Tanious v Dedousis [2014] NSWSC 51

Tanious v Dedousis [2014] NSWSC 51

The amended statement of claim did not properly plead a claim, did not disclose a reasonable cause of action, and was an abuse of process. The plaintiff failed to articulate any duty of care owed to him by Dr Dedousis, and the pleaded allegations did not establish breach of any duty owed to the plaintiff by any defendant. The allegations did not amount to criminal negligence. The statutes relied upon did not disclose a private cause of action for the plaintiff, and the proceedings attempted to re-litigate issues previously determined in guardianship, ADT and Court of Appeal proceedings. The deficiencies could not be cured by further amendment.

Jurisdiction
Australia
Judgment Date
12 February 2014
Procedural Posture
Common Law Proceedings; Interlocutory Application to Dismiss or Strike Out Statement of Claim / Notice of Motion by Defendants Under Uniform Civil Procedure Rules 2005 (nsw), Rr 13.4 and 14.28, After Amended Statement of Claim Filed
Outcome
Proceedings dismissed; plaintiff ordered to pay the defendants' costs.
Legal Topics
['strike Out' 'dismissal of Proceedings' 'reasonable Cause of Action' 'abuse of Process' 'pleadings' 'criminal Negligence' 'breach of Statutory Duty' 'issue Estoppel' 'res Judicata' 'anshun Estoppel' 'statutory Immunity']
['civil Procedure' 'negligence' 'health Law' 'guardianship' 'administrative Law'] ['strike Out' 'dismissal of Proceedings' 'reasonable Cause of Action' 'abuse of Process' 'pleadings' 'criminal Negligence' 'breach of Statutory Duty' 'issue Estoppel' 'res Judicata' 'anshun Estoppel' 'statutory Immunity']

Case Brief

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Procedural Posture

Common Law Proceedings; Interlocutory Application to Dismiss or Strike Out Statement of Claim / Notice of Motion by Defendants Under Uniform Civil Procedure Rules 2005 (nsw), Rr 13.4 and 14.28, After Amended Statement of Claim Filed

Legal Issues

  1. 1 ['Whether the amended statement of claim should be struck out or the proceedings dismissed under Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 or 14.28' 'Whether the amended statement of claim disclosed a reasonable cause of action in negligence against any defendant owed to the plaintiff' 'Whether the allegations disclosed criminal negligence' 'Whether the Health Care Complaints Act 1993 (NSW) or Guardianship Act 1987 (NSW) created a private cause of action for the plaintiff' 'Whether the proceedings were an abuse of process because they sought to re-litigate matters already determined in earlier guardianship, ADT and Court of Appeal proceedings']

Ratio Decidendi

The amended statement of claim did not properly plead a claim, did not disclose a reasonable cause of action, and was an abuse of process. The plaintiff failed to articulate any duty of care owed to him by Dr Dedousis, and the pleaded allegations did not establish breach of any duty owed to the plaintiff by any defendant. The allegations did not amount to criminal negligence. The statutes relied upon did not disclose a private cause of action for the plaintiff, and the proceedings attempted to re-litigate issues previously determined in guardianship, ADT and Court of Appeal proceedings. The deficiencies could not be cured by further amendment.

Court Disposition

Proceedings dismissed; plaintiff ordered to pay the defendants' costs.

Orders

  • ['The proceedings are dismissed.' "The plaintiff is to pay the defendants' costs of the proceedings including the costs of the defendants' notice of motion filed 2 August 2013."]