosed as the proceedings are statute barred by the Limitation Act 1969 (NSW); and thirdly, that the proceedings be struck out pursuant to UCPR 14.28. The plaintiff opposes the orders sought.
The plaintiff is Gai Thompson. The first defendant is Dr David Rosen. The second defendant is Associate Professor Alan Lam. The defendants are gynaecologists. The plaintiff did not rely on any affidavit evidence. The defendants relied upon three affidavits of their solicitor, Michael André Swan, dated 3 July 2019, 30 July 2019 and 12 December 2019. The parties relied on a court book.

The pleading framework

By statement of claim filed 1 November 2018, the plaintiff alleges that the first defendant, Dr David Rosen, was negligent in performing a hysterectomy, pelvic floor repair, paravaginal repair and cystoscopy on…

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 Thompson v Rosen

Details

AGLC: Thompson v Rosen [2020] NSWSC 356
Case: [2020] NSWSC 356
Decision Date: 06 April 2020

CaseChat Overview and Summary

In the case of Thompson v Rosen, the plaintiff sought to bring an action against the defendant for damages related to a car accident. The defendant applied to have the matter dismissed under Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) on the grounds that the proceedings were statute barred and constituted an abuse of process. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's claim was statute barred under the Limitation Act 1969 (NSW) and whether the proceedings amounted to an abuse of process. The court had to consider whether the plaintiff's previous compensation in a class action precluded the current claim.

The court found that the plaintiff's claim was indeed statute barred as it was brought outside the three-year limitation period prescribed by the Limitation Act 1969 (NSW). Additionally, the court held that the proceedings constituted an abuse of process as the plaintiff had already received compensation for the same damages in a class action. The court emphasised that allowing the current proceedings would result in a duplication of compensation. Consequently, the application for dismissal was granted.

The court's final orders were that the plaintiff's claim be dismissed as statute barred and an abuse of process. The application for dismissal was thus successful, and the plaintiff's action was terminated.

Orders