Breheny (by his Tutor Gary Breheny) v Cairncross & Ors [2002] NSWCA 69 (6 March 2002)

Last Updated: 26 March 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Breheny (by his Tutor Gary Breheny) v Cairncross & 2 Ors [2002] NSWCA 69

FILE NUMBER(S):

40240 of 2001

HEARING DATE(S): 06/03/02

JUDGMENT DATE: 06/03/2002

PARTIES:

Christopher Breheny (by his Tutor Gary Breheny)

v

David John Cairncross

Gordon Vincent Oxenham

Lachlan Area Health Service

JUDGMENT OF: Meagher JA Handley JA Hodgson JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 6218 of 1998

LOWER COURT JUDICIAL OFFICER: Bell J

COUNSEL:

A: H G Shore

R (1&2): M I Bozic SC

SOLICITORS:

A: Graham Jones Lawyers

R (1&2): Tress Cocks & Maddox

R (3): Lyn Boyd Solicitor

CATCHWORDS:

Medical Negligence - Natural Justice - appellant sued hospital and two doctors for intellectual disabilities allegedly caused by their negligent treatment in relation to his birth - appeal against order under Pt 13 r 5 Supreme Court Rules summarily dismissing claim against doctors - whether trial judge erred in failing to apply principle in Wickstead v Browne - appeal allowed.

LEGISLATION CITED:

DECISION:

1. The appeal be allowed, the judgment in the Court below be set aside; 2. In lieu thereof there be an order dismissing the motion; 3. An order that the present respondents pay the appellant costs of the appeal and of the application to appeal; and 4. An order that the costs of the motion be costs in the cause; 5. The respondents to have the certificate under the Suitor's Fund Act in respect of the costs of the appeal.

JUDGMENT:

- 3 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40240 of 2001

MEAGHER JA

HANDLEY JA

HODGSON JA

Wednesday, 6 March 2002

CHRISTOPHER BREHENY (BY HIS TUTOR GARY BREHENY)

v

DAVID JOHN CAIRNCROSS & 2 ORS

Judgment

1 MEAGHER JA: In this matter the plaintiff, Mr Christopher Breheny, is suing three defendants, the Lachlan Health Service (which is a hospital) and two doctors, namely Dr Cairncross and Dr Oxenham. The matter has been noticeable for the extremely slow progress at an interlocutory stage as apparently order after order made as for the filing of expert evidence and the like has been disregarded.

2 The result of this was that an application was brought by the two doctors, the second and third defendants, initially under Pt 33 r 6 of the Supreme Court rules for the case against them to be struck out for want of a prosecution. That application was filed on 17 December and came before the court but not adjudicated upon until 16 March when its nature was changed to be an application under Pt 13 r 5 of the rules for an order dismissing the proceedings generally, again, against those two defendants. At no stage did the hospital, the first defendant, take part in any of the notices of motion. It neither supported nor objected to the motion of the other two defendants, they being as I have said doctors.

3 The change of application from the motion to strike out for want of a prosecution to a notice dismissing the proceedings took the plaintiff a little by surprise but nonetheless he was prepared to battle on. In so doing neither he nor the two doctors who were the claimants in the motion informed her Honour, Bell J, of the decision in this Court in Wickstead v Browne [1992] 30 NSWLR p 1. That is an authority supported by ample earlier authority that in common law proceedings one of a number of defendants is not entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff's case. It is not until after the main defendant has concluded its case that one can make a sensible judgment as to whether there is or is not a case against other defendants.

4 I have no doubt that if that case, Wickstead v Browne, had been drawn to her Honour's attention she would have come to a different conclusion from that to which she did in fact come. In these circumstances an appeal by the plaintiff against her Honour's order must inevitably, I should have thought, succeed. The success of that application is dictated by the terms of Wickstead v Browne. It is not suggested that the respondent's case in the present appeal falls in any way into an exception to the general principle.

5 For these reasons I am of the view that the following orders should be made:

1. The appeal be allowed, the judgement in the court below be set aside;

2. In lieu thereof there be an order dismissing the motion;

3. An order that the present respondents pay the appellants costs of the appeal and of the application to appeal; and

4. An order that the costs of the motion be costs in the cause;

5. The respondents to have the certificate under The Suitor's Fund Act in respect of the costs of the appeal.

6 HANDLEY JA: I agree.

7 HODGSON JA: I agree with the orders proposed by Meagher JA and generally with his reasons. However, I would say that there may be cases where, following compliance with directions for particulars and service of evidence, it may be possible to say, before a hearing, that the case of one defendant will certainly not implicate another defendant; and thus there may be circumstances in which one defendant may be dismissed from a case before the actual hearing. However, it is quite plain that that situation has not been arrived at in this case.

8 MEAGHER JA: Therefore the result is that the orders which I have suggested, be made.

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LAST UPDATED: 25/03/2002