Linton Rodney Rose bhnf Jennifer Cheri Rose v Western Sydney Local Health District; Jennifer Cheri Rose v Western Sydney Local Health District

[2024] NSWSC 286

Supreme Court

New South Wales

Medium Neutral Citation:

Linton Rodney Rose bhnf Jennifer Cheri Rose v Western Sydney Local Health District; Jennifer Cheri Rose v Western Sydney Local Health District [2024] NSWSC 286

Hearing dates:

8 March 2024

Date of orders:

8 March 2024

Decision date:

08 March 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Orders in accordance with short minutes of order signed by the parties’ legal representatives on 7 March 2024

Catchwords:

CIVIL PROCEDURE – parties – representative order – appointment, powers and duties of representative – marriage certificate – no valid will – where NSW Trustees and Guardian and sons of the deceased wish to take no part in proceedings – where the sons make no claim against the deceased’s estate – deceased’s wife appointed as representative with consent.

Legislation Cited:

Law Reform (Miscellaneous Provisions) Act 1944 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 6.30, 7.10

Category:

Procedural rulings

Parties:

Linton Rose Rose bhnf Jennifer Cheri Rose (Plaintiff)
Jennifer Cheri Rose (Plaintiff)
Western Sydney Local Health Service (First Defendant)
Metro North Hospital and Health Service (Second Defendant)

Representation:

Counsel:
Ms A Ramesh for the (Solicitor) (Plaintiff)
Ms M Rankin for the (Solicitor) (First Defendant)
Ms E Chaparian for the (Solicitor) (Second Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Norton Rose Fulbright (First Defendant)
Barry Nilsson (Second Defendant)

File Number(s):

2020/99103; 2020/99105

JUDGMENT

1. Two related matters are before me today, principally for directions. The first matter is Linton Rodney Rose by his tutor Jennifer Cheri Rose v Western Sydney Local Health District and Another, and the second matter is Jennifer Cheri Rose v Western Sydney Local Health District and Another.

2. The first case is a medical negligence case brought on behalf of Mr Rose against two defendants. The evidence before me establishes that Mr Rose died on 17 November 2023, and that evidence consists of his death certificate annexed to the affidavit of the plaintiff’s solicitor, Ms Julie Baqleh, sworn 22 December 2023. I am satisfied from that evidence, and also from the evidence contained in Ms Baqleh’s subsequent affidavits of 8 February 2024 and 7 March 2024, that Mr Rose died intestate. A will made in accordance with the law of Queensland, duly executed on 9 March 1988, was revoked by reason of his marriage to Mrs Jennifer Rose, the evidence of which is constituted by her marriage certificate of 4 January 2003. Further, taking into consideration Mrs Rose’s own knowledge and the evidence provided by Mr Rose’s two sons of a former marriage, I am satisfied that there is no other will and that in due course an application will have to be made for letters of administration, presumably by Mrs Rose as his widow.

3. The application before me today as set out in the notice of motion filed 22 December 2023 is for the appointment of Mrs Rose as a representative of the estate of Mr Rose for the purpose of only these proceedings, under rr 6.30 and 7.10 Uniform Civil Procedure Rules 2005 (NSW). Rule 6.30 provides that proceedings do not abate upon, inter alia, the death of a party. If the cause of action survives, as it does in this case, under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), the Court is empowered to make such orders as it thinks fit for the joinder or removal of parties. Under r 7.10 UCPR, the powers of the Court include the power to appoint a representative of the deceased person’s estate for the purpose of the proceedings but only with the consent of the person to be so appointed: r 7.10(2)(b).

4. I am satisfied that Mrs Rose consents to being appointed a representative under that rule. I am also satisfied that the NSW Trustee and Guardian has been notified of the death and, in accordance with its usual practice, notwithstanding it being the statutory repository of the estate of persons who die intestate, it wishes to take no part in the proceedings, as it has explained at length in correspondence annexed to Ms Baqleh’s affidavit. I am also satisfied from the affidavits of his two adult sons that neither has any interest in the proceedings nor does either express any desire to make any claim against the estate of their late father.

5. It appears to me, therefore, that it is necessary to appoint a representative so that these proceedings may continue and that, overwhelmingly, Mrs Rose is the appropriate person and indeed is the only appropriate person. I will accordingly accede to the application in the motion of 22 December 2023, and make orders in accordance with the short minutes of order dated 7 March 2024 and signed by Ms Baqleh for the plaintiff and Ms Hickey for the second defendant, noting that the first defendant does not oppose the orders. These orders may be entered forthwith.

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Decision last updated: 21 March 2024