Marzol v Joubert; Marzol v Killen

1. [1]

   HIS HONOUR: By notice of motion filed on 6 February 2017, the defendant, Dr Killen seeks an order that four factually related proceedings be heard together. The application is that the proceedings be heard at the same time and that the evidence in each case be treated as evidence in all of the others. The several defendants support that proposal. The plaintiffs do not.

Background

1. [2]

   There are four sets of proceedings, all of which were commenced in the District Court of New South Wales at Wagga Wagga on 13 November 2015. Ms Marzol is the plaintiff in three of them and her husband John Marzol is the plaintiff in the other. They are as follows:

2. [3]

   The power to consolidate proceedings is contained in Uniform Civil Procedure Rules 2005 r 28.5:

3. [4]

   Dr Killen submits that the power within the rule is engaged, and that I should order the four sets of proceedings be heard at the same time, with any further procedural orders necessary to ensure the efficient pre-trial management and conduct of such a hearing. I agree.

4. [5]

   First, the proceedings all arise out of, or are connected with, the birth of Eve Marzol with Down Syndrome at the Calvary Hospital in Wagga Wagga on 16 November 2012. In relation to the wrongful birth case, this is clearly so and the plaintiffs in those proceedings sought, and the Court made, an order that those proceedings be heard together. However, the claim against Dr Killen is that she was negligent in administering anaesthetic to Ms Marzol during the delivery and, in the second claim against Dr Joubert, that she failed to remove the entire placenta following the birth.

5. [6]

   These background facts establish “that the rights to relief claimed in [the proceedings] are in respect of, or arise out of, the same transactions or series of transactions”. It is also “desirable” that the four proceedings be heard together.

6. [7]

   Secondly, there is considerable factual overlap in the claims and the damages sought in each case. This overlap, which reinforces why it is “desirable” within the rule, is most evident in three respects.

7. [8]

   In relation to each rule, the transfer of the current proceedings into this Court (and those involving the claim against Dr Joubert relating to the failure to remove all of the placenta) was ordered by Fagan J on 10 February 2017 in part because “of the substantial commonality of issues and evidence concerning psychiatric illness and disabilities of [the plaintiff] and concerning the causation of the psychiatric illnesses if they should be established”.

8. [9]

   It is highly desirable, but also “desirable” within UCPR r 28.5, and in the interests of the parties and also the public interest, in “having all matters in controversy arising out of related facts determined at the one time”: Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924 at [7]; South West Helicopters Pty Ltd v Country Energy [2009] NSWSC 1376 at [8]–[9] and [11]. The desirability stems, at least in part, from the need to avoid conflicting results if the proceedings are heard separately by different judges, but also to fulfil the objectives in s 56(1) of the Civil Procedure Act 2005.

9. [10]

   As Fagan J pointed out, in the context of determining why all actions should be tried in this Court, rather than two in this Court and two in the District Court, as the plaintiffs had urged:

10. [11]

    Thirdly, there are procedural and other reasons that all favour the hearing (and “case management”) of the claims together including:

11. [12]

    These matters not only emphasise that it is “desirable” within UCPR r 28.5 for the proceedings to be managed and heard together, but that it will serve to facilitate the just, quick and cheap resolution of the proceedings within the terms of s 56(1) and (2) of the Civil Procedure Act: South West Helicopters Pty Ltd v Country Energy [2009] NSWSC 1376 at [11].

12. [13]

    The plaintiffs submitted that consolidation of proceedings is rarely ordered, with the more usual approach being to order that the proceedings be heard together, with the evidence in one being treated as evidence in the others. That is the course I propose to adopt.