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File Number(s): 2025/28950

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: By Notice of Motion dated 22 October 2025, the Defendant seeks orders that the Statement of Claim filed in these proceedings be struck out. For the reasons that follow, I accede to that application.

Background

2. Other than to say that the present claim appears to arise out of the death of the Plaintiff’s husband, Mr Fan, in March 2022, its basis and ambit are uncertain. The Plaintiff’s grievances seem to be entangled with long-running litigation brought by Mr Fan during his lifetime against the Defendant arising out of treatment received at a different hospital operated under the auspices of the Defendant. I have attempted to put that matter to one-side. That dispute had been litigated by Mr Fan as a litigant in person in various forms in this Court, the Court of Appeal, and in refused applications for special leave in the High Court of Australia since 2008. I understand from what the Plaintiff told me at the adjourned hearing, she is attempting to revisit that matter in the High Court’s original jurisdiction. The current Plaintiff is, and continues to be, self-represented.

3. This motion first came before me on 30 April 2026. I gave a brief judgment on that day: Wang v South Eastern Sydney Local Health District [2026] NSWSC 449. I raised with the parties the following serious deficiencies with the Statement of Claim in its present form:

4. The Plaintiff’s late husband died intestate. No letters of administration have been taken out, and consequently the Plaintiff is of uncertain standing to sue.

5. The Statement of Claim does not make clear whether the proceedings bring an action under s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) or under the Compensation to Relatives Act 1897 (NSW). As there is no common law action for the death of a person (see: Baker v Bolton (1808) 1 Camp 493; 170 ER 1033), any claim for damages must be founded in statute.

6. There are significant procedural defects in the Statement of Claim. The form of the pleading does not comply with the requirements of Parts 14 and 15 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Importantly in a medical negligence case, no expert medical report supporting the claim has been filed pursuant to the requirements of r 31.36 of the UCPR.

7. For the reasons given in my April judgment (with which I assume the reader is familiar) I pronounced the following orders:

8. Under section 67 of the Civil Procedure Act 2005 (NSW) the proceedings are stayed until further order of the Court.

9. List the matter before me at 9.30am on 27 August 2026 to enable the plaintiff to show cause why these proceedings should not be dismissed.

10. Costs reserved.

Steps Since

5. Since the matter was before me on the 30 April 2026, the Plaintiff has taken the step of attempting to regularise her standing by applying for letters of administration. I am not satisfied that any other step has been taken although she asserts that she is attempting to obtain legal representation. She states from the Bar table she has approached a number of solicitors, but no details have been provided at all. Certainly, no specific details of approaches to named solicitors have been provided sufficient to engender even a low level of confidence on my part that the Plaintiff has any real prospect of securing appropriate representation or that the case is likely to progress in any meaningful way in the short term. Indeed, the Plaintiff has sought a further adjournment of the proceedings until February 2027, a period of six months, although she would abide by the order of the Court in terms of the length of any adjournment. I am not satisfied on the material before me that an adjournment is likely to achieve a result whereby the Plaintiff will be in a position to proceed with the case.

6. While an application for letters of administration of her husband’s estate has been made (case number 2026/00186412) the Plaintiff disclosed that a requisition was raised by the Probate Registrar on the 17 June 2026. She stated that she is responding to the requisition, but it clearly remains outstanding. Its terms are as follows (Exhibit 3):

“Requisition details

Reference is made to the value of the estate. The Court will not make a grant of representation where there is no value to the estate.

If you require a grant in relation to separate ongoing legal matters, you may wish to make an application for a special grant of administration. I refer to the commentary at pages 1080-1110 of Janes, Liebhold and Studdert (Wills, Probate and Administration Law NSW).

You are invited to file further submissions or discontinue the proceedings.

It is strongly urged to seek legal advice regarding this or another application as it can be complex.

Further requisitions will flow [sic].”

7. As I have said, the requisition remains outstanding and in truth the Plaintiff is no closer to obtaining a grant to found her standing. There is no evidence that she has either consulted the reference work referred to or sought legal advice about the steps she should take.

8. The Plaintiff’s letter seeking an adjournment refers to r 31.36 of the UCPR and states that she has identified an expert, Dr Mark Herman from Advara HeartCare, who has indicated that he is willing to assist with the medical evidence. However, I have been informed that he “requires a solicitor/lawyer acting for [the Plaintiff] to contact him”. This represents no advance upon the situation as it was when the Statement of Claim was filed on the 19 December 2024. In that document the Plaintiff indicated that she sought independent advice from Dr Herman who indicated he was willing to be involved. The Plaintiff separately indicated however that Dr Herman could only provide an opinion at the request of a solicitor. There is no evidence of any additional step having been to contact Dr Herman since the filing of the Statement of Claim.

Consideration of the Plaintiff’s Putative Case

9. It is tolerably clear that the Plaintiff wishes to sue in respect of the death of her husband on the 25 March 2022. From the brief narrative described as “Plaintiff’s statement pleading [sic],” it is apparent that the case the Plaintiff wishes to propound is that her husband was admitted to Sutherland Hospital on the 19 of March 2022, one week prior to his passing. The closest the document comes to providing a narrative of material facts is as follows:

“It is alleged that [Mr Fan] was admitted due to excessive phlegm out of mouth on the 18 March 2022 at night. [He] has a medical history of peripheral neuropathy (2008), diabetes (2002), and heart diseased (2015) etc. The plaintiff provided Sutherland Hospital with her husband’s medical records upon arrival, noting that he has a limited fluid restriction, 1.2L per day due to his heart disease.

Plaintiff believes the hospital was negligent in that they did not treat my husband’s urinary retention issues and [he] was given excessive amounts of water each day and was unable to urinate, leading to his coma and eventual death.”

10. The only medical report attached to the Statement of Claim was one of Dr Ross C Smith of the 20 August 2009 relating to the prior long-running litigation (2008/289228: see Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235 (Harrison AsJ)). Clearly, Dr Smith’s report does not satisfy the Plaintiff’s obligations under r 31.36 for this case. As I have said in my previous judgment despite repeated opportunities provided by the Registrar the Plaintiff has not provided a report that complies with the rules.

11. Mr Fan’s death certificate is also attached to the Statement of Claim. The cause of death is certified in the following terms:

“1(a)(i) aspiration pneumonia, 6 days

(b) Traumatic brain injury, 15 years

(ii) enterococcus faecium bacteraemia.”

12. The clinical records of Sutherland Hospital relating to Mr Fan’s admission between the 19 March 2022 and the date of his death on 25 March 2022 are annexed to the affidavit of the solicitor for the Defendant, Matthew Renwick, sworn on the 14 April 2026 (Exhibit MR-2) it is clear that Mr Fan was taken by ambulance to Sutherland Hospital on 19 March 2022 having been discharged from Bankstown Hospital the day before (p 267). The records variously refer to both Blacktown and Bankstown Hospitals, and it is unclear in which one he was treated. The reason for his prior hospitalisation is not clear as the ambulance officers were unable to obtain a complete medical history due to the language barrier. It is clear however that on discharge from the former hospital Mr Fan was in a bad way.

13. The progress notes from Sutherland Hospital indicate that in a meeting with Mr Fan’s son a Dr Goldman explained that she was “not willing to institute NGT feeds given documentation from Bankstown admission stating patient aspirating on as little as 70ml-hr and that ongoing feeds were not safe, [sic], paired with fact that [Mr Fan] is more obtunded than previously with a lower GCS [sic]”. I take GCS to be a reference to the Glasgow Coma Scale. “Obtund” is defined as dull, blunt or deadened. The diagnosis was one of aspiration pneumonia (p 35). Complaints were made by the family that Mr Fan was not producing urine (p 37). Dr Goldman recorded in her progress note (p 37):

“Family are requesting that I get a respiratory professor or specialist.

They want to give more fluids as [Mr Fan] is not producing urine.

I have outline to them that [Mr Fan] is very unwell and that his kidneys are shutting down and he is in organ failure [sic].

I have again outlined the best medical care would be to provide comfort only care. [Mr Fan’s] wife does not agree to this.”

14. A family meeting was held with Dr Goldman and a senior respiratory specialist Dr Ng [pp 37-8]. At pp 40-1, the notes suggest quite a detailed explanation of Mr Fan’s condition was given to the family. The notes include the following entry:

“W[e] have given Mr Fan very strong antibiotics, but his body has not been strong enough to fight the infection. This shows that this time Mr Fan is not strong enough to fight the infection and that his lungs are now barely functioning, and that as a result the other organs in the body are now failing.

…

It is the specialist opinion that we should make [Mr Fan] comfortable

…

Dr Ng explained that Mr Fan was not producing urine because his kidneys were not working as a consequence of his pulmonary failure due to the serious infection that Mr Fan is not strong enough to fight.”

15. The notes show that the Plaintiff took exception to the medical advice that was being received and asked when Mr Fan could have something to eat. It was quite clear from the entries that she was not prepared to engage with the earnest and solemn advice she was receiving about her husband’s terminal condition. Dr Ng advised that Mr Fan’s body is not strong enough to get over “the infection this time and Mr Fan is trying to tell us he is trying to die peacefully”.

16. Dr Goldman “expressed how sorry we are about this situation and that unfortunately Mr Fan is dying and that it is important that he is pain-free, comfortable, and has dignity”. The Plaintiff requested “inter-hospital transfer and ongoing treatment”.

17. The Plaintiff describes the case she wishes to bring in the following terms:

(a) Nature of the Claim

I bring these proceedings on behalf of the late Wei Fan’s estate as Mr Fan left no Will, I continue his claim as his wife and as a dependant. Claims may include damages for:

- Loss of dependency

- Loss of financial support

- Loss of services

- Bereavement damages

Relief Claimed

- Professional negligence

- Damages, costs, and interest

(b) Use of earlier judgments

Some early judgments were referred to in documents filed on 13 March 2025 because they contain relevant medical history.

(g) Terminal Stage/Palliation.

I do not accept that Mr Fan has reached a terminal stage. I believe essential treatments (urine drainage, ICU transfer, monitoring, fluid management) were not adequately provided.

(h) Kidney Failure Explanation

Doctors informed the family that lack of urination resulted from kidney failure caused by heart and lung failure. Based on my observations:

- Mr Fan received excessive fluids despite strict limits.

- His bladder produced no urine for days.

- He was not moved to ICU or radically moved

These circumstances raise concerns about the explanations given.”

18. It is quite clear on the material presently available, four and a half years after Mr Fan’s death, the claim that the Plaintiff wishes to bring arising out of Mr Fan’s death is close to hopeless and the material does not disclose any real prospect of evidence capable of changing that assessment becoming available.

19. It is also quite clear that the Plaintiff was not prepared to accept the medical advice she was given at the time of her husband’s terminal illness and that she remains of the view she then formed, which was contrary to all of the medical advice she then received. One can be sympathetic of the Plaintiff’s position and at the same time realistic about the case’s prospects. The only medical evidence available is the medical evidence contained in the clinical records of Sutherland Hospital which amply demonstrate that upon his admission to Sutherland Hospital Mr Fan was in extremis in that he was suffering major organ failure related to his aspiration pneumonia. That severe medical condition was the cause of his death.

20. It is also quite clear that, were it otherwise, the prospect of a recovery of damages under either the Compensation to Relatives Act 1897 (NSW) or s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (if legal representation could be obtained for the estate) is likewise extremely problematic. For many years prior to his death Mr Fan was severely disabled and not in employment due to his other medical issues the subject of the previous long-running litigation. There is simply no evidence before me that Mr Fan was capable of providing financial support or services to his family in the years leading up to his death. There is no evidence that he in fact was providing such financial support or serves. Bereavement damages or a solatium are not available under the law of New South Wales.

21. It should not be overlooked, so far as quantum is concerned, that Mr Fan’s estate is indebted to the Defendant as was tactfully pointed out by Ms Harris-Roxas of counsel to the tune of $250,000 by way of a gross sum costs order made in the previous proceedings: Wei Fan v South Eastern Sydney Local Health District (No 3) [2015] NSWSC 1620.

Disposition

22. Currently there is nothing in the available material to suggest that were this matter to proceed to trial there would then be evidence available to either justify a finding of negligence on the part of the Defendant or more than nominal damages in the case. I repeat that I have no confidence that the Plaintiff has any prospect of gathering the evidence necessary to alter that assessment.

23. Given all of these circumstances I am satisfied that this is an appropriate case to exercise the power conferred on the Court under UCPR r 31.36(3) to dismiss the whole of the proceedings.

24. Indeed, as things presently stand, notwithstanding the constraints on the Court’s power under r 13.4 of the UCPR this matter may have been an appropriate one for summary dismissal*: General Steel Industries Inc v Commissioner for Railways* (NSW) (1964) 112 CLR 129; [1964] HCA 69, or, certainly, dismissal for want of due despatch under r 12.7 of the UCPR.

25. My orders are:

26. Under r 31.36(3) of the Uniform Civil Procedure Rules 2005 (NSW) the whole of the proceedings are dismissed.

27. The Plaintiff to pay the Defendant’s costs in the proceedings.

**********

Amendments

29 September 2026

Amendment to Order 1 - Removal of second "2005" after Uniform Civil Procedure Rules 2005