Tanious v Dedousis

Judgment 1His Honour: These proceedings were instituted by a notice of motion filed by Mofeed Louis Tanious (the plaintiff) on 20 February 2014. He seeks the following orders: "1. Reviewing the decision was made by associate justice Harrison on February 12, 2014 to dismiss plaintiff's proceedings against defendants. Plaintiff depending on that her honour neglected the seriousness of defendants committed towards plaintiff and his father as a result of her negligence for essential reasons and evidence have been clarified by plaintiff previously. In the accompanied plaintiff's submissions supporting his notice of motion plaintiff clarifying all. 2. Court permission for plaintiff's proceedings against defendants all under criminal negligence as a result of plaintiff's fathers death was accelerated due to more than one professional mistakes were committed by more than one famous public servants, and financial compensation to plaintiff as a result of humiliation plaintiff faced from defendants all. 3.Defendants pay plaintiff's notice of motion cost. 4.Dismissing defendants' notice of motion with the cost. 5.It is not for plaintiff to pay defendants' cost specially plaintiff supported his claim by essential reasons and evidence were neglected by the honour of justice. In addition to plaintiff defending himself and on centrelink welfare during this period of time." 2It is evident from the plaintiff's oral and written submissions that his principal complaint is that Associate Justice Harrison incorrectly dismissed his amended statement of claim ("ASC") in a judgment published on 12 February 2014: Tanious v Dedousis [2014] NSWSC 51. 3By a notice of motion, the first defendant (Dr Chris Dedousis), the second defendant (the NSW Public Guardian) and third defendant (Kieran Pehm, Commissioner of the Health Care Complaints Commission) had sought orders that the plaintiff's ASC be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR) or that the ASC be struck out pursuant to rule 14.28 UCPR as an abuse of process. 4Her Honour dismissed the plaintiff's proceedings as not being properly pleaded, not disclosing a reasonable cause of action and being an abuse of process. 5Before Associate Justice Harrison, the plaintiff was self-represented. He was not legally represented before me. Principles governing this appeal 6Although not nominated in his notice of motion, the plaintiff's appeal against her Honour's decision is founded upon rule 49.4 UCPR . It is well established that subject to any fresh evidence admitted under rule 49.4 UCPR her Honour's findings of fact are to be followed unless the facts found, or the inferences drawn are so flawed as to attract review under the principles in Warren v Coombes (1979) 142 CLR 531 at 553: Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409. 7The appeal is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Dixon, Evatt and McTiernan JJ said in House at 504-505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." Background 8The factual background to these proceedings is provided by Associate Justice Harrison at [7] - [34] of her judgment: "Since 2005, the plaintiff's father had been living with plaintiff. Since 2009, the plaintiff's father had been classified as requiring "high care needs". On 31 October 2010, the plaintiff's father was brought to St George Hospital by ambulance. The presenting problem was recorded as hypernatremia, unable to mobilise on admission and slurred speech. References in the clinical records and reports prepared by treating medical staff record that the plaintiff had fed his father a liquid diet of powdered milk, black tea, and Sustagen since 2007. The clinical records show that medical staff had concerns about discharging the plaintiff's father home, given his family's ability to care for him. On 9 November 2010, there was a family conference with Dr Dedousis, two other doctors, the social worker and the plaintiff to discuss the current situation, in which a clinical record was made. The plaintiff advocated that his father be discharged back into his care, while the staff recommended that he be placed in a nursing home given the high level of care he required. On 10 November 2010, the hospital team agreed to allow the plaintiff an eight hour trial of care in hospital to ensure that he could look after his father. The plaintiff did not complete the full trial of care. On 11 November 2010, Dr Dedousis still believed that a nursing home placement was the most appropriate, and noted his preparedness to approach the Guardianship Tribunal. On 17 November 2010, an Application for Appointment of a Financial Manager and/or Appointment of a Guardian was completed by the hospital. The hearing was scheduled for 12 January 2011. On 23 December 2010, the plaintiff noted that he informed hospital staff that his father required psychiatric review and anti-psychotics as he was talking nonsense. On 7 January 2011, a social worker attempted to communicate with the plaintiff's father about the Guardianship Tribunal, however was unsuccessful as he was unresponsive and remained in the foetal position with his eyes closed. On 12 January 2011, the Guardianship Tribunal ordered that the Public Guardian be appointed as the plaintiff's father's guardian for a period of 12 months. On 24 January 2011, Ms Judy Hunt was appointed guardian of the plaintiff's father as a delegate of the Public Guardian. On 10 February 2011, the Public Guardian decided that care of the plaintiff's father should be trialled at his daughter's home for one month, conditional on hiring suitable equipment. On 16 February 2011, the plaintiff's father was discharged from hospital and additional diagnoses were listed as vascular dementia, delirium superimposed or dementia, acute kidney failure and malnourishment. On 21 February 2011, the plaintiff lodged an application with the Administrative Decisions Tribunal seeking review of the second defendant's accommodation decision. On 1 March 2011, the plaintiff lodged a Request to Review a Guardianship Order to replace the appointed guardian. On 14 March 2011, the plaintiff filed a complaint with the HCCC (the "complaint") in respect of Dr Dedousis, on the basis of him refusing to discharge his father back into his care, and for filing a false report with the Guardianship Tribunal. The HCCC took no further action on the complaint, on the basis that there was no evidence to support that Dr Dedousis' management of the plaintiff's father while in hospital and his decision to refer to the Guardianship Tribunal led to his father's behavioural abnormalities. On 1 April 2011, the Public Guardian decided that the plaintiff's father should continue living with his daughter (the "plaintiff's sister") and ultimately made that decision permanent after a further three month review. On 7 April 2011, the Guardianship Tribunal issued an Order Refusing to Review a Guardianship Order on the basis that the plaintiff was essentially re-arguing issues considered at the original hearing (the "Guardianship order"). On 18 July 2011, the Administrative Decisions Tribunal published its decision in relation to the application brought by the plaintiff regarding the accommodation decision (the "ADT decision"). The ADT found that on the evidence available, the plaintiff may not be able to maintain his father's nutrition and therefore it would not be in the plaintiff's father's best interests to be cared for by him at his home. The plaintiff appealed that decision to the Administrative Decisions Tribunal Appeal Panel. On 2 February 2012, the Administrative Decisions Tribunal Appeal Panel (the "Appeal - ADT decision") affirmed the decision of the Public Guardian that the plaintiff's father should live with the plaintiff's sister. On 15 February 2012, the plaintiff filed a Notice of Appeal to the Court of Appeal challenging the decisions of the ADT Appeal Panel. On 11 April 2012, the second defendant, by notice of motion, sought to have the plaintiff's appeal to the Court struck out. On 10 May 2012, the Guardianship Tribunal renewed the Guardianship Order but varied it by appointing the plaintiff's father's priest, Mr Yousef Fanous, as his guardian in lieu of the Public Guardian ("varied Guardianship order"). On 28 May 2012, Macfarlan JA in the Court of Appeal in Tanious v Public Guardian [2012] NSWCA 165 dismissed the plaintiff's appeal because the grounds of appeal did not identify an error by the ADT on a question of law ("1st Court of Appeal decision"). On 12 June 2012, the plaintiff filed notice of motion seeking a review of the decision of Macfarlan JA made on 28 May 2012. On 3 October 2012, Meagher JA, Sackville and Tobias AJJA in the Court of Appeal dismissed the notice of motion in Tanious v The Public Guardian [2012] NSWCA 335 ("2nd Court of Appeal decision"). On 14 November 2012, at 91 years, the plaintiff's father passed away. The cause of his death was described as "end stage chronic renal failure, years; progressive vascular dementia (advanced), years; Parkinson's disease, years; cognitive impairment, peripheral vascular disease, benign prostatic hypertrophy, years". On 15 March 2013, the plaintiff commenced proceedings in this Court by way of statement of claim. On 26 November 2013, the plaintiff filed an ASC." Argument 9In written submissions annexed to an affidavit affirmed on 20 February 2014, the plaintiff pointed out that the proceedings formed two parts. The major part constituted criminal negligence by all the defendants which accelerated his father's death. The minor part was the humiliation caused to the plaintiff as a result of the defendants' dealing with him as a non-educated person. 10The plaintiff was critical of her Honour's finding at [52] of the judgment that the allegation about the prescribing of Olanzapine by Dr Dedousis did not give rise to a breach of duty of care to him. The plaintiff submitted that her Honour neglected to take into account that he was the only person who convinced his father to be under the care of the first defendant. He referred to being the only person to support his father and to the lack of support from other family members when the first defendant refused to let his father return home. The plaintiff referred to the medical reports and other material that he had previously filed. He noted that he was an overseas trained general practitioner with a recognised overseas medical experience of more than 10 years who had devoted himself for his father's best interests. 11The plaintiff contended that the first and second defendants directly breached their duty of care to his father and indirectly towards himself. He cited R v Moffat [2000] 112 A Crim R 201; Hart v Herson [1996] Aust Torts Reports Q 81-395 and MacDonald v Public Trustee [2010] NSWSC 684. 12In reference to her Honour's determination that this was another attempt by the plaintiff to re-litigate previously determined issues, the plaintiff submitted that in previous proceedings only matters of "accomodation charges" were raised but matters of criminal negligence and financial compensation were not. 13In written submissions in reply, the defendants contended that the ASC was correctly dismissed at this early stage on the basis that it disclosed no reasonable cause of action; did not fulfill the function of an appropriate pleading and was an abuse of process. The defendants argued that the pleading was ambiguous. It was said to be so vague so as to embarrass the defendants who do not understand the factual basis of the cause of action alleged against them and are consequently unable to plead an appropriate defence. 14The defendants' contentions included that there were no material facts and circumstances pleaded which would allow the court to understand how the alleged duty to the plaintiff arises or how it was breached. As to the plaintiff's assertion of error in her Honour's finding that the proceedings are an attempt to re-litigate determined issues, the defendants acknowledged that the previous proceedings did not seek compensation or criminal sanctions. However, the defendants submitted that her Honour correctly recognised that the plaintif was bound by the findings of fact made in previous proceedings (particularly in relation to the second defendant). This was a relevant factor, the defendants argued, in deciding whether or not the plaintiff's pleadings revealed a reasonable cause of action. 15In further written submissions entitled The Fifth Plaintiff's Submissions annexed to an affidavit affirmed on 20 May 2014, the plaintiff states that he has new evidence supporting his proceedings in the form of copies of pathology and radiology reports in relation to his father's health while he was under the care of the defendants. The plaintiff then seeks to clarify various points which include his understanding that from 2005 until his father's death the first and second defendants are responsible for intentionally accelerating the deterioration of his father's health. He points to the ASC, his five submissions and evidence confirming the link between the death and the accelerating deterioration in his father's health condition. 16The plaintiff submits that the third defendants are responsible for the cover up of the first defendant's professional misconduct by refusing to take legal action against the first defendant. He contends that the third defendants are liable for humiliation towards himself and should pay financial compensation. The plaintiff refers to the pathology and radiology reports that document the slow and gradual deterioration in his father's health after he came under the care of the first defendant. He cites Davison's Principles and Practice of Medicine 20th ed as providing additional academic information supporting his proceedings. 17In oral address, the plaintiff referred to various sections of the Civil Liability Act 2002 including ss 5B, 5D, 5F, 5E and 5Q which were said to support his claim and were neglected by the Associate Justice. He said that after his case was rejected, he looked at Divisions 2, 4, 5 and 6 of the Health Care Complaints Act 1993 and contended that the Health Care Complaints Commission totally neglected to deal in a fair way with his case. Another submission was that he had made a mistake before the Associate Justice by looking for exemplary compensation under the Civil Liability Act, but would need to change his request from exemplary compensation to compensation under the Compensation to Relatives Act. He sought leave to replead the ASC for this purpose. Consideration 18One of the reasons the ASC was dismissed was that the plaintiff's claim was not properly pleaded. Her Honour summarised the function of pleadings at [37] as follows: I remind myself that overall the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287 and 302-3. For a more fulsome explanation as to the principles concerning pleadings see McGuirk v The University of New South Wales [2009] NSWSC 1424 at [21] - [35]. 19Her Honour went on to say that she found the pleadings to be confusing. In my opinion, this is an understatement. 20In the ASC, the type of claim is described as: "Torts - medical professional negligence - nervous shock/defendants did not select the best interest for plaintiff and his father acting against the guardianship act 1987, the civil liability act 1987, the civil liability act, and the health care complaints act, ..." 21Under this heading (omitting case references) the plaintiff pleads "Defendants all have humiliated and shocked plaintiff in dealing with his father illness as a result of the following." Thereafter follow three paragraphs that at the very least suffer from a lack of clarity and precision. 22Rule 14.7 UCPR requires that a party's pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which the facts are to be proved. The pleading must be as brief as the nature of the case allows: rule 14.8 UCPR. 23The requirement to plead the material facts means facts that are material to the causes of action relied on. As Hodgson JA (with whom Mason P and Handley JA agreed) said in Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135 at [20]: "(3) The general requirement to avoid surprise means that material facts must be stated in such a way that a defendant can understand the materiality of the facts, that is, how they are material to a cause of action." 24The three numbered paragraphs that appear in the ASC between Type of Claim and Relief Claimed do not plead the material facts in a manner that complies with Kirby v Sanderson Motors Pty Limited. The defendants should not be obliged to delve through the pleading in order to try and understand how the plaintiff brings a cause of action against them. 25The Relief Claimed is then identified as: "1 - Opening criminal investigation under criminal negligence against defendants all. 2 - Defendants all share in a lump sum compensation of one million Australian dollar for plaintiff, apology, and paying cost of this claim." 26In the absence of an express power (which has not been identified), I do not think that the court has the inherent or implied power to open a criminal investigation -presumably into the circumstances of the plaintiff's father's death. 27The plaintiff then pleads: "1- Defendants all are liable for criminal negligence as well as health professional negligence in dealing with plaintiff's father illness as a result of accelerated deterioration of plaintiff's father health situation started under their legal and professional responsibilities ended by plaintiffs' father death later without any recovery till his death. ... 3 - Court advice for defendants all check up their mental and psychological status by a team of specialist to let us know on scientific base reasons behind defendants all their intention in doing fatal mistake of professional negligence and misconduct ended by death of plaintiff's father." Plainly stated, I do not understand what the plaintiff means in paragraph number three. 28After the amount of the claim is specified as $1,000,000,under the heading Pleadings and Particulars is the following: "1 - Defendants all did not follow any legal acts in order to cover up their negligence in selecting the best interest for plaintiff and his father. 2 - Defendants are all responsible of the mentioned negligence and should pay back." I am unable to comprehend what is meant in paragraph number one. 29Thereafter follow in the ASC three numbered paragraphs that suffer from the same defects as the three numbered paragraphs referred to in [21] - [24] above. 30The ASC falls well short of meeting the requirements of pleadings and particulars. The document does not furnish a statement of the plaintiff's case that is sufficiently clear to allow the defendants a fair opportunity to meet it nor does it define the issues for decision in the litigation: Dare v Pulham [1982] 148 CLR 658. It is in parts unintelligible and is ambiguous overall. 31A pleading is embarrassing where it is unintelligible, ambiguous or vague, or is susceptible to various meanings or contains inconsistent allegations; Meckiff v Simpson [1968] VR 62 at 70; Gunns Limited v Marr [2005] VSC 251 at 14; Shelton v National Roads and Motorists Association Limited [2004] FCA 1393 at [18]. In my opinion, the defendants' complaint that the ASC is embarrassing is well founded. 32The plaintiff's submission that the proceedings form two parts, - the major part constituting criminal negligence and the minor part being his humiliation as a result of the defendants' dealings with him as a non-educated person does not clarify the ambiguity of his claim as pleaded. There are no statements in the ASC which are sufficiently clear for the defendants to understand that the plaintiff's case is formulated in this way. 33The plaintiff had been given the opportunity by her Honour to amend his statement of claim. The ASC is embarrassing and does not fulfil the function of a pleading. A court's role does not extend to drafting or settling a party's pleadings. 34The plaintiff has not demonstrated that her Honour when finding that his proceedings were not properly pleaded, acted upon wrong principle, allowed extraneous or irrelevant material to guide or affect her, made factual mistakes, or failed to take into account some material consideration. 35Another reason that the proceedings were dismissed was that her Honour found that no reasonable cause of action was disclosed in the ASC. In reaching this conclusion, her Honour found: (i) that while it was clear that Dr Dedousis owed a duty of care to the plaintiff's father, the plaintiff had not articulated what duty of care Dr Dedousis owed to him; (ii) while the allegation about the prescribing of Olanzapine may give rise to a claim that Dr Dedousis breached his duty of care towards the plaintiff's father, it does not give rise to a breach of duty of care in relation to the plaintiff; (iii) the argument of the second and third defendants that the plaintiff had made no identifiable allegations regarding their contribution to his father's death or injury was accepted; and (iv) there is nothing in the plaintiff's pleadings that shows that any of the defendants' actions amounted to criminal negligence. 36Her Honour analysed the ASC before making these findings. In respect of the first defendant, her Honour observed at [50]: "So far as the first defendant is concerned the plaintiff's complaints include: Preventing the plaintiff's father returning to his care; Holding a "wrong" belief that the plaintiff did not have capacity to care his father; Asking the plaintiff to undertake training on how to care for the plaintiff's father; Wrongfully imprisoning the plaintiff's father in hospital for three months; Providing wrong evidence to the Guardianship Tribunal; Treating the plaintiff's father with anti-psychotic medication." 37Before the plaintiff may be prevented from proceeding, a very clear case is required that establishes no reasonable cause of action is disclosed: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. The test is not whether the plaintiff would probably fail in his action against the defendants, it is whether the material before the court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard (1993) 177 CLR 598 at 602 - 3; McGuirk v The University of New South Wales [2009] NSWSC 1424 at [37]. 38None of the matters in her Honour's analysis of the plaintiff's complaints against the first defendant are capable of giving rise to a duty of care that was owed by the first defendant to the plaintiff. The matters referred to in submissions by the plaintiff such as being the only person who convinced his father to be under the care of the first defendant or being the only person to support his father do not take this issue any further. Furthermore, her Honour did not act upon wrong principle when she concluded that the allegation about the prescribing of Olanzapine did not give rise to a claim that the first defendant breached a duty of care in relation to the plaintiff. 39Contrary to the plaintiff's submissions, her Honour did not neglect ss 5B and 5D of the Civil Liability Act. Her Honour quoted these sections in her judgment together with s 5C. It is true that her Honour did not expressly refer to ss 5E, 5F and 5Q. Section 5E places the onus on a plaintiff of proving any fact relevant to causation, whereas s 5F defines the meaning of "obvious risk". Section 5Q concerns the extent of liability in tort of a defendant for breach of a non-delegable duty. None of these sections create a duty of care. They were not relevant to her Honour's task of determining whether the plaintiff has a reasonable cause of action. 40Associate Justice Harrison considered at [54]-[55] of her judgment the plaintiff's claim that the defendants were liable for criminal negligence. Her Honour found that there was nothing in the plaintiff's pleadings that show that any of the defendants' actions amounted to criminal negligence. It appears from the ASC that the basis of the plaintiff's assertion of criminal negligence was the defendants' role in "the accelerated deterioration" in his father's health. In my opinion, the plaintiff's pleading does not reveal a reasonable cause of action in criminal negligence against any of the defendants. 41The cases cited by the plaintiff (see [11] above) are of little assistance on the question of a reasonable cause of action. 42Her Honour gave careful consideration at [56] - [62] of her judgment as to whether the Health Care Complaints Act and the Guardianship Act 1987 create a private action for the plaintiff. Her Honour quoted what was said by Kitto J in Sovar v Henry Lane Pty Limited (1967) 116 CLR 397 at 405 as to whether a statute confers a private right of action sounding in damages. Her Honour then referred to the plaintiff's complaints against the second and third defendants and the statutory defences under s 100 of the Guardianship Act and s 96 of the Health Care Complaints Act. Her Honour concluded at [63]: "As the claim is currently pleaded, I am unable to envisage how the plaintiff has a private cause of action against the defendants for any breach of statutory duty." 43The deficiencies in the plaintiff's pleading make it hard to identify any material facts that might ground a private cause of action under the Health Care Complaints Act or the Guardianship Act against the second and third defendants. The plaintiff did not refer in the ASC to any of the terms of these statutes which those defendants were alleged to have breached. 44In oral address, the plaintiff said that he had looked at Divisions 2, 4, 5 and 6 of the Health Care Complaints Act after her Honour's judgment. He submitted that the Health Care Complaints Commission totally neglected to deal in a fair way with his case. 45A lack of fairness was one of the plaintiff's complaints against the third defendant that her Honour noted at [61] of the judgment. The question whether the legislature has conferred a private right of action sounding in damages was not addressed by the plaintiff otherwise than by the broad reference to the Divisions in the Health Care Complaints Act. 46Division 2 of the Health Care Complaints Act concerns liaising with registration authorities and professional councils whereas Divisions 4 and 5 deal with the assessment and investigation of complaints. Division 6 concerns outcomes of investigations into health practitioners. 47The functions of the Health Care Complaints Commission are found in Division 6A Part 5 of the Act. Section 80(1)(a) provides that the Commission's functions include receiving and dealing with complaints relating to the professional conduct of health practitioners. Upon a proper construction of the Act, I am unable to discern that the Act confers a private right of action for damages upon a dissatisfied complainant. Section 96 of the Act which exonerates from liability the Commissioner and other officers for acts done in good faith for the purpose of executing the Act does not support an argument that the Act gives rise to such a private right. 48The plaintiff did not in submissions point to any sections of the Guardianship Act that confer on a person in his position a private right of action for damages. In the ASC the plaintiff's complaint against the Public Guardian is that his request that his father be treated by another specialist other than the first defendant was refused and that his father's accomodation was changed. 49Section 77 of the Guardianship Act provides for the office of the Public Guardian. The Guardianship Act is intended to benefit persons with disabilities. The general principles of the Act that are enshrined in section 4 give as the paramount consideration for everyone exercising functions under the Act the welfare and interests of persons with disabilities. These are the class of persons for whose benefit and protection the statute imposes a duty. Upon a proper construction of the Act, I am unable to conclude that the Act provides a private right of action to a person in the position of the plaintiff. Section 100 of the Act which limits the personal liability of the Public Guardian does not support the contention that a private right of action extends to a relative of a person who has disabilities. 50I conclude that this is a very clear case where the material before the court demonstrates that the plaintiff does not have a reasonable cause of action. The plaintiff has failed to establish that her Honour acted upon wrong principle, allowed extraneous or irrelevant material to guide or affect her, made factual mistakes, or failed to take into account some material consideration. 51In my opinion, Associate Justice Harrison did not err in dismissing the ASC pursuant to rule 13.4 UCPR as not being properly pleaded and for not disclosing a reasonable cause of action. Having reached that conclusion, it is unneccessary to consider at any length, her Honour's third reason for dismissing the ASC as being an abuse of process. 52The plaintiff's submission that the previous proceedings did not concern allegations of criminal negligence or claims for damages was not overlooked by her Honour as she expressly referred to this difference in [66] of the judgment. Her Honour considered the principles of res judicata at [64]-[78] of the judgment. After analysing the prior proceedings, her Honour was of the view "that the current proceedings are yet another attempt by the plaintiff to re-litigate the same issues which have already been determined in previous proceedings": Tanious at [78]. In my opinion, this was a finding that was open to the Associate Justice. 53The plaintiff has not demonstrated that her Honour acted upon wrong principle or otherwise was in error in reaching that conclusion. 54During oral address, the plaintiff sought leave to change his request from exemplary compensation under the Civil Liability Act to compensation under the Compensation to Relatives Act 1897. When deciding to make an order for the amendment of a document, the court must seek to act in accordance with the dictates of justice: s 58 of the Civil Procedure Act. 55The foundation of a claim for damages under the Compensation to Relatives Act "is a claim for recompense for some tangible advantage which has been lost by reason of the death of the deceased": Nguyen v Nguyen (1989 - 1990) 169 CLR 245 at 263. As was said by Dixon J in Public Trustee v Zoanetti (1945) 70 CLR 266 at 279: "The basis (of the action) is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss" (citation omitted). 56There is no material before me that suggests that the plaintiff suffered any pecuniary loss as a result of his elderly father's death. The plaintiff does not have a reasonable cause of action under the Compensation to Relatives Act. 57In these circumstances, a grant of leave to amend would not fulfil the overriding purpose of the Civil Liability Act to facilitate the just, quick and cheap resolution of the real issues in dispute: s 56 Civil Liability Act. Acting in accordance with the dictates of justice, I do not grant leave to the plaintiff to amend the ASC. Orders 58I make the following orders: