Tanious v South Eastern Sydney Local Health District

1. [1]

   PAYNE JA: On 26 November 2013 the applicant filed an amended statement of claim alleging professional negligence in proceedings in the Supreme Court.

2. [2]

   On 12 February 2014, Harrison AsJ struck out that pleading: Tanious v Dedousis [2014] NSWSC 51. That decision was reviewed on the application of Mr Tanious, by Price J who rejected the application on 9 October 2014: Tanious v Dedousis (No 2) [2014] NSWSC 1361.

3. [3]

   An appeal to this Court was upheld, though not on the basis that the amended statement of claim should not have been struck out. That pleading was clearly defective and was properly struck out. However, this Court identified an intention to raise an arguable cause of action, namely a claim of derivative harm based on alleged mistreatment of the applicant’s father whilst in St George Hospital. The Court held that Mr Tanious should be given an opportunity to replead: Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356.

4. [4]

   In the proceedings today Mr Tanious raised the possibility that he would seek to vary or amend the orders of this Court, however he accepted that his summons seeking leave to appeal was not an appropriate method to seek such an amendment or variation.

5. [5]

   This Court in its decision imposed conditions on the leave to replead. One of those conditions was that any further amended statement of claim should be accompanied by one or more expert reports (not by the applicant) setting out (a) the alleged breach of duty of care (b) the general nature and extent of damage alleged and (c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.

6. [6]

   On 30 March 2016 Wilson J refused leave to the applicant to file a further amended statement of claim in the Common Law Division: Tanious v Dedousis (No 3) [2016] NSWSC 339.

7. [7]

   The applicant filed a notice of motion seeking a review by this Court of the Wilson J decision. On 20 April 2016 Basten JA dismissed that motion: Tanious v South Eastern Sydney Local Health District [2016] NSWCA 83. His Honour said at [3]-[4]:

8. [8]

   On 30 August 2016 an application for special leave to appeal from the decision of Basten JA was refused. Bell and Gageler JJ said:

9. [9]

   On 23 September 2016 the applicant filed a summons seeking leave to appeal from the decisions of the Wilson J and Basten JA.

Application for leave to appeal from the decision of Basten JA

1. [10]

   The application for leave to appeal from the decision of Basten JA on the applicant’s notice of motion is misconceived. The proceedings before his Honour involved a new matter. His Honour’s dismissal of the applicant’s notice of motion was described by the High Court as “plainly correct” when refusing special leave to appeal from his Honour’s decision.

Application for leave to appeal from the decision of Wilson J

1. [11]

   In the Wilson J decision her Honour stated at [38]-[39]:

2. [12]

   The applicant submitted that Wilson J ignored the fact that the applicant “has already filed more than one expert reports confirming direct humiliation towards the applicant himself”.

3. [13]

   The applicant misconceives the effect of orders (2)(a)(iii)(B)(1)-(4) of the orders made by this Court on 19 November 2015. The proposed further amended statement of claim the subject of Wilson J’s judgment did not conform with these orders in any respect. As Basten JA noted in the course of his earlier decision, “Wilson J made the only order available to her”. I respectfully agree.

4. [14]

   I propose the following orders:

   1. (1)

      Leave to appeal refused;

   2. (2)

      The applicant pay the respondents’ costs as agreed or assessed.

5. [15]

   BARRETT AJA: I agree.