Wei Fan By His Tutor Yue Wang v South Eastern Sydney Local Health District [2013] NSWSC 1376

Supreme Court New South Wales

Medium Neutral Citation: Wei Fan By His Tutor Yue Wang v South Eastern Sydney Local Health District [2013] NSWSC 1376 Hearing dates: 19 September 2013 Decision date: 19 September 2013 Jurisdiction: Common Law Before: Davies J Decision: 1.The Plaintiff be referred to the registrar pursuant to r 7.36 UCPR for referral to a barrister or solicitor on the Pro Bon Panel limited to that lawyer providing advice on the Plaintiff's reasonable prospects of success in the proceedings. 2. Leave to the Defendant to file the Amended Defence. Catchwords: PROCEDURE - application for referral for pro bono assistance - prior legal advisors ceased to act because they did not consider Plaintiff had reasonable prospects of success - referral limited to the obtaining of advice on reasonable prospects of success Legislation Cited: Uniform Civil Procedure Rules Category: Interlocutory applications Parties: Wei Fan By His Tutor Yue Wang (Plaintiff) South Eastern Sydney Local Health District (Defendant) Representation: Counsel: In person (Plaintiff) S Wood and V Stojkova (Defendant) Solicitors: In person (Plaintiff) Curwoods Legal Services Pty Ltd (Defendant) File Number(s): 2008/289228

Judgment 1The Plaintiff, who acts for himself through a tutor, seeks by Notice of Motion filed 14 August 2013 referral for pro bono legal representation pursuant to rule 7.36 UCPR. 2These proceedings are proceedings against the Area Health Service for medical negligence arising out of the advice and treatment given to the Plaintiff at St George Hospital. At some stages during the course of the proceedings the Plaintiff has had lawyers acting for him and that includes the time when the Further Amended Statement of Claim was filed. The Plaintiff brings these proceedings by his tutor, who is his wife. 3This matter came before Hall J on 30 August, but His Honour was not satisfied about the evidence that was provided in support of the application. He was concerned about two matters - first, why it was that previous legal advisers had ceased to act, and, secondly, the financial position of the Plaintiff and his family. 4The Plaintiff's tutor has filed an affidavit in support of the motion sworn 17 September 2013. This affidavit does provide some greater detail about the previous legal advisers ceasing to act, although it might not be said to be comprehensive in that regard. In addition, the evidence in relation to the Plaintiff and his family's financial position is scant in the extreme. The only reference to it appears to be in the paragraph numbered 1(d) on page 9 of the affidavit. 5Ms Wang has informed me through an interpreter that she is on a carer's pension in addition to her husband's disability pension and their son is a university student residing at home. They live in rented accommodation. 6Although it is unsatisfactory that the evidence about their financial position is not sworn evidence and has not been provided in greater detail, I do not think it is in anybody's interest to delay the determination of this motion for a further period of time to enable more detailed information to be provided. There is sufficient evidence, accepting what the Plaintiff's tutor tells me, that their means would otherwise justify a referral. 7The nature of the proceedings is undoubtedly complex being a claim for medical negligence and raising a number of different medical issues, including whether there was proper treatment of the Plaintiff's gall bladder problems, whether there was a proper diagnosis of what subsequently turned out to be diabetes and whether a fall he had was related to those matters and, indeed, whether that fall is responsible for his present cognitive difficulties. 8There is some evidence that has been placed before me to suggest that the Plaintiff does not have reasonable prospects of success in the matter. That appears to be why the solicitors Lamrocks and Mr Ian Butcher of counsel ceased to act for the Plaintiff. The report of Dr Jungfer, a consultant psychiatrist, also casts doubt from a causation point of view on some of the areas of damage that the Plaintiff now claims. 9Nevertheless, it seems to be in the interests of both parties that at least the Plaintiff should be given the opportunity to obtain legal advice as to the prospects of success in the case. I do not think at this stage it is appropriate to refer her for full legal assistance in the running of the case by reason of the doubts that have been expressed by previous lawyers about whether the case has any reasonable prospects of success. If pro bono assistance is able to be obtained and the lawyer advises that there are reasonable prospects of success it will be open to the Plaintiff to seek further pro bono assistance in the conduct of the case. 10Accordingly, I will refer the Plaintiff to the Registrar of the Court for referral to a barrister or solicitor on the pro bono panel for legal assistance. 11During the course of the hearing Mr Woods of counsel for the Defendant sought leave to file an Amended Defence in the proceedings that withdrew an admission earlier made by the Defendant concerning the Plaintiff's weight in February of 2007. 12I am satisfied from reading parts of the transcript of the directions before Harrison J on 19 July 2013 that His Honour gave leave to amend the defence and withdraw the admission. The mechanics of that have not so far been able to be implemented because it seems the Plaintiff will not agree to the short minutes which Harrison J directed be brought in to reflect that and other matters. 13The Plaintiff submits that the Defendant should not be permitted to withdraw the admission because, the tutor says, Harrison J said that the issue of the Plaintiff's weight needed to be "addressed in open court". It is precisely because his Honour was of that view that the matter must be determined at the hearing after all the evidence is given that the Defendant was given leave by him to withdraw the admission. 14For that reason, I gave leave to the Defendant to file the Amended Defence and in so doing to withdraw the admission concerned about the Plaintiff's weight. I note that the proceedings will be back before Harrison J on 11 of October. 15The orders I make are: 1. The Plaintiff be referred to the registrar pursuant to r 7.36 UCPR for referral to a barrister or solicitor on the Pro Bon Panel limited to that lawyer providing advice on the Plaintiff's reasonable prospects of success in the proceedings. 2. Leave to the Defendant to file the Amended Defence.