Blessed v Western Sydney Local Health District

1. [1]

   THE COURT: By a summons dated 11 April 2025, the applicant, Ms Robyn Blessed, who is self‑represented, seeks leave to appeal against a decision of Walton J delivered on 5 August 2024 (1) striking out the applicant’s amended statement of claim filed on 15 September 2022 and (2) ordering that the matter be referred to the Registrar for referral to a barrister or solicitor of the Pro Bono Panel for legal assistance: Blessed v Western Sydney Local Health District [2024] NSWSC 871.

2. [2]

   The summons was originally listed for hearing on 5 August 2025. There was no appearance by Ms Blessed at that time, apparently due to a misunderstanding. The matter was relisted for hearing on 8 August 2025. Ms Blessed had provided the Court with an undated summary of her argument and undated Grounds of Appeal Notes, which were included in the white folder that was prepared by the respondent. Ms Blessed also provided the Court with submissions in reply on 7 August 2025, which the Court has taken into account. At the hearing, Ms Blessed indicated that there was nothing that she wished to add to her written submissions.

Relevant facts

1. [3]

   The applicant suffered a seizure on 4 September 2020. She was taken to Westmead Hospital by ambulance, where she was found to be a mentally ill person pursuant to the Mental Health Act 2007 (NSW) (MH Act) and thereafter was involuntarily admitted and treated, although there appears to be a question of whether and when that finding was made. The applicant’s medical records indicate that as part of her treatment, a lumbar puncture procedure was performed on her on 5 September 2020.

2. [4]

   In the amended statement of claim, the applicant says that she was detained involuntarily at Westmead Hospital for one week and she was then transferred to Cumberland Hospital where she was detained against her will for a further week.

3. [5]

   The amended statement of claim consists of a series of bullet points. The first 16 describe what happened at Westmead Hospital. A flavour can be gained from the first six, which are in the following terms:

4. [6]

   The amended statement of claim then goes on to allege the harm the applicant says she suffered and what happened at Cumberland Hospital. Again, a flavour of the harm she alleges she suffered can be gathered from the following bullet points:

5. [7]

   The applicant claims a total of $20,000,000. Half that amount is said to relate to her time at Westmead Hospital and the other half to her time at Cumberland Hospital. No particulars are given of how those amounts are calculated.

6. [8]

   By a notice of motion dated 16 April 2024, the respondent sought the following orders:

7. [9]

   The primary judge dismissed the relief sought in paragraphs (1), (2), (3), (5) and (6), made the orders referred to earlier and ordered that each party “shall pay their own costs”.

8. [10]

   In refusing to dismiss the proceedings, the primary judge considered that based on the material before him, there may have been a window when the applicant was “unlawfully constrained and medically treated giving rise at least to a cause of action in tort for assault” at [29]. His Honour also said (at J [33]):

9. [11]

   His Honour gave the following reasons for striking out the amended statement of claim at (J [35]):

The appeal

1. [12]

   On 30 August 2024, the applicant filed a notice of intention to appeal. On 23 December 2024, she filed out of time what purported to be a notice of appeal. On 11 April 2025, the Registrar dismissed the applicant’s case for want of due despatch pursuant to Uniform Procedure Rules 2005 (NSW) (UCPR) r 12.7.

2. [13]

   The present summons seeking leave to appeal, although signed on 11 April 2025, was filed on 5 May 2025. The application is described as a “Notice of Appeal - Medical Negligence” and seeks “leave to appeal from the whole of the decision below”. The draft notice of appeal contains two grounds:

Leave to appeal

1. [14]

   The decision appealed from was an interlocutory one concerning a matter of practice and procedure. Accordingly, the applicant requires leave to appeal: s101(2)(e) of the Supreme Court Act 1970 (NSW).

2. [15]

   Generally, a grant of leave to appeal requires there to be an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 (McEvoy) at [35] and the cases cited there. Moreover, as the Court observed in McEvoy, referring to PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], discretionary decisions, such as those involving matters of practice or procedure, attract the added restraint of the requirements of House v R (1936) 55 CLR 499; [1936] HCA 40.

3. [16]

   The respondent, Western Sydney Local Health District, also objects to leave being granted on the basis that the application is out of time, no extension is sought and no explanation for the delay has been provided by the applicant. In addition, it seeks a permanent stay of the proceedings on the application on the basis that by the current application the applicant seeks the same relief as the relief she sought in the dismissed notice of appeal.

Consideration

1. [17]

   The applicant appears to have misunderstood the effect of the primary judge’s orders. In her Grounds of Appeal Notes, the applicant submitted that the primary judge erred in making a decision "to dismiss this [claim] as frivolous" and "to continually use UCPR 13.4 and 12.7 to dismiss a serious claim". The primary judge did not, however, dismiss the applicant’s claim. Rather, he quite properly struck out the amended statement of claim on the basis that it failed to plead material facts which support the claim: Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279; [1990] HCA 11 at 286. The orders that his Honour made contemplated that the applicant would be given a further opportunity to plead her claim and included an order designed to assist her to do so properly.

2. [18]

   For those reasons alone, leave to appeal must be refused with costs. It is unnecessary in those circumstances to consider the alternative relief sought by the respondent of a permanent stay.

3. [19]

   Accordingly, the orders of the Court are that leave to appeal is refused with costs.