HIS HONOUR: By a notice of motion filed on 13 September 2023, the defendant seeks orders dismissing the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and that the plaintiff pay the defendant's costs of the proceedings. At the hearing of the motion, the plaintiff appeared without the benefit of legal representation. The orders sought were made. These are my reasons for making those orders.
The defendant sought to read an affidavit of Carolyn Nguyen, who is the assisting solicitor to the solicitor for the defendant, sworn on 12 September 2023, which provides a history of the matter and has annexed to it copies of the relevant filings and correspondence. The plaintiff's absence of representation impeded his ability to indicate whether he objected to the affidavit being read. I read the affidavit with the exception of the final two paragraphs, which I will treat as submissions. The history in the affidavit is to the following effect.
On 5 September 2022, the plaintiff filed a statement of claim in this Court against the defendant as the first defendant and Australian Guardian Services Pty Ltd as the second defendant. The essence of the claim was an allegation that the plaintiff, while in the employment of the second defendant as a security guard, slipped and fell in the loading dock area of Hornsby Westfields, thereby suffering an injury. On 30 June 2016, he received a "suspension of employment letter". On 4 July 2016, he filed an "injured register form" reporting that his "left ankle, back, lower back, back of the neck" were injured. Later the same day after filing the report he received a "dismissal letter". Thereafter the plaintiff set out certain consultations he attended with medical specialists nominated by the second defendant's insurer. A statement of particulars was not filed.
By a letter dated 21 November 2022, the defendant's solicitor wrote to the plaintiff, pointing out deficiencies and requesting that an amended statement of claim and a statement of particulars be filed. At a directions hearing on 5 December 2022, the defendant raised the shortcomings. The matter was stood over for a further directions hearing on 30 January 2023.
On 5 April 2023, the Court dismissed the plaintiff's action against the second defendant, on the basis that he had not complied with the provisions of the relevant legislation in respect of work injury damages: Troy Borg v Scentre Shopping Centre Management Pty Ltd [2023] NSWSC 338.
At a directions hearing on 19 April 2023, the plaintiff was directed to file an amended statement of claim and a statement of particulars by 3 May 2023.
Following a letter to the plaintiff from the defendant's solicitor dated 4 May 2023, which informed him that he had not filed the documents as directed, on 19 May 2023 the plaintiff filed a document titled "amended statement of claim" which was essentially in the same terms as the statement of claim.
In a letter dated 17 July 2023, the defendant's solicitor wrote to the plaintiff informing him that the amended statement of claim "once again fails to comply with the rules". It specified the shortcomings and warned that in the absence of a compliant further amended statement of claim and a statement of particulars, it would seek a strike-out with costs:
"The [amended statement of claim]:
(a) has not identified any cause of action against the Defendant.
(b) has not pleaded any allegation of duty of care/breach of duty against the Defendant.
(c) has not complied with the following Uniform Civil Procedure Rules:
i. 14.14: Failure to plead specifically all matters that, if not pleaded specifically, will take the Defendant by surprise.
ii. 15.1(1): Failure to plead such particulars of the claim as are necessary to enable the Defendant to identify the case that the [amended statement of claim] requires it to meet.
iii. 15.5: Failure to separately plead the facts and circumstances on which the Plaintiff relies in respect of each alleged negligent act or omission.
iv. 15.9: Failure to provide the particulars detailed in paragraphs i-iii above in the [amended statement of claim] or, if that is inconvenient, in a separate document referred to in the [amended statement of claim] and filed with the pleading.
v. 15.12: Failure to file a Statement of Particulars as required in personal injury cases.
We attach a copy of Rules 14.14, 15.1, 15.5, 15.9 and 15.12.
Please file a Further Amended Statement of Claim complying with the above rules together with a separate Statement of Particulars pursuant to Rule 15.12 by 18 August 2023.
In the absence of the above, the Defendant will file an application with the Court to strike out the proceedings."
At a directions hearing on 19 July 2023, the plaintiff was directed to file a further amended statement of claim and a statement of particulars by 18 August 2023.
By letter to the defendant's solicitor dated 18 August 2023, the plaintiff sought an extension to 21 August 2023; to which the defendant acquiesced. On 22 August 2023, the plaintiff served a further amended statement of claim on the defendant's solicitor and filed it the following day.
I note that the further amended statement of claim does not address the shortcomings that were identified in the defendant's solicitor's letter dated 17 July 2023, the only changes to the amended statement of claim being a name change in one paragraph from "Scentre Hornsby Shopping Centre" to "Westfield Shopping Centre" and the deletion of a paragraph that stated:
"The plaintiff already got an independent [back] specialist and booked MRI scans on 08/06/2023 so the specialist will give plaintiff a final report of my condition."
At the hearing of the defendant's motion to dismiss the proceedings, the plaintiff sought to tender what he described as evidence of his injury and what caused it: "clinical notes from the doctors, physios, chiropractors, worker's compensation documentation, private investigation documentation reports".
When it was pointed out to him that material of that nature was not relevant to the issue before the Court, he sought an adjournment to obtain legal representation. The defendant submitted, and the plaintiff agreed, that he had previously had representation by two different solicitors. He stated he no longer had funds for obtaining legal representation but nevertheless effectively sought an adjournment to enable him to obtain fresh legal representation and file a second further amended statement of claim and a statement of particulars. When asked what would be different this time, if the matter was stood over again, he said he would try to borrow funds from his parents: "I'm out of pocket 600,000 I might as well borrow the money and take it further". [T6.48]
I declined the application for an adjournment and made an order dismissing the proceedings. My reasons are as follows. As noted, the defendant sought that the proceedings be dismissed, pursuant to r 13.4 of the UCPR, which provides:
"13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
In Lazarus v Keneally [2023] NSWSC 349, I referred to the relevant principles, for dismissal pursuant to r 13.4:
"36 The principles relevant to the circumstances in which proceedings may be dismissed pursuant to r 13.4 are well-known. The test to be applied to determine whether no reasonable cause of action is disclosed is derived from the principles set out by Barwick CJ in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 128-130 (General Steel Industries). The Court is to consider whether 'the case of the plaintiff is so clearly untenable that it cannot possibly succeed': see at 130.
37 In General Steel Industries, Barwick CJ, at 128-129, emphasised the need for a court to be satisfied that no reasonable cause of action is disclosed:
'The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion … the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated.'
38 Rule 13.4(1)(b) of the UCPR was considered by the Court of Appeal in Ugur v Attorney General for New South Wales [2019] NSWCA 86. White JA, at [70], considered the purposes of the power in r 13.4 of the UCPR:
'One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications.'
39 In Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90, Macfarlan JA observed that the General Steel Industries principles may more frequently be satisfied where questions of law are in issue. His Honour, at [75], stated that:
'Such a course should only be taken in a clear case. Descriptions of the test to be applied have included such phrases as 'so obviously untenable that it cannot possibly succeed' and 'manifestly groundless' (General Steel Industries … at 129). Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold. Whilst caution is also required where, as here, the application turns on questions of law and there is no reasonable prospect that deficiencies in what is pleaded will be able to be cured by amendment, opportunities to summarily dismiss or strike out claims will arise more frequently.'
40 In Seidler v Carrol & O'Dea [2013] NSWSC 338, McCallum J (as her Honour then was) set out a summary of the relevant principles in relation to a strike out application under r 14.28 of the UCPR. As part of this summary, her Honour, at [6]a, alluded to the need to consider such applications in light of s 56 of the Civil Procedure Act 2005 (NSW):
'… the position must be considered in light of the requirements of s.56 Civil Procedure Act which obliges the court to exercise its powers to 'facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings: Gangi v Boral Resources (NSW) Pty Ltd [2012] NSWSC 398 per [Schmidt J] at [30]; Pacanowski & Anor v Wakerman & Ors [2009] NSWCA 402 per Tobias JA at [19] …'"
The Court must have regard to the overriding purpose of civil litigation contained in s 56 of the Civil Procedure Act, which relevantly provides:
"56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(3A) (Repealed)
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)-
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. …"
[3]
Consideration
The plaintiff has repeatedly demonstrated no insight into his obligation to comply with the rules as to the nature and filing of a statement of claim and a notice of particulars, if he wishes to properly commence proceedings, which is somewhat perplexing in view of him having received clear directions to do so on two prior occasions. He did not offer any realistic hope that if the proceedings were not dismissed, he would comply with directions in similar terms to those he has previously failed to comply with. The tone and content of the defendant's solicitor's correspondence with the plaintiff has been helpful throughout, attaching a copy of the relevant rules, offering to review documentation before it is filed and agreeing to a further adjournment, but all to no avail.
In those circumstances, in my view there was no alternative but to dismiss the proceedings.
As noted, the plaintiff was advised by letter dated 17 July 2023 that if he did not comply with the Registrar's directions, the defendant would seek to have the proceedings struck out and, as well, an order for costs. In my view, such an order was appropriate.
[4]
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Decision last updated: 15 November 2023