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[2026] NSWCA 28
respondent. The summons for leave to appeal was dismissed with costs.
The Court of Appeal did not decide whether a treating doctor can owe a duty of care to a deceased patient's executor, or whether the estate can recover the claimed legal costs. It decided only that the doctor had not shown a sufficient basis for an immediate appeal. The original claim had been struck out for pleading deficiencies, but the Executor had leave to plead again. Because the primary judge had no amended pleading before him and the relevant facts were not settled, the Court considered it too early to decide that the claim could not possibly succeed. The summons for leave to appeal was dismissed with costs.
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2,417 words · generated 08/10/2026
The NSW Court of Appeal, comprising Payne JA and McHugh JA, dismissed Dr Christopher Dedousis’s application for leave to appeal an interlocutory decision in negligence proceedings brought by Brett Gooley as executor of his late father’s estate. The decision is reported as [2026] NSWCA 28. The orders were made on 12 March 2026.
10 cited instruments linked from this judgment.
The underlying claim concerned legal costs the estate incurred in two sets of proceedings. In probate proceedings, the Testator’s testamentary capacity was contested. Sackar J found that the Testator lacked capacity to make his will of 4 September 2012 or any later will, and probate was granted to Dr Gooley for the 1 February 2010 will ([6]). Dr Gooley’s costs in those proceedings were ordered to be paid from the estate on a solicitor and own client basis. They were claimed at approximately $2,491,771.01 inclusive of GST ([7]).
A separate transaction in 2014 affected the Gooley Family Trust, including by making Ms Foley its Appointor. The estate later brought proceedings to set aside that transaction, which apparently settled. The claimed legal costs in those proceedings were approximately $426,343.89 inclusive of GST ([8]). Dr Gooley then sued Dr Dedousis for the costs and disbursements incurred in both sets of proceedings, alleging pure economic loss ([9]).
The procedural history matters. The original statement of claim alleged only a duty owed by Dr Dedousis to the Testator ([10]). The primary judge struck that pleading out because it did not sufficiently identify the risk of harm, the content and scope of the duty, or the factual link between the alleged failure to diagnose cognitive impairment and the making of the later wills ([11]–[12]). But the judge gave leave to replead and refused Dr Dedousis’s application to dismiss the proceedings summarily ([2], [15]–[18]).
The Court of Appeal focused on the limits of the appeal application. Dr Dedousis argued that the claim could not be maintained as a matter of law, including because an executor could not claim pure economic loss against the Testator’s treating doctor. But the Court said the legal questions depended on a sufficiently identified factual setting, and the amended pleading that later alleged a duty directly to the Executor had not been before the primary judge ([21]–[25], [33]–[35]). It therefore dismissed the summons for leave to appeal with costs ([52]). It did not decide whether either alleged duty exists.
The Court began with the principles governing leave to appeal. Leave is usually granted only where the proposed appeal raises an issue of principle, a question of public importance, or a reasonably clear injustice going beyond what is merely arguable. Particular caution is appropriate for an interlocutory decision about practice and procedure, especially where the result is that a claim may proceed to a hearing rather than being dismissed summarily ([19]).
The Court then identified a problem with the proposed appeal: the question was framed at too high a level of generality. Whether an executor can maintain a claim for pure economic loss against a treating doctor is not simply a freestanding question of law. For a novel duty of care, the legal question may be resolved only against an identified set of facts, whether alleged in a pleading or found after trial ([21]–[23]). The Court relied on State of New South Wales v Spearpoint for the proposition that it is often, though not always, inappropriate to summarily dismiss a novel-duty claim on the pleadings at an early stage ([22]).
The timing and state of the pleadings were central. When the primary judge considered summary dismissal, the original statement of claim had just been struck out and there was no amended statement of claim before him. The issues were whether leave to file a different pleading should be granted and whether the claim should be dismissed. The Court said the facts for those purposes could hardly be confined to the pleading that had just been struck out ([24]). The later amended claim, filed after the decision, could illustrate what repleading might involve, but could not establish error in the primary judge’s decision. Nor had it been tested through an application addressing its pleading sufficiency ([25]).
The Court applied the demanding summary dismissal test. It referred to General Steel Industries Inc v Commissioner for Railways, with its formulations that a claim must be, for example, “so obviously untenable that it cannot possibly succeed” before summary dismissal is justified ([27]–[28]). The Court did not need to conclude that the proposed duties would succeed. Rather, it asked whether the arguments established that the claim could not possibly succeed on any relevant factual combination. It held they did not.
On Ground 1, Dr Dedousis relied on the proposition that a cause of action personal to a deceased person does not survive for the estate’s benefit unless it had vested before death, and argued that no damage had been suffered by the Testator before he died ([29]). The Court did not resolve that argument. It observed that the argument addressed a duty owed to the Testator alone, while the later amended pleading also alleged a direct duty to the Executor. That direct-duty question had not been before the primary judge, and would not be before the Court merely by granting leave to appeal from the decision that was actually made ([33]–[35]).
On Ground 2, Dr Dedousis argued that a doctor’s duty is generally owed to the patient, and that a duty to an executor could conflict with the doctor’s obligations to the patient, including confidentiality. The Court called these “powerful arguments” but said whether they were decisive might depend on facts not yet known ([39]–[40]). It referred to the salient-features approach in Caltex Refineries (Qld) Pty Ltd v Stavar, which involves close analysis of the relationship between the parties and features affecting whether a duty should be recognised ([41]). On the record before the primary judge, it was not established that no combination of facts could support a duty ([42]).
The Court also pointed to two letters from Dr Dedousis to the solicitor who prepared the later wills. One letter recorded that the Testator had the cognitive ability to make appropriate decisions about financial, medical and residential matters ([43]). A later letter stated that the Testator had capacity to make decisions in those areas and that further neuropsychological assessment was unwarranted ([45]). The circumstances in which the letters were written were not disclosed, but the Court considered them relevant to the argument that the doctor had not been asked to express an opinion about testamentary capacity ([44]–[46]).
Finally, the Court considered injustice. The only prejudice identified was the fact of being subject to the proceedings. It acknowledged the personal strain litigation can cause, particularly where allegations concern a person’s professional activity, but said that burden was a necessary incident of litigation ([50]). The applicant therefore had not established the required reasonably clear injustice ([50]–[51]).
This decision did not establish a new substantive rule that a treating doctor owes a duty to a patient’s executor. Nor did it establish that an executor can recover legal costs incurred after a testator’s death as pure economic loss. The Court expressly treated those substantive issues as premature on the record before it ([34]–[35], [49]).
What the judgment does clarify is the procedural approach to an early summary dismissal application involving a proposed novel duty. The court must assess the claim against an adequately identified factual setting. Where the pleading relied on for summary dismissal has just been struck out, and the proposed amended pleading has not yet been formulated or considered, the court may lack the factual basis to conclude that the claim is necessarily untenable ([22]–[25], [42]).
The judgment also applies established leave-to-appeal and summary dismissal principles. It does not alter the high threshold described in General Steel ([27]–[28]), the caution required for appeals concerning interlocutory practice and procedure ([19]), or the use of salient features in analysing a novel duty of care ([41]). Its contribution is their application to a procedural situation where the original claim had been struck out but repleading was permitted.
For estate and professional liability matters, the decision draws attention to the difference between a duty allegedly owed to a deceased patient and a duty allegedly owed directly to the executor. The first argument raised the survival of causes of action and whether damage had been suffered before death ([29]). The second would require separate analysis of the proposed relationship, the doctor’s responsibilities to the patient, and any potential inconsistency between duties ([36]–[42]). The Court did not settle either question.
At [22], the Court explained that novel-duty claims often cannot be summarily resolved without knowing the relevant facts. In plain English, the label “novel duty” does not itself answer whether a duty exists. The court needs to know what happened, what relationship existed, and what circumstances might support or negate the proposed duty.
At [24], the Court stressed that the original pleading had been struck out and no replacement was before the primary judge. In plain English, a court cannot fairly decide that the entire case is legally impossible by treating a deficient pleading as if it necessarily states every fact the plaintiff might later rely on.
At [28], the Court framed the key summary dismissal question: whether the claim was “so obviously untenable that it cannot possibly succeed”. In plain English, the question was not whether the claim looked strong or likely to succeed. It was whether it was so plainly incapable of success that allowing it to continue could not be justified.
At [42], the Court explained that a salient-features analysis could require a court to be satisfied that “no combination of facts” could lead to a duty. In plain English, where relevant facts have not yet been identified, it may be difficult to rule out every factual basis on which a duty might be found.
At [49], the Court said that the issues might eventually raise questions of principle and general importance, but that resolving them at this stage was premature. In plain English, an issue can be important and still be unsuitable for decision on an incomplete procedural record.
The judgment is most directly relevant to an early application to summarily dismiss a negligence claim alleging a novel duty of care, where the pleadings have been struck out or remain unsettled and the facts needed to assess the proposed duty are not yet clear ([21]–[25], [41]–[42]).
It is also relevant where a proposed claim may be framed in more than one way, such as a duty owed to a deceased person and a separate duty allegedly owed to a personal representative. The Court treated those as distinct possible formulations and noted that only the first had been pleaded in the original statement of claim ([10], [33]–[35]). The decision does not determine whether either formulation is legally available.
The judgment may also be relevant where documentary communications could bear on whether a professional assumed responsibility or was asked to provide an opinion. Here, the two letters to the Testator’s solicitor raised factual questions about communications concerning cognitive capacity, but the Court did not decide what the letters ultimately proved ([43]–[46]).
Its relevance is narrower where a complete pleading and a developed factual record permit a court confidently to decide that a proposed duty does not fit existing law. The Court acknowledged that some novel-duty claims can be dismissed without trial, referring to Perera ([23], [47]–[48]). The decision is therefore not a rule against summary dismissal in all novel-duty cases.
The supplied judgment contains no subsequent decisions applying, distinguishing or interpreting Dedousis v Gooley. It was decided on 12 March 2026, and the material provided does not identify later judicial treatment. No claim about its subsequent status or reception can therefore be made on this source alone.
Within its own reasoning, the Court relied on earlier authorities for distinct propositions. It used Be Financial for the general leave threshold, Adam P Brown Male Fashions and PPK Willoughby for caution in interlocutory appeals, and Sako for the particular caution applicable where a claim is permitted to proceed to a merits hearing ([19]). It applied Spearpoint and Perera to the procedural difficulty of deciding novel-duty claims before the relevant facts are sufficiently clear ([22]–[25], [47]–[48]). It applied Stavar to the salient-features approach ([41]–[42]) and General Steel to the summary dismissal threshold ([27]–[28]).
Those citations show the judgment’s place in the reasoning presented here, but they do not establish how later courts will apply its approach. The judgment itself leaves open whether the proposed duties in this dispute are legally recognised.
The most significant open question is whether a treating doctor can owe a duty directly to an executor to take reasonable care in examining, diagnosing or treating a deceased patient, where the alleged loss is pure economic loss to the estate. The Court did not determine that issue because the direct-duty allegation was not before the primary judge and the facts were not sufficiently developed ([25], [34]–[35]).
A related open question is whether the doctor’s obligations to the patient would be inconsistent with any proposed duty to an executor. Dr Dedousis relied on concerns about the scope of medical duties and confidentiality, but the Court considered that their application might depend on facts not yet known ([39]–[42]). The judgment does not decide whether any such conflict would defeat the proposed duty.
The relationship between the alleged breach, the Testator’s testamentary capacity, the later wills, and the costs incurred by the estate also remains unresolved. The primary judge had found the original causal pleading unclear because it did not show the factual connection between a diagnosis and the later wills ([11]). The Court of Appeal did not determine how any repleaded causal case should be framed or proved.
Finally, the judgment does not determine how the survival-of-actions provisions apply to a claim where the alleged duty was owed to the Testator but the claimed loss arose after death. The Court recorded Dr Dedousis’s argument and the authorities relied on, but resolved the leave application on narrower procedural grounds ([29]–[35]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Dedousis v Gooley as Executor of the Estate of the late Melville William Gooley [2026] NSWCA 28
Hearing dates: 25 February 2026
Date of orders: 12 March 2026
Decision date: 12 March 2026
Before: Payne JA; McHugh JA
Decision: The summons for leave to appeal is dismissed with costs.
Catchwords: APPEAL — Application for leave to appeal — Appeal from decision not to dismiss claim summarily — Whether claim so obviously untenable that it cannot succeed — No reasonably clear injustice that is more than arguable
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 61
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2
Probate and Administration Act 1898 (NSW), ss 3, 44, 61
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Aleta Gooley & Anor v Brett Gooley [2021] NSWSC 56
Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
Carr-Glynn v Frearsons [1999] Ch 326
Daniels v Thompson [2004] PNLR 33 638; [2004] EWCA Civ 307
Fitch v Hyde-Cates (1982) 150 CLR 482; [1982] HCA 11.
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44
Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
State of New South Wales v Spearpoint [2009] NSWCA 233
Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59
The Owners — Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301
Worby v Rosser [2000] PNLR 140; [1998] EWCA Civ J0528-10
Workers Compensation Nominal Insurer v Sako (2025) 116 NSWLR 422; [2025] NSWCA 12
Category: Principal judgment
Parties: Christopher Dedousis (Applicant)
Brett Raymond Gooley t/as Executor of the Estate of the late Melville William Gooley (Respondent)
Representation: Counsel:
A McInerney SC; Q M Noakhtar (Applicant)
J Knackstredt; L Cooper-Hackman (Respondent)
Solicitors:
HWL Ebsworth (Applicant)
Macpherson Kelley Pty Ltd (Respondent)
File Number(s): 2025/308156
Publication restriction: Nil.
THE COURT: The respondent, Dr Brett Raymond Gooley, is the executor of his late father’s (the Testator’s) estate. The applicant, Dr Christopher Dedousis, is a medical practitioner, who had been the Testator’s treating geriatrician. Dr Gooley as executor sues Dr Dedousis in negligence for pure economic loss, alleging novel duties of care, as explained below (the Negligence Proceedings).
By an amended summons filed on 1 December 2025, Dr Dedousis seeks leave to appeal from parts of an interlocutory decision given in the Negligence Proceedings by the primary judge, Faulkner J, on 16 July 2025 (the Decision). His Honour relevantly (1) struck out Dr Gooley’s statement of claim; (2) granted Dr Gooley leave to replead; and (3) refused Dr Dedousis’ application that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
Leave to appeal should be refused. Although the Negligence Proceedings face a significant number of obstacles, and although it appears likely that they will ultimately raise both questions of principle and a matter of general importance, it is nevertheless not appropriate to grant leave to appeal at this stage of the proceedings.
The Testator made a will on 1 February 2010. There is no question as to the Testator’s testamentary capacity with respect to that will. Dr Gooley was named as the executor under it.
From about August 2012 to around August 2017, the Testator was in the care of Dr Dedousis.
In that period, the Testator made six further wills between 4 September 2012 and 18 July 2014. The Testator died on 23 December 2017. Dr Gooley’s two sisters, Ms Aleta Joy Gooley and Ms Melinda Louise Foley, commenced probate proceedings on 9 July 2018 in which the Testator’s testamentary capacity was in issue (the Probate Proceedings). On 12 February 2021, Sackar J delivered judgment in those proceedings: Aleta Gooley & Anor v Brett Gooley [2021] NSWSC 56. His Honour found that the Testator lacked testamentary capacity to make the 4 September 2012 will or any will thereafter. The daughters’ application for probate was rejected and Dr Gooley was granted probate of the will dated 1 February 2010.
On 10 March 2021, Sackar J ordered that Dr Gooley’s costs of the proceedings be paid out of the estate of the Testator on a solicitor and own client basis. Those costs are claimed to be approximately $2,491,771.01 (inclusive of GST).
The Testator had also entered into a transaction on about 27 September 2014, the effect of which was, among other things, that Ms Foley became the Appointor of the Gooley Family Trust. Dr Gooley as executor commenced proceedings to set aside that transaction (the GFT Proceedings). Those proceedings were, apparently, settled. Dr Gooley’s legal costs incurred in those proceedings are claimed to be approximately $426,343.89 (inclusive of GST).
Dr Gooley as executor commenced the Negligence Proceedings against Dr Dedousis for damage suffered by the estate in respect of the costs and disbursements incurred by the estate in the Probate Proceedings and the GFT Proceedings. That was a claim for pure economic loss.
In the original statement of claim in the Negligence Proceedings, Dr Gooley alleged that Dr Dedousis owed a duty of care only to the Testator.
Among other relief sought in an amended notice of motion filed on 15 July 2025, Dr Dedousis applied to have the statement of claim struck out pursuant to UCPR, r 14.28. The primary judge acceded to that application. His Honour considered that the statement of claim fell short of the pleading requirements in three respects.
First, the statement of claim did not specifically identify the risk of harm alleged. “In circumstances where the relationship between the Testator and the Defendant was one of patient and doctor, and having regard to the loss which has been particularised in the Statement of Claim, it is critical that the Statement of Claim identify with precision the risk of harm to which the Testator was exposed”: J[22].
Secondly, his Honour said that the content and scope of the duty of care pleaded in the statement of claim was not sufficiently clear. Again, having regard to the loss that was pleaded, his Honour considered that the duty would not automatically follow from the doctor-patient relationship: J[23].
Thirdly, as to causation, his Honour summarised the pleading as being to the effect that (1) a geriatrician acting with reasonable care would have diagnosed the Testator with dementia and other cognitive impairments, and (2) if Dr Dedousis had done so, the six wills would not have been made. His Honour said that the factual connection between those two propositions was not apparent from the statement of claim: J[24].
The primary judge concluded that the pleading fell within r 14.28(1)(b) as having a “tendency to cause prejudice, embarrassment or delay in the proceedings”. Rather than strike out particular paragraphs of the statement of claim, his Honour concluded that the better course was to strike out the entire pleading: J[26].
The primary judge then turned to the question whether Dr Gooley should be granted leave to file an amended statement of claim. That was a discretionary decision.
His Honour referred to s 64(2) of the Civil Procedure Act 2005 (NSW), which provides that, subject to s 58, “all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.” Section 58(1)(a)(i) and (b), to which his Honour referred, provide that in deciding whether to make any order for the amendment of a document, and the terms in which any such order is to be made, the court must seek to act in accordance with the dictates of justice. Section 58(2) provides that for that purpose, the court must have regard to the provisions of s 56 (the overriding purpose of the Act and rules of court) and s 57 (the objects of case management), and may have regard to a number of matters, including “the degree of injustice that would be suffered by the respective parties as a consequence of any order”.
“It seems to me that if leave is not granted then there will in all probability be a multiplicity of proceedings which follow because the Plaintiff would ordinarily be free to commence fresh proceedings based on an amended statement of claim. In any event, I do not consider that it would be just to shut the Plaintiff out of bringing this claim at this early stage.”
Those were orthodox discretionary considerations. It is not suggested that they were irrelevant to the exercise of the discretion whether to grant leave to re-plead so as to give rise to a House v The King (1936) 55 CLR 499; [1936] HCA 40 error.
It should be noted that, having rejected Dr Dedousis’ substantive arguments as to the futility of the proceeding, his Honour also dismissed so much of Dr Dedousis’ notice of motion as sought summary dismissal of the proceedings.
One difficulty with Dr Dedousis’ argument may be noted at the outset: it does not identify the facts in light of which any question of law is to be answered. At a high level of generality, the question of law here is whether an executor can maintain a claim for pure economic loss against the testator’s treating doctor. That is not a pure question of law (unlike, for example, the interpretation of a statute, such as in The Owners — Strata Plan No 84674 v Pafburn Pty Ltd (2023) 113 NSWLR 105; [2023] NSWCA 301 at [23] per Basten JA, Ward P agreeing).
Instead, as will be seen, and as is not unusual where a plaintiff alleges a novel duty of care, the legal questions here can be fully resolved only by reference to an identified set of facts (whether as alleged in a pleading or as found after trial). For that reason, as Allsop ACJ said in State of New South Wales v Spearpoint [2009] NSWCA 233 at [26] (Beazley JA agreeing), 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.
That is not to say that a case involving a novel duty of care may never be dismissed without a trial: Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [38] per Leeming JA, with whom Macfarlan and Simpson JJA agreed; see also at [34], [36]. But it is to recognise that at a given point in the litigation the facts against which an application for summary dismissal are to be assessed may not yet be sufficiently clearly identified. Those facts “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”: Perera at [37]. That being so, it may be inappropriate, particularly at an early stage in litigation, to exercise the power of summary dismissal.
In this case, by the time his Honour came to determine the summary dismissal application, there was no pleading at all before the Court; cf. Perera at [4]-[6]. The original statement of claim had just been struck out because of the pleading deficiencies identified above. The remaining issues before the Court were relevantly (1) whether Dr Gooley should be given leave to file an amended statement of claim making different allegations of fact, and (2) whether Dr Gooley’s claim should be summarily dismissed. The set of facts to be used for those purposes could hardly be those alleged in the pleading that had just been struck out. Nor, at the time the primary judge was addressing those two issues, had any form of amended statement of claim been formulated or put before the Court.
It should be noted that, well after his Honour’s Decision, Dr Gooley filed an amended statement of claim on 13 August 2025. That pleading is before this Court for the purposes of exercising the discretion on the question of leave, but it was not before the primary judge, and is not a basis upon which to find error in his Honour’s Decision. The amended statement of claim has not been the subject of any application raising pleading points; nor has it been established that the amended statement of claim exhausts the allegations of fact that might be relevant to the existence of a cause of action. The document does, however, illustrate aspects of what was possible by way of re-pleading at the time his Honour gave the Decision. Importantly, the amended statement of claim not only expands (at pars 82-82A) upon the pleading of the duty of care Dr Dedousis is alleged to have owed (described as the “”). It also alleges at pars 82B-82C that Dr Dedousis owed a duty directly :
“… Dr Dedousis owed the Executor, in his capacity as (future) executor of the estate of the Deceased, a duty to exercise reasonable care and skill in the examination, diagnosis and treatment of the Deceased (Executor Duty of Care), in particular by:
(a) appropriately diagnosing the Deceased’s cognitive status and capacity; and
…”
Dr Dedousis’ Grounds 1 and 2 advance two (to some extent overlapping) arguments as to why, as a matter of law, Dr Gooley’s claim is not maintainable as a matter of law. Both arguments were put to the primary judge, who was not persuaded either to refuse leave to re-plead, or to dismiss the proceedings summarily pursuant to r 13.4.
The high standard governing applications for summary dismissal pursuant to provisions such as r 13.4 is well known. The primary judge referred to the relevant principles at J[50], citing the familiar statements of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129-130; [1964] HCA 69:
“… where the Chief Justice gave a number of formulations including ‘so obviously untenable that it cannot possibly succeed’; ‘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 ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.”
Dr Dedousis’ first argument, in Ground 1, assumes that (as had been pleaded in the original statement of claim that was struck out) the duty of care alleged was one owed to the Testator himself. The argument proceeds, in summary, as follows.
The common law rule is that a cause of action in tort personal to the deceased does not survive death for the benefit of their estate. Section 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) abrogated the common law rule, but relevantly only to the extent of providing that causes of action which had vested in the deceased before death survived to benefit their estate: see Fitch v Hyde-Cates (1982) 150 CLR 482 at 487, 490; [1982] HCA 11.
Here, no cause of action had vested in the deceased before death. The cause of action in negligence is not complete until damage is suffered. The respondent concedes that no damage was suffered until after the Testator’s death. It follows that the Testator had no vested cause of action in negligence against Dr Dedousis at the time of his death.
Since the Testator had no cause of action at the time of his death, there was nothing to be transmitted as “personal estate” of the Testator to Dr Gooley as executor for the purposes of ss 3(1), 44 and 61 of the Probate and Administration Act 1898 (NSW).
The primary judge addressed the availability of a claim based on advice given to a testator where the loss does not arise until after the testator has died by reference to a trio of English cases at J[39]-[48]: Daniels v Thompson [2004] PNLR 33 638; [2004] EWCA Civ 307, Carr-Glynn v Frearsons [1999] Ch 326, and Worby v Rosser [2000] PNLR 140; [1998] EWCA Civ J0528-10. (His Honour’s consideration of those cases to some extent overlapped with the issues arising under Ground 2, discussed below.) The English cases involved claims, or attempts to introduce claims, that solicitors owed duties variously to a testator, a legal personal representative or a beneficiary. His Honour concluded at J[49]:
“By reason of these authorities and the reasoning that they reflect, I am not able to conclude that, as a matter of law, the executor of a testator’s estate is not able to recover from a tortfeasor where a duty owed to the testator before his or her death was breached and the estate suffers a loss to the value of its assets after death. A final decision on that point would best be made in a real-life situation based on all the facts as found at trial. …”
It is not necessary for present purposes to address the parties’ arguments about the English solicitor cases in any detail. It suffices to note Dr Dedousis’ submissions that those cases:
did not refer to Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9;
preceded Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18;
are inconsistent with the common law of Australia which is, so it was submitted, “that a solicitor, when drafting a Will to give effect to a testamentary intention, owes a co-incident duty of care to both the testator and a beneficiary (Van Erp), but the duty owed to testator and beneficiary is not co-incident where the solicitor’s duty is to advise the testator about their property interests and future estate (Badenach)”; and
did not consider or refer to High Court authorities as to whether a duty of care to avoid loss to third parties may be owed by a medical practitioner, considered and discussed in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 and Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44.
Notwithstanding submissions made by Dr Gooley to the contrary, Dr Dedousis’ arguments appear to have considerable force.
But the immediate question is whether Dr Dedousis should be granted leave to appeal from the Decision. For present purposes, the short answer to Ground 1 is that it is an argument directed to answering an allegation of a duty of care owed to the Testator alone. That is not the only way in which it is possible to formulate Dr Gooley’s claim against Dr Dedousis, as the amended statement of claim itself illustrates.
However, the amended statement of claim was not before the primary judge. Nor was the application before his Honour conducted by reference to an unpleaded claim based on a duty of care owed to Dr Gooley as executor. The question whether, as a matter of law, an executor can maintain a claim for pure economic loss against the testator’s treating doctor based on a duty of care owed directly to the executor was thus not before the primary judge. Nor would that question be before this Court if leave were granted to appeal from the Decision.
Those are good reasons for rejecting both the proposition that the primary judge erred in granting leave to re-plead, and the proposition that Dr Gooley’s whole claim is so obviously untenable that it should have been summarily dismissed. Those matters tell against a grant of leave to appeal with respect to the issues sought to be ventilated by Ground 1 at this stage of the proceedings.
“The primary judge erred in failing to hold that the defendant did not owe a duty of care to the plaintiff, as Executor of the father’s Estate (pursuant to the Grant of Probate made in respect of the plaintiff’s father’s Will dated 1 February 2010), to avoid causing pure economic loss to the Estate.”
Dr Dedousis submits that there are two aspects to Ground 2.
First, he submits that the English cases on which the primary judge relied are distinguishable or do not assist for the reasons identified above.
Secondly, Dr Dedousis submits that the primary judge misdirected himself with respect to the law for determining whether a duty of care is owed by a doctor to a third party to avoid causing pure economic loss. He submits, among other things, as follows.
Generally speaking, a doctor owes a duty of care solely to the patient, and that the doctor’s focus is on the well-being of the patient in a medical sense.
While Sullivan v Moody acknowledges at [60] that a medical practitioner who examines and reports upon the condition of an individual might owe a duty of care to more than one person, that will ordinarily be denied if the suggested duty of care would give rise to inconsistent obligations.
For example, McKenna concerned the obligation imposed by s 20 of the Mental Health Act 1990 (NSW) not to detain a mentally ill patient in a hospital under that Act “unless the medical superintendent is of the opinion that no other care of a less restrictive kind is appropriate and reasonably available to the person”. It was held that that obligation was inconsistent with the common law duty alleged to be owed to relatives of a person killed by the patient, namely, a duty to take reasonable care when deciding that the powers given by the Act should no longer be used to prevent the patient leaving the hospital: see at [29]-[33].
The question whether any alleged duty owed by a medical practitioner to a third party (such as Dr Gooley in his capacity as executor) is co-incident with the duty owed to the patient here requires consideration of whether the alleged duty owed to the third party to diagnose dementia would have required a treating geriatrician to express an opinion about the patient’s capacity to make a will, which would not ordinarily fall within the scope of a doctor’s duty to provide advice and medical treatment to a patient.
In various respects the posited duty of care owed by Dr Dedousis to Dr Gooley as executor to avoid causing pure economic loss would be incompatible with Dr Dedousis’ duty owed to the testator (for example, by reason of medical confidentiality).
Those are again powerful arguments. But whether or not they are dispositive may depend on matters of fact which are not yet known.
Where the posited duty is a novel one, the appropriate approach may be that described by Allsop P (Simpson J agreeing) in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 at [102], namely:
“… to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor 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.”
His Honour listed a large number of such “salient features”, many of which raised questions of degree. In order to apply that approach on an application for summary dismissal, the Court would have to be satisfied of a negative proposition: that no combination of facts could be found which would lead to the imposition of a duty of care. Dr Dedousis’ difficulty is that at the time the primary judge made the Decision to refuse the application for summary dismissal, there was not even a pleading on file against which to test that proposition.
The problem may be illustrated by one of the strands in Dr Dedousis’ argument: that he could not have assumed a responsibility to a third party executor where, among other things, it forms no part of Dr Gooley’s claim that Dr Dedousis had ever been asked to express an opinion about the Testator’s capacity to make a will. Two letters written by Dr Dedousis to Mr Gary White, the solicitor who drew the later six wills the subject of the Probate Proceedings, present a difficulty for that argument. The first is a handwritten letter, apparently dated 24 September 2012. The letter records:
“… I am looking after [the Testator] at Kareena Pvte Hospital. He currently has the cognitive ability to make appropriate decisions re his financial, medical and residential matters.”
The circumstances in which Dr Dedousis came to write the letter are not yet disclosed. But as a general proposition that is not the sort of communication a doctor might be expected to send his patient’s solicitor unbidden.
The second letter, dated 25 October 2012, is typed. It appears to respond to correspondence received from Mr White dated 19 October 2012 which was not before this Court. Although the context was what appears to have been the then difficult relationship between Dr Gooley and his father the Testator, it contains the following statement:
“He currently has, from the cognitive perspective, capacity to make his own decisions with regards to financial, medical and residential issues, any further assessment with a neuropsychologist, I feel, is unwarranted.”
Particularly given the dates of the two letters, they call into question the wisdom of dismissing the present claim, at this stage, on the basis that it has not (yet) been alleged that Dr Dedousis was asked to express an opinion about the Testator’s capacity.
It is true that, as Leeming JA said in Perera at [46] (where the question was whether one litigant owed a duty to another):
“… there are cases in which 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.”
Although the proceedings may ultimately raise both questions of principle and a matter of general importance, it is premature to attempt to resolve those issues at this stage of the litigation.
Dr Dedousis has not otherwise shown a reasonably clear injustice that is more than arguable. At the hearing of the summons for leave to appeal, the sole prejudice to which Dr Dedousis was able to point if the matter was permitted to proceed to trial was the fact of being subject to the proceedings themselves. That is not a prejudice to be discounted. The personal strain of litigation, particularly where individuals face allegations touching upon the conduct of the activity by which they make their livelihood, should not be underestimated. But that is a burden to which all such defendants are exposed. It is a necessary incident of litigation.
In all the circumstances it is not appropriate to grant leave to appeal in this proceeding at this stage.
The summons for leave to appeal should be dismissed with costs.
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Dedousis
Gooley as Executor of the Estate of the late Melville William Gooley [2026] NSWCA 28
(1981) 148 CLR 170
(2016) 257 CLR 440
(2009) 75 NSWLR 649
(1982) 150 CLR 482
(1964) 112 CLR 125
(1997) 188 CLR 159
(1936) 55 CLR 499
(2014) 253 CLR 270
(2017) 94 NSWLR 83
(2001) 207 CLR 562
(2023) 113 NSWLR 105
(2025) 116 NSWLR 422
The summons for leave to appeal was dismissed with costs.
The primary judge noted that Dr Dedousis opposed the grant of leave to amend, relevantly for present purposes on the ground that it would be futile: J[29]. It will be necessary to say more about Dr Dedousis’ argument; it suffices for present purposes to note that after lengthy consideration, his Honour did not accept the submission. The primary judge said that in the ordinary course a plaintiff in the position of Dr Gooley would be granted leave to amend, and that he did not consider that a reason had been shown to depart from that usual position: J[30].
The primary judge granted Dr Gooley leave to file an amended statement of claim. He said that in doing so he had given consideration to the overriding purpose, as required by s 56(2): J[30]. His Honour then said at J[31]: