IN THE COUNTY COURT OF VICTORIA
AT Melbourne
Civil  DIVISION	Revised
Not Restricted
 Suitable for Publication	
Medical List

Case No. CI-23-03947

KEVIN PATS 	Plaintiff	
		
v		
		
DANIEL ARONOV 	 First Defendant

DANIEL LANZER 								        Second Defendant

RYAN WELLS 									 Third Defendant 

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JUDGE:	HER HONOUR JUDGE MAGEE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	20 March 2025	
DATE OF RULING:	16 April 2025 	
CASE MAY BE CITED AS:	Pats v Aronov & Ors (Ruling No 2) 	
MEDIUM NEUTRAL CITATION:	[2025] VCC 448		

RULING
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Subject:	Practice and procedure 
Catchwords: 	Amendment to Statement of Claim
Ruling:	Leave granted to the plaintiff to plead the following paragraphs in the draft proposed Amended Statement of Clam dated 23 March 2025: paragraph 2A, paragraph 3, paragraph 9, paragraph 9A, paragraph 28, paragraph 29, paragraph 30; paragraph 31 (excluding paragraph 31(g)), paragraph 32, paragraph 32A (insofar as they relate to the third defendant), paragraph 34 (excluding paragraph 34(h), 34(i), 34(j), 34(o), 34(p), 34(q), 34 (r)), paragraph 35, paragraph 37 
                                  Leave dismissed in relation to:
paragraph 2B, paragraph 7A, paragraph 27A, paragraph 31(g), paragraph 32A (insofar as they relate to the first and second defendant), paragraph 33A, paragraph 34(h), 34(i), 34(j), 34(o), 34(p), 34(q), 34(r), paragraph 35A, paragraph 35B 
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APPEARANCES:
	Counsel	Solicitors
	
For the Plaintiff                                   	Mr P Harris                           	Polaris Lawyers 	
			
For the First Defendant

For the Second Defendant

For the Third Defendant   

	
Ms H. Daniel (solicitor)  

Ms K Lui                               	
Gilchrist Connell

Kennedys Law       

	Ms H Daniel (solicitor)  

Ms K Lui      

Ms H Daniel (solicitor)                         	Gilchrist Connell

Kennedys Law       

Gilchrist Connell 

HER HONOUR:

Introduction 
1	This proceeding has had a long history. In order to understand this Ruling, it is necessary to set out a short summary of the proceeding to date.
2	On or about 24 July 2023, the plaintiff, Kevin Pats, commenced a common law proceeding in this court against Daniel Aronov (“the first defendant”) and Daniel Lanzer (“the second defendant”) in respect of an injury which he alleged he suffered in the course of receiving medical treatment from the first and second defendants between 30 August 2018 and 22 November 2021.
3	The proceeding was fixed for trial on 4 September 2024 and was in the Reserve List. On that day, Counsel for the plaintiff applied to vacate the hearing date. The application was granted and subsequently the Court made Orders in relation to costs of the adjournment.
4	At a directions hearing on 4 October 2024, the proceeding was set down for hearing on 28 February 2025.
5	The plaintiff issued a summons seeking further and better discovery from the first and second defendants which was listed on 29 November 2024. On that day the plaintiff withdrew the summons relating to the first defendant, as the first defendant had agreed to provide a further affidavit of documents. The summons relating to the second defendant was adjourned part heard to a date to be fixed.
6	On 4 December 2024, Orders were made relating to the second defendant’s further and better discovery.
7	In February 2025, the plaintiff issued a further summons, seeking further and better discovery be produced from the second defendant, an adjournment of the trial date of 28 February 2025, leave to join a third party to the proceedings and resultant costs orders. The summons was heard on 13 February 2025.
8	On 13 February 2025, the following orders, inter-alia, were made:
“1. The trial listed on 28 February 2025 is vacated.
3.  Leave is granted to the plaintiff to file an Amended Writ naming Dr Ryan Wells as the third defendant, by no later than 27 February 2025. 
4. The second defendant is to provide the plaintiff with supervised physical or remote access to the electronic patient file relating to the plaintiff by no later than 27 February 2025. 
5. The plaintiff is to file and serve an Amended Statement of Claim in relation to Dr Ryan Wells by no later than 13 March 2025. 
6. The proceeding is listed for a further Directions Hearing on 20 March 2025.”
9	On 13 March 2025, the plaintiff filed and served an Amended Statement of Claim dated 13 March 2025 which was purported to have been filed pursuant to the Orders made on 13 February 2025.
The Amended Statement of Claim dated 13 March 2025
10	The Amended Statement of Claim goes beyond the scope of the Orders of 13 February 2025. 
11	The following paragraphs of the Amended Statement of Claim contained proposed amendments (underlined in red):
•	Paragraph 2A: “At all relevant times the third defendant was a qualified and registered medical practitioner carrying on practice and holding himself out to be a cosmetic surgeon.”
•	Paragraph 2B: “At all relevant times, the first defendant’s wife, de-facto-partner, or domestic partner was Ms Candice Wainstein.”
•	Paragraph 3: “At all relevant times the first and/or second and/or third defendants carried on a cosmetic surgery practice at the Lanzer Clinic at 30-32 Glenferrie Road, Malvern (the Clinic).” 
•	Paragraph 7A: “At no time did the first and/or second defendant inform the plaintiff that Ms Candice Wainstein was the wife, de-facto-partner, or domestic partner of the first defendant.”
•	Paragraph 9: “On 4 October 2018, the first and/or second and/or third defendants performed and/or assisted in the performance of a lipectomy of the abdominal apron as well as liposuction of the chest, stomach and flanks under general anaesthetic (the first surgery).” 
•	Paragraph 9A : “Further, and/or alternatively, the first and/or third defendant performed and/or assisted in the performance of the first surgery, which was directed and/or overseen and/or supervised by the second defendant.”
•	Paragraph 27A: “On 1 October 2024, the Medical Board of Australia imposed conditions on the third defendant’s registration as a medical practitioner, including that:
(a) the third defendant must not practise unless supervised by an approved supervisor who is always physically present in the workplace; 
(b) the third defendant may only practise at practice locations approved by the Medical Board of Australia; and 
(c) the third defendant must not undertake any cosmetic medical and/or surgical procedures (major or minor) whether supervised or not. 
•	Paragraph 28: “At all material times the first and/or second and/or third defendants owed the plaintiff a duty to take reasonable care to the standard expected of a qualified medical practitioner and a specialist cosmetic surgeon in the provision of medical advice and treatment to the plaintiff.”
•	Paragraph 29 : “Further and in the alternative, the first and/or second and/or third defendants agreed for reward to provide medical advice and treatment to the plaintiff (the agreement).
                                          PARTICULARS 
The agreement was partly in writing and partly to be implied. In so far as it was in writing, it consisted of emails, patient documents and consent forms signed by the parties. In so far as it was implied, it was implied by reason of the plaintiff’s attendance at the Clinic, the defendants’ performance of the surgeries and otherwise by law.”
•	Paragraph 30: “It was a term of the agreement that the first and/or second and/or third defendants would exercise reasonable care in the provision of medical advice and treatment to the plaintiff.”
•	Paragraph 31: “Prior to performing the first surgery, the exercise of reasonable care by the first and/or second and/or third defendants required that they:
(a) advise the plaintiff that the first surgery would not be effective in removing the loose skin;
(b) advise the plaintiff that he required a formal radical abdominoplasty or a Fleur de Lis abdominoplasty to deal with the loose skin;
(c) conduct a (sic) two pre-operative consultations with the plaintiff to discuss the surgery, his expectations and risks;
(d) adequately advise the plaintiff of the risks and complications associated with the first surgery;
(e) to provide the plaintiff with sufficient literature regarding the first surgery and the risks associated with the first surgery;
(f) refuse to perform the first surgery;
(g) inform and/or disclose to the plaintiff that Ms Candice Wainstein was the wife, de- facto-partner, (sic) or domestic partner of the first defendant.”
•	Paragraph 32: “During the first surgery, the exercise of reasonable care by the first and/or second and/or third defendants required that they use sutures rather than staples.”
•	Paragraph 32A: “After the first surgery, the exercise of reasonable care by the first and/or second and/or defendants required that they:
(a) recognise the post operative swelling, which developed after the first surgery;
(b) employee reasonable treatment for the swelling, including but not limited to drainage of any fluid; and
(c) not use the Velashape device to treat the plaintiff’s chest, stomach and sides after the first surgery as it is not approved by the TGA for the treatment of post operative swelling.”
•	Paragraph 33A: “After the touch up and further liposuction, the exercise of reasonable care by the first and/or second defendants required that they:
(a) recognise the post operative seroma, which developed after the touch up and further liposuction; and
(b) not use the Accent Prime device to treat the plaintiff’s post operative seroma, as it is not approved by the TGA for the treatment of post-operative seroma.
(the post liposuction treatment)”
•	Paragraph 34: “In breach of the duty of care owed and/or the terms of the agreement, the first and/or second and/or third defendants failed to advise and treat the plaintiff with due care and skill.
                                         PARTICULARS
	(a) failing to advise the plaintiff that the first surgery would not be effective in removing the loose skin; 
	(b) failing to advise the plaintiff that he required a formal radical abdominoplasty or a Fleur de Lis abdominoplasty to deal with the loose skin; 
	(c) failing to conduct two pre-operative consultations with the plaintiff to discuss the first surgery, his expectations and risks; 
	(d) failing to adequately advise the plaintiff of the risks and complications associated with the first surgery; 
	(e) failing to provide the plaintiff with sufficient literature regarding the surgery and the risks associated with the first surgery; 
	(f) performing the first surgery; 
	(g) using staples instead of sutures during the first surgery; 
	(h) failing to recognise the post operative swelling, which developed after the first surgery; 
	(i) failing to employ reasonable treatment of the swelling, including but not limited to drainage of any fluid;
	(j) using the Velashape device to treat the plaintiff’s chest, stomach and sides after the first surgery as it is not approved by the TGA for the treatment of post-operative swelling;
	(k) failing to advise the plaintiff that the further liposuction would not be effective;
	(l) failing to advise the plaintiff that the further liposuction would exacerbate the problem;
	(m) failing to advise the plaintiff against having the further liposuction;
	(n) performing the further liposuction;
	(o) failing to recognise the seroma which developed after the touch up and further liposuction; 
	(p) performing the post liposuction treatment; 
	(q) failing to inform and/or disclose to the plaintiff that Ms Candice Wainstein was the wife, de-facto-partner, or domestic partner of the first defendant; and 
	(r) failing to ensure that the plaintiff underwent psychological assessment by a psychologist, who was independent to the first defendant. 
•	Paragraph 35: “Had the first and/or second and/or third defendants performed the pre-operative actions, the plaintiff would not have proceeded with the first surgery.”
•	Paragraph 35A: “Had the first and/or second defendants recognised and employed reasonable treatment of the swelling after the first surgery, the plaintiff would not have developed deformity after the first surgery.”
•	Paragraph 35B: “Had the first and/or second defendants refrained from performing the post liposuction treatment, the plaintiff would have avoided the development of a seroma which now requires surgical intervention.”
•	Paragraph 37 : “As a result of the first and/or second and/or third defendants’ breach of duty and/or breach of the agreement, the plaintiff has suffered injury, loss and damage.”
The Directions Hearing on 20 March 2025
12	The Directions hearing was scheduled as a result of the Court Orders made on 13 February 2025. 
13	The plaintiff did not issue a summons seeking leave to file an Amended Statement of Claim which went beyond the leave granted on 13 February 2025 . 
14	Shortly after the commencement of the Directions Hearing, Counsel for the plaintiff made an oral application for leave to file and serve the Amended Statement of Claim dated 13 March 2025. 
15	The first and second defendants said they were in a position to deal with the plaintiff’s application and opposed the application to amend the Statement of Claim in so far as it went beyond the Orders made on 13 February 2025.
16	The matter was then stood down for two reasons:
•	to enable the Court to read an  affidavit dated 19 March 2025 sworn by Emily Jane Brett, solicitor for the first and third defendants, which had been filed with the Court shortly prior to the hearing on 20 March 2025
•	to enable the plaintiff to consider the Court’s suggestion that an affidavit in support of the application to amend should be provided.
17	In the course of the Directions Hearing, the plaintiff abandoned his application to amend any pleadings relating to Ms Wainstein. Consequently the proposed amendments to paragraphs 2B, 7A, 31(g) and 34(q) fall away. They do not require any further consideration.
18	Despite the invitation conveyed by the Court, and repeated on two more occasions, the plaintiff declined to produce an affidavit in support.
19	Consequently, the Court was left without any material upon which it could establish whether there was a proper basis for the proposed amendments.
20	Paragraph 27A relates to events which occurred approximately 6 years after the first surgery in October 2018. It is alleged that the third defendant performed or assisted in the first surgery. The third defendant has not yet filed a Defence. Despite there being no formal objection this pleading, it will not be allowed as it is difficult to see how the matters pleaded are relevant to the issues in dispute. The matters pleaded in paragraph 27A cannot be used in some retrospective way.
21	The first and second defendants did not oppose any amendments which complied with the Court’s Orders of 13 February 2025. Consequently, the following proposed amendments are allowed:  
•	paragraph 2A 
•	paragraph 3
•	paragraph 9 (insofar as they relate to the third defendant)
•	paragraph 9A 
•	paragraph 28
•	paragraph 29
•	paragraph 30
•	paragraph 31 (excluding paragraph 31(g))
•	paragraph 32
•	paragraph 32A (insofar as they relate to the third defendant)
•	paragraph 34 (excluding paragraph 34(h), 34(i), 34(j), 34(o), 34(p) and 34(r)
•	paragraph 35 
•	paragraph 37 
22	The first and second defendants opposed the following paragraphs:
•	paragraph 9 (insofar as they related to the second defendant)
•	paragraph 9A (insofar as they related to the first and second defendant)
•	paragraph 32A (insofar as they related to the first and second defendant)
•	paragraph 33A 
•	paragraph 34(h), 34(i), 34(j), 34(o), 34(p) and 34(r)
•	paragraph 35A 
•	paragraph 35B 
23	The objections were principally that the new pleadings, insofar as the first and second defendants are concerned, raise new allegations against those defendants.
24	Turning to each of the objections in turn:
•	paragraph 9: this paragraph alleges for the first time that the second defendant was involved in the first surgery. The second defendant has in an amended Defence  admitted that he performed part of the first surgery. This amendment will be allowed.
•	paragraph 9A: this paragraph asserts for the first time that the second defendant directed, oversaw or supervised the first surgery. Given the admission of the second defendant that he performed part of the first surgery, this amendment will be allowed.
•	paragraph 32A: this paragraph raises allegations against the third defendant which fall within the Court’s orders of 13 February 2025. The paragraph also  alleges new allegations against the first and second defendants which go well beyond what was ordered on 13 February 2025 and appear, on face value, to be an opportunistic attempt to expand the Court’s orders. The Court cannot speculate as to whether there is a proper basis for the new allegations in the absence of any proper explanation from the plaintiff about these pleadings. This amendment will not be allowed.
•	paragraphs 33A, 35A and 35B: these paragraphs contain no allegations against the third defendant, they raise new allegations against the first and second defendants. The amendment will not be allowed for the reasons set out in the preceding paragraph.
•	paragraph 34(h), 34(i) and 34(j): these subparagraphs relate to alleged post operative swelling after the first surgery and the alleged use of a Velashape device. It is difficult to see how any of these subparagraphs can be pleaded against the third defendant, as there is no allegation that he had any involvement after the first surgery. In relation to the first and second defendants, the Court cannot speculate as to whether there is a proper basis for the new allegations in the absence of any proper explanation from the plaintiff about these pleadings. These amendments will not be allowed.
•	paragraph 34(o) and 34(p): it is difficult to see how any of these subparagraphs can be pleaded against the third defendant as there is no allegation that he had any involvement after the first surgery. Further, these subparagraphs appear to flow from the new allegations in paragraph 33A which have not been allowed. They do not stand on their own, as paragraph 33A has not been allowed, these subparagraphs will not be allowed.   
•	paragraph 34(r): this subparagraph appears to be related to the proposed pleadings regarding Ms Wainstein which were not pursued. This amendment appears to assert new allegations and possibly a new cause of action against the first and second defendants. Once again, the Court cannot speculate as to whether there is a proper basis for the new allegations in the absence of any proper explanation from the plaintiff about these pleadings. These amendments will not be allowed.
Disposition
25	Leave is granted to the plaintiff to plead the following amendments, which relate to the third defendant: 
•	paragraph 2A 
•	paragraph 3
•	paragraph 9
•	paragraph 9A 
•	paragraph 28
•	paragraph 29
•	paragraph 30
•	paragraph 31 (excluding paragraph 31(g))
•	paragraph 32
•	paragraph 32A (insofar as they relate to the third defendant)
•	paragraph 34 (excluding paragraph 34(h), 34(i), 34(j), 34(o), 34(p), 34(q) and 34(r))
•	paragraph 35 
•	paragraph 37
26	Leave is dismissed to plead the following paragraphs:
•	paragraph 2B
•	paragraph 7A 
•	paragraph 27A
•	paragraph 31(g)
•	paragraph 32A (insofar as they related to the first and second defendant)
•	paragraph 33A 
•	paragraph 34(h), 34(i), 34(j), 34(o), 34(p), 34(q) and 34(r))
•	paragraph 35A 
•	paragraph 35B