Wei Fan v South Eastern Sydney Local Health District (No 1

[2015] NSWSC 247

Supreme Court

New South Wales

Medium Neutral Citation:

Wei Fan v South Eastern Sydney Local Health District (No 1 [2015] NSWSC 247

Hearing dates:

17 March 2015

Date of orders:

17 March 2015

Decision date:

17 March 2015

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

1. There be no orders made in relation the plaintiff’s notice of motion dated 24 July 2013

Catchwords:

PRACTICE AND PROCEDURE – notice of motion – whether notice of motion finalised

Cases Cited:

Wei Fan v South Eastern Sydney Local Health District [2013] NSWSC 1376

Category:

Procedural and other rulings

Parties:

Wei Fan (Plaintiff)
South Eastern Sydney Local Health District (Defendant)

Representation:

Counsel:
S Woods (Defendant)

Solicitors:
D Fan (Advocate for Plaintiff)
Curwood Lawyers (Defendant)

File Number(s):

2008/289228

Publication restriction:

Nil

Judgment

1. HER HONOUR: This judgment concerns whether the plaintiff’s notice of motion dated 24 July 2013 has been finalised.

2. On 24 July 2013, the plaintiff filed a notice of motion seeking orders that:

“1.   Where the court considers appropriate: the court may give trial and order an Anton Piller order to apply to the defendant’s defence of the further amended statement of claim, which was admitted August 2012, especially page 8, paragraph 49.

a.   “In answer to paragraph 41 of the Further Amended Statement of Claim, the Defendant admits that on 21 February the Plaintiff attended the pre-admissions clinic at POW Hospital, was weighted and had his weight recorded at 44 kgs, had liver function tests performed but otherwise does not admit the balance of the allegations contained therein.”

Plaintiff seeks to subpoena to call the staff of POW Hospital in the pre-admission clinic (peri-operative unit); who had seen the plaintiff on 21 February 2007. Whom which had seen the plaintiff and performed several pre-operative assessment, and which were documented. The Plaintiff requests the defendant to investigate and find out who they were, submit their names to the Supreme Court of NSW, and request their appearance on the date of trial.”

3. The plaintiff is Wei Fan. The defendant is South Eastern Sydney Local Health District. The plaintiff is represented by his son, a final year law student. The plaintiff has the benefit of an interpreter in Court.

4. On 19 September 2013, Davies J in Wei Fan By His Tutor Yue Wang v South Eastern Sydney Local Health District [2013] NSWSC 1376 at [12] - [14] stated:

“[12]   I am satisfied from reading parts of the transcript of the directions before Harrison J on 19 July 2013 that His Honour gave leave to amend the defence and withdraw the admission. The mechanics of that have not so far been able to be implemented because it seems the Plaintiff will not agree to the short minutes which Harrison J directed be brought in to reflect that and other matters.

[13]   The Plaintiff submits that the Defendant should not be permitted to withdraw the admission because, the tutor says, Harrison J said that the issue of the Plaintiff’s weight needed to be ‘addressed in open court’. It is precisely because his Honour was of that view that the matter must be determined at the hearing after all the evidence is given that the Defendant was given leave by him to withdraw the admission.

[14]   For that reason, I gave leave to the Defendant to file the Amended Defence and in so doing to withdraw the admission concerned about the Plaintiff’s weight. I note that the proceedings will be back before Harrison J on 11 of October.”

5. In light of the above, I am satisfied that this motion has been finalised. Hence, I make no orders in relation to the plaintiff’s notice of motion dated 24 July 2013.

6. The defendant has given discovery of its documents dated 21 February 2007. The plaintiff’s case is that his weight on that day was recorded in the hospital notes. Apparently, the hospital records do not include any reference to his weight on that day. Yesterday, the defendant’s counsel undertook to seek instructions to ascertain the name of the staff member who referred the plaintiff for a blood test on that day and advise the plaintiff’s representative.

7. The Court orders that:

1.   There be no orders made in relation the plaintiff’s notice of motion dated 24 July 2013.

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Decision last updated: 20 March 2015