Georgallis bht Georgallis v Healthscope Operations Pty Ltd t/as Sydney Southwest Private Hospital

Legislation Cited: Civil Procedure Act 2005 (NSW)

Category: Principal judgment

Parties: Christian Georgallis by his tutor Kim Georgallis (Plaintiff)
Healthscope Operations Pty Ltd t/as Sydney Southwest Private Hospital (Defendant)

Representation: Counsel:
A Campbell (Plaintiff)
D Lloyd SC (First Defendant)
A Reberger (Second Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Kennedys (Australasia) Pty Ltd (First Defendant)
Meridian Lawyers (Second Defendant)

File Number(s): 2023/335539

Publication restriction: Nil

JUDGMENT

1. The plaintiff’s tutor Kim Georgallis brought these proceedings in the pursuit of damages for the injuries Christian Georgallis suffered as the result of events which occurred at the time of his birth in March 2001, at the hospital now known as Southwest Private Hospital. They resulted in him suffering ataxia cerebral palsy.

2. At the hearing on 8 April 2025, I indicated that I would approve the settlement of the claim brought against the first defendant which the parties had arrived at, in accordance with s 76 of the Civil Procedure Act 2005 (NSW). These are the reasons for that conclusion.

3. The affidavit evidence of Susan Newman and the confidential advice of counsel, Mr Andrew Campbell, also in evidence were relied on.

4. The evidence established that the first defendant had purchased the Hospital in 2002 after the birth, from Bigge Street Private Hospital & Clinic Pty Limited, which owned and operated the Hospital at the time of the birth. Bigge Street later went into liquidation at a time when Deloitte Touche Tohmatsu was its administrators.

5. At the time of the original hearing in December 2024, subpoenas served on the first defendant, Deloitte, the Ministry of Health and the NSW Nursing and Midwives Association had not resulted in the production of the sale agreement, information about whether any of Bigge Street’s liabilities were transferred to the first defendant on the sale, the identification of Bigge Street’s insurers, or the identity of the midwives who attended the birth.

6. These problems reflected the passage of time and the destruction of documents over that time, in accordance with various document retention policies.

7. The hearing was adjourned to permit further enquiries about the identity of the insurer and transfer of liability to be pursued with the Insurance Council of Australia and solicitors understood to have acted on the sale.

8. Subpoenas served on the solicitors Allens Arthur Robinson resulted in the production of the sale agreement. It established that in 2002 the first defendant had purchased only the assets of the Hospital. There was, in the result, no issue that in those circumstances, the first defendant is not liable for any of the claims pursued in these proceedings.

9. On the evidence relied on I was thus satisfied that counsel’s advice about the settlement should be accepted, the approval sought granted and the orders agreed made. The agreement which the parties had reached plainly being in Mr Georgallis’ interests, in the circumstances which the investigations have now established.

10. Further investigations into the identity of the insurer are still being pursued and so these proceedings must return to the Registrar’s list.

Orders

11. For these reasons I order that:

12. Judgment in favour of the first defendant against the plaintiff.

13. No order as to costs.

14. The matter is adjourned to the Registrar’s list 16 May 2025.

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Amendments

11 April 2025

On the front page, the Second Defendant has been amended to Meridian Lawyers.

11 April 2025

Case title amended on cover sheet.