Zheng v South Eastern Sydney Local Health District

[2019] NSWSC 1240

Supreme Court

New South Wales

Medium Neutral Citation:

Zheng & Ors v South Eastern Sydney Local Health District [2019] NSWSC 1240

Hearing dates:

12 and 13 September 2019

Date of orders:

13 September 2019

Decision date:

13 September 2019

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Pursuant to r 7.18(1)(b) of the Uniform Civil Procedure Rules the NSW Trustee and Guardian is removed as tutor of the first plaintiff.

 

(2) Pursuant to r 7.18(1)(a) Mr Matthew Hogg of level 64, MLC Centre, 19 Martin Place, Sydney, be appointed as the first plaintiff’s tutor in these proceedings.

 (3)   Each party to pay their own costs of and incidental to this notice of motion.

Catchwords:

CIVIL PROCEDURE – replacement of tutor – appointment of barrister as tutor in his personal capacity

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 7.18

Category:

Principal judgment

Parties:

Pei Ling Zheng (Applicant/First Plaintiff)
Hou Wen Ni (Second Plaintiff)
Shelly Ni (Third Plaintiff)
Leon Ni (Fourth Plaintiff)
South Eastern Sydney Local Health District (Defendant)

Representation:

Solicitors:
Central Coast Compensation Law (First Plaintiff)
North Star Law (Second, Third and Fourth Plaintiffs)
Norton Rose Fulbright (Defendant)

File Number(s):

2017/18148

Publication restriction:

Nil

EX TEMPORE Judgment

1. An application was made by way of notice of motion dated 10 September 2019, which came before me as Duty Judge on an urgent basis.

2. The motion sought orders removing the NSW Trustee and Guardian as tutor of the first plaintiff in these proceedings and substituting Mr Matthew Hogg as the tutor. The urgency is that the proceedings are set down for a mediation next week.

3. The proceedings arise out of alleged medical negligence in May 2015 where the defendant is said to have failed to diagnose a subarachnoid haemorrhage and aneurysm and it is alleged that due to this failure the first plaintiff suffered and continues to suffer serious brain damage.

4. The applicant/plaintiff relies upon the affidavit of William Henry Allan, the solicitor with conduct of the proceedings on behalf of the plaintiff, as well as an affidavit of Matthew Hogg, the proposed tutor.

5. For reasons I do not need to detail, but which are set out in the affidavit, the NSW Trustee and Guardian can no longer remain in the role of tutor for the first plaintiff and in any event has withdrawn its consent to so act.

6. Fortunately Mr Matthew Hogg has agreed to act as tutor in his personal capacity, not in his capacity as a barrister, and there will be no associated charges levied against the first plaintiff or anybody else for his completion of that role.

7. Accordingly I am prepared to make the orders sought in the notice of motion as follows:

1. Pursuant to r 7.18(1)(b) of the Uniform Civil Procedure Rules the NSW Trustee and Guardian is removed as tutor of the first plaintiff.

2. Pursuant to r 7.18(1)(a) Mr Matthew Hogg of level 64, MLC Centre, 19 Martin Place, Sydney, be appointed as the first plaintiff’s tutor in these proceedings.

3. Each party to pay their own costs of and incidental to this notice of motion.

**********

Decision last updated: 18 September 2019