Fan v South Eastern Sydney Local Health District

1. [1]

   HIS HONOUR: By way of statement of claim filed on 8 April 2008, Wei Fan (“the plaintiff”) commenced proceedings in the Supreme Court of NSW against South Eastern Sydney Local Health District (“the defendant”) for alleged medical negligence.

2. [2]

   In the proceedings the plaintiff alleged, inter alia, that between January and March 2007, the defendant failed to diagnose and treat him for the condition of acute cholecystitis (inflammation of the gallbladder). The plaintiff alleged, inter alia, that the failure to diagnose and the delay in carrying out a cholecystectomy resulted in him suffering further medical conditions and disabilities (a further issue ultimately raised on appeal was malnutrition and weight loss and disabilities suffered by the plaintiff).

3. [3]

   The proceedings were heard before Associate Justice Harrison over ten days in March 2015 and May 2015. On 31 August 2015, Associate Justice Harrison handed down judgment in favour of the defendant, finding that the defendant had not been negligent in treating the plaintiff: Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235 (“Wei Fan No 2”).

4. [4]

   Her Honour’s ultimate conclusion was expressed at [488] and [489] as follows:

5. [5]

   Judgment was entered in the following terms:

6. [6]

   As mentioned, the basis for that conclusion was that the plaintiff had not established liability. The findings of her Honour’s judgment dealing with this question are expressed thus:

7. [7]

   It may be noted that after the Court reserved judgment, the plaintiff filed a further submission with the assistance of his son. The Court received that submission because the plaintiff was self-represented, required an interpreter and suffers a disability. By these written submissions, the proposition was advanced that the defendant was wrong in submitting that Associate Justice Harrison had handed a judgment in favour of the defendant, finding that the defendant had not been negligent in treating the plaintiff. Various extracts from Wei Fan No 2, Wei Fan No 3 and Wei Fan No 4 were included to support that proposition. As will be seen from the extract from Wei Fan No 2 in the preceding paragraph and what follows, the plaintiff’s submission in this respect cannot be accepted either in terms of the determination of the trial judge in Wei Fan No 2 or by virtue of the appellate proceedings with respect to that judgment.

8. [8]

   Some earlier relevant parts of her Honour’s reasoning in reaching this conclusion was as follows:

9. [9]

   Her Honour dealt with the question of damages upon the basis that her primary conclusion as to liability was found to be wrong. That part of the judgment extends from [307]-[487].

10. [10]

    It is relevant to extract some of her Honour’s findings on the medical expert evidence, by way of providing context to part of the plaintiff’s submissions on the motion:

11. [11]

    In a subsequent judgment, Associate Justice Harrison made a gross sum costs order to the amount of $250,000 (the defendant’s costs of proceedings) against the plaintiff: Wei Fan v South Eastern Sydney Local Health District (No 3) [2015] NSWSC 1620 (“Wei Fan No 3”).

12. [12]

    Her Honour observed (at [10]):

13. [13]

    The plaintiff appealed against the judgment and orders of Associate Justice Harrison. The appeal was heard before Basten, McColl and Simpson JJA on 1 March 2016.

14. [14]

    On 6 April 2016, the Court of Appeal dismissed the appeal and the plaintiff was ordered to pay the respondent's costs of the appeal: Fan v South Eastern Sydney Local Health District [2016] NSWCA 64 (“Wei Fan No 4”).

15. [15]

    Having regard to the arguments advanced by the plaintiff in these proceedings, some primary findings made by Basten JA (with whom McColl and Simpson JJA agreed), with respect to the claim of failure to diagnose the cholecystitis were as follows (at [25], [30] and [31]):

16. [16]

    As to the allegation of weight loss, following findings of the Court of Appeal are relevant (at [56]):

17. [17]

    As to type 2 diabetes, Basten JA opined (at [57] and [64]):

18. [18]

    Finally, as to delay in operating and alleged consequence and the effect of a “fall”, Basten JA concluded (at [83] and [86]):

19. [19]

    On 20 April 2016, the plaintiff filed an Application for Special Leave in the High Court of Australia. The Application for Special Leave was dismissed on 21 July 2016.

Supreme Court Proceedings

1. [20]

   On 4 October 2019, the plaintiff filed a summons in this Court. The summons identifies that the following relief is claimed:

2. [21]

   On 4 October 2019, the plaintiff also filed an affidavit dated 25 September 2019.

3. [22]

   The plaintiff also served a voluminous bundle of materials upon the defendant, which purported to identify "errors made by the presiding judge relating to the above cited Supreme Court and Court of Appeal decisions” (namely, Wei Fan No 2, Wei Fan No 3 and Wei Fan No 4).

4. [23]

   On 17 October 2019, the proceedings were listed for directions before Senior Deputy Registrar Bellach. The plaintiff was ordered to file any Consent to Act as Tutor by 14 November 2019 and the matter stood over for further directions on 21 November 2019.

5. [24]

   On 21 October 2019, a Consent to Act as Tutor was filed, with Ms Yue Wang, the wife of the plaintiff, appointing herself as the plaintiff’s tutor.

6. [25]

   On 11 November 2019, the plaintiff filed submissions (“the November submissions”).

7. [26]

   On 14 November 2019, the plaintiff filed a statement. Similar contentions were made to the 11 November submissions.

8. [27]

   On 21 November 2019, the proceedings were listed for directions before Registrar Jones. The proceedings were referred to the Duty Judge, Justice Button, at the request of the defendant.

9. [28]

   Justice Button stood the matter over to 19 December 2019 in order to allow the plaintiff to seek legal advice. Justice Button gave an ex tempore judgment. Some observations were made by his Honour as follows:

   1. (1)

      “The point is soundly made today, respectfully, by Ms Smith who appears for the defendants in these proceedings, that the contingent findings made by her Honour may have been misinterpreted as some form of finding in the favour of the plaintiff”. (This was a reference to that part of Wei Fan No 2 dealing with damages).

   2. (2)

      “As things stand, my initial thought, nothing more, bearing in mind that I knew nothing of this matter before an hour and a half ago, is that Mr W Fan’s rights are exhausted, and a further appeal in this Court is an exercise in futility, and any appointment or acknowledgment of appointment of a tutor is also an exercise in futility”.

   3. (3)

      “Having said all of these negative things, I think it would be unduly harsh, and perhaps precipitous, for me to peremptorily slam the door of the Court in the face of Mr W Fan today. I think there should be a period of four weeks during which one last effort to obtain legal advice or legal help could be made, though I appreciate the point made by Ms Wang that so far all lawyers have said that nothing is to be done”.

10. [29]

    On 19 December 2019, the proceedings were listed for directions before Registrar Jones. The proceedings were referred to the Court as presently constituted, at the request of the defendant.

11. [30]

    Difficulties arose on 19 December 2019 due to the unavailability of an interpreter and the matter was stood over for further directions before Justice Walton on 20 December 2019.

12. [31]

    On 20 December 2019, the matter was listed for directions.

13. [32]

    Ms Yang, who appeared for the plaintiff, advised the Court that the plaintiff had been unsuccessful in obtaining legal assistance. Ms Yang provided a copy of handwritten proposed orders dated 18 December 2019 sought by the plaintiff.

14. [33]

    The defendant sought that the plaintiff’s summons filed 4 October 2019 be dismissed or alternatively, struck out. It was submitted that the summons disclosed no reasonable cause of action in this Court. Justice Walton ordered that the defendant was to file a Notice of Motion seeking any such an order by 30 January 2019.

The Motion

1. [34]

   On 31 January 2019, the defendant filed a Notice of Motion (“the motion”) seeking the following orders:

   1. (1)

      An order pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the plaintiff’s summons filed on 4 October 2019 be dismissed.

   2. (2)

      In the alternative, an order pursuant to r 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 that the plaintiff’s summons filed on 4 October 2019 be struck out.

   3. (3)

      Any further or other orders that this Honourable Court deem fit.

2. [35]

   It was submitted at the hearing on the motion on 4 August 2020 that each party was to bear their own costs.

3. [36]

   This judgment concerns the motion.

Plaintiff’s submissions

1. [37]

   In the written submissions filed by the plaintiff it was submitted that “the judgment of the Supreme Court of New South Wales has many errors and even though the trial judge accepted there was liability, however her Honour made a judgment which was no liability could be found”.

2. [38]

   In the course of the submissions, various contentions were made in this respect alluding to paragraphs of Wei Fan No 2 falling within the section of the judgment dealing with damages: [306]; [307]; [360]; [376]; [374]; [381]; [396]; [397]; [401]; [429]; [431]; [434]; [440]; [466]; [448]; [455]; [456]; [461]; [468]; [473]; [477]; and [485].

3. [39]

   At the conclusion of the submissions it was contended that:

4. [40]

   Ms Wang appeared for the plaintiff on the motion. Her submissions were as follows:

   1. (1)

      The judgments of this Court in: Wei Fan No 2 and Wei Fan No 3 and the New South Wales Court of Appeal in Wei Fan No 4 contain errors made by the presiding judge and appeal judges. Those errors required “modification or alterations to the errors present in the subsequent three judgments… based on the material submitted by the plaintiff”.

   2. (2)

      There is, therefore, a proper basis for this Court to be satisfied that the defendant breached its relevant duty of care to the plaintiff and is therefore liable to pay damages.

   3. (3)

      It is sufficient to identify the gravamen of the plaintiff’s submissions, in this respect, by referring to one of the identified errors relied upon by the plaintiff which underscores the two above contentions put by the plaintiff:

5. [41]

   These were the very controversies considered by the trial judge in Wei Fan No 2, which were not reversed in Wei Fan No 4.

Defendant’s submissions

1. [42]

   In summary, the defendant’s submissions were as follows:

   1. (1)

      The substance of the plaintiff’s application and the issues raised are the same as those that have already been agitated before the courts.

   2. (2)

      As the plaintiff’s appeal options are exhausted, it would be an exercise in futility to have the same issues put before the Court in this way.

Relevant Principles

1. [43]

   Rule 13.4 of the UCPR is in the following terms:

2. [44]

   The principles applicable to the operation of r 13.4(1)(b) of the UCPR were recently stated in Lazarus v Independent Commissions Against Corruption [2018] NSWSC 997 at [31]-[32] as follows:

Conclusion

1. [45]

   In substance, the plaintiff sought by summons to have the Court find:

   1. (1)

      Asserted errors in the two judgments of Associate Justice Harrison, Wei Fan No 2 and Wei Fan No 3, in circumstances where the appeal brought against those judgments failed (including in relation to contentions of the same or similar character as traversed in these proceedings) and errors in the judgment or the New South Wales Court of Appeal, notwithstanding that special leave was refused to appeal on this judgment, and the standing of that court in the hierarchy of courts

   2. (2)

      There was a proper basis to find medical negligence by essentially traversing the same or similar evidentiary material and submissions put before Associate Justice Harrison and the Court of Appeal.

2. [46]

   The defendant correctly submitted that the plaintiff had utilised and exhausted its avenues of appeal. The cause of action the plaintiff brings requires the re-litigation of issues that have already been determined by the courts. The hearing of the summons would constitute a futility. The summons cannot possibly succeed.

3. [47]

   Further, while an order for costs was made in favour of the plaintiff in the 2010 decision, that order was taken into account in assessing the gross sum order for costs in Wei Fan No 3.

4. [48]

   For the foregoing reasons, I consider that the application of the plaintiff discloses no reasonable cause of action for the purposes of r 13.4(1)(b) of the UCPR

Orders

1. [49]

   I make the following orders:

   1. (1)

      The plaintiff’s summons filed on 4 October 2019 is dismissed pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).

   2. (2)

      Each party is to bear their own costs.