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[2026] NSWSC 660
Supreme Court of NSW
2026-06-11
Schmidt AJ
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Brett Raymond Gooley as Executor of the Estate of the late Melville William Gooley v Dedousis [2026] NSWSC 660
Hearing dates: 26 May 2026
Date of orders: 11 June 2026
Decision date: 11 June 2026
Jurisdiction: Common Law
Schmidt AJ
Original judgment source is linked above.
Decision: (1) The motion be dismissed with an indemnity costs order in favour of Dr Gooley;
(2) Dr Dedousis file his defence within 28 days of this judgment;
(3) The parties confer about the appropriate directions and orders for the preparation of the matter for hearing; and
(4) The matter be listed for further directions before the Registrar at 9 am on 9 July 2026.
Catchwords: CIVIL PROCEDURE — summary disposal — dismissal of proceedings — where plaintiff is a beneficiary and the executor of father’s deceased estate — where defendant was father’s geriatrician — novel negligence claim for pure economic loss — defendant’s second application to summarily dismiss plaintiff’s negligence claims — whether further amended pleadings permit summary dismissal — application refused
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — abuse of process — s 56 Civil Procedure Act 2005 (NSW) — where defendant’s first summary dismissal application refused and Court of Appeal refused leave to appeal — where motion pressed because of a disagreement about costs — where motion with limited prospect of success pursued contrary to obligations imposed by s 56 — abuse of process established — misconduct in the proceedings — indemnity costs ordered
Legislation Cited: Civil Liability Act 2002 (NSW), s 5O
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60
Evidence Act 1995 (NSW), s 91
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2
Probate and Administration Act 1898 (NSW), s 44
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.7, 14.8, 14.9, 14.10, 14.14, 14.19, 42
Cases Cited: Aleta Gooley & Anor v Brett Gooley [2021] NSWSC 56
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Dedousis v Gooley as Executor of the Estate of the late Melville William Gooley [2026] NSWCA 28
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Gooley as Executor of the Estate of the late Melville William Gooley v Dedousis (Supreme Court (NSW), Faulkner J, 16 July 2025, unrep)
Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9
Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956
MTH v State of New South Wales [2022] NSWSC 884
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19
State of New South Wales v Spearpoint [2009] NSWCA 233
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Wickstead v Browne (1992) 30 NSWLR 1
Category: Principal judgment
Parties: Brett Raymond Gooley as Executor of the Estate of the late Melville William Gooley (Plaintiff)
Christopher Dedousis (Defendant)
Representation: Counsel:
JP Knackstredt / L Cooper-Hackman (Plaintiff)
AJ McInerney SC / QM Noakhtar (Defendant)
Solicitors:
Macpherson Kelley Lawyers (Sydney) Pty Limited (Plaintiff)
HWLE Lawyers (Defendant)
File Number(s): 2024/225655
Dr Gooley is both the beneficiary and executor of his father’s considerable deceased estate under a 2010 will for which probate was granted, following a dispute about six further wills he had later made. Dr Gooley’s siblings and their children are also beneficiaries under the will, but they are not parties to the proceedings.
Sackar J found that the father had no testamentary capacity when the later wills were made: Aleta Gooley & Anor v Brett Gooley [2021] NSWSC 56. Those Equity proceedings turned on expert evidence, Dr Gooley’s father having been in considerable ill health when he made the later wills. Having had a stroke and suffering vascular dementia, as well as other illnesses known to affect executive function, which were evidenced by scans, the results of medical testing and other contemporaneous records.
Dr Dedousis was at relevant times the father’s geriatrician and his advice about the father’s capacity arose for consideration. Sackar J found it to have been wrong.
In these proceedings Dr Gooley now pursues claims against Dr Dedousis for damages for his alleged negligence, claiming that he had failed to diagnose or disclose that his father had suffered dementia and had cognitive limitations when he made the later wills and also entered other transactions, with resulting economic loss.
This judgment deals with Dr Dedousis’ second application to have Dr Gooley’s claims summarily dismissed. The first having been refused by Faulkner J in 2025: Gooley as Executor of the Estate of the late Melville William Gooley v Dedousis (Supreme Court (NSW), Faulkner J, 16 July 2025, unrep). Dr Dedousis also having been refused leave to appeal that interlocutory judgment: Dedousis v Gooley as Executor of the Estate of the late Melville William Gooley [2026] NSWCA 28 at [1].
There is no issue that Dr Dedousis repeatedly examined and tested Dr Gooley’s father over a number of years before his death and that he had also repeatedly advised that the father had the cognitive ability to make his own decisions about his financial, medical and residential issues. Dr Dedousis also conveyed his opinions to family members and third parties, including a solicitor and the Guardianship Tribunal, before whom proceedings about the father’s capacity were pursued before his death.
Sackar J’s judgment and conclusions do not bind Dr Dedousis, who was not a party to the Equity proceedings: Evidence Act 1995 (NSW), s 91. But they do cast light on the nature of the negligence Dr Gooley pursues against Dr Dedousis in these proceedings. As well as on the likely evidentiary contest which will arise. The facts on which Dr Gooley’s claims are advanced now having been pleaded in his further amended statement of claim, to which Dr Dedousis has not yet filed a defence.
In evidence is also a great deal of the contemporaneous documents which Dr Gooley relied on to resist Dr Dedousis’ summary dismissal application. Including reports and letters which Dr Dedousis had provided about the father’s capacity and medical records which appear to be inconsistent with them.
Proof of the claims advanced in the FASOC will not only rest on such documentary evidence. Expert evidence of the kind Dr Gooley successfully led in the Equity proceedings will no doubt also be led.
The result of Dr Dedousis’ alleged breaches of the duties it is claimed in the FASOC he owed both Dr Gooley as executor of his father’s estate and to his patient, the father, are claimed to be damages which include the considerable costs incurred by the estate as the result of the Equity proceedings. Sackar J there having:
granted probate to Dr Gooley in respect of the 2010 will, ordering his siblings’ claims be dismissed and that his costs of the proceedings be paid out of the estate;
concluded at [1170] that:
the plaintiffs, Dr Gooley’s siblings, had succeeded in cajoling Dr Dedousis to change his professional opinion on at least two occasions. Dr Dedousis’ explanation that he had wanted to ensure records were accurate having been rejected;
Dr Dedousis had been so malleable, partisan and susceptible to inappropriate influence, that his judgment was blurred. He having admitted that he did not mention the father’s stroke or cognitive state to the solicitor or in letters he had sent to the Guardianship Tribunal; and
further, that although the father’s deficiencies were largely undetectable unless adequately tested, the profound nature of his stroke and its effect on an important aspect of his brain function made it likely that he suffered incapacity more or less continuously after his stroke, as his dementia progressed. This and other illnesses he suffered causing him ongoing cognitive impairment. With the result that after his stroke, he never regained cognitive functions sufficient to weigh and contrast the potential claims of his various children and grandchildren to his estate. It having been complex, consisting of numerous companies and various pieces of property. He thus lacked testamentary capacity: at [1172].
Despite the earlier judgments by which the parties are bound, Dr Dedousis again seeks to have these proceedings summarily dismissed, contending that the claims in negligence now pursued by the FASOC are not known to the law, contrary to statute and doomed to fail.
That was disputed.
It should be noted, however, that Dr Dedousis finally only pressed his dismissal application because the parties were unable to agree on an appropriate order as to costs, consent orders for the dismissal of his motion having otherwise been agreed after he made an open offer to settle his motion.
The results of the course Dr Dedousis then decided to pursue included arguments finally pressed by Dr Gooley, that the pursuit of his further motion involved an abuse of process, which should result in an indemnity costs order being made in his favour.
That was also disputed.
Faulkner J refused to summarily dismiss the proceedings, but struck out the statement of claim, giving Dr Gooley leave to replead: July 2025 judgment at [24]. An amended statement of claim was later served and referred to by the Court of Appeal, when it refused Dr Dedousis leave to appeal.
The Court then not accepting that no claim for pure economic loss can be maintained by an executor against a testator’s treating doctor, Dr Dedousis not having shown that this was a case where it could be confidently concluded “that the posited duty does not ‘fit’ the existing body of law”: Dedousis v Gooley as Executor of the Estate of the late Melville William Gooley [2026] NSWCA 28 at [47]-[48] citing Per**era v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [46].
In refusing leave to appeal the Court explained that Dr Gooley’s claims can only be fully resolved “by reference to an identified set of facts (whether as alleged in a pleading or as found after trial)”. With the result that “it is often, though not always, inappropriate summarily to dismiss a claim alleging a novel duty of care on the pleadings, at least at an early stage in litigation”: Appeal judgment at [22], citing State of New South Wales v Spearpoint [2009] NSWCA 233 at [26].
Such facts not necessarily being “confined to those alleged in the pleading, but extend to those which the pleading would permit the plaintiff to adduce at trial”: at [23], citing Perera at [38].
Dr Dedousis has still not filed a defence, despite having been ordered to file it by 30 September 2025. But he did seek further particulars, with the final result that Dr Gooley now relies on the FASOC which Dr Dedousis contended still failed to adequately disclose the case pursued against him.
The FASOC does respond to problems Dr Dedousis earlier raised. It pleads both a duty of care Dr Dedousis is alleged to have owed to Dr Gooley’s father, the “Patient Duty of Care”, as well as a second duty, the “Executor Duty of Care”.
Dr Dedousis being a geriatrician who had given advice about his patient’s capacity before death, which he conveyed to the patient, family members, a solicitor engaged to make wills and document other transactions the patient entered and the Guardianship Tribunal, while knowing that there was not only a concern, but a dispute about the patient’s capacity.
As I have explained, Sackar J’s judgment sheds considerable light on the evidence which will be relied on to establish facts which the FASOC pleads, which are also likely to be in issue at trial in these proceedings. When it is also likely that expert evidence will also be led, given what the FASOC pursues.
The result of the amended pleading is that like Faulkner J, I am also not satisfied that Dr Dedousis has established a proper basis for the dismissal of the proceedings which he again pursued, the General Steel Inc v Commissioner for Railways (1964) 112 CLR 125 at 129-130; [1964] HCA 69 test still not having been satisfied.
It is unnecessary to explain the basis of his Honour’s conclusions. But it should be noted that it included an analysis of English law, which dealt with claims in negligence for economic loss which had materialised after death. His Honour concluded that he could not find that a testator’s estate could not recover damages when an estate suffers a loss to the value of its assets after death, as the result of proven negligence: at [49].
On this application Dr Dedousis had to establish that no combination of facts could be found which would lead to the imposition of the disputed duties pursued by the FASOC. As well as that the claimed breaches of those duties are manifestly groundless, and that Dr Gooley has no good cause of action in respect of any of the claims pursued.
I am satisfied that he has not done so. I have also concluded that the FASOC has been adequately pleaded, with the result that Dr Dedousis should now file his defence within 28 days.
There is no issue that the negligence Dr Gooley seeks to pursue necessarily depends on what Dr Dedousis was retained to do as the father’s geriatrician. That was not sought to be established by the evidence or submissions advanced. Dr Dedousis accepted that the case advanced against him thus had to be taken at its highest.
The applicable law and principles were not in dispute. They include:
The Civil Liability Act 2002 (NSW) applies to Dr Gooley’s claims;
Upon the grant of probate of a will, the deceased’s real and personal estate passes to and becomes vested in the executor to whom probate has been granted: Probate and Administration Act 1898 (NSW), s 44;
With irrelevant exceptions, upon death, all causes of action subsisting against or vested in the person survive for the benefit of the person’s estate: Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2;
A high standard governs applications for summary dismissal pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) of the kind discussed in General Steel Industries. The test which has to be met being that it be established that the claim is so obviously untenable that it cannot possibly succeed; that it is manifestly groundless; so manifestly faulty that it does not admit of argument; discloses a case which the Court is satisfied cannot succeed; under no possibility can there be a good cause of action; and that it be manifest that to allow the pleadings to stand would involve useless expense;
A defendant does not owe a duty to take reasonable care in relation to acts or omissions merely because they may foreseeably cause harm to a plaintiff: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [42];
Whether or not a particular duty of care should be recognised in a novel category of case must be determined on the understanding that “there are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application”: Sullivan v Moody at [49]; Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 at [169];
But still a novel claim may be summarily dismissed, the question being “whether it would be open to the plaintiffs upon the pleading to prove facts at trial which would constitute a cause of action”: Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [35], citing Wickstead v Browne (1992) 30 NSWLR 1 at 15;
That depends on the facts against which the application is to be assessed, which are not necessarily confined to those alleged in the pleading, but extend to those which the pleading would permit the plaintiff to adduce at trial. And whether any issue of fact might have been illuminated if the matter had gone to trial: Perera at [37]-[38];
Where a claimed duty is a novel one, a close analysis of the pleaded facts bearing on the relationship between the plaintiff and the putative tortfeasor is required, by reference to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury: Appeal judgment at [41], referring to Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 at [102];
But “it is often, though not always, inappropriate to dismiss summarily a claim alleging a novel duty of care on the pleadings, at least where the parties stand at an early stage in litigation.”: Spearpoint 233 at [26].
Still there are cases where “it may not be necessary to make precise findings of fact in respect of the ‘salient features’ identified in Stavar, because the conclusion can confidently be reached that the posited duty does not ‘fit’ the existing body of law”: Perera at [46];
For the proceedings to be summarily dismissed, Dr Dedousis has to establish that “no combination of facts could be found which would lead to the imposition of a claimed duty of care”: Appeal judgment at [42];
The “necessary, but not always sufficient, foundation for a duty of care being reasonable foreseeability of damage to another if the task is carelessly performed”: Hill v Van Erp (1997) 188 CLR 159 at 166; [1997] HCA 9;
It is long settled that the duty imposed on a medical practitioner is “to exercise reasonable care and skill in the provision of professional advice and treatment.” It being a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment”. It extending to the examination, diagnosis and treatment of the patient, as well as the provision of information in an appropriate case. Content having to be given to the duty in the given case: Rogers v Whitaker (1992) 175 CLR 479 at 483; [1992] HCA 58;
The standard of reasonable care and skill required being that of the ordinary skilled person exercising and professing to have that special skill: Rogers at 483. In this case, that of a specialist geriatrician;
Relevant to which is whether the doctor acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though other doctors adopt a different practice, the standard of care being a matter of medical judgment: Rogers at 484;
A finding of negligence requiring a finding that the defendant failed to exercise the ordinary skill of a doctor practising in the relevant field: Rogers at 484;
In the case of some special skill or competence the standard being that of the ordinary skilled person exercising and professing to have that special skill: Rogers at 487;
The factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care also varying according to whether the claims involve diagnosis, treatment or the provision of information or advice, there being fundamental differences between them: Rogers at 498;
A medical practitioner who examines and reports upon the condition of an individual may also owe a duty of care to more than one person: Sullivan v Moody at [60]. But that will ordinarily be denied if the suggested duty of care would give rise to inconsistent obligations;
At common law, damages in negligence are generally not recoverable for pure economic loss. A recognised exception being where a defendant has assumed responsibility towards a plaintiff to take reasonable care to avoid economic loss to the plaintiff, when engaging in a particular task or job: Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25 at [29]-[33]; (2024) 98 ALJR 956;
A claim in negligence for pure economic loss does not arise until a plaintiff suffers damage: Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 (2014) 254 CLR 185 at 227; [2014] HCA 36 at [124]; and
What remained in issue was:
Whether orders summarily dismissing the proceedings can now justly be made, given what is pursued by the FASOC;
Whether the pursuit of this further motion involves an abuse, given that the arguments pressed already failed before Faulkner J and the Court of Appeal and that the resolution of the motion failed because of a disagreement about costs; and
Costs.
The parties relied on affidavits sworn by their solicitors which annexed numerous documents, as well as considerable written and oral submissions. The sheer volume of which underscored the difficulty of ordering the summary dismissal of the claims Dr Gooley pursues, given the applicable principles.
Dr Dedousis not only relied on extensive written submissions, which incorporated submissions he had made on his first motion, as well as those he had advanced in the Court of Appeal. They were also expanded orally over the course of a day’s hearing.
The sheer volume and complexity of what was so advanced, by reference to several volumes of authorities, underscored the difficulty Dr Dedousis confronted in establishing a basis for the making of the summary dismissal order he again pursued, despite how the FASOC has been pleaded, given the applicable principles.
It is unnecessary to summarise all of the arguments advanced.
They included that the FASOC, finally filed without objection, still did not address identified deficiencies which had been raised before the Court of Appeal, with the result that it was also not adequately pleaded.
In written submissions it was submitted that the earlier amended pleading had failed to articulate a tenable claim and should not be permitted to proceed. Alternatively, that the pleading was confusing, not permitting Dr Dedousis to understand the allegations pursued against him. Notably, the pleading having confused which of the two pleaded duties of care were claimed to have triggered which corresponding obligation and resulting in what outcome.
Not all of these submissions were pressed in relation to the FASOC, but it was still contended that it disclosed no available cause of action.
While Dr Dedousis did not dispute that he owed a duty to the father, he contended that what the FASOC pleaded could not provide a foundation for a finding of breach. Relying on always having had an undisputed duty of confidence to the father, his patient, which he could only lawfully depart from if he formed the opinion that the father could no longer give informed consent. That having been an opinion which he had never formed.
Dr Dedousis did not concede that he owed any duty of the kind described to be the estate duty and contended that the evidence established that this was a claim which fell into the Perera category. Where it could be confidently concluded that the claimed duty did not “fit” the existing body of law.
As initially pleaded, Dr Gooley had pursued breaches of duties it was claimed he had owed Dr Gooley’s father as a patient, which had resulted in purely economic loss, which could not be so pursued. Dr Gooley then not claiming that he or any other non-patient was owed a duty.
Particulars Dr Gooley later provided had clarified that Dr Gooley had not brought the claim in his individual capacity; that the alleged negligence had occurred before his father’s death; and that the loss suffered had been caused after his death. Thus, some elements of the cause of action had arisen before death, namely duty and breach, with loss and damage arising afterwards.
The FASOC pursued two duties, one owed to Dr Gooley’s father and the other to the executor of his estate, which it was claimed both arose out of the doctor-patient relationship. But without disclosing, in the required way, the facts on which the duties were claimed to arise.
The view urged was that no cause of action had vested in Dr Gooley’s father, which could survive his death in 2017. As pleaded, there being no claim that Dr Gooley’s father had suffered economic loss before his death and the claimed loss having been suffered only afterwards, with the result that the pleaded claims could not lawfully be pursued.
Dr Gooley contended that the FASOC did adequately put Dr Dedousis on notice of both claims pursued against him, as well as their factual basis. Submitting that the alleged breaches of both claimed duties had novel aspects, given the alleged economic loss which he claims resulted from their breach. That damage all being claimed to have been foreseeably caused by Dr Dedousis’ negligence, given his retainer as a geriatrician.
This requiring that the pleaded claims be considered in light of all the evidence led at trial, before they could justly be refused.
Dr Gooley also urged the conclusion that the pursuit of the further motion involved an abuse of process, given the open offer which had been made and its pursuit, after an agreement about costs could not be reached: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46.
Dr Gooley also relying on this motion being the third attempt to run the same arguments which had already failed before Faulkner J and the Court of Appeal, to establish the claimed abuse. It also being relevant that Payne JA in the Court of Appeal had already observed that the earlier pleading was well drawn.
Both the claimed Patient and Executor Duty of Care are now pleaded in the FASOC to have required Dr Dedousis to exercise reasonable care and skill in the examination, diagnosis and treatment of the father. That the father lacked capacity, including testamentary capacity, is also pleaded.
The risk pleaded is of harm to the estate, if Dr Dedousis did not exercise reasonable care and skill in the examination, diagnosis and treatment of the father. The same risk as that pleaded in relation to the duty owed to the father. It is also pleaded that Dr Dedousis should have known that the father was at risk of entering an improvident transaction or drawing a new will, and that he was aware that the father’s capacity was in issue and in dispute within his family, during the treatment period.
What is pleaded in relation to the scope of the claimed duties also relies on the status of Dr Dedousis, the father and their doctor-patient relationship.
What is so pleaded raises not only the question of whether the claimed novel duties exist, but also whether the damages which are pursued as the result of the claimed breaches of both duties, which arose only after death, can so be pursued.
That seemingly never having previously been pursued and now arising to be considered in light of how the scope and content of the two claimed duties are so similarly pleaded, in relation to a geriatrician retained to advise about his patient’s capacity at a time when it was of ongoing, known concern and dispute.
The FASOC, it seems to me, thus raises for consideration the facts bearing on the claimed relationships and duties, by reference to salient features or factors affecting the appropriateness of imputing such novel duties, by reference to relevant considerations, some of which were explained in Caltex Refineries (Qld) Pty Ltd v Stavar at [102]-[103].
It having to be borne in mind that a duty does not necessarily depend on the existence of a contract. In some cases, proximity being sufficient. For example, that between a solicitor retained to prepare a will and an intended beneficiary: Hill v Van Erp at 183.
Proximity is thus relied on by Dr Gooley to explain why material facts pleaded in relation to the estate duty are derived from the doctor-patient relationship between Dr Gooley’s father and Dr Dedousis. What he was retained to do as a geriatrician, being relevant to that claim. That having included, as it did, the provision of reports about the father’s capacity to third parties, including family members, a solicitor and the Guardianship Tribunal.
What the further amended statement claim pleads, with particulars provided over some 48 pages, includes:
Dr Dedousis’ claimed conduct and the father’s dementia and cognitive decline;
Probate and other proceedings;
The duty of care it is claimed Dr Dedousis owed the father under the Patient Duty of Care; how it is claimed to have arisen out of the doctor-patient relationship; and what it is claimed that duty required, as to diagnosis and treatment;
The second duty it is claimed Dr Dedousis also owed the future executor of the estate, while treating Dr Gooley’s father. It is also claimed to have arisen out of the doctor-patient relationship between Dr Dedousis and the father, before his death;
The scope of the two duties is pleaded to be the same, given the claimed requirement to take precautions against risks specified at cl 82D of the FASOC to be:
“(a) the risk of economic loss (Harm) to the Deceased;
(b) the risk of Harm to the Deceased’s estate;
(c) the risk of the Deceased or the Deceased’s estate suffering Harm by entering into an improvident transaction, causing loss before or after the death of the Deceased; and
d) the risk of the Deceased’s estate suffering Harm by reason of a disputed, and costly, probate.”
The one identified risk of harm resulting from Dr Dedousis’ claimed breaches of both duties, which it is claimed was foreseeable and not insignificant;
The result being that a reasonable person in Dr Dedousis’ position would have taken identified precautions against that risk;
That Dr Gooley’s father was vulnerable to the risk of suffering harm if Dr Dedousis did not provide his services with reasonable care, skill and diligence is also pleaded. This is not pleaded in respect of the future executor;
That Dr Dedousis knew or ought to have known of that risk. He having been required to act in a manner that was widely accepted in Australia by peer professional opinion: Civil Liability Act, s 5O;
Dr Dedousis’ breaches of the two claimed duties, inconsistent with the requirements of s 5O, are pleaded by way of the same precautions which it is claimed he failed to take, and the same particulars;
Claimed causation and loss is pleaded to have resulted from the breaches of both duties, the pleaded results of which are claimed to be identical, including consequences such as:
professional and other advisors, the father’s children, the Guardianship Tribunal and NCAT not being informed of the true state of his condition, they consequently proceeding on the basis of false assumptions, which had identified adverse consequences;
precautions which were available but not taken, which are also identified;
wills and transactions which the deceased ought not to have been able to enter;
treatment and testing which was not used by Dr Dedousis, as it should have been;
steps which advisors would not have taken in respect of the father’s financial affairs and transactions which he would not have entered. Including the making of wills and appointments he had no capacity to make; and
after the father’s death, proceedings which would not have been pursued and costs which would not, as a result, have been incurred by the estate, with resulting economic loss.
The claimed breaches of the two duties are also relied on to establish the damage and loss it is claimed the father suffered to his estate, as the result of Dr Dedousis’ alleged negligence, which was a condition of the harm the father suffered; and
That it was appropriate for the scope of Dr Dedousis’ liability to extend to the harm which the father had so suffered.
The pleaded facts include that:
In August 2012, when aged 87, Dr Gooley’s father first consulted Dr Dedoulis, who did not diagnose him to be suffering dementia or cognitive impairment;
The father made a will in September 2012, at a time when he did not have testamentary capacity;
In September 2012, Dr Gooley made an application to the Guardianship Tribunal to have his father discharged into his care;
Dr Dedousis was then further consulted, diagnosing the father to have the cognitive ability to make his own decisions about his financial, medical and residential issues;
Dr Dedousis then undertook a mental state examination, which indicated that the father was suffering from abnormal cognitive function and was suffering possible cognitive impairment;
Despite which, in October 2012, Dr Dedousis again diagnosed Dr Gooley’s father to be cognitively competent and able to make appropriate decisions, and advised that he did not require a clinical neuropsychological examination or assessment;
Dr Gooley’s Guardianship application was withdrawn in November 2012 as a result, but the Tribunal made an enduring guardianship appointment on the application of his two sisters;
From November 2012 until his death, Dr Gooley’s father had 24-hour in home care;
The father made further wills in November 2012, despite not having testamentary capacity;
In December 2012, Dr Dedousis again diagnosed the father to have the cognitive ability to make his own decisions about his financial, medical and residential issues, having undertaken further testing which did not test his executive function;
Dr Dedousis arrived at similar conclusions in February, March and May 2013, after which the father made further wills, despite not having testamentary capacity;
Further examination and testing in June 2013 led Dr Dedousis to the same conclusions, after which the father signed documents affecting changes to the Tonkin Trust and made appointments, which he did not have capacity to do;
Further examination and testing in December 2013 led Dr Dedousis to conclude the father remained stable and his condition had not worsened since June 2013;
In March 2014, following Dr Dedousis’ diagnosis that he had the requisite cognition to make decisions regarding financial, medical and residential issues, the father made another will, for which he did not have testamentary capacity;
The father attended a consultation with Dr Dedousis in June 2014, where he was diagnosed with mild cognitive impairment, although he was considered still to retain the capacity to make appropriate decisions about residential, financial and medical matters;
Dr Dedousis arrived at similar conclusions in July 2014, after which the father made another will for which he did not have testamentary capacity;
In his personal capacity, Dr Gooley made a second application to the Guardianship Tribunal in August 2014, seeking the appointment of a financial manager and guardian for his father’s affairs;
In September 2014, Dr Dedousis diagnosed Dr Gooley’s father as still having the ability to make financial, medical and residential decisions despite suffering from mild cognitive impairment. The father then signed documents, including his resignation as director and secretary of Goold Enterprises Pty Ltd and selling his shares to Dr Gooley’s sister, who was then appointed as the Appointor of the Gooley Family Trust, a position he also resigned from;
The father did not have the capacity to enter these transactions;
Dr Dedousis arrived at similar conclusions in October 2014, considering the father to be relatively stable and clinically capable of making his own decisions. A mental state examination was undertaken, which again did not test executive function;
At a consultation in December 2014 Dr Dedousi found that the father had no new clinical issues;
It was only in January 2015 that Dr Dedousis diagnosed the father to no longer have the capacity to make appropriate decisions about his financial, legal and medical matters;
In March 2015, Dr Dedousis diagnosed the father’s delirium as subsiding and improving, although he considered the father did not have the capacity to make appropriate decisions about personal matters;
The Guardianship Tribunal appointed Dr Gooley’s sisters as the joint managers of the father’s estate in March 2015, to be supervised by the NSW Trustee and Guardian. The Tribunal also ordered an independent neuropsychologist to be retained to report on the father’s condition, with these reports alongside those from Dr Dedousis to be filed and served by 27 May 2015;
In March 2015, Dr Dedousis concluded that the father’s cognition was improving;
In May 2015, after a consultation and mental state examination, Dr Dedousis again diagnosed the father’s condition to be improving, that he was alert and orientated cognitively, and that he had the capacity to make appropriate decisions about financial, residential and medical issues;
A consultant clinical neuropsychologist was engaged in May 2015 to examine the father and perform a cognitive examination which tested his executive function. The results were indicative of an underlying neurodegenerative process and consistent with what is expected in the early stages of dementia;
In June 2015 the neuropsychologist provided a report for the second guardianship application as the Tribunal had ordered. It indicated that the father displayed significant cognitive impairment consistent with early stage dementia; had deficient financial knowledge and management; did not have the capacity to make decisions about his lifestyle, financial affairs, medical care and treatment; and should be monitored regarding his capacity to make his own decisions;
The Tribunal dismissed this application soon afterwards;
Dr Dedousis performed a mental state examination in June 2015 which still did not test the father’s executive function. He diagnosing the father to be cognitively intact and clinically stable;
In December 2015, Dr Dedousis found the father was not suffering from new clinical issues and was performing cognitively as expected;
After a further consultation in April 2016 Dr Dedousis concluded that the father was suffering from cognitive decline;
Dr Dedousis arrived at a similar conclusion in October 2016, diagnosing the father to have cognitive and mobility issues;
In April 2017 Dr Dedousis found that the father had cognitive decline and in August 2017, the father was diagnosed to have worsening dementia;
The father died on 23 December 2017, with Dr Dedousis authorising a form recording dementia as a significant contributing condition;
A death certificate issued in February 2018, recorded dementia, lasting for years, as one of the causes of the father’s death. Dr Dedousis confirmed the duration of this condition should be amended to two years on the certificate;
In April 2018 Dr Dedousis authorised the completion of a new form recording dementia as a significant contribution to the father’s death but noting the duration as only two years between onset and death. A new death certificate recording this was eventually issued in May 2018;
Dr Gooley’s sisters commenced the Equity proceedings against Dr Gooley seeking a grant of probate of the last will the father made in July 2018, or alternatively the latest in time of five earlier wills he made after his June 2012 will;
In February 2021, Sackar J granted probate in Dr Gooley’s favour for the February 2010 will, concluding that the father lacked testamentary capacity after he made that will. Dr Gooley was later formally appointed the executor of the estate in May 2021;
The Court also ordered Dr Gooley’s costs of the probate proceedings, as Executor, be paid out of his father’s estate.
In July 2021, Dr Gooley commenced proceedings seeking to set aside the July 2013 transaction wherein his father effected changes to the Tonkin Trust, challenging the capacity of his father to enter this transaction;
Dr Gooley then commenced proceedings in August 2021 seeking to set aside the September 2014 transaction wherein his father resigned as director and secretary of a company, sold his shares and appointed his sister as the appointer of the family trust; and
Both proceedings were settled in June 2022, with Dr Gooley’s costs paid from his father’s estate.
As I have explained, contemporaneous documents shed light on various of these pleaded facts.
The FASOC so pleaded, I am satisfied, does adhere to the requirements of the Rules, despite the complexity and novelty of the matters pursued against Dr Dedousis. While, undoubtedly, the FASOC could be better pleaded, the Rules do not require perfection.
What is required to be pleaded in a statement of claim, even one advancing a novel claim, is a summary of the material facts on which the party relies, rather than the evidence by which those facts are to be proved: Uniform Civil Procedure Rules, r 14.7. Such a summary has been pleaded.
Pleadings also have to be as brief as the nature of the case allows: r 14.8. They must also state only the effect of material documents or spoken words, except when they are themselves material: r 14.9. They need not plead facts presumed by law: r 14.10; they must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise: r 14.14; and they may raise points of law: r 14.19. I consider that the FASOC does comply with these obligations.
A claim in negligence pursued under the Civil Liability Act should be pleaded in the way which has been repeatedly explained. For example, in MTH v State of New South Wales [2022] NSWSC 884 at [68]:
“It is essential for a pleading of a claim pursuant to the Civil Liability Act to set out clearly:
(a) all of the facts, matters and circumstances relied upon to give rise to a duty of care: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [50];
(b) a risk of harm in respect of which a duty of care is owed: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [7]; Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]; *Tapp v Australian Bushman’*s Campdraft & Rodeo Association Ltd [2022] HCA 11; 96 ALJR 337 at [106];
(c) that the risk was foreseeable, namely that it was either known or should have been known to the proposed defendant: s 5B(1)(a) Civil Liability Act; Benic v State of New South Wales [2010] NSWSC 1039 at [90]-[92];
(d) that the risk was not insignificant: s 5B(1)(b) Civil Liability Act; and
(e) the precautions which a reasonable person in the position of the defendant would have taken against the risk of harm: s 5B(1)(c) of the Civil Liability Act.”
The fundamental obligation, it is long settled, being to provide “a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it”: Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 at [6].
Whether this obligation has been met was finally disputed even after the FASOC was filed in the circumstances I have explained. I am satisfied not only that it meets the requirements of the Rules, but that on the evidence led to resist the motion, the proceedings may not be struck out, despite the novelty of what is thereby pursued. It also having adhered to what was explained in MTH and also giving Dr Dedousis a fair opportunity to understand and meet what is pursued against him.
That conclusion is supported by the contemporaneous material which will also be relied on at trial, which must also be taken into account in resolving whether the proceedings can justly be summarily dismissed.
I am satisfied that evidence I was taken to, does not support such a dismissal.
Whether the two claimed duties are irreconcilable, as Dr Dedousis submitted, necessarily depends on a consideration of all that he was retained to do. That cannot be resolved on this motion, although light was shed on that by what the evidence revealed he had actually done. It not being suggested that he had a written retainer.
Dr Dedousis relied on the duty of confidentiality which it is not disputed he owed the father, which he could not depart from without his informed consent, unless he formed the view that the father was not capable of giving it. A view he never formed.
In considering this it is relevant that what is pursued against Dr Dedousis appears not to be only a negligent failure to diagnose and report the father’s true mental state and capacity. But seemingly, also a failure to test executive function, as well as a failure to disclose the father’s real diagnosis, which would have disclosed that he did not have testamentary capacity to make wills in 2012 and later, or the capacity to enter into other transactions.
The evidence may thus also, it appears to be possible, establish that the father did not have the capacity to give the informed consent on which Dr Dedousis relies to resist Dr Gooley’s case. Given the cases advanced on the motions, it appears likely that this will also be in issue at trial, where it may become the subject of expert evidence. That also cannot be determined on the motion.
But it can be observed that the father’s ability to give informed consent will not necessarily be established by letters prepared by others for him to sign while he was in hospital, or by documents he was taken out of hospital to execute at a solicitor’s office. Even though they were submitted to show that the father both gave and refused his consent, at relevant times, that revealing his capacity.
Expert evidence was led in the Equity proceedings, when consideration had to be given to what contemporaneous records disclosed about the father’s health and resulting capacity at various times. Which Dr Gooley also claims in these proceedings was not as Dr Dedousis repeatedly advised at those times.
It is what Dr Dedousis was retained to do as a geriatrician which resulted in him not only examining and testing the father, but forming and communicating his opinions about his capacity. Including to the Guardianship Tribunal on competing applications made to it by Dr Gooley and his siblings. As well as to the solicitor retained to draft wills and other documents which the father executed in transactions which he entered at times it is claimed he had no capacity.
To resist the summary dismissal Dr Dedousis sought, Dr Gooley sought to draw analogies with the conclusions arrived at in Hill v Van Erp. Namely, that there was no reason to refrain from imposing on a solicitor contractually bound to a testator, who had to perform the contracted work of preparing a will with reasonable care, also owing a duty of care in tort to others who may foreseeably be damaged by carelessness in performing that work. Persons with whom the solicitor also had no contractual relationship.
With the result that the solicitor was found not only to owe a duty to the client with whom the solicitor had a contractual relationship, but also to an intended beneficiary, with whom the solicitor had relevant proximity: at 167-168. It being found to be eminently fair, just and reasonable that such a solicitor be liable in damages, if carelessness resulted in the loss of a testamentary gift the beneficiary was intended to have: at 168.
Dr Gooley relied on such claimed proximity to Dr Dedousis, he being the geriatrician retained to assess and provide advice about his father’s capacity. Claiming that he either carelessly, or deliberately incorrectly advised that his patient had the cognitive ability to make his own decisions about his financial, medical and residential issues. Despite they being abilities which Dr Dedousis knew his patient did not have. He having had not only relevant information to consider, but having undertaken testing, despite which he failed to test the father’s executive function, which should have been tested, in order to arrive at a conclusion about his capacity.
I am persuaded that the analogy sought to be drawn is arguable. Given what Dr Dedousis was retained to do as a geriatrician, the claimed proximity and the type of loss which Dr Gooley pursues, even though what is pursued is also economic loss arising after his father’s death.
It having been explained in Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 at [18] that the duty owed by a solicitor to the intended beneficiary “had its source in the solicitor's obligations arising from the retainer between the solicitor and her client. The solicitor having been obliged to exercise care and skill in giving effect to her client's testamentary intentions.”
Likewise, a geriatrician’s duty has its source in the retainer with his or her patient. When it is capacity about which the geriatrician is retained to advise, that a duty may arise not only to the patient, but also to beneficiaries of the patient’s estate, which requires the geriatrician to exercise care and skill in testing the patient’s capacity and in advising what it is, seems to me to be arguable.
The interests of the patient and the beneficiaries of the estate, in the advice about the patient’s capacity, also being relevantly the same. That also not giving rise to any apparent conflict and the geriatrician’s duty to the patient not being able to be compromised by a duty to beneficiaries, whose interests are coincident with those of the patient: Badenach at [18] and [20].
That the geriatrician retained to advise about whether the patient has capacity, which depends on the cognition required to make financial decisions, also being in a position of control, also being arguable: at [23].
It was also recognised in Badenach that the application of general principles to particular cases may evolve over time, if that serves the purpose of coherence in the law: at [23].
What here arises for consideration are claimed novel duties owed by a geriatrician who it is claimed failed to undertake relevant testing, which presumably became available to be undertaken by geriatricians as the result of advances in the neurosciences, which resulted in better understanding, over time on brain function and what can negatively impact it. That such testing became possible, in a way that did not exist in the past, in order for advice about capacity to be given by geriatricians, explains why it might be that the law also has to develop, in order to reflect such other developments and their consequences.
That, I am persuaded, also precludes the summary dismissal sought.
If, as a result of such a geriatrician’s negligence, the evidence establishes that the patient suffered actual loss, for example, because he or she entered into an improvident transaction, not having the capacity to understand it, it is difficult to see why the geriatrician would not be liable to the patient for resulting damages. For example, in respect of legal or other professional costs, charges, or even taxes or fees payable on a transaction which he or she had no capacity to understand or enter, which the patient incurred as the result of the geriaction’s negligence.
The view that it is just that such a patient be able to pursue a claim in negligence against a geriatrician in the event of such loss appears well open, given the nature of the responsibility which a geriatrician accepts when retained to give advice about the capacity of a patient in failing health. The causal relationship between the reliance on the advice about capacity and the loss suffered if the advice is negligently given, being arguable.
Whether any such cause of action against Dr Dedousis was vested in Dr Gooley’s father would be a question of fact. Although I note that the losses which are pursued by the FASOC are claimed to have materialised only after his death.
But it also appears to me to be arguably just that if the result of a geriatrician’s negligent advice about the patient’s capacity is improvident steps taken by the patient which materialises in foreseeable loss after his or death, which has the result that an intended testamentary gift is frustrated, that may also be the obvious result of the breach of the duty owed to the patient.
That, it seems to me, also arguably being capable of establishing the necessary causal relationship, as it was in Hill v Van Erp in the case of a solicitor retained to draw a will, who had the necessary proximity to the beneficiary. A proximity which it is also claimed exists with a geriatrician retained to advise as Dr Dedousis was, about his elderly patient’s capacity, at a time when that was ongoing concern.
Dr Gooley is both a beneficiary and the executor of the estate, who pursues Dr Dedousis’ alleged negligent advice, which he claims resulted in losses suffered by the estate, which materialised after his father’s death. They including the unnecessary costs incurred in the Equity proceedings over the wills, it was found that his father had made at times when he was under Dr Dedousis’ care and contrary to his advice, had no testamentary capacity.
Various records reveal those to whom Dr Dedousis provided advice about the father’s capacity. As well as the results of the advice. Including, Dr Gooley contends, his father making wills and entering transactions when he did not have the required capacity to do, with resulting losses.
Dr Gooley also relies on the observation in Hill v Van Erp at 171 that, in the case of a beneficiary pursuing a solicitor’s negligence, it is immaterial that the loss was suffered on or after the testator’s death. Contending that a similar view is available in relation to a claim pursued against a geriatrician retained to advise, as Dr Dedousis was, about the capacity of a patient suffering considerable ill health, as his father was.
Contending that it is open to the executor who has to distribute the estate to the beneficiaries, in accordance with the terms of the will the testator had capacity to make, probate having been granted, to pursue the losses which resulted from the geriatrician’s negligence. Even though they also only materialised after the death.
An executor pursuing such alleged negligence is obviously an efficient way for such claimed negligence to be litigated. But there does not appear to be any authority which has considered such a claim, other than that of Faulkner J, who also refused to summarily dismiss the proceedings.
I am not satisfied that it is doomed to fail, having to be considered as it must be in the way discussed in Perera*,* in light of both the way in which the FASOC is pleaded and the evidence which has been led to resist the dismissal.
There is no issue that any losses that materialised from Dr Dedousis’ negligence before the father’s death attract the provisions of s 2 of the Law Reform (Miscellaneous Provisions) Act. But it is relevant that its terms were not identified in Hill v Van Erp or Badenach as precluding a beneficiary’s pursuit of damages against a solicitor, which materialised only on or after death.
What is pursued against Dr Dedousis undoubtedly raises a number of novel questions. But I am satisfied that given what it seems he was retained to do, that is not a basis on which summary dismissal of these proceedings can justly be ordered. Despite the statutory provisions Dr Dedousis relied on, which identify claims which do survive death.
In the result I am not persuaded that Dr Dedousis has satisfied the General Steel test or that identified in Perera. The required conclusion, that the claimed novel duties do not “fit” the existing body of law, not having been established to have a sound basis.
Dr Dedousis also had to establish that what is pursued by the FASOC is so obviously untenable that it cannot possibly succeed; that it is manifestly groundless, or so manifestly faulty that it does not admit of argument. I am not persuaded that he has done so.
The result is that this motion must also fail.
I am also satisfied that the claimed abuse was established.
In 2025 Faulkner J refused to summarily dismiss these proceedings, having concluded that none of the circumstances justifying summary dismissal outlined in General Steel, were established, despite the problems with what Dr Gooley had then pleaded. As he was given leave to do, Dr Gooley amended his pleadings.
The Court of Appeal still refused to grant the leave to appeal Dr Dedousis required, having considered Dr Gooley’s amended pleading. Concluding that it would be premature to resolve the questions of principle and matters of general importance it raised: Appeal judgment at [49]. Further, that “a reasonably clear injustice that is more than arguable”: had not been shown by Dr Dedousis, the prejudice of being subject to proceedings being a “necessary incident of litigation”: at [50].
On this motion, Dr Dedousis advanced similar arguments to those which had already twice failed, despite how the FASOC had been repleaded in response to issues he had raised. Still he did not establish the clear injustice the Court of Appeal referred to.
That he only pressed his motion because what he had proposed in relation to costs was not accepted by Dr Gooley, may not be overlooked. The orders Dr Dedousis finally proposed by his open offer being:
“1. The plaintiff has leave to file the further amended statement substantially in the form circulated to the defendant by email dated 25 May 2026 (at 3.34) (FASOC) by 5pm on 27 May 2026.
- The plaintiff to pay the costs thrown away by reason of the filings of the FASOC.
- The plaintiff is to provide the defendant with responses to the request for further and better particulars dated 25 May 2026, within 28 days.
- The plaintiff is released from the implied undertaking insofar as he is permitted to use in these proceedings the documents obtained in Supreme Court Proceedings 2018/6388 (Probate Proceedings), including but not limited to:
a. a complete copy of the transcript of the Probate Proceedings;
b. the affidavits and/or reports and exhibits tendered in the Probate Proceedings; and
c. documents produced under the subpoena in the Probate Proceedings.
- The plaintiff is to produce documents in response to the defendant’s Notice to Produce dated 14 April 2026, within 14 days.
- …
- The defendant to file and serve a defence to the FASOC on or before 22 July 2026.
- The plaintiff to file and serve any reply on or before 6 August 2026.
- The plaintiff’s application, to file the earlier versions of the Further Amended Statement of Claim, is dismissed.
- Costs of the applications be costs in the proceedings.
- The matter be listed for further directions on 10 August 2026, or a date convenient to the Court and parties.”
It was order 10 which could not be agreed. With the result that the motion had to be heard and decided, because of the attitude Dr Dedousis took to costs. With the obvious risk that it would result in an adverse costs order.
Dr Dedousis resisted such an order, contending that there had been no abuse in his ongoing pursuit of the summary dismissal of the proceedings, his offer having involved a real compromise and the arguments he advanced having to be considered in light of the facts pleaded by the FASOC.
But it may not be overlooked that the parties were bound by the requirements of s 56 of the Civil Procedure Act 2005 (NSW), which specifies the overriding purpose of the legislative scheme to be the just, quick and cheap resolution of the real issues in the proceedings. Both parties being under a duty to assist the Court to further that purpose: s 56(3).
That being so, it is difficult to see that the course Dr Dedousis pursued because Dr Gooley did not accept that the costs of his further motion should be costs in the cause, accorded with that obligation.
The result of his approach has been that Dr Dedousis unnecessarily added to costs, given what arose to be considered and the strict onus which fell upon him.
Dr Dedousis had plainly been prepared to concede his motion, as he ought to have, given what had already been decided by Faulkner J and the Court of Appeal; what the FASOC pleaded; and the onus which fell on him to establish a basis on which the summary dismissal he pressed could be ordered.
I accept that the sticking point, that he should not have to bear the costs of the motion he was prepared to abandon, was one which he ought not to have pursued, as he did, given the obligation imposed on him by s 56(3).
Given all that had occurred, the compromise Dr Dedousis otherwise proposed reflected a proper appreciation of the unlikelihood of success of the same arguments he had unsuccessfully advanced in respect of the earlier pleadings, if he pressed them again in relation to the FASOC.
Adherence to the obligations imposed by s 56 ought thus to have resulted in the motion not being pressed. Instead, the position Dr Dedousis refused to desist from, despite the opportunity I gave him to reconsider, that the price of him abandoning his motion had to be a departure from the usual costs order under the Rules, in his favour, resulted in the unnecessary cost of a further day’s hearing. As well as the need to produce this judgment, to deal with arguments which his open offer had recognised realistically had no real prospects of success.
That approach undoubtedly also had an unnecessary, adverse impact on the administration of justice and the public interest, which the Court also cannot ignore, given the requirements of the Civil Procedure Act: UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [38] citing Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 213; [2009] HCA 27 at [98].
Together, Dr Dedousis’ approach and all of the resulting consequences, I consider, do establish a relevant abuse.
The usual order under the Uniform Civil Procedure Rules is that costs follow the event: r 42.
In this case, that is an order in favour of Dr Gooley. But he seeks a departure from the order, contending that Dr Dedousis unnecessarily pursuing the same arguments he had unsuccessfully pursued on his first motion and the appeal, and the abuse which that involved, amounted to misconduct of the kind dealt with in Oshlack v Richmond River Council (1998) 193 CLR 72 at 89; [1998] HCA 11 at [44].
Dr Dedousis resisted such an order, contending that there had been no misconduct. His offer having involved a real compromise and not having been accepted, his pursuit of the motion involved no delinquency. He having been entitled to pursue it as he did in respect of the FASOC, the terms of which had not yet been considered by the Court.
I am unable to accept this.
Costs orders are never made to punish unsuccessful parties. An indemnity costs order rather more fully or adequately compensates the successful party who has unnecessarily suffered disadvantage, because of what an unsuccessful party has pursued. Disadvantage which would not have been suffered, in the absence of relevant delinquency on its part.
In this case that disadvantage is obvious. Both unnecessary further delay and additional costs.
Given the views I have reached about the abuse involved in Dr Dedousis’ pursuit of his motion, given the open offer made in Court when the hearing commenced, and his pursuit of the motion, despite the opportunity I provided the parties to arrive at an agreement which accorded with the obligations imposed on them by s 56, I have concluded that it must be accepted that relevant misconduct has been established.
The offer properly recognised that the motion had little prospect of success, given what was pleaded in the FASOC, the requirements of the rules and what Dr Dedousis had already unsuccessfully argued before Faulkner J and the Court of Appeal.
Dr Dedousis’ insistence on the costs of his motion not being pressed, being that the costs already incurred be costs in the cause, did not accord with the obligations imposed by s 56 of the Civil P**rocedure Act. That resulted in the parties incurring even further unnecessary costs.
Nor did the approach pursued accord with the need to eliminate delay beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial: s 59. Or with the object of resolving the issues between the parties in such a way that the cost to them is proportionate to the importance and complexity of the subject-matter in dispute: s 60.
I am persuaded that relevant delinquency was thus established, with the result that the dictates of justice do require that an indemnity costs order be made in favour of Dr Gooley, given the degree to which the respective parties have fulfilled their duties under section 56(3): s 58.
Account also having to be taken of the objects of case management specified in s 57. Which include not only the just determination of the proceedings, but also the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources; and the timely disposal of the proceedings and all other proceedings in the court, at a cost affordable by the respective parties.
For these reasons, I order that:
The motion be dismissed with an indemnity costs order in favour of Dr Gooley;
Dr Dedousis file his defence within 28 days of this judgment;
The parties confer about the appropriate directions and orders for the preparation of the matter for hearing; and
The matter be listed for further directions before the Registrar at 9 am on 9 July 2026.
**********
I certify that the preceding 129
paragraphs are a true copy
of the reasons for the Judgment
of Acting Justice Schmidt.
Dated: 11 June 2026
Counsel's details amended on cover page of judgment
Amended hearing date to 26 May 2026
Brett Raymond Gooley as Executor of the Estate of the late Melville William Gooley
Dedousis
[2009] HCA 27
[1964] HCA 69
[1998] HCA 11
[2001] HCA 59
(2009) 239 CLR 175
(2016) 257 CLR 440
(1988) 217 ALR 44
(2014) 254 CLR 185
(2009) 75 NSWLR 649
(1982) 148 CLR 658
(1964) 112 CLR 125
(1997) 188 CLR 159
(2024) 98 ALJR 956
(1998) 193 CLR 72
(2017) 94 NSWLR 83
(2001) 207 CLR 562
(2018) 265 CLR 77
(1992) 30 NSWLR 1
(1992) 175 CLR 479
(2015) 91 NSWLR 752