Onakoya (through her legal guardian Matthew Onakoya) v The Sydney Children’s Hospital Network (Randwick & Westmead) (incorporating the Royal Alexandra Hospital for Children) (trading under the business name & style of The Children’s Hospital at Westmead) [2022] NSWSC 1261

Supreme Court New South Wales

Medium Neutral Citation: Onakoya (through her legal guardian Matthew Onakoya) v The Sydney Children's Hospital Network (Randwick & Westmead) (incorporating the Royal Alexandra Hospital for Children) (trading under the business name & style of The Children's Hospital at Westmead) [2022] NSWSC 1261 Hearing dates: 16 September 2022 Decision date: 20 September 2022 Jurisdiction: Common Law Before: Adamson J Decision: (1) Strike out the statement of claim filed on 1 April 2022. (2) Refuse leave to the plaintiffs to file an amended statement of claim in the form of the draft annexed to the second plaintiff's affidavit affirmed 22 August 2022. (3) Refer the plaintiffs to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 7.36(1). (4) Note that that second plaintiff does not have leave pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 7.14(2) to conduct the proceedings on behalf of the first plaintiff without legal representation. (5) Direct the plaintiffs to serve any proposed amended statement of claim on the defendant on or before 14 October 2022 and note that such document is required to have been drafted by an identified legal practitioner. (6) Direct the defendant to inform the plaintiffs whether they consent to the proposed amended statement of claim referred to in (5) above on or before 28 October 2022. (7) Direct the plaintiffs to file any notice of motion for leave to amend the statement of claim by 11 November 2022. (8) If the plaintiffs do not obtain the defendant's consent or the Court's leave to file an amended statement of claim by 30 November 2022, or such further time as the parties' consent or the Court allows, dismiss the proceedings. (9) Reserve the costs of the defendant's notice of motion filed on 20 July 2022 and the plaintiff's notice of motion filed on 25 July 2022. Catchwords: CIVIL PROCEDURE — Pleadings — Striking out — application to dismiss proceedings for failure to comply with UCPR r 31.36 — where no expert report complying with UCPR requirements CIVIL PROCEDURE — Pleadings — Striking out — statement of claim embarrassing — need for defendant to know the case it has to meet — statement of claim struck out — leave refused to file proposed amended statement of claim CIVIL PROCEDURE — pro bono referral — whether referral in interests of justice — where UCPR requires representation by solicitor — where statement of claim poorly drafted — referral made Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 7.14, 7.15, 7.36, 13.4, 14.28, 31.36, 42.1 Cases Cited: Salzke v Khoury (2009) 74 NSWLR 580; [2009] NSWCA 195 Category: Procedural rulings Parties: Oluwatomi Onakoya (First Plaintiff) Matthew Onakoya (Second Plaintiff) Olamide Onakoya (Third Plaintiff) The Sydney Children's Hospital Network (Randwick & Westmead) (incorporating the Royal Alexandra Hospital for Children) (trading under the business name & style of The Children's Hospital at Westmead) (Defendant) Representation: Counsel: S Kettle SC (Defendant)