Wang v South Eastern Sydney Local Health District

I do not propose to go into a great deal of detail in relation to the case. Ms Wang and her late husband, Mr Fan, have been involved in various iterations of litigation against the defendant, the South Eastern Sydney Local Health District, in this Court and elsewhere since about 2008.

The current case, however, is formulated differently from the previous unsuccessful cases in as much as it is a claim arising out of the death of Mr Fan which Ms Wang wishes to relate to the treatment he received at Sutherland Hospital for what turned out to be his final illness in March of 2022. I do not propose to go into the merits of the claim as the evidence does not permit me to do so. However, I will say that for many years prior to Mr Fan’s death he had been severely invalided as a result of the various conditions which he had sought to lay at the feet of the defendant in the previous unsuccessful proceedings.

As the defendant has been pointing out to Ms Wang since the commencement of these proceedings by Statement of Claim filed on 19 December 2024, there are a large number of substantive and procedural irregularities affecting the proceedings. Without being exhaustive, they include the consideration that, as Mr Fan died intestate and no letters of administration have been taken out in respect of his estate, Ms Wang is not his legal personal representative, although I acknowledge of course that she is his widow and would be entitled to at least a share in anything of value in his estate. Her standing therefore to bring the proceedings is, to say the least, in doubt. My own view is she probably has no such standing presently.

The second substantive problem is that it is not clear from her Statement of Claim whether she brings the proceedings as a survival action under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) on the one hand or under the Compensation to Relatives Act 1897 (NSW) on the other. She simply says that she sues on behalf of her late husband. Under either applicable legislation it is necessary that the proceedings be brought by the legal personal representative of the deceased. At common law no action for damages lay in tort for the death of a person. Any rights that Ms Wang may have are necessarily to be found in statute.

Dealing with procedural matters, the Statement of Claim is entirely irregular. It does not in any respect comply with the requirements of Parts 14 and 15 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) except to the extent that one might say it is a very concise document. Importantly, no expert medical report has been filed with the Statement of Claim complying with the requirements of UCPR r 31.36 and this is so notwithstanding the consideration that Ms Wang identified an expert who would be prepared to consider giving an opinion before she filed the Statement of Claim in December 2024. Perhaps, understandably, the expert was not inclined to be involved without the intervention of a solicitor acting on behalf of Ms Wang.

All of these defects that I have referred to have been pointed out repeatedly throughout the time the proceedings have been on foot by the solicitors for the defendant. Moreover, the Registrar has given Ms Wang repeated opportunities to remedy the defects, particularly in relation to UCPR r 31.36.

The matter came before me today for the hearing of the defendant's Notice of Motion to dismiss or alternatively strike out the proceedings on multiple grounds mainly relating to the matters to which I have referred. After I received the evidence and heard some preliminary argument from Ms Wang, I intervened to suggest what I considered to be the way forward that may do justice for the time being to both parties. That pathway was to stay the proceedings until further order, which would avoid the defendant being unnecessarily further vexed and incurring further costs in relation to this matter for the time being, and would also provide an opportunity to Ms Wang to address the shortcomings in the proceedings that I have already referred to.

I also proposed to bring the matter before me to enable Ms Wang to show cause why the proceedings should not be dismissed as the defendant seeks in its Notice of Motion filed on 22 October 2025. I wish to make clear that I am not disposing of that Notice of Motion but will leave it currently in abeyance and part heard before me. Ms Harris-Roxas indicated that the defendant would be content with that outcome today and after some further submission by Ms Wang, who has had the first-class assistance of an accredited interpreter, Mr Jian Yu, also seemed to accept this was an appropriate approach to give her the opportunity, as the saying goes, to mend her hand.

For these reasons I make the following orders: