Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Boulos v Dr Martin [2012] NSWCA 74
• Hearing dates: 26 March 2012
• Decision date: 26 March 2012
• Before: Whealy JA; Tobias AJA

Decision

1.Leave to appeal is refused with costs.

2.The Notice of Motion filed by the applicant is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: LEAVE TO APPEAL - proceedings dismissed in Court below - res judicata - no arguable case - leave refused.
• Legislation Cited: - Local Courts Act 1982 (NSW) (now repealed) - ss 65-70; - Limitation Act 1969 (NSW) - s 50C(1)(a)
• Category: Interlocutory applications
• Parties: Barry Boulos (Applicant); Dr Peter Martin (Respondent)
• Representation: Counsel: In person (Appellant); G.M. Gregg (Respondent); Solicitors: In person (Appellant); DibbsBarker (Respondent)
• File Number(s): 2011/397526

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-06-24 00:00:00
• Before: Colefax SC DCJ
• File Number(s): 2010/422495

Judgment

1 WHEALY JA - Ex tempore: Barry Boulos, the applicant, was a patient of the respondent in 2005. At that time he sought medical treatment for a condition on his left temple that had developed from acne scarring as a teenager. It appears that, following the consultation, the respondent injected the applicant's face with a substance known as Aquamid. It was the applicant's subsequent claim that the areas of injection became infected and that this was occasioned by the negligence of the respondent. Further, he had claimed that the post operative treatment was negligent in a number of respects.

2 In due course the applicant commenced proceedings by the lodgement of a Statement of Claim in the Local Court. This was a proceeding that was dealt with in the Small Claims Division of the Local Court. The claim was in the following terms:

"The plaintiff first consulted Dr Martin in relation to two lesions on his upper cheek on 26 September [sic - it says 2006, however I take it to be 2005]. On another part of his face on the temple area the plaintiff also had three minor depressions. Dr Martin recommended Aquamid injections into the left temporal region. During this procedure which was carried out on 5 October 2005, Dr Martin failed to clean the area with antiseptic or any other cleansing liquid used prior to a medical procedure.

Subsequent to this procedure the area became infected ... Despite constant requests by the plaintiff, Dr Martin did not remove the Aquamid.

The plaintiff sought medical advice and treatment for his condition by Dr Caminer. Dr Caminer removed the Aquamid on the plaintiff's request. The plaintiff seeks compensation from Dr Martin calculated to be $4,824.75 for fees of medical procedures, hospital bills and medication, leading to and resulting from the infection."

3 The respondent defended the claim in the Local Court. He disputed that his treatment caused an infection or that he declined to remove the Aquamid injected at the plaintiff's request. The respondent denied that he "was negligent in any way".

4 As I understand it, the hearing took place in the Downing Centre at 147 Liverpool Street in the relatively informal manner that is permitted for the disposal of small civil claims: s 70 Local Courts Act 1982 (NSW) (now repealed).

5 On 29 November 2006, the Court entered a verdict and judgment for the plaintiff in the sum of $4,824,75 plus court costs. Interest was awarded in the sum of $500.85. It is clear from these orders that the applicant had been wholly successful in his claim that he had been negligently treated by the respondent.

6 On 21 December 2010 the applicant filed a Statement of Claim in the District Court of New South Wales. It was entered in the Court's Professional Negligence list. The claim was described as "professional negligence - medical profession". The applicant claimed $12,400 for fees for Dr David Caminer to correct an indentation to the temple area that was caused by the infection after treatment by the respondent. He further claimed $3,800 for fees to an anaesthetist to correct the indentation caused by the infection. There was also a claim for hospital fees at an undisclosed amount. In addition unliquidated damages were sought.

7 It is unnecessary to set out the whole of the pleading. It is sufficient to say that the applicant alleged, as he had done in the Local Court, that the respondent had breached his duty of care and committed the tort of negligence. He now sought damages at an undisclosed sum to be determined by the District Court of New South Wales for the consequences of that negligence. Once again he asserted that the respondent had been negligent in refusing to remove the infected Aquamid and other infections in the temple area when requested by the applicant.

8 A defence was filed in January 2011 on behalf of the respondent. This was subsequently amended in June 2011. The amended defence raised a number of defences. It is unnecessary to set them out in full. Relevantly to the outcome of the proceedings in the District Court, the respondent alleged by way of defence that the cause of action on which the applicant had sued in the District Court was the same cause of action, and based on the same facts and circumstances, as the action previously brought by the applicant against the respondent in the Local Court. The respondent sought to rely on the operation of the principles of res judicata and, alternatively, Anshun estoppel.

9 On 24 June 2011, two Notices of Motion came before his Honour Judge Colefax ("the primary judge"). The first Notice of Motion was filed on behalf of the respondent. It sought to have the proceedings dismissed because the claim was brought contrary to the principles of res judicata. There was also a claim in that Notice of Motion to have the proceedings dismissed for falling outside the "3 year post discoverability limitation period": s 50C(1)(a) Limitation Act 1969 (NSW).

10 The second Notice of Motion was brought by the applicant. This was an application seeking summary judgment against the respondent.

11 Throughout the proceedings, and indeed in this Court, the applicant is, and has been, self represented.

12 After receiving evidence and hearing submissions the primary judge said:

"On 21 December 2010 the plaintiff filed the statement of claim in this Court. The statement of claim in effect repeats the cause of action pleaded in the Local Court; that is it say, it alleges that when the defendant treated the plaintiff in 2005, he was negligent, or in breach of retainer, in performing the injection process."

His Honour said that the only difference between the substance of the proceedings in the two courts related to the issue of damages.

13 His Honour determined to dismiss the Statement of Claim and said:

"This is a classic case in which the doctrine of res judicata applies. A cause of action was determined on its merits by the Local Court in 2006. On that occasion the cause of action merged in the judgment. By bringing a second set of proceedings in this court, pleading in effect the same cause of action but a different head of damage, the plaintiff offends the res judicata rule. The proceedings, therefore, are an abuse of process and will be dismissed."

14 The primary judge did not determine the other aspects of the respondent's motion. He dismissed the Statement of Claim and ordered the applicant to pay the respondent's costs of the proceedings and of the amended Notice of Motion.

15 The applicant filed a notice of intention to appeal to this court on 22 July 2011 and a Notice of Appeal on 23 September 2011. On 21 November 2011, the Registrar ordered the applicant to file a summons seeking leave, including a white folder by 5 December 2011. The applicant sought, and was granted an extension to file the summons seeking leave including a white folder by 8 December 2011.

16 The applicant filed a Summons Seeking Leave to Appeal on 8 December 2011 and served it with the white folder on the solicitors for the respondent on that day.

17 The Summons Seeking Leave to Appeal seeks a "full trial hearing in the Supreme Court of New South Wales" (para 3), and seeks orders, inter alia, that:

"The statement of claim 21 December 2010 in its entirety be awarded in favour of Barry Boulos: appellant and plaintiff."

18 The respondent complains about the form of the white folder, the absence of submissions and other procedural matters. In his principal submission, however, the respondent opposes the grant of leave on the basis that the proposed appeal is without merit and has no prospect of success.

19 In addition, the respondent has filed a Notice of Motion challenging the competency of the appeal. The applicant's Summons for Leave proceeds on the assumption that leave is required.

20 The applicant's contentions, insofar as they can be derived from the large amount of material that has been filed, and the oral submissions he has made today, seem to be as I shall state them.

21 First, the Local Court had "limited jurisdiction" in that its damages were limited to $10,000. Secondly the Local Court was not a competent tribunal although it is not precisely clear what this means. As to each of these matters there is no suggestion that the Local Court did not have jurisdiction to hear a claim alleging professional negligence by a medical practitioner, allowing a damages claim to a plaintiff to whom a duty of care was owed. Such a matter clearly fell within the jurisdiction of the Local Court: s 65 to 70 of the Local Courts Act 1982.

22 Thirdly, the applicant suggests that the respondent admitted that he, the applicant, had told the doctor that he would be suing for further damages. Presumably this suggests some type of estoppel, although how it could possibly operate in the context of this appeal is in my opinion not at all clear.

23 Fourthly, the applicant asserts that the res judicata principle does not apply because there has been fraud perpetrated by the respondent. It was the applicant, however, who secured the judgment in the Local Court, not the respondent. There was no suggestion that the applicant secured the judgment by fraud.

24 In any event, the "fraud" seems to be related to the applicant's assertion that the drug Aquamid had not been authorised for distribution in New South Wales and therefore its use by the respondent may have been illegal or unethical, improper or something of that kind.

25 In addition, the applicant states that he has subpoenaed for production any approvals that the respondent may have had for the use of this drug and nothing was produced. He says that that suggests that there has been, at least, a failure to maintain proper records on the part of the respondent, if not something more serious.

26 Fifthly, the applicant argues that res judicata would not prevent disciplinary proceedings being instituted against the respondent. While that may be so, the point is of no assistance to the applicant in this appeal.

27 Sixthly, the applicant has propounded an argument based on waiver and election. In this regard he refers to a report done on 8 June 2011 by Dr Caminer which said in effect:

"At the time ... my advice was to allow the wound to settle before reconstruction".

28 The applicant elected to proceed with his claim, however, before this period expired and thus before the subsequent expenses were incurred. He says, however, that this was his act of waiver and election and he argues that this decision does not prevent him from instituting these further proceedings.

29 The applicant maintained that he can still bring his claim for the future expenses even though he may not be able to claim for any increase in the treatment costs that may have occurred as a result of the passage of time. This argument, however, does not in my opinion assist him in the present appeal.

30 The res judicata principle operates adversely to the appellant in connection with the consequences of his original decision to sue the respondent in the Local Court. He cannot bring a further action based on the same cause of action that otherwise secured a favourable verdict for him back in November 2006.

31 Finally, the applicant says that he wishes to file an Amended Statement of Claim. Of course, it may in theory be possible for him, subject to the Limitations Act, to do so, perhaps in the District Court or some other jurisdiction, provided he does not rely on the same cause of action as was involved in the present appeal. He may have, subject to considerations of the Limitation Act, some right to bring proceedings under the Fair Trading Act. Whether this is so does not fall for decision on the hearing of this leave application.

32 The position of the Summons Seeking Leave to Appeal is further complicated by the fact that the applicant has filed a Notice of Motion on 15 March 2012 supported by an affidavit of the same date. The background to this is that the applicant had filed an earlier Notice of Motion which was heard before Macfarlan JA as a single judge of this Court. His Honour dismissed the earlier Notice of Motion with costs on 20 February 2012.

33 Essentially, the second Notice of Motion attempts to contravene the orders made by Macfarlan JA and to re-litigate the earlier unsuccessful motion. First, the applicant raises the claim that he wishes this Court, constituted as it is by two judges, to revisit Macfarlan JA's decision. That is not possible with the Court as presently constituted. The applicant's only recourse is to lodge an application for review of the decision of Macfarlan JA. He has lodged a Notice of Motion but, as I have said, it is not possible for the Court as presently constituted to deal with that matter. It would have to be dealt with by a bench of three.

34 Secondly, the Notice of Motion seeks leave for amendments to be made to the summons for leave, the Notice of Appeal and the original Statement of Claim in the District Court. As to the last, the Notice of Motion is totally misconceived in so far as it seeks relief in this Court. As to the first two amendments, there have not been any details provided as to the nature of the amendments sought.

35 The final series of claims in the motion appear to be, in essence, a complaint about the fact that Macfarlan JA refused to allow the applicant to proceed with the issue of a number of subpoenas to bodies such as the Australian Health Practitioner Regulation Agency, the Health Care Complaints Commission and the Therapeutic Goods Administration. There was also an issue as to a subpoena addressed to the respondent which I have earlier mentioned.

36 As I have said, to the extent that these matters canvass Macfarlan JA's reasoning, this Court as presently constituted is unable to deal with such matters. None of the subpoenas it might be observed, in any event, call for production of material that is in any way relevant to the issues raised in this application for leave to appeal. If the applicant is unsuccessful in obtaining leave to appeal, these questions will become, it might be thought, entirely academic.

37 I return now to the Summons Seeking Leave to Appeal. The simple issue, as was stated to Mr Boulos at the outset of this matter, is whether the applicant can point to an arguable error in the decision of the primary judge in dismissing the claim in the District Court. In my opinion, none of the arguments the applicant has raised demonstrate an arguable case. The applicant's appeal has no reasonable prospects of success.

38 In those circumstances, I propose the following orders:

(a)that leave to appeal be refused with costs;

(b)that the Notice of Motion filed by the applicant be dismissed with costs.

39 TOBIAS AJA: I agree.

40 WHEALY JA: The orders of the Court will be as I have proposed.

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Decision last updated: 04 April 2012