The interlocutory judgment in Thompson v Rosen [2020] NSWSC 356 (available on Caselaw) addressed, amongst other things, an argument that the proceedings brought against two doctors were an abuse of process as they were effectively a duplication of the decision in the class action brought by the plaintiff as a class member in the Federal Court in Gill v Ethicon Sarl & Ors (No 5) [2019] FCA 1905.
The court held that there was no abuse of process, saying at [49] – [50]:
Dr Rosen performed a hysterectomy and bladder repair on the plaintiff. He had no involvement with the Prolift mesh. Therefore, no issue estoppel or res judicata exists against him. Associate Professor Lam did insert Prolift mesh into the plaintiff’s anterior vaginal wall. It is the plaintiff’s case that this treatment was offered without a discussion of alternative native tissue repair, or of the significant complication of mesh erosion once inserted. Gill concerned the liability of the manufacturer and supplier of Prolift, but not the allegations of negligence that the plaintiff makes against the medical practitioners.
I accept that at trial, if the plaintiff is successful, there may be some overlap with the compensation awarded to her in the class action and these proceedings. If there is, there will need to be some deduction of damages made so that the plaintiff does not “double dip”.
The court also discussed limitation period arguments and held at [122] – [123]:
Limitation questions should be determined in interlocutory proceedings only in the clearest of cases. The onus is on the defendants to establish that the plaintiff’s claims are statute barred.
It is not clear that the plaintiff’s claims are statute barred against the first and second defendants. The defendants’ claims cannot be said to represent the “clearest of cases”. For the reasons given earlier, these proceedings are not an abuse of process, there are reasonable causes of action against both defendants, and they should not be dismissed or struck out on the basis that the plaintiff’s claims are statute barred.