McGregor v The Sydney Children's Hospitals Network; McGregor v The Sydney Children's Hospitals Network; Kenny v The Sydney Children's Hospital Network; Kenny v The Sydney Children's Hospitals Network & Ors.

[2023] NSWSC 340

Supreme Court

New South Wales

Medium Neutral Citation:

McGregor v The Sydney Children’s Hospitals Network; McGregor v The Sydney Children’s Hospitals Network; Kenny v The Sydney Children’s Hospital Network; Kenny v The Sydney Children’s Hospitals Network & Ors.; Kenny v The Sydney Children’s Hospitals Network & Ors.; Pagett v The Sydney Children’s Hospitals Network & Ors. [2023] NSWSC 340

Hearing dates:

04 April 2023

Date of orders:

04 April 2023

Decision date:

04 April 2023

Jurisdiction:

Common Law

Before:

Chen J

Decision:

See [123]-[128].

Catchwords:

CIVIL PROCEDURE – summary disposal – whether the pleadings have a tendency to cause prejudice, embarrassment or delay – where causes of action may be out of time if struck out

CIVIL PROCEDURE – originating process – application to amend current pleadings – whether grant of leave in accordance with the dictates of justice

Legislation Cited:

Civil Liability Act 2002 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

Fatimi Pty Ltd v Bryant [2002] NSWSC 750

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Gunns Ltd v Marr [2005] VSC 251

McGuirk v The University of New South Wales [2009] NSWSC 1424

MTH v State of New South Wales [2022] NSWSC 884

Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90

Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206; [2011] NSWSC 433

Young v Hones [2013] NSWSC 580

Category:

Procedural rulings

Parties:

Proceedings 2020/181110:
Noah McGregor by his next of friend Mattheaw Whyte (plaintiff)
The Sydney Children’s Hospitals Network (Randwick and Westmead) (Incorporating the Royal Alexandra Hospital for Children trading as Westmead Children’s Hospital) (defendant)

Proceedings 2020/213690
Amber McGregor (plaintiff)
The Sydney Children’s Hospitals Network (Randwick and Westmead) (Incorporating the Royal Alexandra Hospital for Children) (defendant)

Proceedings 2020/268211
Amanda Kenny (plaintiff)
The Sydney Children’s Hospital Network trading as Westmead Children’s Hospital (defendant)

Proceedings 2021/307218
Nathan Kenny (plaintiff)
The Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating the Royal Alexandra Hospital for Children) trading as Westmead Children’s Hospital (first defendant)
Dr Sachin Gupta (second defendant)
Dr David Issacs (third defendant)
Dr Susan Marks (fourth defendant)

Proceedings 2021/307226
Ashton Kenny by his tutor Kelly Jamieson (plaintiff)
The Sydney Children’s Hospitals Network (Randwick and Westmead) (Incorporating the Royal Alexandra Hospital for Children) trading as Westmead’s Children’s Hospital (first defendant)
Dr Sachin Gupta (second defendant)
Dr David Issacs (third defendant)
Dr Susan Marks (fourth defendant)

Proceedings 2021/340066
Brett Pagett (plaintiff)
The Sydney Children’s Hospitals Network (Randwick and Westmead) (Incorporating the Royal Alexandra Hospital for Children)
Dr Ted O’Loughlin (second defendant)
Dr Richard Webster (third defendant)
Dr Grace Wong (fourth defendant)
Nurse Lisamma Joseph (fifth defendant)

Representation:

Counsel:
Mr P Menzies KC with Mr KP Tang (plaintiffs)
Mr T Buterin (defendants)

Solicitors:
Herbert Weller Solicitor (plaintiffs)
Crown Solicitor’s Office (defendants)

File Number(s):

2020/181110, 2020/213690, 2020/268211, 2021/307218, 2021/307226 & 2021/340066

Publication restriction:

Nil

JUDGMENT EX TEMPORE

Introduction

1. These reasons deal with nine applications related to the originating process in six claims.

2. The proceedings arise out of the conduct of hospital staff whilst two children were patients at Westmead Children’s Hospital (or ‘the Hospital’) in early and mid-2017. Those two children were Ashton Kenny (DOB: 4 April 2008) and Noah Paggett (DOB: 3 July 2014). The underlying conduct giving rise to the claims is – very broadly – the same: it is said that Hospital staff made false allegations against the mothers of those children, that had the consequence of those children being removed from their custody and control.

3. A number of claims have been commenced: by each child, mother and father. Each claims damages for personal injury and economic losses said to have been suffered as a result of this alleged wrongful conduct, although the causes of action relied upon differ.

4. Two of the proceedings were commenced in this Court. The balance were commenced in the District Court – but they were transferred to this Court in 2021.

The individual claims: an overview

5. What follows is an overview of each claim, drawn principally from the pleadings. Some detail is necessary, in view of the applications that are made.

Amanda Kenny

6. Amanda Kenny is the mother of Ashton Kenny. Ashton was born on 16 December 2012.

7. Amanda Kenny has a number of other children: Lucas Anderson (born 25 April 2009), Jackson Kenny (born 22 August 2010), and Harrison Kenny (born 22 November 2015).

8. She has commenced proceedings against the Westmead Children’s Hospital alleging that it wrongfully accused her of causing Ashton’s septicaemic shock in early 2017: SOC, par 21. The Hospital is the sole defendant. The statement of claim was filed in the District Court on 15 September 2020.

9. Specifically, it is alleged the defendant, through its doctors and nurses, wrongly alleged that that condition “was brought about by the plaintiff intentionally interfering with Ashton’s intravenous lines”, and that interference included “the plaintiff intentionally injecting faeces into Ashton’s intravenous lines …”: SOC, pars 22-23.

10. The plaintiff further alleges that the defendants, by its medical staff “alleged, reported and made statements” that the plaintiff had invented or manufactured Ashton’s symptoms; that the plaintiff had overdosed Ashton with the drug fentanyl; that the plaintiff “fabricated the symptoms that Ashton was suffering”; and that the plaintiff “had caused Ashton serious non-accidental injury”: SOC pars 24(a)-(d). The plaintiff alleges that the “allegations, reports and statements made by the medical staff” were false: SOC, par 25.

11. The plaintiff alleges that as “a consequence of the false allegations, reports and statements”, the plaintiff was removed from the Westmead Children’s Hospital (SOC, par 26) and from the family home (SOC, pars 27 and 32) and her children “were placed into the care of the Department of Family and Community Services”: SOC, par 28.

12. It appears that the plaintiff’s children were removed from her care on 10 February 2017, and not returned to her until 16 April 2018: SOC, pars 30, 33 and 34.

13. The case put by the plaintiff is one in negligence: it is said that the defendants owed Ashton, and the plaintiff, a duty of care “to ensure any diagnoses, statements, reports and allegations were informed, proper, well-founded, considered and based on the facts and the evidence then available”: SOC, pars 20-21. Later, it is said that as “a consequence of the false allegations, reports and statements and/or the breach of the duty [of] care”, the plaintiff has suffered “pain, injury, loss and damage”: SOC, par 36.

14. The plaintiff claims “compensatory damages, aggravated damages, exemplary damages …”, as well as the legal fees the plaintiff incurred in having her children “restored to her care, amounting to $120,000”: SOC, par 37.

15. The plaintiff seeks leave to file an amended statement of claim. By the proposed amended pleading, the plaintiff has deleted a number of allegations of fact – there has been a significant contraction of what is alleged – but added a claim in damages alleging that there has been a conspiracy by the proposed second to fifth defendants: proposed ASOC, par 13. The conspiracy alleged is that the second to fifth defendants agreed to accuse the plaintiff of deliberately injuring her child, and to refer and pursue suspicions of abuse “for the purpose of unlawfully removing [her child] from her custody and control”: proposed ASOC, pars 13-14.

Ashton Kenny

16. Ashton Kenny is the son of Amanda Kenny. He has brought proceedings by his tutor, Kelly Jamieson. He commenced proceedings in the District Court by statement of claim filed 29 October 2021. The defendants to that claim are the Westmead Children’s Hospital, Dr Sachin Gupta, Dr David Issacs and Dr Susan Marks.

17. His claim is different to his mother’s, and involves the following elements:

1. The plaintiff had been diagnosed, from August 2013, with paroxysmal extreme pain disorder (PEPD): SOC, par 8 (iii).

2. During the period August 2013-February 2017, the plaintiff was treated with medication, prescribed by Dr Sachin Gupta, for that disorder: SOC, par 8 (iv).

3. On 2 January 2017, the plaintiff was seen by a paediatric urologist, in the absence of Dr Gupta, and that the plaintiff’s parents were advised that the plaintiff “did not suffer from PEPD and did not require the medications previously prescribed”: SOC, par 8 (vi).

4. An allegation that the revised diagnosis “was wrong and was a misdiagnosis in breach of the defendant’s duty of care”: SOC, par 8 (vii).

18. The statement of claim then goes on to allege a conspiracy. It is said that the Hospital “by its servants or its agents Dr Sachin Gupta, Dr David Issacs and Dr Susan Marks agreed to accuse the plaintiff’s mother of deliberately injuring the plaintiff in circumstances where there was no evidence to support such an allegation and in carrying out that agreement caused injury, loss and damage to the plaintiff”: SOC, par 9.

19. Despite this pleading, or perhaps because of it, each of the named doctors are defendants to this claim.

20. The statement of claim then goes on to identify particulars of damage as including brain damage, “psychological damage arising from separation from his parents”, and shortened life expectancy: SOC, pars 9(i)-(iii).

21. An amended statement of claim was filed on 24 November 2021, and it repeats the allegation that there was a conspiracy involving the second to fourth defendants (the fifth defendant was removed as a defendant by the amended statement of claim).

Nathan Kenny

22. Nathan Kenny is the father of Ashton Kenny. He commenced proceedings on 29 October 2021 in the District Court, naming the Westmead Children’s Hospital, as well as Dr Sachin Gupta, Dr David Issacs, Dr Susan Marks and Lisamma Joseph (a nurse at Westmead Children’s Hospital) as defendants.

23. The statement of claim makes the same allegations that are made by Ashton Kenny.

24. In terms of the conspiracy alleged, it is alleged that this was done “for the purpose of unlawfully removing Ashton and his siblings from the parents”: SOC, par 10(i).

25. In terms of the loss and damage alleged to have been suffered in consequence of the “negligence and the conspiracy against the plaintiff and his wife” (SOC, par 10 (a)), the plaintiff also claims costs in defending the investigation against the plaintiff, and the plaintiff’s wife, as well as psychiatric injury: SOC, par 10.

26. The plaintiff also claims exemplary damages, albeit no particulars have been provided: SOC, par 12.

27. On 24 November 2021, an amended statement of claim was filed in the District Court. The most substantive amendment brought about by the filing of that document, was the removal of the fifth defendant from the claim.

Amber McGregor

28. Amber McGregor is the mother of Noah Pagett. Noah was born on 3 July 2014.

29. The plaintiff is also the mother of Alexis and Hunter Pagett, who were both born on 7 March 2012.

30. She commenced proceedings in the District Court on 21 July 2020 against the Westmead Children’s Hospital alleging that, by its staff, she was wrongfully accused of causing harm to Noah. The key allegations made are as follows.

31. On 5 January 2016 the plaintiff was advised that Noah was suffering from Pitt Hopkins syndrome – a syndrome that is characterised by the sufferer having severe intellectual disability, as well as a myriad of other medical conditions, symptoms and issues: SOC, pars 4, 5 and 6.

32. On 19 June 2017, Noah had a prolonged episode of unresponsiveness, which the plaintiff alleges was “brought about caused by an error of a nurse, in administering Noah’s medicines”: SOC, pars 24 and 25.

33. The plaintiff alleges that the nurse administered Noah a drug known as ‘Keppra’: SOC, par 26.

34. Whilst the plaintiff and Noah were still in the Westmead Children’s Hospital, the defendant, by its employees “opined, alleged and made statements and reports” that the plaintiff had poisoned Noah, the plaintiff had intentionally administered Noah the drug ‘Keppra’, that the plaintiff intentionally “misused and interfered with Noah’s feeding apparatus”, that the plaintiff suffered from Munchausen Syndrome by Proxy and that she posed a risk of harm to her children: SOC, par 27.

35. The plaintiff alleges that the allegations and statements made by the defendant were false, and “were made with the intent to cause harm to the plaintiff”: SOC, pars 28-29.

36. A consequence of the “false allegations and false statements” was that Noah was placed into the care of the Department of Family and Community Services on 21 July 2017: SOC, par 30. The plaintiff’s other children – Alexis and Hunter – remained in the plaintiff’s care: SOC, par 31.

37. The plaintiff alleges that in “consequence of the false allegations, false statements and the matters pleaded in paragraph 27”, she suffered personal injury, including psychiatric injury: SOC, par 32.

38. The plaintiff also puts an “alternative” claim, namely that the “opinions, allegations and statements made by the defendant” were made “negligently and in breach of the duty of care owed by the defendant to the plaintiff”: SOC, par 33.

39. The plaintiff alleges that in consequence of what has been alleged was that “Noah was removed from the care of the plaintiff on the 21 July 2017 and not returned to the plaintiff until the 8 April 2019”: SOC, par 34.

40. The plaintiff claims “compensatory damages, aggravated damages, exemplary damages … including the legal fees the plaintiff incurred in having Noah restored to her care”: SOC, par 36.

41. By a ‘proposed further amended statement of claim’, the plaintiff seeks to add a claim for damages for the tort of conspiracy, and four further defendants: PFASOC, pars 32-33. (I note: those paragraphs that relate to this cause of action essentially mirror those contained in the statement of claim filed by Brett Pagett on 30 November 2021: SOC, pars 30-31).

Noah Pagett

42. Noah Pagett is the son of Brett Pagett and Amber McGregor. (I note that the proceedings were commenced in the name of Noah McGregor, but he was described in the body of that pleading, and by the parties during the course of the hearing, as Noah Pagett).

43. Noah Pagett has commenced proceedings, by his tutor Mattheaw Whyte, against Westmead Children’s Hospital. The statement of claim was filed in the District Court on 18 June 2020.

44. In that statement of claim, the plaintiff sues in negligence – essentially clinical negligence. Put simply, his case is that, following his admission to the Hospital on 6 June 2017, he was administered the drug Keppra and Evelyn – both of which were contraindicated: SOC, par 12.

45. It is then alleged that he suffered injury loss and damage arising out of this conduct including brain damage and a shortened life expectancy: SOC, par 13.

46. In relation to this cause of action, the plaintiff claims damages for psychiatric injury, as well as exemplary damages: SOC, par 14.

47. By a proposed ‘amended statement of claim’, the plaintiff seeks to add a claim for damages for the tort of conspiracy, and four further defendants.

48. The conspiracy alleged is that employees of the Hospital, being Dr Ted O’Loughlin, Dr Richard Webster, Dr Grace Wong and Lisamma Joseph, engaged in a conspiracy: it is said that they “agreed to accuse … [Amber McGregor] of deliberately injuring Noah in circumstances where there was no evidence to support such an allegation and for an unlawful purpose”: SOC, par 14. Later it is said that each of them made the allegations for the “purpose of removing all of the children from the plaintiff’s mother’s care and control”: SOC, par 14.

49. (I note: those paragraphs that relate to this cause of action essentially mirror those contained in the statement of claim filed by Brett Pagett on 30 November 2021: SOC, pars 30-31).

Brett Pagett

50. Brett Pagett was the partner of Amber McGregor (it may be that they have since separated: SOC, par 31 (d)), and the father of Alexis and Hunter Pagett, and Noah Pagett.

51. Unlike the claim commenced by Amber McGregor, Brett Pagett has commenced proceedings against the Westmead Children’s Hospital, Dr Ted O’Loughlin, Dr Richard Webster, Dr Grace Wong and Lisamma Joseph. The statement of claim was filed in the Supreme Court on 30 November 2021.

52. The plaintiff alleges that on 19 June 2017, whilst a patient at Westmead Children’s Hospital, Noah suffered a prolonged period of unresponsiveness caused by the error of a nurse in administering to Noah the drug Keppra – which was not a drug prescribed for him, and was contraindicated: SOC, pars 16 and 17.

53. At this point the plaintiff alleges that Amber McGregor was wrongly accused of administering Keppra to Noah, and also alleged (amongst a range of other matters) to have Munchausen’s Disease by Proxy: allegations that were made by Noah’s treating doctors in the Hospital – namely Dr Ted O’Loughlin, Dr Richard Webster and Dr Grace Wong: SOC, pars 18-21.

54. Noah was removed from the care of the plaintiff and Amber McGregor between 21 July 2017 and 8 April 2019: SOC, par 22.

55. A case is then put against the Hospital in negligence – one that does rely upon the conduct of its employees: SOC, pars 23-29. The loss and damage claimed by the plaintiff include psychiatric injury, as well as “legal expenses incurred in recovering … custody of the children”: SOC, par 29.

56. The plaintiff then alleges that between 6 June and 21 July 2017 Dr Ted O’Loughlin, Dr Richard Webster, Dr Grace Wong and Lisamma Joseph engaged in a conspiracy: it is said that they “wrongfully and for an unlawful purpose conspired together to unlawfully cause the plaintiff and Amber McGregor to be removed from the custody of Noah (sic)”: SOC, par 30. Later it is said that each of them “made the allegations for the sole purpose of removing the plaintiff and his partner from the custody of their children”: SOC, par 30 (c) (i).

57. The loss and damage claimed include psychiatric injury, legal costs in defending the investigation brought against him and for the recovery of his children, as well as exemplary damages: SOC, par 31.

The individual claims: a short summary

58. In the cases involving Amber McGregor, Noah Pagett and Brett Pagett, the position may be summarised as follows:

1. Amber McGregor and Noah Pagett originally brought proceedings claiming damages in negligence.

2. Amber McGregor and Noah Pagett by their proposed amended proceedings, seek to add a claim in conspiracy against the Hospital and a number of participants to that alleged agreement as defendants.

3. Brett Pagett, by his statement of claim, had brought a claim in negligence and in conspiracy and named all defendants to that conspiracy (in addition to the Hospital).

59. In the cases involving Amanda Kenny, Ashton Kenny and Nathan Kenny, the position may be summarised as follows:

1. Amanda Kenny, by her current pleading, brings a claim for damages in negligence. By her proposed amended pleading, she seeks to add a claim in conspiracy against the Hospital and a number of participants to that alleged agreement as defendants.

2. Ashton Kenny and Nathan Kenny, by their current pleadings, bring claims for damages in negligence as well as resulting from a conspiratorial agreement.

The applications: an overview

60. There are a number of applications that have been filed. They are as follows:

1. Amanda Kenny: The plaintiff, by notice of motion filed 15 March 2023, seeks leave to amend her statement of claim.

1. Ashton Kenny: The defendants, by notice of motion dated 14 June 2022, seek to have the amended statement of claim filed 24 November 2021 struck out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’). The plaintiff, by notice of motion filed 15 March 2023, seeks leave to amend his statement of claim.

2. Nathan Kenny: the defendants, by notice of motion dated 14 June 2022, seek to have the statement of claim dismissed pursuant to r 13.4(1)(b) of the UCPR or struck out pursuant to r 14.28(1) of the UCPR. The plaintiff, by notice of motion filed 15 March 2023, seeks leave to amend his statement of claim.

3. Amber McGregor: the defendant, by notice of motion dated 15 October 2021, seeks to have the proceedings dismissed under r 12.7(1) of the UCPR (failure to prosecute a claim with due dispatch), dismissed under rr 13.4(1)(b) and (c), and struck out pursuant to r 14.28(1)(a)-(c). The plaintiff, by notice of motion filed 15 March 2023, seeks leave to amend her statement of claim.

4. Brett Pagett: the defendants, by notice of motion dated 14 June 2022, seek to have the statement of claim dismissed pursuant to r 13.4(1)(b) of the UCPR or struck out pursuant to r 14.28 of the UCPR.

5. Noah Pagett: The plaintiff, by notice of motion filed 14 March 2023, seeks leave to amend his statement of claim.

61. Before dealing with the substance of these applications, the following matters should be noted. First, I do not consider that there has been a failure to prosecute with due dispatch the case of Amber McGregor (the only matter where an order under r 12.7 of the UCPR is sought). Although the matter has not proceeded past the pleading stage, much of the delay is attributable to what occurred in the District Court. Further, following transfer of the action to this Court, the matter has been subject to case management orders leading to the current hearing. Secondly, although in the matters of Amber McGregor and Brett Pagett the defendant seeks (or defendants seek) summary relief, an order of that kind is not appropriately made except in the clearest of cases: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69. In my view, neither case, on the basis of what is alleged (and in the absence of any evidence demonstrating that what is alleged is untenable), would permit a finding that, to a high degree of certainty, the claims would fail at trial. And, thirdly, I do not consider that it is appropriate (at least at this point, before a re-pleading) to strike out all, or part, of the claims notwithstanding that the pleadings have deficiencies and require re-pleading – essentially because an order of that kind may well have the consequence that all or part of the claim would become time-barred.

The legal principles: r 14.28 of the UCPR

62. The defendants seek to strike out the pleadings in four matters – in Ashton Kenny, Nathan Kenny, Amber McGregor and Brett Pagett: see [60], above.

The rule relied upon

63. The defendants rely upon r 14.28 of the UCPR. That rule provides:

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

64. The submissions of the defendants do not specifically identify the sub-paragraph relied upon, but from the tenor of them it is clear that the broad complaint is one of form.

65. In those circumstances, the appropriate rule is r 14.28(1)(b). A pleading “has a tendency to cause prejudice, embarrassment or delay in the proceedings” if it “unintelligible, ambiguous, vague or too general”: Gunns Ltd v Marr [2005] VSC 251 (‘Gunns') at [57]. Pleadings that do not comply with the general or specific principles of pleading (see [67]-[70], below) may also be within this rule.

Some principles of pleading

66. The relevant legal principles that apply to pleadings are well-established.

67. In an application under rr 14.28(1)(a)-(c) of the UCPR, it is generally appropriate to consider at least three of them.

68. The first are the general principles that inform the nature and function of a pleading. In Young v Hones [2013] NSWSC 580 at [79]-[80], Garling J succinctly summarised the function of pleadings:

The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirements of procedural fairness, namely that a party should have the opportunity to meet a case against him or her: Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286, 296, 302-3. As well, the issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; (1982)148 CLR 658 at 664.

Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005; McGuirk v The University of NSW [2009] NSWSC 1424 at [24] per Johnson J.

69. A number of these principles are reflected in the UCPR: see rr 14.6-14.20.

70. The second are the more specific principles that apply to particular claims. For example, certain matters must be specifically pleaded “that, if not pleaded, may take the defendant by surprise”: r 14.14 of the UCPR. And, relevantly here, if claims are made for exemplary or aggravated damages, particulars must be provided which state the facts and circumstances upon which the party relies to establish such claim: rr 15.7 and 15.8 of the UCPR.

71. The third relates to the function of the Court. It is not the role of the Court to assist parties in drafting pleadings which comply with the UCPR: Gunns at [57]; McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35]. Rather, as noted in Gunns at [57], the Court is concerned with ensuring

that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent and intelligible statement of its case …

Consideration: introduction

72. As I will next explain, I consider that there are deficiencies in the pleadings that are required to be addressed. Nevertheless, essentially because there is or may be limitation issues that arise if I strike out some of the pleadings (or even parts of them), I will not as I have earlier mentioned, take that course.

73. I will address the alleged deficiencies in the pleadings filed by the plaintiffs to these proceedings. Not unexpectedly, there is a considerable amount of overlap in what are alleged to be the deficiencies in the respective statements of claim.

74. There is a further practical difficulty, as pointed out by the defendants: in all but one of the proposed amended pleadings, the plaintiffs have failed to identify the nature and extent of the amendments made to the pleading: typically, this is done by underlining new matters, and striking through those parts that are removed. That is a clear, and well-recognised, requirement: r 19.5(2) of the UCPR.

75. Although the matters were argued in a different order in the written submissions, it is convenient to deal first with the matters that raise the most complaints: the statements of claim are similar, and resolving the competing arguments in these matters will necessarily resolve the arguments, or most of the arguments, in the remaining matters.

Amber McGregor

Introduction

76. The plaintiff, by notice of motion filed 15 March 2023, seeks leave to amend her statement of claim. The current statement of claim is the one filed in the District Court on 21 July 2020. That statement of claim has one defendant. The plaintiff seeks leave to file a further statement of claim that is described as: ‘Proposed Further Amended Statement of Claim’ that is attached to the affidavit of the plaintiff’s solicitor affirmed 21 February 2023. By the proposed amended pleading, the plaintiff seeks leave to add four further defendants, and add a claim for damages for conspiracy.

77. The defendant, by notice of motion filed 15 October 2021, seeks, in the alternative, three orders:

1. First, that the proceedings be dismissed, pursuant to r 12.7(1) of the UCPR, for want of prosecution. (I have already dealt with this part of the application: see [61], above).

2. Secondly, that the proceedings be summarily dismissed, pursuant to r 13.4(1)(b) and (c) of the UCPR. (I have already dealt with this part of the application: see [61], above).

3. Thirdly, that the proceedings be struck out, pursuant to rr 14.28(1)(a)-(c) of the UCPR.

78. In substance, therefore, the defendant opposes the leave sought by the plaintiff. I turn now to deal with the arguments raised by the defendant.

The defendant’s arguments

79. The defendant opposes the leave sought by the plaintiff and raises a number of complaints. Those complaints are essentially directed to the form of what is alleged.

80. Some I regard as easily solved. One is that a claim for exemplary damages is made, but there are no particulars of the kind required by r 15.7 of the UCPR. The plaintiff plainly needs to comply with this rule.

81. Another is that the defendants contend that the proposed amended pleading contains no allegation setting out the basis upon which it could be liable for any of the tortious actions of any named individual. That is, perhaps surprisingly, so. Ordinarily the liability of each of the named individuals arises by virtue of the fact that they are employees of the defendant, and that the liability arises because the acts of each individual occurred in the course of their employment. However, the PFASOC omits these basic matters. This can be illustrated by reference to the proposed second defendant. He is identified only as a specialist “with” the Hospital: PFASOC, par 7. It is then put that each defendant (essentially medical specialists) owed a duty of care, but there is no express reference to the Hospital having to meet a claim for vicarious liability; on the face of it, each defendant is sued directly, and no attempt is made – or clearly made – to attribute any of their liability in negligence to the Hospital. This, in my view, is confirmed in, or by, PFASOC, par 25 – a paragraph that, in any event, does not seek to identify any of the named individual defendants as being employees or agents of the Hospital. That can be easily remedied, if a vicarious liability case is sought to be made.

82. The defendant also complains that the plaintiff has failed to properly plead the material facts for the purposes of s 5B(1) of the Civil Liability Act 2002 (NSW) (‘CLA’). In my view attention to these requirements is required: see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [7]. In MTH v State of New South Wales [2022] NSWSC 884 at [68]-[69], Garling J set out the pleading principles that apply in connection with claims for damages brought under the CLA in these terms:

68. However, in my view, it is essential for a pleading of a claim pursuant to the Civil Liability Act to set out clearly:

1. all of the facts, matters and circumstances relied upon to give rise to a duty of care: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [50];

2. a risk of harm in respect of which a duty of care is owed: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [7]; Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]ff; Tapp v Australian Bushman’s Campdraft & Rodeo Association Ltd [2022] HCA 11; 96 ALJR 337 at [106];

3. that the risk was foreseeable, namely that it was either known or should have been known to the proposed defendant: s 5B(1)(a) Civil Liability Act; Benic v State of New South Wales [2010] NSWSC 1039 at [90]-[92];

4. that the risk was not insignificant: s 5B(1)(b) Civil Liability Act; and

5. the precautions which a reasonable person in the position of the defendant would have taken against the risk of harm: s 5B(1)(c) of the Civil Liability Act.

69. It is of course also necessary to plead causation in the terms of s 5D of the Civil Liability Act with respect to the harm which ensued.

83. In my view the plaintiff has, to some degree, complied with these requirements. But it is evident that in some respects there has been no compliance, or no proper compliance, with the requirements and, furthermore, there is a measure of confusion evident in the PFASOC – as follows:

1. The duty of care that is alleged is directed to the child, not the plaintiff: PFASOC, par 13.

2. It appears, in what follows, that the plaintiff attempted to identify the particular risk of harm but, again, this was by reference to the child, not the plaintiff: PFASOC, par 14.

3. The pleading then alleges that it was “reasonably foreseeable” that the failure to properly treat the child “would cause the plaintiff’s injury, loss and damage”: PFASOC, par 15.

4. It is then alleged that in consequence of the “negligent treatment” of the child, and the observations of the plaintiff of that treatment, the plaintiff suffered injury loss and damage”: PFASOC, par 16.

5. The particulars then provided include allegations of the development of psychiatric injury; “legal expenses in recovering custody of her children”; legal costs of “defending the investigation brought against her and for the recovery of her children”: PFASOC, par 16 – particulars of injury, loss and damage.

84. In my view this pleading is inadequate in several respects. Most of those inadequacies are apparent in what I have described. More fundamentally, I regard the allegation as to the existence and scope of the duty of care alleged to be owed inadequate. It is inadequate not simply because of what is contained in PFASOC, par 13, but because the nature and scope of the duty of care alleged extends, on one view, beyond what conventionally would be owed to a family member bringing a “nervous shock” claim, under Part 3 of the CLA, in connection with a medical negligence claim by an injured plaintiff. To the extent that, in reality, that is all that was intended, then it is also deficient, and should be remedied.

85. Two of the complaints raised in the written submissions – those relating to the claim for malicious prosecution and intentional infliction of mental harm – raise more substantive issues, but have fallen away: in the most recent version of the pleading upon which the plaintiff seeks leave to file, these causes of action have been removed and replaced with the conspiracy claim.

86. The next substantive issue relates to the claim that the plaintiff suffered damage by reason of a conspiracy between the proposed second to fifth defendants.

87. In my view the pleading in connection with the conspiracy claim is self-evidently defective. The defendants are entitled to know “the precise factual basis on which it is contended that one or more of them have conspired to cause harm or to injure” the plaintiff: Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206; [2011] NSWSC 433 at [652].

88. It is convenient to set out the three elements of the tort of conspiracy. It is unnecessary, in view of the nature of the applications before me, to undertake a fine grained analysis of the tort of conspiracy. It is sufficient to draw upon the analysis undertaken by Campbell J in Fatimi Pty Ltd v Bryant [2002] NSWSC 750 at [104] in connection with “conspiracy to injure” (citations omitted):

The elements of the first of these subspecies are:

(1) An agreement between the defendants. To make clear that this agreement is not necessarily a contractual one, the cases frequently refer to it as a “combination” …

(2) The agreement must be one which has as its predominant purpose the inflicting of injury upon the plaintiff …

(3) The agreement must be carried into effect, and thereby cause damage to the plaintiff …

89. At a minimum, the statement of claim is required to identify precisely the circumstances in which the agreement (viz., the conspiracy) is said to have been formed; the circumstances which show the making of an agreement or the acts done from which the making of such agreement is to be inferred; the intent or purpose of the agreement; the overt acts alleged to have been done by each of the conspirators in pursuance (and furtherance) of the conspiracy. This list is not exhaustive; they are just some of the matters that require attention. Undoubtedly there are others. For example, Mr Buterin argued that the failure to plead the second element of the tort was fatal to the claim. That may well be so, but ultimately that is a matter that will be for the plaintiff to consider further.

90. The point can be illustrated simply by reference to what is alleged:

Between 6 June 2017 and 21 July 2017 the second to fifth defendants … whilst Noah was a patient … wrongfully and for an unlawful purpose conspired together to unlawfully cause the plaintiff to be removed from the custody of all her children.

91. The particulars then provided were that the defendants wrongfully, and in the absence of evidence, accused the plaintiff of administering to Noah a contraindicated drug and that the plaintiff was suffering from Munchausen’s Disease by Proxy.

92. That pleading does not identify with anything like the precision necessary how that agreement was formed: on the face of it, the agreement would, ultimately, be based upon an inference; that is the conspiratorial agreement would be subject to the plaintiff proving that each of them, at particular times, made these allegations, and thereafter an inference drawn that the overt acts were part of a conspiratorial agreement. The defendants are entitled to know the underlying material facts upon which the plaintiff would invite the Court to infer (and find) a conspiratorial agreement. Yet the pleading is entirely silent upon these fundamental matters. These are matters of the utmost seriousness, and they should be clearly and fully pleaded and particularised: Muriniti v Lawcover Insurance Pty Ltd [2022] NSWSC 90 at [476]-[478].

93. Exemplary damages are also sought, but there are no particulars of the kind required by r 15.7 of the UCPR (see [70], above).

94. Finally, the pleading makes no reference at all to whether the claim for damages is civil liability that is excluded from the CLA: s 3B of the CLA. If that allegation is to be made, then it needs to be expressly pleaded.

Disposition

95. I refuse the plaintiff leave to file the proposed further amended statement of claim in the form annexed to the affidavit of Herbert Weller affirmed 21 February 2023.

Noah Pagett

96. Noah Pagett sues the defendants in negligence and for conspiracy: see [43]-[46], above. The claim in negligence is for clinical negligence arising out of his care and treatment whilst a patient at the Hospital commencing on or around 19 June 2017. He also wishes to advance a claim that his damages were caused by the conspiracy between the second to fifth defendants. That claim is the subject of the proposed amended statement of claim, and the plaintiff’s application for leave to file that proposed pleading.

97. For no obvious reason, although the conspiracy impresses as being broadly the same as the one alleged by Amber McGregor, the pleading in relation to that cause of action is different.

98. Putting to one side the difference in pleading, in my view the deficiencies that I have outlined in connection with the conspiracy pleading in Amber McGregor’s case (see [88]-[89], above), apply with equal force. To be clear I regard this pleading as deficient for those reasons.

96. There is a further shortcoming with this pleading: unlike the pleading in Amber McGregor’s case, no attempt was made to confine the period of the alleged conspiracy; that is, there is no identification – at all – when it is alleged that it was formed and when the overt acts were performed in furtherance of the agreement.

97. The proposed amended pleading also seeks to recover exemplary damages but there are no particulars of the kind required by r 15.7 of the UCPR (see [70], above).

98. Finally, the pleading makes no reference at all to whether the claim for damages is civil liability that is excluded from the CLA: s 3B of the CLA. If that allegation is to be made, then it needs to be expressly pleaded.

Disposition

102. I refuse the plaintiff leave to file the proposed further amended statement of claim.

Brett Pagett

103. Brett Pagett sues the defendant in negligence and for conspiracy: see [50]-[57], above.

104. In relation to the claim in negligence, the defendant submits that essential matters required to properly plead a claim are absent: for example, the risk of harm has not been nor have the other matters within s 5B(1) of the CLA been addressed. I agree: see the analysis at [82], above.

105. Furthermore, the claim is one of psychiatric injury, and attention needs to be given to Part 3 of the CLA.

106. The conspiracy alleged is broadly the same as the conspiracy alleged by Amber McGregor and the comments that I have made about the pleading in that matter (see [88]-[89], above), apply here.

107. The pleading has further deficiencies in connection with exemplary damages (there are no particulars of the kind required by r 15.7 of the UCPR) and failing to address, if that is what is intended, the particular requirements to exclude the damages claimed from the operation of the CLA: s 3B.

Amanda Kenny

108. The plaintiff’s current statement of claim was the one filed in the District Court on 15 September 2020. That statement of claim sought damages in negligence: see [8]-[14], above. The plaintiff now seeks leave to add a conspiracy claim: see [15], above.

109. In my view the conspiracy pleading is inadequate, and fails to comply with the pleading requirements necessary. I have set these out in connection with the pleading in the Amber McGregor claim: see [88]-[89], above. Those comments apply with equal force to this claim.

110. To those reasons I would add, that in connection with the conspiracy alleged, no attempt has been made to identify the period of the alleged conspiracy; that is, there is no identification – at all – when it is alleged that it was formed and when the overt acts were performed in furtherance of the agreement.

111. The other issues, also identified in the Amber McGregor case, apply here: exemplary damages are claimed – it is by no means clear (it is referred to in the ‘Relief Claimed’, but there is no reference in the body of the pleading) – but no particulars are provided of that claim; the proposed amended pleading fails to address, if that is what is intended, the particular requirements to exclude the damages claimed from the operation of the CLA: s 3B; and no attention is given to the requirements of Part 3 of the CLA in connection with the negligence claim.

Disposition

112. I refuse the plaintiff leave to file the proposed further amended statement of claim.

Ashton Kenny

113. Ashton Kenny sues the defendants in negligence and for conspiracy: see [16]-[20], above. He seeks leave to file a further pleading.

114. There are three immediate problems with the proposed further pleading. The first is that it bears the title: ‘amended statement of claim’ – notwithstanding that an amended statement of claim has already been filed on 24 November 2021. The second is that the pleading does not, however, identify by underlining that which is new or strikethrough that which has been removed, contrary to r 19.5(2) of the UCPR. The third is that the pleading now seeks to add back in the fifth defendant – a party that had been removed by the amended statement of claim filed on 24 November 2021.

115. The defendant has a competing notice of motion to strike out all, or part of, the extant statement of claim – the amended statement of claim filed 24 November 2021.

116. In my view this pleading is defective for essentially the same reasons that I have given in relation to the Amber McGregor and Amanda Kenny claims.

Disposition

117. I refuse the plaintiff leave to file the proposed amended statement of claim.

Nathan Kenny

118. Nathan Kenny sues the defendants in negligence and for conspiracy: see [22]-[26], above.

119. There are competing notices of motion. The plaintiff seeks leave to file a further statement of claim. The defendants seek orders that include that the existing claim be struck out.

120. There are, similar to the Ashton Kenny matter, three immediate problems with the proposed further pleading. The first is that it bears the title: ‘statement of claim’ – notwithstanding that a statement of claim has been filed, and an amended statement of claim has already been filed on 24 November 2021. The second is that the pleading does not, however, identify by underlining that which is new or strikethrough that which has been removed, contrary to r 19.5(2) of the UCPR. The third is that the pleading now seeks to add back in the fifth defendant – a party that had been removed by the amended statement of claim filed on 24 November 2021.

121. The complaints raised by the defendants are more or less identical to those raised in the Amanda and Ashton Kenny matters. In my view this pleading is defective for essentially the same reasons that I have given in relation to those matters, and the Amber McGregor matter.

Disposition

122. I refuse the plaintiff leave to file the proposed amended statement of claim.

Orders

123. In the matter of Amanda Kenny (2020/268211), I make the following orders:

1. Refuse leave to the plaintiff to file the amended statement of claim in the form annexed to the affidavit of Herbert Weller affirmed 21 February 2023.

2. Dismiss the plaintiff’s amended notice of motion filed 15 March 2023.

3. Order the plaintiff to serve a further proposed amended statement of claim by 20 April 2023.

4. Order the defendants to indicate whether they consent to the filing of the further proposed amended statement of claim by 27 April 2023.

5. List the matter for directions before me on 1 May 2023.

6. Costs reserved.

124. In the matter of Ashton Kenny (2021/307226), I make the following orders:

1. Refuse the plaintiff leave to file the proposed further amended statement of claim in the form annexed to the affidavit of Herbert Weller affirmed 21 February 2023.

2. Dismiss the plaintiff’s further amended notice of motion filed 15 March 2023.

3. Order the plaintiff to serve a further proposed amended statement of claim by 20 April 2023.

4. Order the defendants to indicate whether they consent to the filing of the further proposed amended statement of claim by 27 April 2023.

5. List the matter for directions before me on 1 May 2023

6. Stand over the defendants’ notice of motion filed 14 June 2022 for directions on 1 May 2023.

7. Costs reserved.

125. In the matter of Nathan Kenny (2021/307218), I make the following orders:

1. Refuse leave to the plaintiff to file the amended statement of claim in the form annexed to the affidavit of Herbert Weller affirmed 21 February 2023.

2. Dismiss the plaintiff’s amended notice of motion dated 21 February 2023.

3. Order the plaintiff to serve a further proposed amended statement of claim by 20 April 2023.

4. Order the defendants to indicate whether they consent to the filing of the further proposed amended statement of claim by 27 April 2023.

5. List the matter for directions before his me on 1 May 2023.

6. Stand over the defendants’ notice of motion filed 14 June 2022 for directions on 1 May 2023.

7. Costs reserved.

126. In the matter of Amber McGregor (2020/213690), I make the following orders:

1. Refuse leave to the plaintiff to file the amended statement of claim in the form annexed to the affidavit of Herbert Weller affirmed 21 February 2023.

2. Dismiss the plaintiff’s further amended notice of motion filed 15 March 2023.

3. Order the plaintiff to serve a further proposed amended statement of claim by 20 April 2023.

4. Order the defendant to indicate whether they consent to the filing of the further proposed amended statement of claim by 27 April 2023.

5. List the matter for directions before me on 1 May 2023.

6. Stand over the defendant’s notice of motion filed 15 October 2021 for directions on 1 May 2023.

7. Costs reserved.

127. In the matter of Brett Pagett (2021/340066), I make the following orders:

1. Stand over the defendants’ notice of motion filed 14 June 2022 for directions on 1 May 2023.

2. Order the plaintiff to serve a further proposed amended statement of claim by 20 April 2023.

3. Order the defendants to indicate whether they consent to the filing of the further proposed amended statement of claim by 27 April 2023.

4. List the matter for directions before me on 1 May 2023

5. Costs reserved.

128. In the matter of Noah McGregor (2020/181110), I make the following orders:

1. Refuse leave to the plaintiff to file the amended statement of claim in the form annexed to the affidavit of Herbert Weller affirmed 21 February 2023.

2. Dismiss the plaintiff’s further amended notice of motion filed 15 March 2023.

3. Order the plaintiff to serve a further proposed amended statement of claim by 20 April 2023.

4. Order the defendants to indicate whether they consent to the filing of the further proposed amended statement of claim by 27 April 2023.

5. List the matter for directions before me on 1 May 2023.

6. Costs reserved.

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Decision last updated: 05 April 2023