Pagett v The Sydney Children’s Hospital Network; Kenny v The Sydney Children’s Hospital Network

Case •

[2024] NSWSC 292

•

21 March 2024

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Pagett v The Sydney Children’s Hospital Network; Kenny v The Sydney Children’s Hospital Network [2024] NSWSC 292
Hearing dates: 21 March 2024
Date of orders: 21 March 2024
Decision date: 21 March 2024
Jurisdiction:Common Law
Before: Chen J
Decision:

(1) In proceedings 2020/181110 (Noah Pagett bht Mattheaw Whyte v The Sydney Children’s Hospital Network):

(a) Order, pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings be dismissed.

(b) Order the plaintiff to pay the defendant’s costs of the notice of motion filed 29 February 2024 and of the proceedings.

(2) In proceedings 2021/307226 (Ashton Kenny bht Kelly Jamieson v The Sydney Children’s Hospital Network):

(a) Order, pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings be dismissed.

(b) Order the plaintiff to pay the defendants’ costs of the notice of motion filed 29 February 2024 and of the proceedings.

Catchwords:

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Want of due despatch – Where in principle settlement has been agreed between the parties for judgment in favour of the defendants – Where plaintiffs have failed to progress applications for infant approval

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Abdulla v Birmingham City Council [2013] 1 All ER 649; [2012] UKSC 47

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25

Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288

Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432

Hoser v Hartcher [1999] NSWSC 527

Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274

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

State of New South Wales v Plaintiff A [2012] NSWCA 248

Stollznow v Calvert [1980] 2 NSWLR 749

Witten v Lombard Australia Ltd [1968] 2 NSWR 529; 88 WN (Pt 1) (NSW) 405

Category:Procedural rulings
Parties:

Proceedings 2020/00181110
Noah Pagett by his tutor Mattheaw Whyte (plaintiff)
The Sydney Children’s Hospital Network t/as Westmead Children’s Hospital (defendant)

Proceedings 2021/00307226
Ashton Kenny by his tutor Kelly Jamieson (plaintiff)
The Sydney Children’s Hospital Network t/as Westmead Children’s Hospital (first defendant)
Dr Sachin Gupta (second defendant)
Dr David Isaacs (third defendant)
Dr Susan Marks (fourth defendant)
Representation:

Counsel:
T Buterin (defendants)

Solicitors:
Hebert Weller (plaintiffs)
NSW Crown Solicitor’s Office (defendants)
File Number(s): 2020/00181110 & 2021/00307226
Publication restriction: Nil

JUDGMENT EX TEMPORE

Introduction

  1. These reasons deal with applications made by defendants in professional negligence proceedings for orders that the proceedings against them be dismissed, pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), for want of due despatch.

  2. In the first matter (Noah Pagett bht Mattheaw White v The Sydney Children’s Hospitals Network), the defendant relies on the affidavits of Helen Maamary affirmed 30 May 2023 and 29 February 2024. In the second matter (Ashton Kenny bht Kelly Jamieson v The Sydney Children’s Hospitals Network), the defendants rely on the affidavits of Helen Maamary affirmed 17 June 2022 and 29 February 2024. In each matter, the defendants also read an affidavit of the solicitor for the plaintiff affirmed 12 December 2023.

  3. The plaintiffs did not rely upon any evidence and no submissions were filed by them.

Background: the plaintiffs’ claims

  1. I will set out the background facts across three parts: first, a general introduction and overview of the six claims that were brought, and the underlying conduct that was said to give rise to those claims; secondly, a summary of the claim brought by Noah Pagett; and, thirdly, a summary of the claim brought by Ashton Kenny.

Introduction

  1. The two proceedings arise out of the alleged conduct of hospital staff whilst the plaintiffs were patients at Westmead Children’s Hospital (‘the Hospital’) in early and mid-2017. The underlying conduct giving rise to the claims is, very broadly, the same: it was alleged that Hospital staff made false allegations against the mothers of the plaintiffs and that had the consequence of the plaintiffs being removed from their custody and control.

  2. There were, in addition to the above proceedings, four other claims brought that arose out of these allegations: essentially, they were claims brought by the parents of the plaintiffs. Each of those claims resolved by way of entry of judgment in favour of the defendants, with those judgments being entered on 23 October 2023.

  3. On 4 April 2023, I dealt with nine applications related to the originating process in each of the six claims: there were five applications by the plaintiffs for leave to amend their pleadings and four motions by defendants for orders striking out existing pleadings: 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 (‘McGregor’).

  4. Having determined those applications, thereafter, I case managed each action. Invariably, the orders made from time to time in each matter were the same. To the extent that there were differences, they were minor and immaterial to the current applications.

  5. I will next provide a short summary of the claims brought by each of the two plaintiffs and, thereafter, set out the procedural history of the matters since their commencement.

The claim by Noah Pagett

  1. Noah Pagett, who was born in 2014, commenced proceedings by his tutor against Westmead Children’s Hospital by statement of claim (‘SOC’) filed in the District Court on 18 June 2020. At that time, the tutor was his mother, Amber McGregor. Subsequently, on 21 July 2020, she commenced proceedings in the District Court against the defendant alleging that, by its staff, she was wrongfully accused of causing harm to Noah. Following the commencement of those proceedings, a new tutor was appointed – Mattheaw Whyte.

  2. By the statement of claim, the plaintiff sues the defendant for professional negligence arising out of the alleged erroneous administration of a drug by a nurse. Put simply, his case is that, following his admission to the Hospital on 6 June 2017, he experienced “a prolonged episode of unresponsiveness”: SOC, par 17. The plaintiff, shortly after his birth, had been diagnosed as suffering from Pitt Hopkins Syndrome – and episodic “unresponsiveness”, both “brief and prolonged”, were said to be symptomatic of that syndrome: SOC, pars 4 and 7.

  3. The plaintiff alleges, however, that the “prolonged episode of unresponsiveness” suffered by him on 19 June 2017 was caused by the erroneous administration, by a nurse, of the drug ‘Kepra’: SOC, pars 18-20. The plaintiff alleges that in consequence he “suffered personal injury”: SOC, par 21. The statement of claim did not provide any further details of the “personal injury”, but in a proposed amended statement of claim (‘PASOC’) sought to be filed, it was alleged that the injuries suffered included brain damage and a shortened life expectancy: PASOC, par 13.

The claim by Ashton Kenny

  1. Ashton Kenny commenced proceedings, by his tutor, against Westmead Children’s Hospital as well as three doctors and a nurse (each of which were alleged to be employees of the Hospital) by statement of claim filed in the District Court on 29 October 2021. On 24 November 2021, an amended statement of claim (‘ASOC’) was filed, and the fifth defendant (a nurse allegedly involved in the plaintiff’s treatment) was removed as a defendant.

  2. The essential allegations made in the ASOC may be summarised as follows:

  1. The plaintiff had been diagnosed, from August 2013, with Paroxysmal Extreme Pain Disorder (‘PEPD’): ASOC, 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: ASOC, par 8 (iv).

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

  4. The diagnosis of PEPD, and the medication regime provided for treatment of PEPD were correct, and the revised diagnosis “was wrong and was a misdiagnosis in breach of the defendant’s duty of care”: ASOC, pars 8 (vi) and (vii).

  1. The ASOC then goes on to allege a conspiracy. It is said that the Hospital, by the doctors named, “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”: ASOC, par 9. The conspiracy pleading was confined, it should be noted, to one paragraph only.

  2. The ASOC proceeds to identify particulars of damage as including brain damage, “[p]sychological damage arising from separation from his parents”, and shortened life expectancy: ASOC, par 9, Particulars of Damage (i)-(iii).

The procedural history

The Pagett matter

  1. As I have noted, above, Noah Pagett (by his tutor) commenced proceedings by SOC filed in the District Court on 18 June 2020.

  2. On 24 November 2021, a proposed amended statement of claim was served upon the solicitors for the defendant (affidavit of Helen Maamary affirmed 30 May 2023, par 10). Shortly thereafter, on 10 December 2021, the plaintiff filed a summons seeking an order that the proceedings be transferred from the District Court to this Court. An order transferring the proceedings was made on 17 March 2022.

  3. On 6 October 2022, a notice of motion was filed by the plaintiff seeking leave to file a proposed amended statement of claim (‘PASOC’). By that proposed amended pleading, the plaintiff sought to add a claim for damages for the tort of conspiracy, and four further defendants.

  4. The conspiracy sought to be alleged involved employees of the Hospital – three doctors and a nurse – agreeing “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”: PASOC, par 14. Later what was alleged was 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”: PASOC, par 14(ii).

  5. As it happens, leave to rely upon the PASOC was not pressed and, on 7 February 2023, a further proposed amended statement of claim (‘FPASOC’) was served (affidavit of Helen Maamary affirmed 30 May 2023, par 15). The notice of motion that had been filed on 6 October 2022 was amended to seek leave to rely upon the FPASOC. That notice of motion, which was dated 15 March 2023, was returnable on 4 April 2023 before me. Put simply, by this revised pleading, the plaintiff continued to press his claim for professional negligence arising out of the allegedly erroneous administration of Keppra (it was also proposed to allege that he was wrongly administered the drug ‘Epilum’: FPASOC, par 12(5)(iii)), as well as pursuing the conspiracy in the terms contained in the PASOC, described in [20], above.

  6. I refused the plaintiff leave to file the FPASOC, and dismissed the further amended notice of motion that sought that leave: McGregor at [128]. In addition to those orders, I also made an order directing the plaintiff to serve any further proposed amended statement of claim by 20 April 2023. In that judgment, I addressed the deficiencies in the conspiracy claim made in other proceedings (the form adopted was essentially common across all claims where this cause of action had been pleaded or sought to be included in an amended statement of claim) with a view to clarifying the minimum pleading requirements in connection with that cause of action, if it was to be pursued: see McGregor at [86]-[94].

  7. The plaintiff did not comply with that last order, but a further proposed amended statement of claim was served on 28 April 2023 (affidavit of Helen Maamary affirmed 30 May 2023, par 20). On 11 May 2023, the defendant advised the plaintiff that they did not consent to the filing of the further proposed amended statement of claim.

  8. The matter was listed for directions before me on 26 May 2023 and I made an order for the filing and service of any notice of motion by any party and evidence in support by 30 May 2023, and fixed any notice (or notices) of motion filed by that time for hearing on 9 June 2023.

  9. The defendant filed a notice of motion in accordance with these orders – seeking an order that the statement of claim filed 18 June 2020 be struck out pursuant to r 14.28(1) of the UCPR. The plaintiff did not file any notice of motion pursuant to the order that I made on 26 May 2023 and, to be clear, did not seek leave to file any revised pleading.

  10. On 6 June 2023, on the plaintiff’s application, the hearing that was scheduled to occur on 9 June 2023 was adjourned to enable new senior counsel briefed time to prepare – or have oversight in the preparation of – a revised pleading. On that day, I also ordered that the plaintiff serve any proposed amended statement of claim by 11 July 2023, and listed the matter for further directions on 28 July 2023.

  11. The plaintiff did not serve any proposed amended pleading in accordance with the further order that I made on 6 June 2023.

  12. On 28 July 2023, I made a further order that the plaintiff serve any proposed amended statement of claim on the defendant by 14 August 2023 and confirm compliance with this order by email to my chambers. In the event of non-compliance with these orders, the matter was to be relisted during the week commencing 14 August 2023.

  13. The plaintiff did not serve any proposed amended pleading in accordance with that order. Accordingly, the matter was relisted before me on 18 August 2023.

  14. On 18 August 2023, I fixed the defendant’s notice of motion filed 30 May 2023 for hearing on 23 October 2023.

  15. At the hearing of the defendant’s notice of motion on 23 October 2023, the solicitor for the plaintiff advised that the proceedings had resolved (as had all the other claims, including those brought by the parents referred to in [6], above), subject to the Court’s approval. The agreed terms were:

  1. Judgment for the defendant.

  2. All previous cost orders in the proceedings are vacated.

  3. No order as to costs such that each party to pay his or its own costs of the proceedings.

  1. Having been so advised, I made orders for the filing and service of the application for approval, and evidence in support of that application. The orders were:

  1. Order that the plaintiff file and serve the application for approval, together with any affidavit evidence in support by 6 November 2023, 5pm. Note that in relation to any confidential exhibit, that is to be forwarded directly to the chambers of Chen J by 6 November 2023, 5pm.

  2. Order that a court book be delivered to the chambers of Chen J by 8 November 2023, 5pm.

  1. The approval was listed for hearing on 17 November 2023.

  2. The orders that were made on 23 October 2023 were not complied with. On 8 November 2023, my chambers wrote to the parties by email, noting that the plaintiff had not complied with the previous orders and requesting that the material in support of the application for approval be provided forthwith. No response was received from the plaintiff’s solicitor, however counsel for the plaintiff advised by email on 9 November 2023 that “[s]teps have been taken to address this issue and you should receive the documents shortly”.

  3. That same day, I received via email from the plaintiff’s solicitor containing a confidential advice for approval of settlement of counsel dated 9 November 2023 and annexed memorandums of advice dated 27 July 2023 and 11 August 2023. On 15 November 2023, an affidavit of Kelly Jamieson, the tutor for Ashton Kenny in his proceedings, was provided by the plaintiff’s solicitor by email stating that she “understand[s] it is full and final resolution of the proceedings and it has been recommended to accept the advice”. No similar affidavit was filed in the Pagett matter by the tutor.

  4. Given that I did not have adequate material before me that would allow me to meaningfully assess the application for approval, on 17 November 2023 the hearing was adjourned and the following orders were made:

  1. Parties are to file and serve all material on the applications for approval by 5 December 2023, 5pm. That material is to be served in court book form, single sided and paginated.

  2. Grant leave to the parties to confirm the suitability of the dates of 12 to 14 December inclusive.

  3. To the extent that the plaintiffs seek to rely upon any further confidential material, that material is to be forwarded directly to chambers only.

  1. The applications for approval were listed for hearing on 12 December 2023. No material was filed or served. On 7 December 2023, I advised the parties by email that given the lack of response from the plaintiffs and the absence of any assurance that the material would be delivered in a timely fashion to enable the hearing to proceed, the approval applications would not be dealt with on 12 December 2023, but the matter would remain listed for directions. At this time, I also made a direction that required the filing and service of an affidavit from the solicitor for the plaintiffs providing an explanation for why the orders had not been complied with and addressing the steps that will be taken to ensure that the material will be compiled on a future occasion in accordance with any orders made. The affidavit of the plaintiffs’ solicitor tendered on this application by the defendants affirmed 12 December 2023 was the affidavit that was filed in attempted compliance with the order that I made.

  2. On 12 December 2023, the following orders were made at the directions hearing:

  1. Order the plaintiffs to file and serve all material on the applications for approval by 30 January 2024, 5pm. That material is to be in court book form, single sided and paginated.

  2. Order that in the event that the above order is not complied with by the plaintiffs and/or the matter is not otherwise ready to proceed, order the solicitor for the plaintiffs file and serve an affidavit as to why the material has not been served and why the matter is not ready to proceed with such affidavit to be filed and served by 30 January 2024, 5pm.

  3. List the approvals for directions on 2 February 2024 to confirm compliance with the above order and the readiness to proceed with those applications.

  1. On 31 January 2024, the solicitor for the plaintiff filed and served an affidavit. The affidavit is brief, and in full is as follows:

1. I am the solicitor for the plaintiff.

2. Since this matter was last before the Court, I have been unable to obtain instructions from the Plaintiff.

3. I respectively apologise to the Court and the Defendant for these circumstances.

  1. The matter was listed for directions before me on 6 February 2024. On that day, I made the following orders:

  1. Order the plaintiffs to file and serve any evidence in support of the applications for approval by 20 February 2024, 5pm.

  2. Order the defendants, if so advised, to file and serve any material in support of the application for approval by 27 February 2024, 5pm.

  1. In the event that the defendants determine not to file any such material in support of the applications for approval, but seek to have the claims dismissed for want of due despatch, pursuant to r 12.7 of the UCPR, direct that the defendants file and serve any notice of motion seeking that order, and evidence in support, as well as any outline of submissions limited to no more than four pages by 27 February 2024, 5pm.

  2. In the event that the defendants file a notice of motion seeking to have the claims dismissed for want of due despatch, direct that the plaintiffs file and serve any evidence in support, as well as any outline of submissions limited to no more than four pages, by 12 March 2024, 5pm.

  3. List the matter for further directions on 1 March 2024. On that date, any application by the solicitor for the plaintiffs to cease to act will also be listed for further directions.

  1. The plaintiff did not file or serve any material in support of an application for approval. On 29 February 2024, the solicitor for the defendant filed a notice of motion seeking dismissal of the proceedings under r 12.7 of the UCPR, an affidavit in support and submissions. The following day, the matter was listed for directions where the following orders were made:

  1. Order that the defendants’ notice of motion filed 29 February 2024 be listed for hearing on 21 March 2024.

  2. Direct that the solicitor for the defendant notify the plaintiff’s legal representatives of these orders.

  1. The solicitor for the defendant has confirmed that the solicitor for the plaintiffs was notified of these orders. Further, the Court also gave notice of the hearing to the solicitor for the plaintiffs when it rejected the filing of the notices of ceasing to act.

  2. The plaintiff has not filed any evidence in support or submissions in connection with the defendant’s application for dismissal for want of due despatch. Those solicitors have, some few days ago, ceased to act for the plaintiffs or endeavoured to do so (it appears that the notices ceasing to act were rejected by the Registry).

The Kenny matter

  1. Ashton Kenny (by his tutor) commenced proceedings by statement of claim filed in the District Court on 29 October 2021, as I have previously noted.

  2. On 24 November 2021, a proposed amended statement of claim was served upon the solicitors for the defendants (affidavit of Helen Maamary affirmed 17 June 2022, par 11). On 15 March 2022, the proceedings were transferred from the District Court into this Court.

  3. The defendants, by notice of motion filed 14 June 2022, sought an order that the amended statement of claim filed 24 November 2021 be struck out pursuant to r 14.28(1) of the UCPR. Ultimately, by way of response to the defendants’ notice of motion, the plaintiff sought leave, by further amended notice of motion filed 15 March 2023, to file a further proposed amended statement of claim.

  4. The two notices of motion were returnable before me on 4 April 2023. I refused the plaintiff leave to file the further proposed amended statement of claim, and dismissed the plaintiff’s further amended notice of motion that sought that leave: McGregor at [124]. In that judgment, I addressed the deficiencies in the conspiracy claim made in the other proceedings (the form adopted was essentially common across all claims where this cause of action had been pleaded or sought to be included in an amended statement of claim) with a view to clarifying the minimum pleading requirements in connection with that cause of action, if it was to be pursued: see McGregor at [86]-[94]. I ordered the plaintiff to serve any further proposed amended statement of claim by 20 April 2023, and stood the matter over for directions on 1 May 2023. Given these orders, and what was then thought to be the distinct likelihood of the plaintiff filing a properly formulated pleading, I stood the defendants’ notice of motion over for further directions on 1 May 2023.

  5. The plaintiff did not serve any proposed further pleading (affidavit of Helen Maamary affirmed 29 February 2024, par 9).

  6. The matter was listed for directions before me on 26 May 2023 and, as I have set out in connection with the Pagett matter, I made an order for the filing and service of any notice of motion by any party and any evidence in support by 30 May 2023, and fixed any notice (or notices) of motion filed by that time for hearing on 9 June 2023. I also fixed for hearing, on that occasion, the defendants’ notice of motion filed 14 June 2022 (a notice of motion that was not the subject of substantive orders by me on 4 April 2023, given the expectation that the plaintiff would serve a revised pleading).

  7. I have, in the Pagett matter, outlined what occurred on 6 June 2023 and thereafter: see [26]-[42], above. They reflect what happened in the current matter. Put shortly, at the hearing of the defendants’ notice of motion on 23 October 2023, I was advised that the proceedings had resolved, subject to the Court’s approval. The agreed terms were:

  1. Judgment for the defendants.

  2. All previous cost orders in the proceedings are vacated.

  3. No order as to costs such that each party to pay his or its own costs of the proceedings.

  1. Since that time, again as set out in the Pagett matter, the proceedings have not progressed to approval or in any other way.

Want of due despatch: the rule and principles

  1. Rule 12.7(1) of the UCPR deals with dismissal of proceedings where a plaintiff does not prosecute those proceedings with due despatch. That rule provides:

If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

  1. The rule confers upon the court a broad discretion, of which the interests of justice is the primary consideration: Stollznow v Calvert [1980] 2 NSWLR 749, 751 (‘Stollznow’); Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 at [51] (‘Micallef’). The discretion is not to be confined to “rigid rules” but requires a decision to be reached upon a balance of the relevant circumstances: Stollznow at 751(7), citing Witten v Lombard Australia Ltd [1968] 2 NSWR 529; 88 WN (Pt 1) (NSW) 405, 412; Micallef at [51] and [62]. There are a variety of matters that may be considered (Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]), a number of which are conveniently set out (but emphasised to be non-exhaustive) in Hoser v Hartcher [1999] NSWSC 527 at [19]-[30] (‘Hoser’).

  2. Additionally, in an application such as this, it is necessary to have regard to the “overriding purpose” referred to in s 56 of the Civil Procedure Act 2005 (NSW) (‘CPA’), being "to facilitate the just, quick and cheap resolution of the real issues in the proceedings” and ss 57-58 more generally: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17]; Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432 at [52].

Consideration and disposition

  1. The submissions of the defendants dealt with the matters as one, no doubt because the circumstances of each are essentially indistinguishable. I propose, therefore, to deal with the applications in this way.

  2. The defendants rely upon delay – specifically in the context of the approval applications, but also throughout the proceedings more generally – and the failure to offer any explanation for the delay or evidence that would provide some assurance that the application, or proceedings more generally, would proceed in a timely way.

  3. It is important to recognise that in each matter proceedings were commenced many years ago: in the Pagett matter, by SOC filed on 18 June 2020 in the District Court; and in the Kenny matter, by SOC filed on 29 October 2021 in the District Court. Each claim arises out of alleged conduct said to have occurred in 2017.

  4. In the Pagett matter, the pleading filed by the plaintiff undoubtedly required revision. Multiple attempts were made to formulate the claim in a form that complied with the rules. The plaintiff sought leave to file an amended pleading. I considered that proposed amended pleading to be deficient, and I refused the plaintiff leave to file it: see McGregor at [96]-[101] that deal with my reasons for why I considered it appropriate to refuse the plaintiff leave. After that time, the plaintiff repeatedly failed to comply with orders that I made to serve any further proposed amended pleading. It is also important, in my view, to note that what was sought to be alleged against the defendant (and the proposed additional defendants) were extremely serious allegations (an alleged conspiracy involving doctors and a nurse employed by the Hospital), yet no meaningful pleading had been provided to enable the individual defendants to have any clear grasp of what was alleged against each of them.

  5. In the Kenny matter, the defendants included the Hospital as well as a number of doctors who were alleged to have been involved in a conspiracy to injure the plaintiff. The defendant moved to have the ASOC struck out pursuant to r 14.28(1) of the UCPR and the plaintiff, by way of response, sought leave to file a FPASOC. That proposed amended pleading I considered to be deficient, and I refused the plaintiff leave to file it: see McGregor at [113]-[116] that deal with my reasons for why I considered it appropriate to refuse the plaintiff leave. As with the Pagett matter, so too here, the plaintiff repeatedly failed to comply with orders that I made to serve any further proposed amended pleading. Again, as with the Pagett matter, it is also important, in my view, to note that what was in fact alleged against the defendants were extremely serious allegations (an alleged conspiracy), yet no meaningful pleading had been provided to enable the defendants to have any clear grasp of what was alleged against each of them.

  6. I have set out, in some detail, the procedural history for both matters and it is clear that there has been a consistent failure of the plaintiffs to comply with the orders and to progress the matter meaningfully or, indeed, at all. Further, once the parties had advised the Court that there had been an “in principle” settlement requiring approval, the plaintiffs have been unable to progress that application to enable the Court to consider it. Again, I have set out the procedural history earlier in these reasons. Put simply, there has been extensive delay and a failure to prosecute the claims – including taking the necessary procedural steps – with due despatch.

  7. Although the defendants did not seek to prove specific or identifiable prejudice occasioned by the delay, I am satisfied that there is nevertheless some presumed prejudice that has resulted by reason of the passage of time since the commencement of proceedings and the delays to which I have referred. That is particularly so where the plaintiffs’ pleadings were still to plead the substantive case against the defendants involving, as I have earlier noted, events from 2017. Although arising in a different context, it is worth noting the remarks of Lord Sumption in Abdulla v Birmingham City Council [2013] 1 All ER 649; [2012] UKSC 47 at [41] which I consider to be relevant in the present context: “Delay impoverishes the evidence available to determine the claim, prolongs uncertainty, impedes the definitive settlement of the parties' mutual affairs and consumes scarce judicial resources in dealing with claims...”. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551; [1996] HCA 25, McHugh J made similar remarks. See also, in this specific context, Hoser at [25].

  8. Neither the plaintiffs (via their tutors), nor those that represent (or represented) them have sought to explain the delay and inactivity, as the defendants submitted. This is a significant matter which tells in favour of the defendants, in my view. To the extent there was some (limited) evidence directed to this broad topic, it is confined to why the approval applications have not progressed: it is possible to infer that, given what was proposed by way of orders for approval, each of the plaintiffs have lost interest in participating further in any part of the proceedings. That is hardly satisfactory, and I do not consider it is. At a minimum, it is contrary to the obligations of all litigants: s 56(3) of the CPA. Beyond that limited evidence, there is no explanation for why the matter has progressed in the way that it has, and why the proceedings in connection with the pleadings have taken the course that they have. It is to be noted that at all times during the course of the proceedings (perhaps until the last few days), the plaintiffs have had solicitors acting on their behalf as well as counsel and quite often senior counsel.

  9. Given the absence of evidence from the plaintiffs (or those that represent, or represented, them), it is simply not possible to be satisfied that either the applications or the proceedings more generally would, moving forward, be prosecuted with due despatch. I am satisfied, particularly having regard to the procedural history that has been set out, that they would not be.

  10. It should be emphasised that it cannot be said that the defendants have stood back and allowed the plaintiffs to remain inert; on the contrary, the defendants have, through their solicitors, been proactive in requiring the plaintiffs to provide and finalise their pleadings against the defendants. To be clear, I accept that the defendants have properly taken all steps to secure progress of the proceedings and to encourage the plaintiffs to do likewise.

  11. It is also accepted that the plaintiffs’ prospects of success are a relevant factor: Hoser at [29]. There are two particular strands of evidence that, in my view, are important in connection with this issue. The first is the fact that the pleadings themselves were, and remained, inadequate and, despite the efforts of counsel (and senior counsel), no properly formulated claim was able to be prepared – despite repeated opportunities. No explanation was ever proffered as to why this was so, and none have been proffered on this application. The second is the fact that the plaintiffs themselves wish for judgments to be entered in favour of the defendants but have not produced any evidence that would permit the Court to engage in the process to determine whether it should (and as the parties accepted was required) give that approval. Thus, it is not a case where, self-evidently, the claims by the plaintiffs are strong. Rather, the inferences that are available are to the opposite effect. It is, therefore, not a situation where one could readily say that each of the claims brought by the plaintiffs are strong such that “it is less likely that justice will be done” by dismissing the claims: Hoser at [29].

  12. In my view, the overriding purpose and considerations in ss 56(1)-(3) of the CPA, including the just and efficient disposal of the Court’s business and use of its resources and the timely disposal of the proceedings (s 57 of the CPA), support the dismissal of the proceedings. So too do the elimination of delay (s 59 of the CPA), and the need for costs to be proportionate (s 60 of the CPA).

  13. I am satisfied that the interests of justice require the dismissal of both actions.

Orders

  1. For the above reasons, I make the following orders:

  1. In proceedings 2020/181110 (Noah Pagett bht Mattheaw Whyte v The Sydney Children’s Hospital Network):

  1. Order, pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings be dismissed.

  2. Order the plaintiff to pay the defendant’s costs of the notice of motion filed 29 February 2024 and of the proceedings.

  1. In proceedings 2021/307226 (Ashton Kenny bht Kelly Jamieson v The Sydney Children’s Hospital Network):

  1. Order, pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings be dismissed.

  2. Order the plaintiff to pay the defendants’ costs of the notice of motion filed 29 February 2024 and of the proceedings.

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Decision last updated: 21 March 2024

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Cases Citing This Decision

2

Hunter Community Environment Centre Inc v Browne [2024] NSWSC 1449
Blessed v Western Sydney Local Health District [2024] NSWSC 871
Cases Cited

7

Statutory Material Cited

2

Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Brisbane South Regional Health Authority v Taylor [1996] HCA 25