Zraika v Walsh - [2015] NSWSC 645

Supreme Court

New South Wales

Medium Neutral Citation: Zraika v Walsh [2015] NSWSC 645
Hearing dates: 27 May 2015
Decision date: 28 May 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Direct the plaintiff, by his next friend Halima Zraika, to authorise the testing of the blood taken from him for the Guthrie test by the Newborn Screening Department at the Children’s Hospital at Westmead for pre and post- natal congenital infections and conditions including Cytomegalovirus.

Catchwords: PRACTICE AND PROCEDURE – application by defendants pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 23.8 for order that sample of plaintiff’s blood be tested for congenital infections – application made after date for service of experts’ reports in proceedings and in circumstances where trial date may be jeopardised – whether making of order nevertheless in the interests of justice – order made
Legislation Cited: Civil Liability Act 2005 (NSW)
Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Atkins v National Australia Bank (1994) 34 NSWLR 155
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262
Zraika v Walsh [2015] NSWSC 485
Texts Cited: ---
Category: Procedural and other rulings
Parties: Sharif Zraika bnf Halima Zraika (Plaintiff)
Rebecca Jane Walsh (First Defendant)
John Bernard Walsh (Second Defendant)
Roads & Maritime Services (Third Defendant)
Bankstown City Council (Fourth Defendant)
Ali Zraika (Fifth Defendant)
Representation:
Counsel:
D Higgs SC/T Boyd (Plaintiff)
I Butcher (First, Second and Fifth Defendants)
Solicitors:
Kheir Lawyers (Plaintiff)
McInnes Wilson Lawyers NSW (First, Second and Fifth Defendants)

File Number(s): 2011/52630
Publication restriction: ---

Judgment

Introduction

The first, second and fifth defendants (the defendants) applied by notice of motion filed on 8 April 2015 for an order pursuant to Rule 23.8 UCPR that the blood taken from the plaintiff for the “Guthrie test” (the Guthrie sample) located in the Newborn Screening Department at the Children’s Hospital at Westmead (the Hospital) be tested by the Hospital for pre- and post-natal congenital infections and conditions including Cytomegalovirus (CMV).
The Guthrie test is a blood test conducted on newborns to detect various conditions at or shortly after birth. I was informed that retesting of the Guthrie sample would be a simple, non-invasive investigation and involve retesting of blood that has been stored on a paper card since the blood was taken shortly after the plaintiff was born.

The facts

As this application is interlocutory, many of the facts were the subject of submission rather than evidence. The narrative set out below is intended to be no more than a recitation of the salient facts as I understand them to be for the purposes of determining the defendants’ application. They do not otherwise constitute…

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 Zraika v Walsh

Details

AGLC: Zraika v Walsh [2015] NSWSC 645
Case: [2015] NSWSC 645
Decision Date: 28 May 2015

CaseChat Overview and Summary

The defendants, Zraika, applied for an order that a sample of the plaintiff's blood be tested for congenital infections. The application was made pursuant to the Uniform Civil Procedure Rules 2005 (NSW), rule 23.8. The application was made after the date for service of experts' reports in the proceedings and in circumstances where the trial date may be jeopardised. The court was required to determine whether making the order was in the interests of justice. The court considered the implications of the delay in making the application, the potential impact on the trial date, and the relevance of the proposed testing to the proceedings.

The court noted that the application was made late and outside the usual procedural timelines. However, it also recognised that the proposed testing could be highly relevant to the proceedings, potentially shedding light on the plaintiff's medical history and the cause of any alleged injuries. The court balanced these considerations against the potential for further delay and disruption to the trial. Ultimately, the court found that the order was in the interests of justice, given the potential significance of the proposed testing to the case. The court emphasised that its decision was made on the specific circumstances of this case, and it did not set a precedent for similar applications made outside the usual procedural timelines.

The court made the order that the plaintiff's blood sample be tested for congenital infections. The court also provided directions for the expeditious conduct of the testing and the service of the results on the parties. The court noted that this decision was made in the interests of justice, but it warned that similar applications made outside the usual procedural timelines would be approached with caution in future cases. The court's decision highlights the importance of procedural timelines in civil proceedings, but it also recognises that exceptional circumstances may warrant a departure from those timelines in the interests of justice.

Orders