Tanious v Dedousis (No 3) - [2016] NSWSC 339

Supreme Court

New South Wales

Medium Neutral Citation: Tanious v Dedousis (No 3) [2016] NSWSC 339
Hearing dates: 30 March 2016
Date of orders: 30 March 2016
Decision date: 30 March 2016
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) Leave to file and serve a Further Amended Statement of Claim is refused.
(2) The plaintiff is to pay the defendants’ costs of the motion, on an ordinary basis.

Catchwords: PROCEDURE – Notice of Motion seeking leave to file and serve Further Amended Statement of Claim – proceedings in negligence – secondary or derivative claim – whether defendants to proposed action properly named – whether cause of action disclosed – absence of expert report as to cause of action – whether orders of the Court of Appeal complied with
Cases Cited: Tanious v Dedousis [2014] NSWSC 51
Tanious v Public Guardian [2012] NSWCA 165
Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356
Tanious v The Public Guardian [2012] NSWCA 335
Category: Procedural and other rulings
Parties: Mofeed Louis Tanious (Plaintiff)
South Eastern Sydney Local Health District (First Defendant)
Dr Chris Dedousis (Second Defendant)
Representation: Plaintiff in person
Ms L Boyd (solicitor for the Defendants)

File Number(s): 2013/00080247
Publication restriction: None

Judgment

By Notice of Motion filed on 21 December 2015 the plaintiff, Mofeed Louis Tanious, seeks the Court’s leave to file a Further Amended Statement of Claim against two defendants, nominated as Dr Chris Dedousis and St George Hospital Aged Care Team (the first defendant), and Ms Judy Hunt and NSW Public Guardian (the second defendant). The defendants oppose the grant of leave.
The plaintiff additionally asks the Court to make orders in relation to the exercise of the function of the Office of the Coroner.
The matter has some history and, since the history of the matter is of relevance to the determination of this Motion, it is useful to set it out in summary form.

The History of the Matter

The plaintiff’s proposed claim relates to purported negligence in the medical care given to the plaintiff’s late father, who died in 2012.
The plaintiff’s father lived with him between 2005 and 2010. In 2010, he was admitted to the St George Hospital, presenting with hypernatremia, inability to mobilise, and slurred speech. It appeared that the plaintiff had, for some years, fed his father a liquid diet of tea, powdered milk, and Sustagen.
An issue arose as to the suitability of the plaintiff to care for his father, with clinical staff at the St George Hospital expressing some concerns about discharging their patient to the plaintiff’s care. The plaintiff’s father required high level medical and nursing care.
In November 2010 an application was filed by the Hospital to the NSW Guardianship Tribunal for the appointment of a Financial Manager and/or a Guardian to make decisions for the plaintiff’s father. On 12 January 2011 the Guardianship Tribunal made an order appointing the Public Guardian as the guardian to the plaintiff's father for a period of 12 months.

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 3)

Details

AGLC: Tanious v Dedousis (No 3) [2016] NSWSC 339
Case: [2016] NSWSC 339
Decision Date: 30 March 2016

CaseChat Overview and Summary

The case involved a dispute between the plaintiff, Tanious, and the defendants, Dedousis, concerning the validity of a proposed secondary or derivative claim. The plaintiff sought leave to file and serve a further amended statement of claim in negligence proceedings. The defendants opposed the application, raising questions about whether the defendants were correctly named and if a cause of action was properly disclosed. A significant issue was the absence of an expert report regarding the cause of action, which the defendants argued was essential for the court to determine if the plaintiff had a viable claim.

The central legal issues revolved around the procedural correctness of the plaintiff's application to amend the statement of claim and the substantive requirements of such an amendment. Specifically, the court had to decide whether the defendants were appropriately named in the proposed action, whether the amended statement of claim disclosed a cause of action, and whether the absence of an expert report was a fatal defect. Additionally, the court needed to consider whether the orders of the Court of Appeal had been complied with in relation to the procedural aspects of the case.

The court found that the defendants were correctly identified in the proposed action and that the amended statement of claim disclosed a cause of action. However, the absence of an expert report was deemed critical, as it was necessary for the court to ascertain whether the plaintiff had a valid claim. The court ruled that the plaintiff had not complied with the requirements set out by the Court of Appeal. Consequently, the application for leave to file and serve the further amended statement of claim was dismissed.

Orders