Hayer v Kam & Ors [2014] NSWSC 126

Supreme Court New South Wales

Medium Neutral Citation: Hayer v Kam & Ors [2014] NSWSC 126 Hearing dates: 19 February 2014 Decision date: 27 February 2014 Jurisdiction: Civil Before: Hoeben CJ at CL Decision: Dismiss the Seventh Defendant's application to strike out the Plaintiffs' intentional tort claim against it. (1) In matter No 2010/214031 - the Estate of the Late Kulbir Singh Hayer is to pay the defendants' costs thrown away by the matter not being in a position to proceed on 12 December 2013, such costs to be paid on an indemnity basis regardless of the outcome of the proceedings. (2) In matter No 2012/034063 - Gurlean Hayer is to pay the defendants' costs thrown away by the matter not being a position to proceed on 12 December 2013 and those costs are to be paid on an indemnity basis regardless of the outcome of the proceedings. (3) Pavitar Sunner is to pay to the defendants the costs which the plaintiff, Gurlean Hayer is ordered to pay. (4) In matter No 2012/034047 - Dilpreet Hayer is to pay the defendants' costs thrown away by the matter not being in a position to proceed on 12 December 2013 and those costs are to be paid on an indemnity basis regardless of the outcome of the proceedings. (5) Pavitar Sunner is to pay to the defendants the costs which the plaintiff Dilpreet Hayer is ordered to pay. (6) In matter No 2012/168689 - Sahibjot Hayer is to pay the defendants' costs thrown away by the matter not being in a position to proceed on 12 December 2013 and those costs are to be paid on an indemnity basis regardless of the outcome of the proceedings. (7) Pavitar Sunner is to pay to the defendants the costs which the plaintiff Sahibjot Hayer is ordered to pay. (8) In relation to each Statement of Claim, the plaintiffs are to pay the costs of the defendants of and incidental to the Notices of Motion up to and including 17 January 2014 (being the day on which proper particulars were first provided). (9) In respect of the costs of the infant plaintiffs, their tutor Pavitar Sunner is to pay the costs which they are ordered to pay. (10) The seventh defendant is to pay the plaintiffs' costs of 19 February 2014. Catchwords: PRACTICE AND PROCEDURE - claim in tort arising from death of patient in a hospital - claims in negligence and for intentional torts against medical practitioners and hospital staff - application to strike out intentional tort claims - whether s3B(1)(a) of the Civil Liability Act 2002 applied to intentional tort claims - strike out application refused - costs. Legislation Cited: Civil Liability Act 2002 - s3B Civil Procedure Act, 2005 (NSW) - s67 Legal Profession Act 2004 (NSW) - s347 Cases Cited: Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 Dean v Phung [2012] NSWCA 223 Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR State of New South Wales v Bujdoso [2007] NSWCA 44; 69 NSWLR 302 Yakmor v Hamdoush (No 2) [2009] NSWCA 284 Zorom Enterprises Pty Ltd v Zabow & Ors [2007] NSWCA 106; 71 NSWLR 354 Category: Procedural and other rulings Parties: 2010/214031 Pavitar Sunner as Executor of the Estate of the late Kulbir Singh Hayer - Plaintiff 2012/034047 - Dilpreet Hayer bht Kulbir Singh - Plaintiff 2012/034063 - Gurlean Hayer bht Pavitar Sunner - Plaintiff 2012/168689 - Sahibjot Hayer bht Pavitar Sunner Defendants in all matters: Dr Andrew Kam - First Defendant Dr Vanessa Perotti - Second Defendant Dr Thomas Pitham - Third Defendant Dr Ayisha Zaman - Fourth Defendant Dr Mark Dexter - Fifth Defendant Dr Yu-Ting Yeh - Sixth Defendant Western Sydney Area Health Network (formerly known as Western Sydney Area Health Service) - Seventh Defendant Representation: Counsel: Ms L Whalan - Plaintiffs Ms J Sandford - Defendants Solicitors: Beilby Poulden Costello - Plaintiffs Curwoods Legal Services Pty Ltd - Defendants File Number(s): 2010/214031 2012/034047 2012/034063 2012/168689