Xu v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 786

Xu v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 786

The plaintiff failed to file and serve an expert report supporting the alleged professional negligence as required under UCPR 31.36, and the further amended statement of claim did not disclose any cause of action and was embarrassing and prejudicial; accordingly, the portions of the claim alleging professional negligence against the first defendant were dismissed, and the further amended statement of claim was struck out.

Parties
Plaintiff: Li Na Xu; First Defendant: South Eastern Sydney and Illawarra Area Health Service; Second Defendant: Dan Jun Shen
Jurisdiction
Australia
Judgment Date
12 August 2009
Procedural Posture
Civil / Notice of Motion to Dismiss/strike Out Claim Prior to Trial
Outcome
Dismissal of professional negligence claim against first defendant and striking out of further amended statement of claim; costs reserved.
Legal Topics
Professional Negligence, Pleadings, Dismissal, Expert Reports
Civil Procedure Professional Negligence Pleadings Dismissal Expert Reports

Case Brief

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Parties

Li Na Xu

Plaintiff

South Eastern Sydney and Illawarra Area Health Service

First Defendant

Dan Jun Shen

Second Defendant

Procedural Posture

Civil / Notice of Motion to Dismiss/strike Out Claim Prior to Trial

Legal Issues

  1. 1 Whether the plaintiff's statement of claim discloses a reasonable cause of action
  2. 2 Whether failure to serve an expert report in a professional negligence claim warrants dismissal
  3. 3 Whether the further amended statement of claim should be struck out as embarrassing or prejudicial

Ratio Decidendi

The plaintiff failed to file and serve an expert report supporting the alleged professional negligence as required under UCPR 31.36, and the further amended statement of claim did not disclose any cause of action and was embarrassing and prejudicial; accordingly, the portions of the claim alleging professional negligence against the first defendant were dismissed, and the further amended statement of claim was struck out.

Court Disposition

Dismissal of professional negligence claim against first defendant and striking out of further amended statement of claim; costs reserved.

Orders

  • Dismiss so much of the plaintiff's claim as alleges professional negligence against the first defendant pursuant to UCPR 31.36(3) for want of compliance with UCPR 31.36(1).
  • Order that the further amended statement of claim be struck out pursuant to UCPR 14.28 (1)(a) and (b).