Tanious v South Eastern Sydney Local Health District

[2016] NSWCA 326

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Tanious v South Eastern Sydney Local Health District [2016] NSWCA 326
Hearing dates:	16 November 2016
Decision date:	16 November 2016
Before:	Payne JA at [1]; Barrett AJA at [15]
Decision:	(1) Leave to appeal refused; (2) The applicant pay the respondents’ costs as agreed or assessed.
Catchwords:	PRACTICE AND PROCEDURE – applicant granted leave to file amended statement of claim subject to certain conditions – judge of Common Law Division refused leave to file amended statement of claim which did not comply with conditions imposed – applicant filed notice of motion seeking review of decision – motion dismissed by judge of appeal – applicant filed summons seeking leave to appeal from both decisions – whether leave should be granted
Cases Cited:	Tanious v Dedousis (No 2) [2014] NSWSC 1361 Tanious v Dedousis (No 3) [2016] NSWSC 339 Tanious v Dedousis [2014] NSWSC 51 Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356 Tanious v South Eastern Sydney Local Health District [2016] NSWCA 83
Category:	Procedural and other rulings
Parties:	Mofeed Louis Tanious (Applicant) South Eastern Sydney Local Health District (First Respondent) Chris Dedousis (Second Respondent)
Representation:	Applicant in person L Boyd (solicitor advocate for the Crown Solicitor – First and Second Respondents)
File Number(s):	2016/285531
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: Tanious v Dedousis (No 3) [2016] NSWSC 339 Date of Decision: 30 March 2016 Before: Wilson J File Number(s): 2013/80247

ex tempore Judgment

1. PAYNE JA: On 26 November 2013 the applicant filed an amended statement of claim alleging professional negligence in proceedings in the Supreme Court.

2. On 12 February 2014, Harrison AsJ struck out that pleading: Tanious v Dedousis [2014] NSWSC 51. That decision was reviewed on the application of Mr Tanious, by Price J who rejected the application on 9 October 2014: Tanious v Dedousis (No 2) [2014] NSWSC 1361.

3. An appeal to this Court was upheld, though not on the basis that the amended statement of claim should not have been struck out. That pleading was clearly defective and was properly struck out. However, this Court identified an intention to raise an arguable cause of action, namely a claim of derivative harm based on alleged mistreatment of the applicant’s father whilst in St George Hospital. The Court held that Mr Tanious should be given an opportunity to replead: Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356.

4. In the proceedings today Mr Tanious raised the possibility that he would seek to vary or amend the orders of this Court, however he accepted that his summons seeking leave to appeal was not an appropriate method to seek such an amendment or variation.

5. This Court in its decision imposed conditions on the leave to replead. One of those conditions was that any further amended statement of claim should be accompanied by one or more expert reports (not by the applicant) setting out (a) the alleged breach of duty of care (b) the general nature and extent of damage alleged and (c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.

6. On 30 March 2016 Wilson J refused leave to the applicant to file a further amended statement of claim in the Common Law Division: Tanious v Dedousis(No 3) [2016] NSWSC 339.

7. The applicant filed a notice of motion seeking a review by this Court of the Wilson J decision. On 20 April 2016 Basten JA dismissed that motion: Tanious v South Eastern Sydney Local Health District [2016] NSWCA 83. His Honour said at [3]-[4]:

[3] This Court imposed conditions on the leave to replead which, as Wilson J correctly noted, were not complied with. The present notice of motion did not seek to reopen the earlier judgment delivered in this Court. There is no jurisdiction conferred on a judge of this Court to review a judgment and orders of another judge. The jurisdiction of this Court is, relevantly for present purposes, appellate. The applicant has not sought leave to appeal. It appears that Mr Tanious has relied on the fact that he still has proceedings on foot in the Common Law Division. But that does not vest some continuing supervisory jurisdiction in this Court: the Court of Appeal hears appeals from identified judgments and orders. This application involves a new matter.

[4] Accordingly, there being no proceeding on foot in this Court, no relief can be sought by notice of motion. It follows that the motion must be dismissed.

8. On 30 August 2016 an application for special leave to appeal from the decision of Basten JA was refused. Bell and Gageler JJ said:

The decision of the New South Wales Court of Appeal (Basten JA) dismissing the applicant’s motion is plainly correct. Special leave is refused.

9. On 23 September 2016 the applicant filed a summons seeking leave to appeal from the decisions of the Wilson J and Basten JA.

Application for leave to appeal from the decision of Basten JA

10. The application for leave to appeal from the decision of Basten JA on the applicant’s notice of motion is misconceived. The proceedings before his Honour involved a new matter. His Honour’s dismissal of the applicant’s notice of motion was described by the High Court as “plainly correct” when refusing special leave to appeal from his Honour’s decision.

Application for leave to appeal from the decision of Wilson J

11. In the Wilson J decision her Honour stated at [38]-[39]:

[38] In a document that does accompany the claim, headed “Plaintiff’s sixth submissions”, the plaintiff referred the Court to material previously filed in support of the original Statement of Claim, being medical records, hospital discharge summaries, and his own experience as “an overseas trained general practitioner” informed by medical textbooks. Additionally, the plaintiff sought to rely upon medical records and correspondence from the State Coroner as supplying the place of expert evidence.

[39] I have looked at each of the documents referred to by page reference in the Sixth Submissions, but none of the material identified is capable of establishing the matters set out by the Court of Appeal at order (2)(a)(iii)(B)(1) – (4). None of it could be regarded as an expert report of the nature referred to by the Court of Appeal.

12. The applicant submitted that Wilson J ignored the fact that the applicant “has already filed more than one expert reports confirming direct humiliation towards the applicant himself”.

13. The applicant misconceives the effect of orders (2)(a)(iii)(B)(1)-(4) of the orders made by this Court on 19 November 2015. The proposed further amended statement of claim the subject of Wilson J’s judgment did not conform with these orders in any respect. As Basten JA noted in the course of his earlier decision, “Wilson J made the only order available to her”. I respectfully agree.

14. I propose the following orders:

1. Leave to appeal refused;

2. The applicant pay the respondents’ costs as agreed or assessed.

15. BARRETT AJA: I agree.

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