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) (No 2) [2023] NSWSC 1128

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) (No 2) [2023] NSWSC 1128 Hearing dates: 8 August 2023 Date of orders: 18 September 2023 Decision date: 18 September 2023 Jurisdiction: Common Law Before: Campbell J Decision: (1) Under r 6.29 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") direct that Matthew Onakoya, the second plaintiff and Olamide Onakoya, the third plaintiff be removed as parties from the first plaintiff's claim for personal injury damages against the defendant. (2) Grant leave to the first plaintiff to file the document dated 22 June 2023 and styled "Proposed Statement of Claim, Exhibit 1" as an amended statement of claim, subject to its further amendment to conform with these reasons. (3) Under s 67 Civil Procedure Act 2005 (NSW), the first plaintiff's claim for personal injury damages is stayed until r 7.14 and r 31.36 UCPR are complied with. (4) Liberty to apply in respect of order 3 when evidence of compliance with r 7.14 and r 31.36 is available. Catchwords: CIVIL PROCEDURE — claim involves an allegation that the first plaintiff's head was negligently thrown back and forth during a medical examination — first plaintiff under legal incapacity as a minor — tutor made attempts to obtain legal representation for the first plaintiff — whether the requirement that a legally incapacitated party be represented by a solicitor should be dispensed with — not satisfied with attempts made to obtain legal representation— misgivings as to the second plaintiff's ability to represent the first plaintiff in the proceedings — no order for dispensation of the requirement CIVIL PROCEDURE — consideration of proposed statement of claim — whether leave should be granted to file amended statement of claim — consideration of deficiencies requiring amendment — no intelligible pleading of any maintainable cause of action on behalf of the second and third plaintiffs Legislation Cited: Civil Liability Act 2002 (NSW) Part 3 Civil Procedure Act 2005 (NSW) s 67 Uniform Civil Procedure Rules 2005 (NSW) rr 6.29, 7.14, 7.36, 7.38, 14.13, 31.36 Cases Cited: 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 Category: Procedural rulings Parties: Oluwatomi Onakoya (First Plaintiff) Matthew Onakoya (Second Plaintiff) Olamide Onakoya, (Third Plaintiff) The Sydney Children's Hospitals 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: Mr M Onakoya, in person by leave for the plaintiffs Mr S Kettle for the Defendant