Judje v Western Sydney Local Health District

Jurisdiction: Common Law

Before: Muston J

Decision: (1) The plaintiffs’ notice of motion dated 20 March 2026 is dismissed.
(2) The plaintiffs are to pay the defendants’ costs of the notice of motion.

Catchwords: CIVIL PROCEDURE – application for determination of separate questions – where five-day hearing intended to address all issues between parties – whether answering separate questions would remove the need to determine residual disputes

Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Health Insurance Act 1973 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

Cases Cited: CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601
CIMIC Group Limited v AIG Group Limited [2022] NSWSC 999
Forrest v Yuncken Builders & Project Managers Pty Limited [2025] NSWSC 1054
Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36
Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37
Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130

Category: Procedural rulings

Parties: Kamaldeep Judje (First Plaintiff)
Anoop Judje (Second Plaintiff)
Western Sydney Local Health District (First Defendant)
Brian Trudinger (Second Defendant)

Representation: Counsel:
Mr J Anderson (Plaintiffs)
Mr B Bradley (Defendants)
Solicitors:
Benefit Legal Lawyers (Plaintiffs)
Crown Solicitor’s Office (Defendants)

File Number(s): 2023/00307357

Judgment – ex tempore (revised from transcript)

1. This application is made in the context of medical negligence proceedings. The plaintiffs are the parents of Aadesh Judje. Aadesh was born with a Congenital Diaphragmatic Hernia. He suffered an antepartum haemorrhage. He has cerebral palsy. It is not in issue between the parties that Aadesh is profoundly disabled.

2. The plaintiffs have advanced a claim for damages for mental harm, as well as damages for the wrongful birth of Aadesh. The claims arise from an alleged failure to recognise the features of Congenital Diaphragmatic Hernia on an ultrasound performed prior to Aadesh's birth.

3. The first aspect of the plaintiffs' claims has been resolved. Orders have been entered by consent, pursuant to which the plaintiffs have been awarded damages for the mental harm that they claim to have suffered. There remains a dispute between the parties regarding the other aspect of the plaintiffs' claim, being the entitlement to economic loss consequential upon the wrongful birth of Aadesh.

4. The matter is listed for hearing in February 2027, with an estimate given by the parties of five days. When listed, it was contemplated that that hearing would address all issues in dispute between the parties.

5. It is in this context that the plaintiffs have brought an application for the determination of eight questions separately, and in advance of the hearing.

6. Seven of those questions were identified by the plaintiffs in their notice of motion as follows:

7. As a matter of law, are the plaintiffs entitled to recover damages in respect of gratuitous care provided and to be provided to their son Aadesh?

(a) If so, are those damages to be calculated subject to the limitations provided in s 15(4) of the Civil Liability Act 2002 (NSW)?

2. As a matter of law, are the plaintiffs entitled to recover damages in respect of the:

(a) housing modifications; and (b) acquisition and maintenance of a suitable motor vehicle

required due to Aadesh’s disabilities?

3. As a matter of law, are the defendants entitled to a reduction in the damages calculated, with reference to anticipated benefits to be received by Aadesh under the Health Insurance Act 1973 (Cth)?

4. As a matter of law, are the defendants entitled to a reduction in the damages calculated, with reference to anticipated benefits to be received by Aadesh under the National Disability Insurance Scheme Act 2013 (Cth)?

5. As a matter of law, until what date are damages to be assessed in respect of the future?

6. As a matter of law, are the plaintiffs entitled to recover damages in respect of the cost of services and medical equipment required by Aadesh by reason of his disabilities, notwithstanding that the plaintiffs might be unable to afford those services and medical equipment unless they recover damages in these proceedings?

7. As a matter of law, are the plaintiffs entitled to recover general damages in respect of the diminution of the quality of their own lives due to Aadesh’s needs?

8. At the hearing before me, the plaintiffs foreshadowed an intention to add a further question; going to whether the defendants are estopped from disputing that its negligence "caused", the additional losses sought to be recovered by the plaintiffs by reason of the orders made to reflect the partial compromise of the plaintiffs’ claim.

9. It was said by the plaintiffs that determining these questions separately would result in potential cost savings because:

10. First, it would enable any dispute about the quantification of damages to be confined to those heads of damage which are found to be recoverable; and

11. Secondly, because the prospects of a settlement of any dispute as to the quantification would likely be enhanced by the determination of the threshold questions as to the availability of certain heads of damage.

12. The defendants resisted the plaintiffs’ application. They submitted that the separate determination of the proposed questions would be inappropriate and would potentially result in an increase in the costs ultimately expended by the parties.

13. The plaintiffs drew my attention to the decision of Kirby P in CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601, placing particular emphasis on the following passages at 606-607:

“Care must also be taken in utilising the procedures now available for the determination of preliminary points to avoid such determination in cases which are not ripe for this treatment. The matter is 'ripe' for separate and preliminary determination where it is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy.

...it is my view that the Court should be facultative in the matter of separate decisions on questions arising in the course of the trial. The rules now provide for it. Where the exceptional circumstances exist that make it sensible to do so (and no reason exists to suggest the contrary) the procedure can be beneficial. It can contribute not only to the prompt disposal of crucial issues in the litigation (sometimes resulting in disposal of the whole action and even judgment for a party). It can also contribute to the saving of time and costs where an authoritative decision narrows the issues for trial substantially, excluding the necessity to explore factual matters which, on one determination of the preliminary question, are entirely unnecessary.”

11. Such observations are now axiomatic. Nevertheless, in this case it is the plaintiffs who must establish that separate determination is warranted and desirable: Forrest v Yuncken Builders & Project Managers Pty Limited [2025] NSWSC 1054 at [22].

12. The starting point is that all issues in proceedings should be decided at one time: Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141. The power to order separate determination of a question should be approached with caution – Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436] – and with an eye to the risk that any appeal might give rise to fragmentation and potential delay, each of which should be avoided: Forrest v Yuncken at [37].

13. Finally, and for good reason, courts are encouraged to determine all issues in a trial to assist the appeal process and obviate the need for a retrial in the event that error is identified: Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 at [113].

14. In the present case, neither party proffered an undertaking to the effect that no appeal would be brought from the separate questions once determined: cf CIMIC Group Limited v AIG Group Limited [2022] NSWSC 999 at [16]. To the contrary, both parties foreshadowed the likelihood of an appeal from any answers given to the proposed separate questions; having regard to both their novelty and the centrality of those answers to what remains of the plaintiffs’ claim. This is not intended as a criticism of either party. However, it highlights the risk that any such appeal would result in undesirable fragmentation of the proceedings.

15. It was not suggested that the determination of the proposed questions would have the effect of disposing of the proceedings as a whole or otherwise avoiding the necessity of a lengthy trial. In this respect, I note that the hearing of all issues is currently expected to take only 5 days.

16. I am not satisfied that answering any of the plaintiffs’ questions separately and in advance of the final hearing would facilitate any agreement on the quantification of the damages referable to the disputed heads of damage. A dispute about to the recoverability of particular head of damage does not preclude an agreement on the quantification of such damages should they be recoverable.

17. Absent agreement on issues of quantum, it was said that the parties will be required to incur the costs associated with expert conclaves and the preparation of joint reports. Different estimates were proffered in relation to these costs.

18. Both parties are obliged by s 56 of the Civil Procedure Act 2005 (NSW) to narrow any dispute in relation to the quantification of damages to those matters genuinely in contest between them and their respective experts. This obligation clearly extends to their arrangements for expert conclaves and joint reports.

19. Determining the plaintiffs’ questions separately would not remove the need to determine any residual dispute about the quantification of damages. Whatever answer might be given to the questions proposed by the plaintiffs, it will remain necessary for damages to be assessed, against the possibility that the answer to any threshold question is found by an appellate court to be wrong.

20. Finally, it is in my view preferable that the questions of law identified by the plaintiffs be determined in their proper factual context.

21. In these circumstances, I am not satisfied that the determination of separate questions is appropriate.

Orders

22. I make the following orders:

23. The plaintiffs’ notice of motion dated 20 March 2026 is dismissed.

24. The plaintiffs are to pay the defendants’ costs of the notice of motion.

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