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A v Bottrill CA75/00 [2001] NZCA 397 (17 September 2001)

Last Updated: 14 January 2019

Order prohibiting the publication in any report or account relating to the application of the name or any particulars likely to lead to the identification of the applicant

Order prohibiting search of appeal file except pursuant to an order of a Judge of the Court




IN THE COURT OF APPEAL OF NEW ZEALAND
CA 75/00

BETWEEN
A

Applicant
AND
MICHAEL BERNARD BOTTRILL

Respondent

Hearing:
17 September 2001
Coram:
Richardson P Gault J
Keith J
Appearances:
A C M Fisher and B J Clausen for Applicant R S L Scott for Respondent
Judgment:
17 September 2001


JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P



[1] The applicant, Ms A, seeks leave to appeal to the Privy Council against the decision of this court of 13 June 2001 allowing the respondent's appeal against the decision of William Young J in the High Court on 28 March 2000 in which the Judge had ordered a re-trial of the applicant's action against Dr Bottrill for exemplary damages.

[2] Leave to appeal is not as of right in this case and it would not ordinarily be appropriate to grant leave against an interlocutory decision of this kind where it is
accepted that the court applied well settled legal principles for determining whether a new trial should be ordered, and where an appeal against the original decision of William Young J dismissing Ms A's action is extant, thus raising the possibility of two successive appeals to London.

[3] However, counsel for Dr Bottrill consents to the granting of leave in this case of great importance, the parties submit that early consideration by the Privy Council of the underlying legal issue as to the test governing the availability of exemplary damages for medical negligence cases is desirable in the public interest and, importantly, Ms Fisher on behalf of Ms A has elected to abandon the appeal against the original substantive decision.

[4] In these circumstances it is in the public interest that leave to appeal be granted and an order is made accordingly on the conditions that security for costs in the sum of $2,000 is given and that steps are taken in respect of the preparation and despatch of the record to London within two months.

Solicitors

Brookfields, Auckland, for applicant
Bell Gully Buddle Weir, Auckland, for respondent



























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