Tanious v South Eastern Sydney Local Health District

[2016] NSWCA 83

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Tanious v South Eastern Sydney Local Health District [2016] NSWCA 83
Hearing dates:	20 April 2016
Decision date:	20 April 2016
Before:	Basten JA
Decision:	(1)   Dismiss the motion of Mofeed Louis Tanious dated and filed 4 April 2016.  (2)   Order that the applicant pay the costs of the respondents of the motion.
Catchwords:	PRACTICE AND PROCEDURE – notice of motion – where no proceedings on foot in Court of Appeal – no supervisory jurisdiction conferred by ongoing proceedings in Common Law Division   PRACTICE AND PROCEDURE – notice of motion seeking coronial inquest – need to identify an arguable basis for such an order – application required to be made before primary judge
Legislation Cited:	Coroners Act 2009 (NSW), s 84
Category:	Principal judgment
Parties:	Mofeed Louis Tanious (Applicant) South Eastern Sydney Local Health District (First Respondent) Dr Chris Dedousis (Second Respondent)
Representation:	Counsel: Applicant Self-represented Ms L Boyd   Solicitors: Applicant Self-represented Crown Solicitor’s Office (Respondents)
File Number(s):	CA 2014/319990
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2016] NSWSC 339 Date of Decision: 30 March 2016 Before: Wilson J File Number(s): 2013/80247

Judgment

1. BASTEN JA: The applicant, Mofeed Louis Tanious, has proceedings on foot in the Common Law Division. On 30 March 2016, Wilson J refused him leave to file and serve a further amended statement of claim and ordered Mr Tanious to pay the defendants’ costs of the motion: Tanious v Dedousis (No 3) [2016] NSWSC 339. On 4 April 2016 Mr Tanious filed a notice of motion seeking a review by this Court of the judgment of Wilson J and an order directed to the Coroner to hold an inquest with respect to his father’s death.

2. There was an earlier proceeding in this Court, the background to which should be noted. On 12 February 2014, Harrison AsJ struck out an amended statement of claim filed on 26 November 2013: Tanious v Dedousis [2014] NSWSC 51. That decision, having been made by an Associate Justice, 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. 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 a cause of action cognisable at law, 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 have been given an opportunity to replead: Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356.

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.

5. Nevertheless, it is appropriate to add that, so far as the pleading of a claim in damages is concerned, it is clear that Wilson J made the only order available to her. It is not necessary to say more in that regard. Wilson J set out the background to the application before her for leave to file and serve a further amended statement of claim. She also explained in clear terms the reasons why leave could not be granted, given the blatant non-compliance with the conditions imposed by this Court.

6. The second paragraph of the notice of motion before this Court seeks an order that the Coroner hold an inquest concerning the death of the applicant’s father. Although the Supreme Court has power to order an inquest on the application of any person, pursuant to s 84 of the Coroners Act 2009 (NSW), no arguable basis has been identified for making such an order. So far as it may be thought that a judge of this Court had power to make such an order, absent any basis for doing so, the motion must be rejected. Any such order should be sought in a trial Division of the Court.

7. The respondents seek an order for costs. Mr Tanious seeks to resist such an order on two bases, namely that he intends to take the matter further and that he has no funds to pay costs. Neither of these constitutes a ground for not making the usual order that costs follow the event.

8. The Court makes the following orders:

(1)   Dismiss the motion of Mofeed Louis Tanious dated and filed 4 April 2016.

(2)   Order that the applicant pay the costs of the respondents of the motion.

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Decision last updated: 20 April 2016