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Zakaria v Dr Noyce

Zakaria v Dr Noyce

Case [2012] NSWSC 981 12 October 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Zakaria v Dr Noyce [2012] NSWSC 981
Hearing dates: 23 August 2012
Decision date: 12 October 2012
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) The Plaintiff's Notice of Motion filed 28 June 2012 is dismissed.
(2) The Plaintiff is to pay the Defendant's costs.

Catchwords: PROCEDURE - judgments - setting aside - judgment after hearing - claim against medical practitioner for negligence - no expert's report pursuant to r 31.36 - judge orders proceedings to be dismissed - whether judgment given against good faith - whether given irregularly - whether denial of procedural fairness - failure of Plaintiff to rectify default - earlier motion to set aside dismissed - judgment not set aside.
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 2004
Uniform Civil Procedure Rules
Cases Cited: Alexander v Ajax Insurance Co Ltd [1956] VLR 436
Arnold v Forsythe [2012] NSWCA 18
Cameron v Cole (1944) 68 CLR 571
Coles v Burke (1987) 10 NSWLR 429
Fenato v Chief Commissioner of State Revenue [2010] NSWCA 80; (2010) 78 NDWLR 20
H R Turner & Son Pty Ltd v Rhodes [1970] 1 NSWR 305
Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193
Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38
National Parks and Wildlife Service v Pierson [2002] NSWCA 273; (2002) 55 NSWLR 315
Nominal Defendant v Manning (2000) 50 NSWLR 139
R T Company Pty Ltd v Minister of State for the Interior (1957) 98 CLR 168
Salzke v Khoury [2009] NSWCA 195
Category: Interlocutory applications
Parties: Elizabeth Zakaria (Plaintiff)
Dr Peter Noyce (Defendant)
Representation: Counsel:
K Ryan (Plaintiff)
B Bradley (Defendant)
Solicitors:
Stephen Smart and Associates (Plaintiff)
TressCox Lawyers (Defendant)

File Number(s): 2008/289561

Judgment

This is a Notice of Motion to set aside an order made by Harrison J on the basis that it is said to be invalid and of no effect on the grounds of a denial of natural justice. The Motion also sought leave to continue the proceedings which his Honour dismissed.

The proceedings commenced on 14 October 2008 with the Plaintiff acting for herself. The Statement of Claim alleges negligence on the part of the Defendant, an ear, nose and throat surgeon who removed the Plaintiff's tonsils in October 2005.

It is not clear if the Plaintiff prepared the Statement of Claim with legal assistance but two things suggest that she did. First, the Statement of Claim, although not an exemplar of pleading, contains legal phraseology that would not ordinarily be used by a non-legally qualified person. Secondly, evidence was given at the hearing of the Motion that the Plaintiff received legal assistance from three firms of solicitors at various times during the proceedings as well as assistance from her counsel, Mr Ryan. This matter is not without some significance for the issues raised.

As the claim made was a professional negligence claim against…

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 Zakaria v Dr Noyce

Details

AGLC: Zakaria v Dr Noyce [2012] NSWSC 981
Case: [2012] NSWSC 981
Decision Date: 12 October 2012

CaseChat Overview and Summary

In the matter of Zakaria v Dr Noyce, the plaintiff sought to bring a claim for negligence against a medical practitioner. The dispute centred on the failure to comply with procedural rules, specifically the requirement to submit an expert's report under rule 31.36 of the relevant court rules. The case was heard in the Supreme Court of the relevant jurisdiction.

The court was tasked with determining whether the judgment rendered against the plaintiff was in good faith, whether it was irregular, and whether it constituted a denial of procedural fairness. Additionally, the court needed to consider whether the plaintiff's failure to rectify the procedural default justified the dismissal of the proceedings.

After careful consideration, the court held that the judgment was not given in bad faith nor was it irregular. The court emphasised that the procedural rules are in place to ensure fairness and efficiency in litigation. The court found that the plaintiff's failure to comply with the rule by not submitting an expert's report warranted the dismissal of the proceedings. The plaintiff's earlier motion to set aside the judgment was also dismissed by the court, which found that the judgment was not irregular and that procedural fairness was not denied.

The court's final orders were that the judgment dismissing the plaintiff's claim would stand, and no further orders were made to set aside the judgment.

Orders