Morrison v South Eastern Sydney Local Health District (known as Sutherland Hospital) [2024] NSWSC 651

Supreme Court New South Wales

Medium Neutral Citation: Morrison v South Eastern Sydney Local Health District (known as Sutherland Hospital) [2024] NSWSC 651 Hearing dates: 14 May 2024 Date of orders: 31 May 2024 Decision date: 31 May 2024 Jurisdiction: Common Law Before: Harrison CJ at CL Decision: Proceedings dismissed with costs Catchwords: PRACTICE & PROCEDURE – pleadings – summary dismissal – whether statement of claim discloses a reasonable cause of action – where previous proceedings between the same parties litigated to judgment – whether current proceedings an abuse of process LIMITATION OF ACTIONS – whether proceedings commenced in 2023 relating to tort or contract – allegations arising from events in 1977 barred by statute Legislation Cited: Civil Procedure Act 2005 (NSW), s 67 Limitation Act 1969 (NSW), s 14 Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1) Cases Cited: Morrison v Wong & Anor [2001] NSWSC 304 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Category: Procedural rulings Parties: Derek Morrison (Plaintiff) South Eastern Sydney Local Health District (known as Sutherland Hospital) (Defendant) Representation: Counsel: T Berberian (Defendant)

Solicitors: Hicksons (Defendant) File Number(s): 2022/381902 Publication restriction: Nil

JUDGMENT 1. HIS HONOUR: Derek Morrison commenced these proceedings by statement of claim filed on 28 November 2022. He filed an amended statement of claim on 5 June 2023. Although the latter document arguably suffers from a series of defects, to which it will be necessary to return, it is plain enough that Mr Morrison's complaints include that he has suffered loss and damage as the result of a myelogram procedure performed on him at the Sutherland Hospital on 3 May 1977. Details of the facts and circumstances of what occurred on that day are conveniently recorded in the judgment of Sperling J, who heard and determined Mr Morrison's claim for damages arising out of the very same procedure, commenced as long ago as 1993. The proceedings ran for a total of 24 days between 29 January and 20 March 2001. Mr Morrison was represented by senior and junior counsel. In his characteristically detailed and concise manner, his Honour dismissed Mr Morrison's claim: see Morrison v Wong & Anor [2001] NSWSC 304. 2. The procedure undergone by Mr Morrison in 1977 was performed by Dr Wai Kwan Wong. Mr Morrison now alleges that the defendant is liable to him in damages for breach of a contract with him in permitting what he describes in the amended statement of claim as "an unqualified staff member" to perform the procedure. Mr Morrison also alleges that it was "professional negligence" on the part of the hospital to allow Dr Wong to operate upon him in the circumstances. I understand Mr Morrison to contend that the hospital breached an implied term of its contract with him by allegedly failing to inform him that Dr Wong was "not qualified". It will be necessary to return to the meaning of that expression in due course. 3. By its notice of motion filed on 19 December 2023, the South Eastern Local Health District (known as Sutherland Hospital) seeks orders pursuant to UCPR 14.28(1) that the amended statement of claim be struck out or that the proceedings be dismissed pursuant to UCPR 13.4(1). The defendant seeks an alternative order pursuant to s 67 of the Civil Procedure Act 2005 that the proceedings be permanently stayed, either because the claim in contract is barred by operation of s 14 of the Limitation Act 1969 or that Mr Morrison is estopped from commencing or continuing the proceedings in accordance with the principles enunciated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 and Henderson v Henderson (1843) 3 Hare 100; 67 ER 313. 4. In support of its motion, the defendant relies upon the affidavit of Mark John Quadrio affirmed on 19 December 2023, which was read without objection. Mr Morrison has tendered no evidence in response to the present application.