Chahrouk by his tutor El Chaar v Western Sydney Local Health District

Catchwords: CIVIL PROCEDURE – court administration – plaintiff seeking expedition of hearing – proper basis for expedition found
CIVIL PROCEDURE – defendant seeking to amend defence in a significant way – parties directed to serve further evidence

Legislation Cited: Nil

Cases Cited: Nil

Texts Cited: Nil

Category: Procedural rulings

Parties: Proceedings 2013/380270
Abdul Chahrouk by his tutor Hilda El Chaar (Plaintiff)
Western Sydney Local Health District (Defendant)
Proceedings 2013/380254
Hassan Chahrouk (Plaintiff)
Western Sydney Local Health District (Defendant)
Proceedings 2013/380286
Hilda El Chaar (Plaintiff)
Western Sydney Local Health District (Defendant)

Representation: Counsel:
L Whalan SC, K Oldfield, E L Bartley (Plaintiffs)
R Perla (Defendant)
Solicitors:
Prominent Lawyers (Plaintiffs)
McCabes Lawyers (Defendant)

File Number(s): 2013/380254; 2013/380270; 2013/380286

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. These matters come before me today for the determination of two motions, one filed by the plaintiff, one filed by the defendant. The plaintiff, who is now a teenager, seeks expedition on the basis that his condition has deteriorated to the extent that his care is now inadequate and he needs extensive external commercial care. Indeed, it is the plaintiff’s case that he needs almost full-time supervision.

2. In support of that application the plaintiff relies on a motion of their solicitor, Jennifer Agyei, dated 10 December 2025.

3. Pursuant to a motion filed by the defendant on 10 December 2025, the defendant seeks an order granting leave to amend its defence in a significant way. The defendant relies on an affidavit of its solicitor dated 12 December 2025. The plaintiff also tenders an earlier affidavit of his solicitor, Ashleigh Clancy, dated 12 December 2025.

4. As far as the plaintiff’s motion is concerned, I am satisfied there is a proper basis for expedition. It appears that the plaintiff is deteriorating. Obviously, that will be a matter for the trial, but on the evidence presented to me, there is concern about the care being provided to the plaintiff and the level of care which is required. I am satisfied, in those circumstances, that the hearing of that should be expedited. The defendant does not oppose expedition, merely leaving it to the Court.

5. The defendant’s motion is more problematic. This matter was commenced in 2013 at the time the plaintiff was an infant. He is now nearly 15. At the time of filing the defence, the defendant admitted that which is the essential allegation of the plaintiff being that around 10.05pm, the midwife assessed the mother (who is the plaintiff in proceedings 2013/380286), had no concerns, and the mother appeared to be alert. There was nothing to suggest she was affected by medication. The defendant also positively asserted that the plaintiff was handed to his mother to feed. The defendant now seeks to withdraw those admissions, in particular withdrawing the statement that the plaintiff was handed to his mother to feed. The plaintiff opposes the amendment, understandably, by pointing out that the defence was filed in 2014, that the plaintiff had given an indication previously that it be withdrawn, and that the plaintiff would be irreparably prejudiced by such an amendment.

6. The essential basis of the plaintiff’s case is that the plaintiff was born on 19 December 2010. The plaintiff and his mother were being cared for in Westmead Hospital. The plaintiff says that very sadly, late in the evening of 20 December 2010, the plaintiff was discovered limp and blue, apparently having suffocated in his mother’s bed. It is alleged that the plaintiff was resuscitated, but that he suffered a hypoxic brain injury as a result of that which occurred. He has obviously progressed as far as possible under the care of his parents. He is now 15, and on the plaintiff’s case, his behaviour is deteriorating to such an extent and at such a rapid rate that his family may no longer be able to care for him, or at least care for him without significant outside assistance, including perhaps 24-hour supervision.

7. Of course, the proposed amendment to the defence is a matter of substance and significance. Mr Perla tells me from the bar table that it was recently discovered that the instructions provided by a nurse back in 2014 were inconsistent with the defence that was filed. It is for that reason that the defendant wishes to amend the defence to pursue the case, consistent with its instructions from persons working at the hospital at the relevant time.

8. Of course it is fundamental to the conduct of litigation that both parties be permitted to pursue the cases that they wish to pursue and that all issues be affirmed by the Court on their merits. It is also fundamental to the conduct of litigation under the Civil Procedure Act 2005 (NSW) and in accordance with the Uniform Civil Procedure Rules 2005 (NSW) that parties comply with case management orders, and that matters of substance are pleaded in a timely manner.

9. The defendant seeks to change the essential nature of his defence 11 years after its defence was filed. That does not bode well for the defendant’s application, however, as I said to the parties, I must ensure that justice is done to both parties.

10. I am not satisfied today that I am in possession of sufficient information to determine this application. For example, it has emerged that the defendant has not served any statements, and nor has the plaintiff. Whether the plaintiff is truly prejudiced must depend upon the nature of the evidence on which the defendant intends to rely and the ability of the plaintiff to respond to it. Both parties rather speak in a vacuum because they have not yet obtained and served the necessary evidence.

11. The plaintiff strongly opposes the orders being granted, and strongly opposes any adjournment of the application, pointing to the obligation of the defendant to serve evidence necessary to justify its withdrawal of a critical admission. That may be so, but I consider that my overriding obligation is to ensure that justice is done between the parties.

12. In these circumstances, I am not prepared to determine the motion at this stage, but rather will direct the parties to further serve their evidence, that is, their statements, and I will then determine the application on its merit at that time.

13. In the circumstances, I make the follow orders:

14. The matter is listed for hearing on 18 May 2026 with an estimate of 10 days.

15. The defendant is to write to the solicitors for the plaintiffs by 5pm on 19 December 2025 informing the plaintiff of the nature of the evidence it expects to be able to serve.

16. The defendant is to serve all lay statements on which it intends to rely by 30 January 2026.

17. The plaintiff is to serve any lay statements on which the plaintiff intends to rely by 6 February 2026.

18. The defendant is to serve any additional evidence on which it relies in support of its motion to amend and any submissions on which it relies by 11 February 2026.

19. The plaintiff is to serve any additional evidence or submissions on which it relies in respect of the defendant’s motion by 16 February 2026.

20. The defendant’s motion is listed before me on 18 February 2026 at 9:30am.

21. I direct that the defendant serve all evidence, that is, any further expert evidence on which it intends to rely by 6 March 2026, and I will make further orders for case management when the motion comes before me on 18 February 2026.

22. I order that the parties participate in a mediation prior to 20 March 2026.

23. I grant liberty to apply on 3 days’ notice.

24. I reserve the question of costs.

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