Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital [2018] NSWSC 1682

Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital [2018] NSWSC 1682

The second defendant's dismissal motion was dismissed by consent and the plaintiff was given an opportunity to replead because, although the amended statement of claim did not properly disclose a cause of action against the second defendant, submissions indicated that the plaintiff may have at least one arguable cause of action. The deficiencies in the plaintiff's pleading were the effective cause of the motion, so it was appropriate to depart from the general rule that costs follow the event and order each party to pay its or her own costs of the motion.

Jurisdiction
Australia
Judgment Date
02 November 2018
Procedural Posture
Notice of Motion by the Second Defendant to Dismiss Proceedings Under Uniform Civil Procedure Rules 2005 (nsw), R 13.4(1)(b) on the Basis That No Reasonable Cause of Action Is Disclosed / Interlocutory Procedural Ruling; Ex Tempore Judgment
Outcome
Second defendant's notice of motion dismissed by consent; paragraphs [15] and [16(d)] of the amended statement of claim struck out by consent of the first and second defendants; plaintiff directed to file and serve a further amended statement of claim; each party to bear its or her own costs of the motion.
Legal Topics
['summary Dismissal' 'no Reasonable Cause of Action' 'deficient Pleading' 'leave to Replead' 'costs Following the Event' 'indemnity Costs' 'transfer to Another Court']
['practice and Procedure' 'civil Procedure' 'costs'] ['summary Dismissal' 'no Reasonable Cause of Action' 'deficient Pleading' 'leave to Replead' 'costs Following the Event' 'indemnity Costs' 'transfer to Another Court']

Case Brief

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Procedural Posture

Notice of Motion by the Second Defendant to Dismiss Proceedings Under Uniform Civil Procedure Rules 2005 (nsw), R 13.4(1)(b) on the Basis That No Reasonable Cause of Action Is Disclosed / Interlocutory Procedural Ruling; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the proceedings against the second defendant should be dismissed under Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b) because no reasonable cause of action was disclosed.' "Whether directions should be made for the plaintiff to file and serve a further amended statement of claim despite the only formal motion before the Court being the second defendant's dismissal motion." 'Whether the plaintiff should receive indemnity costs or ordinary costs of the notice of motion, or whether there should be a departure from the general rule that costs follow the event.' 'Whether the Court should at some stage refer the matter to another court under s 146 of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

The second defendant's dismissal motion was dismissed by consent and the plaintiff was given an opportunity to replead because, although the amended statement of claim did not properly disclose a cause of action against the second defendant, submissions indicated that the plaintiff may have at least one arguable cause of action. The deficiencies in the plaintiff's pleading were the effective cause of the motion, so it was appropriate to depart from the general rule that costs follow the event and order each party to pay its or her own costs of the motion.

Court Disposition

Second defendant's notice of motion dismissed by consent; paragraphs [15] and [16(d)] of the amended statement of claim struck out by consent of the first and second defendants; plaintiff directed to file and serve a further amended statement of claim; each party to bear its or her own costs of the motion.

Orders

  • ['By consent of the first and second defendants, strike out paragraphs [15] and [16(d)] of the amended statement of claim filed on 10 September 2018;' 'Direct the plaintiff to file and serve a further amended statement of claim by 23 November 2018.' "By consent, dismiss the second defendant's notice of motion filed...