Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wei Fan v South Eastern Local Health District [2021] NSWCA 36 Hearing dates: 16 March 2021 Date of orders: 18 March 2021 Decision date: 18 March 2021 Before: Meagher JA; White JA. Decision: Dismiss the summons seeking leave to appeal filed on 25 September 2020. Catchwords: APPEALS – leave to appeal – where primary judge summarily dismissed originating process – whether originating process subject to cause of action estoppel Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b) Cases Cited: Arnold v National Westminster Bank plc [1991] 2 AC 93 Fan v South Eastern Sydney Local Health District [2016] NSWCA 64 Thoday v Thoday [1964] P 181 Wei Fan v South Eastern Sydney Local Health District [2016] HCASL 162 Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235 Texts Cited: KR Handley, Spencer Bower and Handley: Res Judicata (4th ed, 2009, LexisNexis) Category: Principal judgment Parties: Wei Fan (applicant) South Eastern Local Health District (respondent) Representation: Counsel: Yue Wang by leave (wife of applicant) P Rooney (respondent) Solicitors: Applicant self-represented McCabe Curwood (respondent) File Number(s): 2020/00279074 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 1038 Date of Decision: 10 August 2020 Before: Walton J File Number(s): 2019/310445 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The applicant (Wei Fan) seeks leave to appeal from an order made by the primary judge (Walton J) on 10 August 2020. That order summarily dismissed his summons commencing proceedings in the Professional Negligence List of the Common Law Division on the ground that it disclosed no reasonable cause of action (Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(b)). 2. The applicant's originating summons sought to challenge the correctness of findings made by Harrison AsJ in earlier proceedings dismissing his claims to damages against the respondent for medical negligence alleged to have occurred between January and March 2007: Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235. This is made plain by the relief sought in that summons: The plaintiff seeks costs order, Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235. Her honour's judgement, paragraphs 306-paragraphs 489. The plaintiff seeks all damages costs assessment of costs order. The plaintiff seeks: the defendant to pay all the plaintiff's damages, interest and costs of these proceedings involved. 1. Her Honour summarised (at [14]) the principal allegations of breach of duty as follows: Failing to investigate, diagnose and manage type 2 diabetes mellitus ("type 2 diabetes"), with no follow up after initial tests were undertaken in January 2007; Failing to properly diagnose and manage the plaintiff's gallbladder condition, by: Failing to diagnose the condition as cholecystitis and treat it accordingly; and Delaying a cholecystectomy (at various points in time up until 15 March 2007, when a cholecystectomy was performed) and not performing an ERCP first on 30 January 2007; Wrongly allowing the plaintiff to fall from his hospital bed on 11 March 2007; Wrongly discharging the plaintiff from St George hospital on 16 March 2007 when he was not fit to be discharged; and Failing to give the plaintiff information about treatments and the costs involved (considering his Medicare status). 1. The applicant's appeal to this Court from her Honour's order was dismissed (Fan v South Eastern Sydney Local Health District [2016] NSWCA 64), as was his application for special leave to appeal to the High Court (Wei Fan v South Eastern Sydney Local Health District [2016] HCASL 162). 2. Before this Court, as was the position before Walton J when hearing the respondent's motion for summary judgment, the applicant seeks to show that her Honour erred in a number of respects and that she should have found his claims to be made out and awarded substantial damages. The applicant's written and oral argument to this Court (the latter made on his behalf by his wife, Ms Yue Wang) seeks the opportunity to take this Court through the 625 paragraphs of her Honour's reasons and those of Basten JA on appeal to identify the respects in which there is an asserted error or inaccuracy. The written submissions describe there being errors in "about 399" of those paragraphs. 3. That the applicant seeks in effect to reargue his appeal from the judgment of Harrison AsJ by these proceedings also emerges clearly from the form of his proposed notice of appeal. That notice includes a 70 page narrative which by reference to 14 numbered paragraphs identifies asserted errors or inaccuracies in her Honour's reasons and includes disconnected extracts from those reasons and other judgments, some of which appear under the repeated heading "Evidence in support". 4. This course is not available, either in this or any other Court, because the applicant's claims are the subject of a final decision on the merits which has been the subject of an appeal to this Court which has been dismissed. 5. The effect in law of her Honour's final judgment was to create a "cause of action estoppel" in respect of the claims made in that proceeding. In Thoday v Thoday [1964] P 181 at 197-198, Diplock LJ described a cause of action estoppel as preventing "a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the parties … If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam". 6. As Lord Keith later observed in Arnold v National Westminster Bank plc [1991] 2 AC 93 at 104, the principles upon which cause of action estoppel is based are expressed in the Latin maxims nemo debet bis vexari pro una et eadem causa (no one should be tried twice in respect of the same matter) and interest rei publicae ut finis sit litium (in the interest of society as a whole, litigation must come to an end): see generally KR Handley, Spencer Bower and Handley: Res Judicata (4th ed, 2009, LexisNexis) at para 7.01-7.04. 7. The applicant exercised his right of appeal from Harrison AsJ's decision and the Court of Appeal's order dismissing that appeal is now the source of the cause of action estoppel. The applicant has no further rights of appeal, his application for special leave to appeal to the High Court having been dismissed. 8. It follows that the proceeding commenced in 2019 in the Common Law Division was misconceived and bound to fail because the claims which it seeks to maintain have been finally determined by the Court of Appeal and dismissed. In the language of Lord Diplock those claims have been determined not to exist, the result in law being that the applicant can no longer assert that they do. 9. For these reasons the application for leave to appeal must be dismissed. The respondent does not seek an order for costs and accordingly this Court does not make any such order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2021