Further and better particulars ‘sport’

Contests over the provision of further and better particulars are a sport the popularity of which amongst the judiciary has substantially declined in recent years. The necessity for further particularisation is often a product of inadequate compliance with the requirements of pleading and particularisation in the rules. However, in many cases, lawyers for parties pointlessly …

Preliminary discovery: Merits & quantum

Although not in a medical context, the NSW provisions for preliminary discovery were considered by the Court of Appeal in O’Connor v O’Connor [2018] NSWCA 214. The court held that determination of an application for preliminary discovery under UCPR 5.3 does not involve determination of the merits of any claim for relief an applicant might propound: at [76]. The test …

Wrongful birth claim: Antenatal diagnosis & advice

Nouri v Australian Capital Territory [2018] ACTSC 275 was a decision today of the ACT Supreme Court (Justice Elkaim) on a wrongful birth claim. The court found that the defendant had breached its duty of care, but a verdict was entered for the defendant as the plaintiffs did not succeed on causation. There was a …

Clinical skills and judgment

It appears relatively uncommon for disciplinary proceedings to focus on an assertion that a practitioner’s clinical skills and judgment in respect of surgeries performed were below the standard of a practitioner of equivalent level of training or expertise. That however was a key aspect in yesterday's decision in Health Care Complaints Commission v Reid [2018] NSWCATOD …

IVF & consent of spouse

EHT18 v Melbourne IVF [2018] FCA 1421 saw the court called upon to consider the spousal consent requirement of the Assisted Reproductive Treatment Act 2008 (Vic). The court made declarations that the applicant may undergo a “treatment procedure” as defined in the Assisted Reproductive Treatment Act 2008 (Vic) without the consent of her husband, as Section 10(1)(a) of the Assisted …

Transcript – Sparks v Hobson application

The transcript of the oral argument in the Sparks v Hobson [2018] HCATrans 191 leave application is now available. As previously noted, the outcome was: In our opinion, given the conduct of the proceedings below, the application is not a suitable vehicle in which to consider the issues of construction that are raised. Special leave …