HIS HONOUR: By way of statement of claim filed on 8 April 2008, Wei Fan ("the plaintiff") commenced proceedings in the Supreme Court of NSW against South Eastern Sydney Local Health District ("the defendant") for alleged medical negligence.
In the proceedings the plaintiff alleged, inter alia, that between January and March 2007, the defendant failed to diagnose and treat him for the condition of acute cholecystitis (inflammation of the gallbladder). The plaintiff alleged, inter alia, that the failure to diagnose and the delay in carrying out a cholecystectomy resulted in him suffering further medical conditions and disabilities (a further issue ultimately raised on appeal was malnutrition and weight loss and disabilities suffered by the plaintiff).
The proceedings were heard before Associate Justice Harrison over ten days in March 2015 and May 2015. On 31 August 2015, Associate Justice Harrison handed down judgment in favour of the defendant, finding that the defendant had not been negligent in treating the plaintiff: Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235 ("Wei Fan No 2").
Her Honour's ultimate conclusion was expressed at [488] and [489] as follows:
[488] The plaintiff's claim fails. I enter judgment in favour of the defendant.
[489] Costs are reserved.
Judgment was entered in the following terms:
Judgment
(1) Judgment is entered in favour of the defendant.
(2) Costs are reserved.
As mentioned, the basis for that conclusion was that the plaintiff had not established liability. The findings of her Honour's judgment dealing with this question are expressed thus:
[306] To make it abundantly clear, I have decided that the plaintiff's claim fails on liability but in the event I am wrong, I have addressed the issues of damages.
It may be noted that after the Court reserved judgment, the plaintiff filed a further submission with the assistance of his son. The Court received that submission because the plaintiff was self-represented, required an interpreter and suffers a disability. By these written submissions, the proposition was advanced that the defendant was wrong in submitting that Associate Justice Harrison had handed a judgment in favour of the defendant, finding that the defendant had not been negligent in treating the plaintiff. Various extracts from Wei Fan No 2, Wei Fan No 3 and Wei Fan No 4 were included to support that proposition. As will be seen from the extract from Wei Fan No 2 in the preceding paragraph and what follows, the plaintiff's submission in this respect cannot be accepted either in terms of the determination of the trial judge in Wei Fan No 2 or by virtue of the appellate proceedings with respect to that judgment.
Some earlier relevant parts of her Honour's reasoning in reaching this conclusion was as follows:
[262] Overall, I am satisfied on the balance of probabilities that the defendant did not breach its duty of care to the plaintiff in its treatment of him by the medical specialists and hospital staff at Sutherland, Prince of Wales and St George hospitals in any of his hospital admissions or preadmission clinics. In the event if am wrong and that the defendant breached its duty of care in failing to promptly diagnose and treat diabetes and cholecystitis, delaying the cholecystectomy, allowing him to fall from his hospital bed on 11 March 2007 discharging him on 16 March 2007 or failing to provide adequate information, I will consider whether any of these alleged breaches of duty of care were causative of the plaintiff's injuries.
[263] The plaintiff alleges that as a result of the breaches of duty of care by the defendant he suffered various physical injuries, which in turn led to psychiatric injuries. For reasons discussed later in this judgment, I have made a finding that the plaintiff's psychiatric injuries were not related to any of his physical injuries. So far as causation is concerned, it is only necessary for this court to determine whether any breach of duty caused the plaintiff's physical injuries. The physical damage which the plaintiff claims to have suffered is a neurological disorder. As a result of that neurological disorder the plaintiff's case is that when he fell on 9 March 2007 and suffered a skull fracture, this further aggravated his neurological disorder. The main question for this court in determining causation is whether that neurological disorder, and the fall that allegedly aggravated it, could have been avoided by the diagnosis and treatment of diabetes, the diagnosis and treatment of cholecystitis, the cholecystectomy surgery taking place on an earlier date, the prevention of the plaintiff from falling out of his bed on 11 March 2007 and the prevention of the plaintiff from discharging from hospital on 16 March 2007.
…
[285] The plaintiff alleges that but for the failure of the defendant to promptly diagnose and treat his cholecystitis he would not have suffered from "progression of cholecystitis to a severe state". He also alleges that he would not have lost such a large amount of weight between 20 January 2007 and 15 March 2007 (30 to 40 kg), would not have suffered from nutritional deficiencies which made him weak, and consequently would not have had a fall on 9 March 2007, which caused a skull fracture. He also alleges that the failure to diagnose cholecystitis led to diabetes.
[286] So far as the alleged "progressions of cholecystitis to a severe state" is concerned, I assume the plaintiff means either chronic or acute cholecystitis. When the plaintiff was diagnosed with chronic cholecystitis on 15 March 2007, he was operated upon on that same day.
[287] So far as the plaintiff's alleged weight loss and consequent fall is concerned, I have made findings earlier in this judgment that the plaintiff did not lose a large amount of weight nor did he suffer from significant nutritional deficiencies. It follows that the plaintiff was not made "weak" and the alleged loss of weight and nutritional deficiencies did not cause him to fall on 9 March 2007, nor did they aggravate that neurological condition.
[288] Despite the fact that the plaintiff did not have cholecystitis until 15 March 2007, there was no dispute about the fact that he needed treatment for his gallbladder illness, whether by ERCP, cholecystectomy, or both. The plaintiff's submission on this topic was that "due to the delay of surgery caused the plaintiff to suffer weight loss, which eventually caused neuropathy, which led to disabilities". In other words, the plaintiff alleges a complex causation chain which hypothesises weight loss, causing a neuropathy/myopathy, causing falls, causing base of skull fracture and causing ongoing significant disability. The question for this court is whether it has been established on the evidence that, had the plaintiff been given a cholecystectomy at an earlier time than he did, would he still have lost weight, developed a neuropathy/myopathy and fallen and fractured his skull?
…
[291] I am satisfied, on the balance of probabilities, that not carrying out the cholecystectomy at an earlier date was not causally linked to the plaintiff's injuries.
[292] While the plaintiff contended that the duty owed by the defendant was to provide to him with a "one stage treatment"(considering his status as a person ineligible for Medicare) I do not agree. If the plaintiff is alleging that the defendant breached its duty of care to provide appropriate information about procedures, none of the medical experts suggested that any information that was given was inappropriate nor deficient. The plaintiff gave no evidence on this issue nor was there any evidence about how this alleged lack of information was causally linked to the damage suffered by him.
[293] The plaintiff alleges that but for the negligence of the defendant in allowing him to fall out of his hospital bed on 11 March 2007, he would not have suffered "further injury to his skull or brain".
…
[295] I am not satisfied that there is a causative link between the fall from the plaintiff's hospital bed on 11 March 2007 and any damage allegedly suffered by him. Even if I am wrong and the hospital and nursing staff should have monitored the plaintiff more closely or taken other precautions, no significant injury was suffered by the plaintiff as a result of the fall.
…
[297] The plaintiff has not established on the balance of probabilities that the defendant breached its duty of care to him. Nor has the plaintiff established on the balance of probabilities that if the defendant had breached its duty or duties of care to him it caused the plaintiff to suffer any injury or damage. The plaintiff's case against the defendant in negligence and breach of contract fails. I enter verdict and judgment in favour of the defendant.
[298] However, in case I am wrong, I will briefly outline the submissions and give a brief overview of how I would approach contributory negligence, failure to mitigate, volenti non fit injuria and damages, but I acknowledge that this reasoning is dependent upon the particular findings of breach of duty of care and causation.
Her Honour dealt with the question of damages upon the basis that her primary conclusion as to liability was found to be wrong. That part of the judgment extends from [307]-[487].
It is relevant to extract some of her Honour's findings on the medical expert evidence, by way of providing context to part of the plaintiff's submissions on the motion:
[60] Acute cholecystitis and cholangitis are complications of cholelithiasis. Cholangitis is "inflammation of the bile ducts caused either by bacterial invasion or by obstruction of the ducts". Acute cholecystitis is "acute … inflammation of the gallbladder". Cholecystitis can be acute or chronic (Mosby's pp 350 and 351).
…
[63] The treatment differs depending upon whether the diagnosis is cholangitis or acute cholecystitis. Treatment for cholangitis may include antibiotics before surgery for acute obstruction (Mosby's p 350). With acute cholecystitis, surgery is the preferred treatment, and usually occurs within 48 hours of presentation (see evidence of Dr Keogh at T166.30).
…
[77] At about 6.00 am on 23 January 2007, the plaintiff arrived at Prince of Wales hospital (T71) where he was admitted under the care of firstly, Professor Stephen Riordan and later, Dr Gregory Keogh. Professor Riordan is a staff specialist physician gastroenterologist/hepatologist at the Prince of Wales hospital and has worked there since 1999. He provided two statements dated 8 April 2013 and 12 March 2015. Dr Keogh is a senior staff specialist upper gastrointestinal surgeon at the Prince of Wales hospital and has worked there since 1995. He provided two statements dated 16 February 2015 and 12 March 2015. Both doctors gave evidence and were cross examined.
…
[80] Professor Riordan, as a gastroenterologist and hepatologist, diagnosed cholangitis not cholecystitis. In my view, there was nothing inappropriate about this diagnosis and it was in accordance with competent professional medical practice.
[81] Professor Riordan said that the appropriate treatment for cholangitis involves two key elements. First is antibiotic therapy and the second is to ensure biliary drainage [through an ERCP] because the effectiveness of antibiotics in reducing infection will be compromised if there is no potential for infected bile to flow. He explained that the vast majority of patients with biliary obstruction and cholangitis settle with antibiotics in the short term, but around 15-30% of patients do not settle with antibiotics alone. The medical team at Prince of Wales hospital decided to perform an ERCP upon the plaintiff. This was the same test that the medical team had decided to perform at St George hospital.
…
[85] On 25 January 2007, the plaintiff was reviewed by Dr Keogh. Dr Keogh's clinical diagnosis was cholangitis. In cross examination, Dr Keogh confirmed that the plaintiff did not have acute cholecystitis, and that this was based on clinical presentation and ultrasound findings (T162.6). Dr Keogh said that "the investigations, the presentation and the subsequent course of the illness were all consistent with an infection in the bile called cholangitis and were not consistent with cholecystitis which is inflammation of the gallbladder". Like the medical staff at St George hospital, Dr Keogh reviewed the ultrasound report and in combination with the plaintiff's clinical presentation, made a decision that the condition from which he suffered was cholangitis, not cholecystitis. This decision was appropriate and in accordance with competent professional medical practice.
…
[87] Dr Keogh's view was that in a patient such as the plaintiff, the decision to perform an initial ERCP was the most expedient and the safest. This is because to try and do an operation for cholangitis can be quite difficult. Sometimes if endoscopy and percutaneous approaches have failed, surgery is the only option. That may require laparoscopy, bile duct exploration and possibly open surgery. Dr Keogh gave evidence that; In a man who is unwell systemically with infection, it is better to wait for the infection to resolve and aim to do the operation when they are better (T163.19-26).
…
[103] Dr Keogh gave evidence that at the time of discharge, although the plaintiff's liver function test had not normalised, it was certainly improving, consistent with the pattern of a passage of a bile duct stone. Dr Keogh said that the plaintiff was deemed suitable to be discharged on the basis of improving jaundice and improving liver function tests and no abdominal symptoms. In addition to this, the plaintiff's white cell count was normal with a slight rise in the neutrophilfill count but this was consistent with improving infection. It was arranged for the plaintiff to attend the surgical outpatient clinic at Prince of Wales hospital. On 31 January 2007, the plaintiff was discharged from hospital. Ms Wang collected him.
[104] The medical experts were asked whether it was in accordance with competent professional practice to discharge the plaintiff from Prince of Wales hospital on 31 January 2007 so that he could be reviewed in an outpatient clinic regarding a laparoscopic cholecystectomy. Professor Collier (with whom Dr Vickers agreed) said yes, because the plaintiff was improving and the stone must have passed spontaneously. Professor Collier added that "there was an advantage in waiting for the jaundice to resolve which would decrease the risk of surgery". Professor Smith disagreed. He said no and explained "many people would have discharged, but I do not feel that it was appropriate. The raised white cell count and low albumin and the presence of fever suggests that the plaintiff was more ill than the staff realised. "
[105] The medical experts were cross examined on this issue. Counsel for the defendant showed the medical experts the hospital records which indicated that by 28 January 2007, the plaintiff was afebrile and by 30 January 2007, his white blood count had normalised, both in relation to the while blood count and the neutrophils. Counsel for the defendant also showed the medical experts the clinical note recorded on 31 January 2007 at 12.15 pm that "Family not willing to wait as patient is feeling well." Counsel then asked the medical experts to consider, given the plaintiff's physical condition at this time, whether it was in accordance with standard practice to discharge. After reviewing this information, Professor Smith changed his position and said that if the plaintiff wished to leave, that would be fine, so long as he had follow up arrangements. It is my view that the decision by Dr Keogh to discharge the plaintiff was in accordance with competent medical professional practice.
[106] The medical experts were also asked, as at 31 January 2007, what degree of urgency was attached to the need for the plaintiff to undergo surgical review to determine when a cholecystectomy should take place. Dr Vickers said that as the plaintiff was improving and getting over cholangitis with his bilirubin improving, the surgery was not urgent and it was better to wait for him to improve further. Associate Professor Collier said that the review needed to take place in two to three weeks, as there was an advantage in waiting for the jaundice to resolve which would decrease the risk of surgery. Professor Smith said that the surgery was not immediately urgent. In summary the medical experts agree that the surgery was not immediately urgent.
…
[108] Based on the medical experts' opinion, the plaintiff did not have acute cholecystitis as at 31 January 2007 so it was appropriate that acute cholecystitis was not diagnosed. Adopting the opinion of the medical experts, in my view the surgery was not urgent and the decision to discharge the plaintiff and delay the cholecystectomy was in accordance with competent medical professional practice.
[Footnotes omitted.]
In a subsequent judgment, Associate Justice Harrison made a gross sum costs order to the amount of $250,000 (the defendant's costs of proceedings) against the plaintiff: Wei Fan v South Eastern Sydney Local Health District (No 3) [2015] NSWSC 1620 ("Wei Fan No 3").
Her Honour observed (at [10]):
[10] The defendant agrees that the plaintiff is entitled to the costs of the notice of motion dated 12 December 2008, but that those costs ought to be absorbed into the gross sum costs order sought by the defendant. I will take into account that the plaintiff is entitled to costs incurred in defending this motion.
The plaintiff appealed against the judgment and orders of Associate Justice Harrison. The appeal was heard before Basten, McColl and Simpson JJA on 1 March 2016.
On 6 April 2016, the Court of Appeal dismissed the appeal and the plaintiff was ordered to pay the respondent's costs of the appeal: Fan v South Eastern Sydney Local Health District [2016] NSWCA 64 ("Wei Fan No 4").
Having regard to the arguments advanced by the plaintiff in these proceedings, some primary findings made by Basten JA (with whom McColl and Simpson JJA agreed), with respect to the claim of failure to diagnose the cholecystitis were as follows (at [25], [30] and [31]):
[25] In summary, the appellant faced three major difficulties in establishing negligence on the part of St George Hospital in the period 20-22 January 2007. First, he did not seek to challenge the evidence of the treating doctors; secondly, he discharged himself against medical advice and apparently within 72 hours; thirdly, the joint expert report (and the evidence of the experts in conclave) provided no basis for such a finding. It follows that the challenge to the conclusion of the primary judge that there was no negligence in failing to diagnose and treat operatively acute cholecystitis at that stage must fail.
…
[30] The joint expert report posed the question whether it was in accordance with competent professional practice to recommend and proceed with an ERCP on 25 January and 30 January 2007. Both Dr Collier and Dr Vickers said that it was. Professor Smith agreed, but added that it "would have been better had a laparoscopic cholecystectomy been performed." Both positions were clarified in evidence given in conclave. The trial judge noted Dr Collier's evidence that there was an unresolved debate "as to whether there should be an initial ERCP to remove stones from the bile duct or whether a cholecystectomy should be performed, removing stones from the bile duct at the same time as removing the gallbladder." Both surgeons agreed that either procedure would be acceptable.
[31] In the light of this evidence, the rejection by the trial judge of the proposition that there was negligence on the part of Prince of Wales in undertaking an ERCP and not carrying out a cholecystectomy, cannot be disturbed. Indeed, it would have been a contrary view which would have been remarkable.
[Footnotes omitted.]
As to the allegation of weight loss, following findings of the Court of Appeal are relevant (at [56]):
[56] This independent record is consistent with the appellant having a certain understanding of what had happened in February, within weeks of the event. It should be accepted that his evidence at trial did not constitute a recent invention, but, given the overall unlikelihood that he did in fact suffer such an extreme weight loss, his account probably resulted from a contemporaneous misunderstanding. It remains the fact that the probabilities overwhelmingly support the conclusion that the extreme weight loss claimed did not occur, with the result that Professor Smith's opinion that there had been an underestimation of the severity of the appellant's condition was not made good, nor was the consequential inference of misdiagnosis.
As to type 2 diabetes, Basten JA opined (at [57] and [64]):
[57] There was some doubt as to whether the appellant maintained a challenge to the rejection by the trial judge of a claim with respect to type 2 diabetes. His oral submissions focussed on a different point, namely that he suffered an undiagnosed peripheral neuropathy, which caused a fall in March 2007, the neuropathy being quite independent of any possible diabetes. The preferable course is to address both issues.
…
[64] On the basis of this material, including the evidence of Dr Carter presented in the plaintiff's case at trial, it is unsurprising that the trial judge rejected the claim that there was a breach of duty of care in failing to diagnose and manage type 2 diabetes in 2007.
[Footnotes omitted.]
Finally, as to delay in operating and alleged consequence and the effect of a "fall", Basten JA concluded (at [83] and [86]):
[83] The trial judge disposed of this claim on the basis that the various decisions as to his treatment were in accordance with competent medical practice and, accordingly, there was no breach of duty. That finding was not open to challenge, given the evidence set out above. It is convenient, nevertheless, to address the question of causation, which formed a significant part of the case on appeal. The appellant submitted that the fall resulted from a neuropathy or myopathy unrelated to diabetes. Alternatively, it resulted from weakness due to the acute cholecystitis or cholangitis.
…
[86] There was, ultimately, no clear support for the view that the serious fall on 9 March was caused either by some side effect (including weight loss) from the cholangitis, not then completely treated, nor as a result of a neuropathy, whether as a condition as undiagnosed diabetes, or otherwise. There was, in short, not only a failure to establish any relevant breach of duty, but a failure to establish a causal connection between the alleged breaches of duty and the most severe consequence relied upon by the appellant.
On 20 April 2016, the plaintiff filed an Application for Special Leave in the High Court of Australia. The Application for Special Leave was dismissed on 21 July 2016.
[3]
Supreme Court Proceedings
On 4 October 2019, the plaintiff filed a summons in this Court. The summons identifies that the following relief is claimed:
The plaintiff seeks costs order, Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235. Her Honour's judgement [sic], paragraphs 306 - paragraphs 489. The plaintiff seeks all damages costs assessment of costs order. The plaintiff seeks: the defendant to pay all the plaintiff's damages, interest and costs of these proceedings involved.
On 4 October 2019, the plaintiff also filed an affidavit dated 25 September 2019.
The plaintiff also served a voluminous bundle of materials upon the defendant, which purported to identify "errors made by the presiding judge relating to the above cited Supreme Court and Court of Appeal decisions" (namely, Wei Fan No 2, Wei Fan No 3 and Wei Fan No 4).
On 17 October 2019, the proceedings were listed for directions before Senior Deputy Registrar Bellach. The plaintiff was ordered to file any Consent to Act as Tutor by 14 November 2019 and the matter stood over for further directions on 21 November 2019.
On 21 October 2019, a Consent to Act as Tutor was filed, with Ms Yue Wang, the wife of the plaintiff, appointing herself as the plaintiff's tutor.
On 11 November 2019, the plaintiff filed submissions ("the November submissions").
On 14 November 2019, the plaintiff filed a statement. Similar contentions were made to the 11 November submissions.
On 21 November 2019, the proceedings were listed for directions before Registrar Jones. The proceedings were referred to the Duty Judge, Justice Button, at the request of the defendant.
Justice Button stood the matter over to 19 December 2019 in order to allow the plaintiff to seek legal advice. Justice Button gave an ex tempore judgment. Some observations were made by his Honour as follows:
1. "The point is soundly made today, respectfully, by Ms Smith who appears for the defendants in these proceedings, that the contingent findings made by her Honour may have been misinterpreted as some form of finding in the favour of the plaintiff". (This was a reference to that part of Wei Fan No 2 dealing with damages).
2. "As things stand, my initial thought, nothing more, bearing in mind that I knew nothing of this matter before an hour and a half ago, is that Mr W Fan's rights are exhausted, and a further appeal in this Court is an exercise in futility, and any appointment or acknowledgment of appointment of a tutor is also an exercise in futility".
3. "Having said all of these negative things, I think it would be unduly harsh, and perhaps precipitous, for me to peremptorily slam the door of the Court in the face of Mr W Fan today. I think there should be a period of four weeks during which one last effort to obtain legal advice or legal help could be made, though I appreciate the point made by Ms Wang that so far all lawyers have said that nothing is to be done".
On 19 December 2019, the proceedings were listed for directions before Registrar Jones. The proceedings were referred to the Court as presently constituted, at the request of the defendant.
Difficulties arose on 19 December 2019 due to the unavailability of an interpreter and the matter was stood over for further directions before Justice Walton on 20 December 2019.
On 20 December 2019, the matter was listed for directions.
Ms Yang, who appeared for the plaintiff, advised the Court that the plaintiff had been unsuccessful in obtaining legal assistance. Ms Yang provided a copy of handwritten proposed orders dated 18 December 2019 sought by the plaintiff.
The defendant sought that the plaintiff's summons filed 4 October 2019 be dismissed or alternatively, struck out. It was submitted that the summons disclosed no reasonable cause of action in this Court. Justice Walton ordered that the defendant was to file a Notice of Motion seeking any such an order by 30 January 2019.
[4]
The Motion
On 31 January 2019, the defendant filed a Notice of Motion ("the motion") seeking the following orders:
1. An order pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that the plaintiff's summons filed on 4 October 2019 be dismissed.
2. In the alternative, an order pursuant to r 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 that the plaintiff's summons filed on 4 October 2019 be struck out.
3. Any further or other orders that this Honourable Court deem fit.
It was submitted at the hearing on the motion on 4 August 2020 that each party was to bear their own costs.
This judgment concerns the motion.
[5]
Plaintiff's submissions
In the written submissions filed by the plaintiff it was submitted that "the judgment of the Supreme Court of New South Wales has many errors and even though the trial judge accepted there was liability, however her Honour made a judgment which was no liability could be found".
In the course of the submissions, various contentions were made in this respect alluding to paragraphs of Wei Fan No 2 falling within the section of the judgment dealing with damages: [306]; [307]; [360]; [376]; [374]; [381]; [396]; [397]; [401]; [429]; [431]; [434]; [440]; [466]; [448]; [455]; [456]; [461]; [468]; [473]; [477]; and [485].
At the conclusion of the submissions it was contended that:
I am permanently and chronically disabled as a result of the defendant's conduct and negligence. As a result I now reside in a Nagle Residential Aged Care. As a result I am separated from my family. I seek compensation. The defendant to pay all the plaintiff's damages, interest and costs of these proceedings involved.
Ms Wang appeared for the plaintiff on the motion. Her submissions were as follows:
1. The judgments of this Court in: Wei Fan No 2 and Wei Fan No 3 and the New South Wales Court of Appeal in Wei Fan No 4 contain errors made by the presiding judge and appeal judges. Those errors required "modification or alterations to the errors present in the subsequent three judgments… based on the material submitted by the plaintiff".
2. There is, therefore, a proper basis for this Court to be satisfied that the defendant breached its relevant duty of care to the plaintiff and is therefore liable to pay damages.
3. It is sufficient to identify the gravamen of the plaintiff's submissions, in this respect, by referring to one of the identified errors relied upon by the plaintiff which underscores the two above contentions put by the plaintiff:
1. At [108] of Wei Fan No 2, her Honour stated that the plaintiff did not have an infection to the gall bladder as at 31 January 2007.
2. Pages 169-170 of one of the volumes of the plaintiff's material, labelled Exhibit 3, sets out a report that establishes that the plaintiff did, in fact, contract acute infection of the gall bladder as at this date.
3. The plaintiff should have been operated on within 48 hours of being diagnosed with acute infection of the gall bladder.
4. The failure by the defendant to operate on the plaintiff contributed to his disability which has made him highly dependent on his wife and children.
These were the very controversies considered by the trial judge in Wei Fan No 2, which were not reversed in Wei Fan No 4.
[6]
Defendant's submissions
In summary, the defendant's submissions were as follows:
1. The substance of the plaintiff's application and the issues raised are the same as those that have already been agitated before the courts.
2. As the plaintiff's appeal options are exhausted, it would be an exercise in futility to have the same issues put before the Court in this way.
[7]
Relevant Principles
Rule 13.4 of the UCPR is in the following terms:
13.4 Frivolous and vexatious proceedings
(cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
The principles applicable to the operation of r 13.4(1)(b) of the UCPR were recently stated in Lazarus v Independent Commissions Against Corruption [2018] NSWSC 997 at [31]-[32] as follows:
[31] In support of the notice of motion, the counsel for the application placed primary reliance upon the provisions of r 13.4(1)(b) of the UCPR, namely, that the proceedings disclosed no reasonable cause of action. However, the applicant also relied upon r 13.4(1)(c) of the UCPR upon the basis that aspects of the statement of claim represented an abuse of process. It was submitted that, even if the principles of res judicata and issue estoppel had no direct application with respect to the claims against the application and Magistrate Keogh, the proceedings may be properly dismissed under r 13.4(1)(c) on the basis that the plaintiffs sought to re-litigate issues that had been determined by this Court.
[32] The Court, as presently constituted, recently had occasion to consider the principles relevant to summary dismissal applications of the present kind (under r 13.4(1)(b)) in National Australia Bank Ltd v Charlton [2018] NSWSC 157 . The applicant in this matter did not raise any different issue of general principle. In the result, I extract and adopt the following principles in determination of the notice of motion:
[51] It was common ground that the first prayer for relief in the notice of motion was an application for summary dismissal and that, given the claim deprived NAB of the opportunity to establish its case with the benefit of full hearing of the merits, it should only be granted in the clearest of cases: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-130; Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 ("Agar") at [57]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 ("Spencer") at [55].
[52] NAB also placed reliance upon the judgment of Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) in Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 ("Shaw") at [32] which stated the relevant test was as follows:
The question is therefore whether the claims in question are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated.
(His Honour was concerned with whether the claim was "doomed" or "hopeless").
[53] It should be observed that although Shaw concerned an application to strike out certain paragraphs of an amended statement of claim under r 14.28 of the UCPR, the statements of principle are broadly applicable in the present context.
[54] The following observations in Agar may also be noted (at [57]):
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [Footnotes omitted.]
[55] Reference should be made to the recent judgment of Leeming JA (with whom Macfarlan and Simpson JJA agreed) in Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 ("Perera") at [30] as follows:
I would reject the first aspect of Mr Perera's complaint, based on the alleged failure expressly to identify the cautious approach to summary dismissal. There are of course a variety of formulations of the applicable test where a defendant applies for the summary intervention of the court to prevent a plaintiff's case being determined in the usual way at trial. Barwick CJ collected some in General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action" and "be manifest that to allow [the pleadings] to stand would involve useless expense". In part that variety stems from whether the application is made in the court's inherent jurisdiction or under the rules (see Dixon J's analysis in Dey v Victorian Railways Cmrs (1949) 78 CLR 62 at 91-92), which may in turn affect the material available to the court. In part it turns on differences in the rules of different courts, and in particular on the relaxation of the test which has occurred in some courts: see Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [56]. But for present purposes, two matters are clear. One is that common to all the various formulations is the need for "exceptional caution", as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success.
[56] I note Leeming JA's reference to Spencer incorporated the following passage (at [55]):
As Barwick CJ also pointed out in General Steel Industries, the test to be applied was expressed in many different ways, but in the end amounted to different ways of saying "that the case of the plaintiff is so clearly untenable that it cannot possibly succeed" (emphasis added). As that formulation shows, the test to be applied was one of demonstrated certainty of outcome. [Footnotes omitted.]
[57] No reference was made by the parties to the statutory duty imposed by s 56(1) and (2) of the Civil Procedure Act 2005 (NSW). By reference to the judgment of Hammerschlag J in Simmons v Protective Cmr of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 at [57]-[64] and the consideration of that judgment by Ward J in McDonald v Grech [2012] NSWSC 717 at [32]-[34], the learned authors in Ritchie's Uniform Civil Procedure (NSW) suggested that the dismissal power conferred by r 13.4(1)(b) may not be confined to proceedings that are so demonstrative as to be certain to fail. Having regard to the conclusions reached in this matter, it is unnecessary to reach any view as to that opinion, although the proposition is prima facie attractive, provided it is recognised the relevant inquiry is that stated in Perera, namely, the demonstrated certainty of the outcome of the litigation.
[58] The aforementioned principles are plainly applicable to the second limb of conditions of r 13.4(1)(b) …
[8]
Conclusion
In substance, the plaintiff sought by summons to have the Court find:
1. Asserted errors in the two judgments of Associate Justice Harrison, Wei Fan No 2 and Wei Fan No 3, in circumstances where the appeal brought against those judgments failed (including in relation to contentions of the same or similar character as traversed in these proceedings) and errors in the judgment or the New South Wales Court of Appeal, notwithstanding that special leave was refused to appeal on this judgment, and the standing of that court in the hierarchy of courts
2. There was a proper basis to find medical negligence by essentially traversing the same or similar evidentiary material and submissions put before Associate Justice Harrison and the Court of Appeal.
The defendant correctly submitted that the plaintiff had utilised and exhausted its avenues of appeal. The cause of action the plaintiff brings requires the re-litigation of issues that have already been determined by the courts. The hearing of the summons would constitute a futility. The summons cannot possibly succeed.
Further, while an order for costs was made in favour of the plaintiff in the 2010 decision, that order was taken into account in assessing the gross sum order for costs in Wei Fan No 3.
For the foregoing reasons, I consider that the application of the plaintiff discloses no reasonable cause of action for the purposes of r 13.4(1)(b) of the UCPR
[9]
Orders
I make the following orders:
1. The plaintiff's summons filed on 4 October 2019 is dismissed pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).
2. Each party is to bear their own costs.
[10]
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Decision last updated: 10 August 2020