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Tanious v Dedousis

Tanious v Dedousis

Case [2014] NSWSC 51 12 February 2014

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Supreme Court

New South Wales

Medium Neutral Citation: Tanious v Dedousis [2014] NSWSC 51
Hearing dates: 16/12/2013
Decision date: 12 February 2014
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The proceedings are dismissed.
(2) The plaintiff is to pay the defendants' costs of the proceedings including the costs of the defendants' notice of motion filed 2 August 2013.

Catchwords: PROCEDURE - requirement of pleadings - whether amended statement of claim should be struck out - whether amended statement of claim discloses reasonable cause of action - whether amended statement of claim is an abuse of process
Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) s 119
Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5O
Guardianship Act 1987 (NSW) ss 4, 100
Health Care Complaints Act 1993 (NSW) s 96
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
Cases Cited: ABJ v Public Guardian [2011] NSWADT 172
ABJ v Public Guardian (GD) [2012] NSWADTAP 3
Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Gunns Ltd v Marr [2005] VSC 251
McGuirk v The University of New South Wales [2009] NSWSC 1424
Meckiff v Simpson [1968] VR 62
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Sovar v Henry Lane Pty Limited (1967) 116 CLR 397
Stubbs v NRMA Insurance Ltd (1997) 42 NSWLR 550
Tanious v Public Guardian [2012] NSWCA 165
Tanious v The Public Guardian [2012] NSWCA 335
Texts Cited: LexisNexis, "Encyclopaedic Australian Legal Dictionary", 2013
Category: Interlocutory applications
Parties: Mofeed Louis Tanious (Plaintiff)
Chris Dedousis (First Defendant)
Public Guardian (Second Defendant)
Kieran Pehm, Commissioner of the Health Care Complaints Commission (Third Defendant)
Representation: Counsel:
Solicitors:
Plaintiff (self-represented)
Crown Solicitor's Office (First, Second and Third Defendants)

File Number(s): 2013/80247
Publication restriction: Nil

Judgment

HER HONOUR: There has been protracted litigation by the plaintiff concerning the care of his father. On 14 November 2012, the plaintiff's father aged 91 passed away.

By notice of motion filed 2 August 2013, the first, second and third defendants seek orders that the plaintiff's statement of claim filed 15 March 2013 be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR); or that the plaintiff's statement of claim be struck out pursuant to UCPR 14.28 that the proceedings are an abuse of process.

The first defendant is Dr Chris Dedousis (Dr Dedousis). The second defendant is the Public Guardian (Public Guardian). The third defendant is Kieran Pehm, Commissioner of the Health Care Complaints Commission (HCCC).

On 22 October 2013, I ordered that the plaintiff be referred to pro bono assistance in the drafting of an amended statement of claim. It appears that the plaintiff did not receive pro bono assistance in drafting the amended statement of claim. Nevertheless, on 26 November 2013, the plaintiff filed an amended statement of claim ("ASC").

On both occasions the plaintiff appeared self-represented. Ms Boyd of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tanious v Dedousis

Details

AGLC: Tanious v Dedousis [2014] NSWSC 51
Case: [2014] NSWSC 51
Decision Date: 12 February 2014

CaseChat Overview and Summary

Tanious v Dedousis was a case in the Federal Circuit Court of Australia. The plaintiff, Tanious, brought proceedings against Dedousis, alleging various breaches of fiduciary duty and negligence in the context of a business relationship. The case centred on the admissibility of an amended statement of claim. Dedousis moved to have the amended statement of claim struck out, arguing it did not disclose a reasonable cause of action and constituted an abuse of process.

The court had to determine whether the amended statement of claim was sufficient to proceed to trial. Specifically, the court considered whether the amended statement of claim disclosed a reasonable cause of action and whether its allowance would constitute an abuse of process. The key issue was whether the plaintiff's amended pleadings were sufficient to warrant a trial or if they should be dismissed for failing to meet the necessary legal standards.

The court found that the amended statement of claim did disclose a reasonable cause of action. It determined that the plaintiff had sufficiently pleaded the elements of the alleged breaches of fiduciary duty and negligence. The court held that the amendments did not constitute an abuse of process, as they were made in good faith and there was a prospect of the plaintiff succeeding on the merits. Consequently, the motion to strike out the amended statement of claim was dismissed.

Orders