Dunn, Marty Heath v Mee Youn Kim

Summons seeking leave to appeal

1. The orders sought in the summons were for a grant of leave to appeal from the decision of Judicial Registrar Howard made on 9 November 2020 and the setting aside of that decision. Written submissions filed by the plaintiff on 5 May 2023 also sought the issue of subpoenas to two police officers who had, it was suggested, spoken to the defendants in relation to allegations of criminal conduct made by the plaintiff. Those conversations are not relevant in this proceeding and, if the proposed orders were pressed, which they may not have been, they should not be made.
2. The grounds commenced with the unparticularised allegation that the District Court proceedings had been "unlawfully dismissed". Grounds 2-8 identified certain factual circumstances which, according to ground 9, the judicial registrar had ignored, and which should have led to an adjournment of the hearing on 9 November 2020.
3. Grounds 2 and 8 in effect stated that the plaintiff had a "stress induced cardiomyopathy - heart attack" on 30 August 2020. The evidence, asserted in ground 8, was a report of a cardiologist dated September 2022, which could not have been taken into account by the judicial registrar two years earlier. As will be explained, it did not support the allegation in ground 2.
4. Grounds 3 and 4 concerned medical reports confirming that the plaintiff had a mental illness and that he was too unwell to appear for himself at the hearing on 9 November 2020. Ground 5 asserted that the plaintiff had sought legal assistance, without success. These three factual statements were in substance correct and will be addressed in due course.
5. Ground 6 referred to a letter from a police officer concerning allegations of criminal offences made by the plaintiff. It had no bearing on the civil proceedings.
6. Ground 7 identified "755 pages of exhibits [and] annexures" which were said to have been ignored by the judicial registrar. As will be explained, the issues before the judicial registrar were quite limited and, absent some identification of relevant pages of that material, that material had no bearing on the hearing on 9 November 2020.

Procedural background

1. Because the merits of the plaintiff's claim are not material, the background circumstances can be briefly stated. The claim arose from a contract entered into in February 2017 between a company associated with the plaintiff, Discover the Earth Pty Ltd ("the company"), and the second defendant, Min-Young Hong (also known as Edwin Hong). Pursuant to the contract, the company was to carry out construction work, namely the building of a swimming pool, on a property owned by the first defendant, Mr Hong's cousin, Mee Youn Kim. Ms Kim did not appear on this application.
2. A dispute arose in about September 2017, when Mr Hong refused to pay an invoice rendered by the company, because he believed that the works were defective. The company ceased work in about the same month.
3. In 2019 the plaintiff commenced proceedings, first in the Local Court, but those proceedings were discontinued. In April 2020, the plaintiff commenced proceedings against the defendants in the District Court. By an amended statement of claim filed on 29 May 2020 he claimed a little under $281,000, for "unpaid invoice, materials, work time, equipment hire". The largest item of the claim was for over $245,000 for "Wages - Total amount of work time, owed to the plaintiff". Although the plaintiff stated in oral submissions that the dispute arose from the failure to pay a $7,000 invoice, the pleaded claim was more extravagant.
4. On 3 June 2020 the defendants filed a notice of motion, amended on 3 August 2020, seeking orders striking out the amended statement of claim pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 14.28, and dismissing the proceedings pursuant to r 13.4. On 4 September 2020, P Taylor DCJ heard the application and dealt with the matter ex tempore, making the following orders: "(1) Strike out the amended statement of claim pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005. (2) Stay these proceedings in respect of any claim on the pool contracts until Discover the Earth Pty Ltd (ACN 134 345 654) is properly joined to the proceedings. (3) Grant leave to the defendants to apply to have the proceedings dismissed if no further application to file a further amended statement of claim is made before 4 November 2020. (4) The plaintiff pay the costs of the defendants' amended notice of motion. (5) Any proposed further amended statement of claim be served upon the defendants by 28 November 2020."
5. The effect of these orders was to allow the plaintiff a further two months to replead. Importantly, because the claim appeared to be brought in contract, and the contract was between the company and Mr Hong, the orders required that the company be joined as a party, with the intention, no doubt, that it be the moving party. That step would have required that the company, which was deregistered on 12 April 2019, be reinstated to the register. The evidence does not disclose that that step has even now been taken.
6. No further amended statement of claim was served on or before 28 October 2020. On 5 November 2020, the defendants' solicitor filed a notice of motion and supporting affidavit seeking to dismiss the proceedings for failure to comply with the requirements of the orders made on 4 September 2020. The plaintiff did not attend at the hearing of the motion on 9 November 2020. The judicial registrar heard the application and made the following orders, which were entered on 11 November 2020: "(1) In respect of the notice of motion filed 5/11/20, the proceedings are dismissed under rr 13.4 and 12.7 of UCPR 2005. (2) The plaintiff to pay defendants' costs of the motion."
7. The judicial registrar gave reasons for making the orders, which will be addressed below.

Subsequent events

1. Appeals to the Supreme Court, other than those assigned to the Court of Appeal, are governed by Pt 50 of the UCPR. Pursuant to r 50.12(1) a summons seeking leave to appeal must be filed within 28 days after the material date. In this case the material date was the date on which the judicial registrar's orders were entered, namely 11 November 2020. There is provision for time to be extended, either by the judicial registrar or by this Court. However, an application for an extension of time must form part of the summons seeking leave to appeal: r 50.12(2). The summons should contain a statement of the reasons why time to apply for leave should be extended: r 50.12(4)(c).
2. No such application was made within time. Rather, on 13 August 2021, the plaintiff sent an email to the judicial registrar containing a "request to the District Court to reopen the case". It included an expression of intention to proceed with a "criminal prosecution, if a settlement to this case cannot for [sic - be?] agreed to [by] 12pm - Friday 27th August 2021".
3. The judicial registrar replied on 19 August 2021 noting the orders made on 9 November 2020 and pointing out (correctly) that the Court could not simply reopen the case after orders had been made dismissing the proceedings. The plaintiff was advised that he could lodge an appeal to set aside the orders, or, by an appropriate notice of motion with supporting affidavit, seek to have the court set aside orders made in his absence. He was strongly advised to obtain legal advice before taking either step.
4. The plaintiff did not take any further step at that stage with respect to the District Court proceedings. There is no evidence that he renewed his unsuccessful earlier attempts to obtain legal assistance.
5. On 19 July 2022, the plaintiff sent by email a further statement of claim to Mr Hong, claiming, amongst other amounts, an amount of some $233,385 for "damages - loss of ability to work (2018, 2019, 2020)". As noted above the statement of claim in the 2020 proceedings had identified the principal amount claimed as "wages - total amount of work time, owed to the plaintiff". The Court was informed that the plaintiff filed a notice of motion which was heard by the judicial registrar on 6 September 2020. Neither the document nor its fate was in evidence on this application.

Application for leave to appeal

1. The plaintiff's summons was filed on 29 September 2022, that is more than two years after the amended statement of claim was struck out by Judge Taylor and consequential orders made. It is more than 22 months since orders dismissing the proceedings were made by the judicial registrar. It is more than a year since the judicial registrar advised the plaintiff that such a course might be open. As has been noted, there was no application contained within the summons seeking an extension of time, nor was there any affidavit explaining the delay.

Decision of Judicial Registrar

1. Putting to one side the issue of delay, the application must turn upon the possibility of error in the decision of Judicial Registrar Howard of Monday, 9 November 2020. In his written submissions, the plaintiff asserted that the proceedings were dismissed because of his absence. That was simply not so. However, it is true that the plaintiff had sought an adjournment based on his medical evidence. The judicial registrar considered that application and rejected it before making the orders sought by the defendants. The question raised by the grounds in the summons is whether in doing so he "ignored" relevant material.
2. The judicial registrar had before him a further amended statement of claim filed by the plaintiff on 1 November 2020. That document had not been served on the defendants before 9 November 2020. He also had the plaintiff's explanation for his delay and absence, including several medical reports which he accepted as a "satisfactory explanation" for the plaintiff's non-appearance on 9 November 2020. [1] The judicial registrar took into account the history of Local Court proceedings being commenced and then discontinued, and the amended pleading in the District Court proceeding being struck out. Most importantly, he noted the direction of Taylor DCJ that any further pleading was to include the company as a party. The evidence before the judicial registrar demonstrated that the company had been deregistered in 2019 and had not since been returned to the register. The judicial registrar stated, "[a]nd that's an essential matter that Judge Taylor has identified that must be addressed before these proceedings can move ahead …". [2]
3. The judicial registrar noted that the then current circumstances presented "a significant prejudice" to the defendants. [3] He stated: [4] "I really have no idea as to whether or not Mr Dunn has a case. He may or may not have a case by himself …. So on balance, Mr Horowitz, I'm going to say that, on the issue of delay, on the issue of prejudice to your clients, on the issue of there not necessarily being a lack of a case and not necessarily … being a lack of dispatch in a severe sense by Mr Dunn, but just in terms of s 56 to 60 [of the Civil Procedure Act 2005 (NSW)] and looking at what's involved, I don't see the utility in keeping this case alive."
4. The best that can be said, from the point of view of the plaintiff, is that, although the defendants would have incurred some further costs, the judicial registrar might have adjourned the application for a brief period. However, he was satisfied that, although the plaintiff had adequately explained his absence on the day by reference to his health, and accepting further that his health problems were "episodic", an adjournment would not result in the fatal absence of the company as a party being rectified.

Medical evidence

1. The plaintiff's one-page written submission in this Court, referred to his poor health, but primarily addressed his circumstances prior to the hearing before the judicial registrar. The medical evidence available in this Court dealt with two periods. First, it dealt with an extensive medical history for a decade up to 2013. It clearly demonstrated that the plaintiff suffered from a potentially debilitating and continuing mental illness, possibly in a mild form. Two psychiatrists and two psychologists provided certificates on 4 November 2020 stating that he also suffered from depression. A treating psychologist stated: "His major depression mental illness has significantly impacted his motivation levels and he found himself unable to respond to a request to amend his statement of claim by 28 October 2020. I understand he completed the amendment by 2 November 2020."
2. Based on this material the judicial registrar properly accepted that there had been a satisfactory explanation for his non-appearance at the hearing. However, the problem was not merely the lateness (by a few days) of the amended statement of claim; the problem was the plaintiff's inability to address the issues raised by the judge in striking out the earlier form of the pleading. Because no subsequent form of pleading has addressed those problems, it may be inferred that the problems are intractable and may, perhaps, in turn affect his motivation levels to which the psychological evidence referred.
3. The plaintiff also gave evidence of suffering significant chest pain on 30 August 2020, when travelling home from Sydney at a time when he was greatly stressed by the litigation in the District Court, together with proceedings then pending in the Equity Division to remove a caveat he had lodged over property owned by the first defendant. [5] He attended Gosford Hospital the following day. Included in the material presented to this Court were a number of documents downloaded from the Internet dealing with stress and cardiac events. In his written submissions, he explained that the fear that he might have a fatal heart attack led him to avoid court attendance. Whether the Gosford Hospital documents were before the judicial registrar is not clear: however, no cardiac problem was detected. This was confirmed in October 2022, when the plaintiff saw a cardiologist at St Vincent's Clinic. The cardiologist described the events in these terms: "The pressure associated with all his legal disputes came to a head a few years' ago and while driving he had about 20 minutes of chest pain and then subsequently presented to Gosford Emergency Department. The pain resolved spontaneously and serial ECGs and troponins were normal there. He has not seen a cardiologist since. There has been no similar episodes since, certainly no classic angina or substantial dyspnoea or loss of consciousness. … Marty came today in the hope that I could corroborate that the pressure would put him at risk of a takotsubo cardiomyopathy to help him to get an adjournment on a case, but I have no evidence that he has had a takotsubo cardiomyopathy. I do note that he had normal troponin and ECG when he presented to Gosford Emergency and his ECG and echocardiogram are normal today a few years down the track. He has not had angina in the interim."
4. The second period covered by the health material related to the period since November 2020. There is evidence of continuing visits to health professionals for his mental health conditions. There are no further reports.
5. It may be accepted that the plaintiff suffers from episodic depression and an underlying mental health condition. It may also be accepted that he suffers stress in association with his own litigation. In August 2020 he suffered significant non-ischaemic chest pains, but does not suffer from cardiomyopathy. Despite submissions that he suffered a "heart attack", that appears not to be the case. No doubt he genuinely fears such a condition resulting from the stress caused by his litigation in pursuit of his claims against the defendants.

Attempts to obtain legal representation

1. It may also be accepted that the plaintiff has been unable to obtain legal representation, although his one known attempt involved multiple emails to law firms on 7 November 2020 (he says 100 firms), apparently seeking assistance at the hearing on 9 November 2020. How the emails were worded does not appear from the evidence, nor is the content of the replies apparent, although he asserts that some 25 law firms responded, negatively. There is no evidence of any subsequent attempt to obtain legal assistance in more realistic circumstances.
2. I accept that the plaintiff has and will continue to have difficulty in pursuing litigation without legal assistance. That is both because of his difficulty in articulating his claim, but also because of his underlying health conditions. At the hearing, the plaintiff expressed, with conviction, his belief that he had complied to the letter with the on-line guidance provided by the Department of Justice to unrepresented litigants as to what steps they should take if afflicted by ill-health. He certainly supplied timely and substantial medical evidence to the judicial registrar before the hearing on 9 November 2020. But compliance with the guidelines does not entitle a litigant to an adjournment: the guidelines merely provides advice as to the proper way to pursue such an application. Determination of the adjournment application was to be undertaken by the judicial registrar having regard to that material. The submission that the judicial registrar did not have regard to that material, as has been explained, cannot be accepted: in fact he held that the plaintiff's absence was fully explained.
3. However, it does not follow that the plaintiff is to be permitted to pursue what appear to be untenable claims against the defendants. The basis of the judicial registrar's refusal to grant an adjournment, namely that it would be futile, has been demonstrated to be sound given subsequent events, or rather the lack of significant subsequent progress.
4. There is no medical evidence that he is currently incapacitated, or has been so on a permanent basis since 9 November 2020. Accordingly, his failure to seek to reopen the orders made in his absence, or seek leave to appeal from those orders, for a period in excess of two years is not only unjustified but prevents the Court now being satisfied that there are claims which can yet be made with reasonable prospects of success. It follows that the judicial registrar's lack of confidence that, had an adjournment been granted on 9 November 2020 the plaintiff would have been able to comply with the requirements of the orders of 4 September 2020, has been shown to be fully justified. Nothing has changed since then.
5. There is therefore both the unexplained (and unjustified) delay and the absence of any apparent legal purpose in setting aside the orders made by the judicial registrar. Either factor is a sufficient basis to refuse leave. The combination of unjustified delay and the lack of any evidential basis on which to conclude that the plaintiff has a cause of action against the defendants, means the appropriate course is to refuse an extension of time, to the extent that one was sought. The summons must be dismissed.
6. The defendants seek costs in the form of a gross costs order. They are entitled to costs, and there is merit in making a gross costs order, albeit in a sum conservatively estimated. However, as the defendants provided no estimate of those costs such an order will not be made.

Orders

1. The Court makes the following orders: 1. Refuse to extend time for the filing of the application for leave to appeal from the orders of the judicial registrar in the District Court entered on 11 November 2020. 2. Dismiss the summons seeking leave to appeal filed on 29 September 2022. 3. Order that the plaintiff pay the second defendant's costs of the proceedings in this Court.

Endnotes

1. Tcpt, 09/11/20, pp 3(40)-(50) and 4(8).
2. Tcpt, p 5(12).
3. Tcpt, p 5(20).
4. Tcpt, p 5(30). Mr Horowitz appeared for the defendants.
5. The caveat was required to be removed by orders made on 11 September 2020. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2023