Dedousis v Gooley as Executor of the Estate of the late Melville William Gooley

1. [1]

   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).

2. [2]

   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).

3. [3]

   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.

Background

1. [4]

   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.

2. [5]

   From about August 2012 to around August 2017, the Testator was in the care of Dr Dedousis.

3. [6]

   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.

4. [7]

   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).

5. [8]

   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).

6. [9]

   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.

The Decision

1. [10]

   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.

2. [11]

   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.

   1. (1)

      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].

   2. (2)

      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].

   3. (3)

      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].

3. [12]

   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].

4. [13]

   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.

5. [14]

   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”.

6. [15]

   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].

7. [16]

   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]:

8. [17]

   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.

9. [18]

   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.

Principles governing leave to appeal

1. [19]

   The Court will usually grant leave to appeal only where the proposed appeal concerns a matter that involves an issue of principle, a question of public importance, or a reasonably clear injustice going beyond what is merely arguable: see, for example, Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[39] per Basten JA, Tobias AJA agreeing. Particular caution is called for in granting leave to appeal from an interlocutory decision concerning a matter of practice and procedure: see, for example, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39 per Gibbs CJ, Murphy, Aickin, Wilson and Brennan JJ; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]. That may especially be so where the decision below permitted a claim to advance to a hearing on the merits, rather than dismissing it summarily: see Workers Compensation Nominal Insurer v Sako (2025) 116 NSWLR 422; [2025] NSWCA 12 at [29] per McHugh JA, Stern JA and Price AJA agreeing.

Dr Dedousis’ argument in this Court

1. [20]

   In the draft notice of appeal, Dr Dedousis does not directly attack the primary judge’s grant of leave to re-plead as an exercise of discretion. Instead, he contends in Ground 3 that (for reasons identified in Grounds 1 and 2) the primary judge ought to have summarily dismissed Dr Gooley’s claim (i.e., pursuant to r 13.4) “as not disclosing a cause of action in negligence for pure economic loss against [Dr Dedousis]”. That is to say, Dr Dedousis submits that, as a matter of law, no claim for pure economic loss can be maintained by an executor against a testator’s treating doctor.

2. [21]

   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).

3. [22]

   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.

4. [23]

   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.

5. [24]

   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.

6. [25]

   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 to the Testator (described as the “Patient Duty of Care”). It also alleges at pars 82B-82C that Dr Dedousis owed a duty directly to the Executor:

7. [26]

   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.

8. [27]

   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:

9. [28]

   It is not suggested that there was any error in his Honour’s identification of those principles. The question is thus whether either of Dr Dedousis’ substantive grounds of appeal demonstrates that Dr Gooley’s claim is so obviously untenable that it cannot possibly succeed.

10. [29]

    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.

    1. (1)

       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.

    2. (2)

       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.

    3. (3)

       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).

11. [30]

    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]:

12. [31]

    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:

    1. (1)

       did not refer to Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9;

    2. (2)

       preceded Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18;

    3. (3)

       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

    4. (4)

       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.

13. [32]

    Notwithstanding submissions made by Dr Gooley to the contrary, Dr Dedousis’ arguments appear to have considerable force.

14. [33]

    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.

15. [34]

    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.

16. [35]

    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.

17. [36]

    Ground 2 in the draft notice of appeal is as follows.

18. [37]

    Dr Dedousis submits that there are two aspects to Ground 2.

19. [38]

    First, he submits that the English cases on which the primary judge relied are distinguishable or do not assist for the reasons identified above.

20. [39]

    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.

    1. (1)

       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.

    2. (2)

       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.

    3. (3)

       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].

    4. (4)

       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.

    5. (5)

       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).

21. [40]

    Those are again powerful arguments. But whether or not they are dispositive may depend on matters of fact which are not yet known.

22. [41]

    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:

23. [42]

    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.

24. [43]

    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:

25. [44]

    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.

26. [45]

    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:

27. [46]

    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.

28. [47]

    It is true that, as Leeming JA said in Perera at [46] (where the question was whether one litigant owed a duty to another):

29. [48]

    It has not been shown that at the time the primary judge made the Decision, the conclusion should confidently have been reached that the posited duty was in the Perera category. In the language of General Steel, it was not shown that the claim was so obviously untenable that it could not possibly succeed, such that the primary judge should have dismissed it summarily.

Conclusion on leave to appeal

1. [49]

   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.

2. [50]

   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.

3. [51]

   In all the circumstances it is not appropriate to grant leave to appeal in this proceeding at this stage.

4. [52]

   The summons for leave to appeal should be dismissed with costs.