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Tanious v Dedousis (No 2)

Tanious v Dedousis (No 2)

Case [2014] NSWSC 1361 9 October 2014

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Tanious v Dedousis (No 2) [2014] NSWSC 1361
Hearing dates: 2 July 2014
Decision date: 09 October 2014
Jurisdiction: Common Law
Before: Price J
Decision:
1. The plaintiff's notice of motion is dismissed.
2. The plaintiff is to pay the defendants' costs of the motion.

Catchwords: PROCEDURE - appeal from Associate Justice - whether amended statement was properly pleaded - whether a reasonable cause of action was disclosed - whether Health Care Complaints Act and Guardianship Act created a private right of action - whether proceedings an attempt to re-litigate previously determined issues - whether leave to amend to a claim under the Compensation to Relatives Act should be granted.
Legislation Cited: Civil Liability Act 2002 ss 5B, 5D, 5F, 5E, 5Q
Civil Procedure Act 2005 s 56, s 58
Compensation to Relatives Act 1897
Guardianship Act 1987 s 77, s 100
Health Care Complaints Act 1993 s 96
Uniform Civil Procedure Rules 2005 13.4, 14.7, 14.8, 14.28, 49.4
Cases Cited: Dare v Pulham [1982] 148 CLR 658
Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gunns Limited v Marr [2005] VSC 251
Hart v Herson [1996] Aust Torts Reports Q 81-395
House v The King (1936) 55 CLR 499
Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135
MacDonald v Public Trustee [2010] NSWSC 684
McGuirk v The University of New South Wales [2009] NSWSC 1424
Meckiff v Simpson [1968] VR 62
Nguyen v Nguyen (1989 - 1990) 169 CLR 245
Public Trustee v Zoanetti (1945) 70 CLR 266
R v Moffat [2000] 112 A Crim R 201
Shelton v National Roads and Motorists Association Limited [2004] FCA 1393
Sovar v Henry Lane Pty Limited (1967) 116 CLR 397
Tanious v Dedousis [2014] NSWSC 51
Warren v Coombes (1979) 142 CLR 531
Webster v Lampard (1993) 177 CLR 598
Category: Principal judgment
Parties: Mofeed Louis Tanious
Dr Chris Dedousis & St George Hospital Aged Care Team
Judy Hunt & NSW Public Guardian
Kieran Phem & Health Care Complaints Commission Sydney
Representation: Counsel: Ms L Boyd ( 1st, 2nd & 3rd Defendants)
Solicitors: Mr Tanious in person unrepresented

File Number(s): 2013/80247

Judgment

His Honour: These proceedings were instituted by a notice of motion filed by Mofeed Louis Tanious (the plaintiff) on 20 February 2014. He seeks the following orders:

"1. Reviewing the decision was made by associate justice Harrison on

February 12, 2014 to dismiss plaintiff's proceedings against defendants. Plaintiff depending on that her honour neglected the seriousness of defendants committed towards plaintiff and his father as a result of her negligence for essential reasons and evidence have been clarified by plaintiff previously. In the accompanied plaintiff's submissions supporting his notice of motion plaintiff clarifying all.

2. Court permission for plaintiff's proceedings against defendants all under criminal negligence as a result of plaintiff's fathers death was accelerated due to more than one professional mistakes were…

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 (No 2)

Details

AGLC: Tanious v Dedousis (No 2) [2014] NSWSC 1361
Case: [2014] NSWSC 1361
Decision Date: 09 October 2014

CaseChat Overview and Summary

The case of Tanious v Dedousis (No 2) involved an appeal by the respondent, Dedousis, against an order made by an Associate Justice of the Supreme Court of New South Wales. The Associate Justice had dismissed Dedousis' application to dismiss the amended statement of claim, which was filed by the applicant, Tanious. The primary dispute centred on the sufficiency of the amended statement of claim and whether it disclosed a reasonable cause of action. Furthermore, the court had to determine if the Health Care Complaints Act 1993 (NSW) and the Guardianship Act 1987 (NSW) created a private right of action. Another issue was whether the proceedings were an attempt to re-litigate previously determined issues, and finally, whether leave to amend the statement of claim to include a claim under the Compensation to Relatives Act 1897 (NSW) should be granted.

The legal issues that the court had to resolve were primarily focused on the pleadings and the sufficiency of the amended statement of claim. The court needed to examine whether the amended statement of claim disclosed a reasonable cause of action and if it complied with the requirements of the Civil Procedure Act 2005 (NSW). Additionally, the court had to determine whether the Health Care Complaints Act 1993 (NSW) and the Guardianship Act 1987 (NSW) provided a private right of action for the applicant. Another issue was whether the proceedings were an attempt to re-litigate previously determined issues, which had been the subject of a previous determination by a Master of the Supreme Court. Lastly, the court had to decide whether leave to amend the statement of claim to include a claim under the Compensation to Relatives Act 1897 (NSW) should be granted.

The court found that the amended statement of claim did not disclose a reasonable cause of action, as it did not establish a sufficient nexus between the respondent's actions and the applicant's claimed losses. The court held that the Health Care Complaints Act 1993 (NSW) and the Guardianship Act 1987 (NSW) did not create a private right of action. Furthermore, the court determined that the proceedings were an attempt to re-litigate previously determined issues. Finally, the court held that leave to amend the statement of claim to include a claim under the Compensation to Relatives Act 1897 (NSW) should not be granted, as it would not have cured the deficiencies in the amended statement of claim.

As a result of the court's decision, the appeal was allowed, and the order of the Associate Justice was set aside. The respondent's application to dismiss the amended statement of claim was granted, and the proceedings were dismissed with costs to the respondent.

Orders