White v Woodgate

File Number(s): 2025/00074649

Publication restriction: Nil

JUDGMENT – ex tempore

1. On 16 December 2025, the Acting Judicial Registrar made an order that the plaintiff was to show cause why the matter should not be dismissed for want of prosecution and listed the matter on 3 February 2026.

2. Since that time, the plaintiff has filed the affidavit of Theresa Danjoux dated 29 January 2026. The defendant has filed the affidavit of Donald Allan Ross Munro of 30 January 2026.

3. Ms Danjoux, in her affidavit, has explained the delays in providing the supplementary expert report of Dr Kalanie, and the delays in obtaining further expert evidence: see paragraphs 24 and following in her affidavit. It appears from that evidence that the delays cannot be put at the feet of the plaintiff, himself. It is asserted that in relation to damages, a report from an appropriate rehabilitation physician will be obtained to address the plaintiff’s functional capacity, key needs and future treatment requirements.

4. I am told that the plaintiff is an elderly gentleman, and the plaintiff does not intend to serve a further liability report from an orthopaedic surgeon. The plaintiff has already retained Dr Buckley to assess the plaintiff on 9 February 2026, being the earliest available date. It is stated by Ms Danjoux that that is the only expert quantum report outstanding.

5. Written submissions have been filed by both parties. Counsel for the plaintiff, in submissions dated 29 January 2026, refers to the principles stated by Simpson J (as her Honour then was) in Hoser v Hartcher [1999] NSWSC 527 at paragraphs 19-30. The various factors referred to by her Honour are discussed in the submissions. It is submitted that this is not an appropriate case to dismiss the proceedings.

6. Mr Munro, in his submissions, supports a dismissal order and raises a number of issues as follows:

7. No report was served by a further orthopaedic expert who was retained by the plaintiff. The only inference that could be drawn is that the opinion of the expert did not assist the plaintiff on liability;

8. In oral submissions, that the supplementary report of Dr Kalanie dated 13 June 2024 is limited, and, in particular, does not set out the patient’s history, examination results, and available imaging referred to in the answer to question 2 in the report;

9. The fact that Dr Kalanie is also a treating doctor. Dr Kalanie indicates in the last paragraph of his email report dated 13 June 2025, that he does “not do medicolegal reports”, and suggests that further opinions be obtained, if the plaintiff is looking to take medicolegal action;

10. There may be difficulties in arranging a conclave and joint report involving Dr Kalanie and the defendant’s expert in the light of Dr Kalanie’s views stated in the supplementary report; that Dr Kalanie may need to be subpoenaed; and he may be hostile as a witness;

11. The age of the matter, and the fact it has been hanging over the defendant’s head for some considerable time; and

12. Delays from the obtaining of Dr Kalanie’s original report to the commencement of proceedings by the plaintiff.

13. Mr Robinson, on behalf of the plaintiff in reply, refers to the fact that Dr Kalanie says that he has complied with the Expert Witness Code of Conduct. It is submitted that Dr Kalanie would accept that for that reason, he would abide by an order of the Court if a conclave and the filing of a conclave expert report was ordered. There is no evidence that Dr Kalanie shares that view, but it is a possible view that he may form.

14. Part 12.7 of the Uniform Civil Procedural Rules 2005 (NSW) provides as follows:

12.7 Dismissal of proceedings etc for want of due despatch

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

I refer to the principles in the judgment of Simpson J in Hoser above, referred to in the plaintiff’s submissions. Since that time, there have been a number of decisions at first instance, and in the Court of Appeal, relating to Part 12.7.

15. In Perpetual Corporate Trust Ltd v Colevski [2025] NSWSC 387, Faulkner J indicated in paragraph 44 that Part 12.7 provides a judicial discretion where the Court must strike a balance between the parties to decide whether or not, on balance, justice demands that the action should be dismissed. His Honour stated that the overriding purpose set out in s 56 of the Civil Procedure Act 2005 is of fundament importance in determining an application for the dismissal of proceedings for want of due despatch.

16. His Honour then referred to ss 56 to 58 of the Civil Procedure Act which I take into account. His Honour in paragraph 53 followed the decision of Johnson J in Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors (No. 2) [2011] NSWSC 1122 at [121] where his Honour emphasised ss 56 to 61 of the Civil Procedure Act and indicated that that statutory framework is one in which the Court conducts its business, and that on occasion, it is appropriate to dismiss proceedings even though there has not been a hearing on the merits in circumstances where there has been a failure to comply with directions.

17. In Ergashova v Aslan [2025] NSWCA 207, the Court of Appeal followed, with approval, the decision in Ghosh v Nine**MSN Pty Ltd (2015) 90 NSWLR 595. That case had been referred to with approval in some detail by Kirk JA in Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75. Kirk JA referred at [55] to the decision of Walsh J in Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534 as to the balance needing to be struck between the plaintiff’s and the defendant’s interests. His Honour also referred to the decision of Simpson J in Hoser: at [56].

18. Kirk JA added in paragraph 56 that the discretion should not be undertaken by reference to fix formulae which limit the discretion to do what is just between the parties. Relevant factors include the claimant’s prospects of success, and ss 56 to 60 of the Civil Procedure Act.

19. It is impossible for the Court, at this stage, to form any view in relation to the prospects of success of the plaintiff in this medical negligence claim. The Court has before it the opinions of Dr Kalanie which seem to suggest, albeit in perhaps shorter form than usual, that there has been a breach of a duty of care in the present case, and that has caused the plaintiff injuries.

20. Turning to the factors set out by Simpson J in Hoser, as I indicated, I take those into account. Her Honour indicated that the discretion should be exercised only in a clear case where it is manifestly warranted. Generally speaking, some consistent breaches by a plaintiff are usually required. In relation to the explanation offered by the plaintiff for the delay, that is explained in the affidavit of Ms Danjoux, and I accept that explanation, albeit there was some clear delay in the commencement of proceedings itself.

21. The plaintiff himself does not seem personally to be at fault for the delay. I accept that the defendant pursued the matter by questioning Dr Kalanie’s opinion. There has been, as I indicated, some delay between the date of the cause of action arising and the commencement of the proceedings, which is a relevant factor. However, it is reasonable in my view that the plaintiff, following the defendant’s criticisms of Dr Kalanie’s report, obtained the supplementary report.

22. As Simpson J indicates, the onus lies on the defendant to establish any prejudice on which reliance is placed. There is no suggestion that the defendant or any other witness has died, however the delay obviously is something to be taken into account including when the procedure occurred, which is a long time ago. No other actual prejudice is specifically referred to.

23. The Court takes into account the nature of the two reports of Dr Kalanie. However, no decision as yet has been taken as to whether the reports should be allowed in admissibility terms under s 79 of the Evidence Act 1995. I do not make any finding as to that. It may be that the plaintiff can properly satisfy the concerns as to paragraph 2 of the supplementary report by obtaining and serving the further material referred to.

24. In my view, the delay in the present case in advancing the case following the filing of the Statement of Claim is not of an extreme nature. The plaintiff is not personally at fault for the delay. The delay in obtaining the expert evidence is explained. Taking into account the matters I have indicated, in my view, it would be inappropriate in the exercise of the discretion to dismiss the proceedings.

25. Accordingly, I make order 1 that the plaintiff has shown cause as to why his proceeding should not be dismissed for want of prosecution.

[There was then discussion with Counsel about further orders].

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