Rusan by his tutor Grace Rusan v The Congregation of Religious Sisters of Charity of Australia trading as St Vincents Private Hospital; ; Rusan v The Congregation of Religious Sisters of Charity of Australia trading as St Vincents Private Hospital Sydney Ltd

Judgment ex tempore - revised

1. HER HONOUR: These are proceedings for medical negligence commenced by Mr Adam Rusan by his tutor Grace Rusan against the entity that conducts St Vincent's Private Hospital and two medical practitioners. The proceedings arise out of a failed intubation of the plaintiff at a time when he had been admitted to hospital for a medical procedure. The plaintiff's medical condition is extremely poor and is rapidly deteriorating.
2. In those circumstances, the solicitors for the plaintiff have filed a notice of motion seeking an order for expedition of the proceedings. The motion invoked the Court's power under s 61 of the Civil Procedure Act 2005 (NSW) to give "such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings." Separately, the motion seeks an order requiring the parties to participate in mediation before 19 December 2018. In aid of the application for expedition the motion also seeks an order that the proceedings be allocated a hearing date.
3. The application poses a challenge for the third defendant in particular, who was joined to the proceedings only in August of this year. Expedition including the allocation of a hearing date was opposed by him on the basis that it would not give him an opportunity properly to prepare his defence.
4. During the course of the hearing of the application, however, a measure of cooperation between the parties has at least seen agreement as to an order for mediation. The plaintiff abandons his application for an order requiring that to occur before 19 December 2018 and instead the plaintiff and the third defendant agree, without opposition by either of the other defendants, to an order that the parties participate in mediation on or before 12 April 2019. The parties agreed on directions leading up to that point, subject to two conditions sought by the third defendant, to which I will return.
5. Mr Walsh SC, who appears for the third defendant, maintained his opposition to the allocation of a hearing date. Detailed written submissions were provided addressing that issue and plainly there is some force in the concerns raised. However, the simple fact is that, for a matter with a two week estimate, the dates the Court has available are 25 February or 6 May or else a date so far later in the year that the list clerk would not deem it an expedited matter. The evidence relied upon in support of the application has persuaded me that there is a sufficient risk of the plaintiff dying before the end of next year to warrant fixing the date of 6 May 2018 and requiring the parties to work towards that date.