Background
Brett Gooley is both a beneficiary and the executor of his late father Melville Gooley’s estate under a 2010 will. In earlier Equity proceedings, Sackar J found that six wills Melville made between 2012 and 2014 were invalid because he lacked testamentary capacity throughout that period: Aleta Gooley & Anor v Brett Gooley [2021] NSWSC 56. Sackar J concluded that Melville had suffered a stroke causing vascular dementia and ongoing cognitive impairment, meaning he never regained the capacity to weigh competing claims on his estate after the stroke. The judge also found that Dr Christopher Dedousis, the father’s geriatrician, had repeatedly and wrongly certified the father as cognitively competent, had been malleable to influence from the plaintiff’s siblings, and had failed to disclose the father’s stroke or cognitive state to a solicitor and the Guardianship Tribunal.
Dr Brett Gooley then commenced these proceedings against Dr Dedousis, alleging negligence in failing to diagnose or properly disclose his father’s dementia and cognitive limitations during consultations from 2012 onwards. The claim is for pure economic loss, principally the substantial costs the estate incurred in the Equity proceedings to vindicate the 2010 will. The pleaded case advances two novel duties of care: a “Patient Duty of Care” arising from the doctor-patient relationship, and an “Executor Duty of Care” owed to the future executor of the patient’s estate, both said to require reasonable care in examination, diagnosis, and capacity reporting.
Dr Dedousis brought a first application for summary dismissal, which Faulkner J refused in July 2025, striking out the statement of claim with leave to replead. The Court of Appeal refused leave to appeal that interlocutory decision: Dedousis v Gooley [2026] NSWCA 28. Dr Gooley then filed a Further Amended Statement of Claim (FASOC). Dr Dedousis filed a second summary-dismissal motion, which — as the hearing progressed — it emerged he pressed only because the parties could not agree on the costs terms of otherwise-agreed consent orders dismissing the motion.
The Court’s Holding
Schmidt AJ dismissed the motion and ordered that Dr Dedousis pay Dr Gooley’s costs on an indemnity basis. Applying the high threshold from General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, the Court found that Dr Dedousis had not established that the claims were manifestly groundless or that no combination of facts could lead to recognition of the pleaded duties. The FASOC adequately pleads both duties, particularises the alleged breaches, and identifies the foreseeable risks arising from a geriatrician who, knowing capacity was in active dispute within the family and before the Guardianship Tribunal, repeatedly certified the patient as competent. Following the Court of Appeal’s analysis that novel duty-of-care claims require a developed factual record before they can confidently be said not to “fit” the existing body of law, summary disposal remained inappropriate.
On the abuse-of-process ground, the Court accepted Dr Gooley’s submission that pressing the second motion was an abuse of the Court’s processes contrary to s 56 of the Civil Procedure Act 2005 (NSW). The same arguments had already failed before Faulkner J and in the Court of Appeal; the motion was ultimately pressed only over a costs disagreement and had limited prospects of success. Pursuing expensive satellite litigation in those circumstances was inconsistent with the overriding purpose of the civil-procedure legislation and constituted misconduct in the proceedings, warranting indemnity costs. Dr Dedousis was also ordered to file his defence within 28 days.
The Court noted, without deciding, that the claims raise genuinely novel questions: whether a duty of care can be owed simultaneously to a patient and to the future executor of that patient’s estate; and whether pure economic loss suffered by an estate after the patient’s death — where duty and breach arose pre-death — is recoverable in negligence. Those questions are for trial, not summary disposal.
Key Takeaways
- A second application for summary dismissal of a novel negligence claim, made after an identical first application was refused at trial and on appeal, and pressed solely to resolve a costs dispute, can constitute an abuse of process justifying indemnity costs.
- An executor’s claim against a deceased patient’s treating doctor for pure economic loss caused by negligent capacity assessments is not so obviously untenable as to warrant summary dismissal; the General Steel threshold is extremely high, particularly for novel duties that require close factual analysis of the doctor-patient relationship and the geriatrician’s knowledge of the capacity dispute.
- Where some elements of a negligence cause of action (duty and breach) arose before death and consequential economic loss crystallised only after death, survival of the action under s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) is at least arguable enough to proceed to trial.
- Parties and practitioners should take seriously their obligations under ss 56–60 of the Civil Procedure Act 2005 (NSW): repeating failed arguments in successive motions with limited prospects exposes the applicant to indemnity costs.
Why It Matters
This decision advances a genuinely novel question in Australian tort law: whether a geriatrician who negligently certifies a patient’s cognitive capacity can be held liable in negligence to the patient’s estate for the economic consequences — including costly probate litigation — that flow from that misdiagnosis after the patient’s death. No Australian court has squarely decided whether a duty of care of that kind “fits” the existing law, and the case will likely generate significant appellate interest once it reaches trial. The willingness of courts to let such claims proceed to a full evidentiary hearing reflects the principle, reaffirmed by the Court of Appeal, that novel duty-of-care questions usually cannot be resolved on the pleadings alone.
The indemnity-costs outcome also sends a clear signal about the limits of repeat summary-dismissal applications. Where a defendant has exhausted interlocutory avenues and then presses a fresh motion on materially identical arguments for tactical reasons — here, leverage in a costs negotiation — courts will treat that conduct as inconsistent with the overriding purpose of the civil-procedure legislation and impose penal cost consequences accordingly.