Haider v Khurana

File Number(s): 2023/00066495

Publication restriction: Nil.

JUDGMENT – EX TEMPORE

1. Before the Court for a show cause hearing is the second matter in the list of Haider. In these proceedings, the plaintiff, Dr Haider, sues each of the first and second defendants, who are doctors, for alleged medical negligence on the basis that certain surgery performed on Dr Haider should not have occurred.

2. The matter was commenced by Statement of Claim on 28 February 2023. Defences were filed by the first defendant on 2 November 2023 and by the second defendant on 21 February 2024. On 18 December 2024, I listed the matter for hearing to commence on 25 February 2025. On 10 February 2025, I vacated that listing as the plaintiff had new solicitors. I made orders for the plaintiff to file evidence as to liability and damages by 30 June 2025. This did not occur.

3. On 30 September 2025, Fitzsimmons SC DCJ made a show cause order as the plaintiff had not complied with orders made for the filing of his evidence.

4. The matter came before me on 24 October 2025. On that day, Dr Haider appeared in person. He had forwarded before the hearing an affidavit dated 18 October 2025 which referred to significant medical conditions and the need by him to obtain further expert medical evidence as to both liability and quantum.

5. I was satisfied, having regard to that affidavit and the consequences for the plaintiff of dismissing the proceedings, that he had shown cause why his proceedings should not be dismissed. I then made orders for the plaintiff to file expert medical evidence as to liability and quantum by 27 February 2026 and, if that order was not complied with, that an affidavit was to be filed attaching updated medical reports from treating doctors of the plaintiff. The evidence before me establishes that updated medical liability and quantum evidence was not served by the plaintiff.

6. The matter was listed on 5 March 2026 before me. The plaintiff did not attend that directions hearing. At that time, I made a further show cause order and listed the matter before me today.

7. The evidence before me establishes to my satisfaction that Ms Burke, who is an employed solicitor with day-to-day conduct of the matter for the first defendant, sent an email to the plaintiff advising him of the orders made by me on 5 March 2026. No response was received.

8. Today the matter was called outside the courtroom and there was no appearance by or on behalf of Dr Haider. In the light of that, the first defendant seeks an order that the proceedings be dismissed under rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) for want of due despatch. Ms Chaffey, who appears for the second defendant, also seeks that order.

9. Rule 12.7 of the Uniform Civil Procedure Rules provides as follows:

(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

10. In Perpetual Corporate Trust Limited v Colevski [2025] NSWSC 387 Faulkner J referred to rule 12.7 in paragraphs 44 and following of his Honour’s judgment. His Honour noted:

(a) That the rule provides a judicial discretion; (b) The discretion is one where the Court must strike a balance between the parties to decide whether or not, on balance, justice demands that the action should be dismissed; (c) The overriding purpose set out in section 56 of the Civil Procedure Act 2005 (NSW) is of “fundamental importance in determining an application for the dismissal of proceedings for want of due despatch”: at [44].

11. His Honour made a number of further comments in relation to s 56 including that what is to be facilitated by the overriding purpose is the “resolution” of the real issues in the proceedings, not merely progress: at [46].

12. The importance of sections 56 to 61 of the Civil Procedure Act 2005 (NSW) has been emphasised in a number of cases. At paragraph 58, Faulkner J stated in Colevski that the relevant parties in question had been given “every opportunity to be heard”.

13. Rule 12.7 has been considered a number of times in appellate decisions of the Court of Appeal. In Ergashova v Aslan [2025] NSWCA 207 Mitchelmore JA and Price AJA emphasised that all factors must be taken into account in the exercise of the broad discretion: at [43].

14. In the first instance decision in Hoser v Hartcher [1999] NSWSC 527 Simpson J set out a number of factors to be taken into account under the previous iteration of the rule. At paragraph 20 her Honour noted in particular that “the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed”.

15. I also note the comments of Kirk JA in Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75. The balancing process the Court must undertake was referred to by his Honour in following the decision of Walsh JA in Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534. Kirk JA emphasised in paragraph 56 that “the discretion should not be undertaken by reference to fixed formulae which limit the discretion to do what is just between the parties … A factor potentially relevant is the claimant’s prospects of success.”

16. Turning back to the facts of this matter, the matter is, as I indicated, a medical negligence case. Both defendants are medical specialists. The matter has been hanging over their heads for three years. The matter is complex. The plaintiff had pre-existing accidents. The history of the matter shows that the Court has given the plaintiff every opportunity to advance his case. He did have to retain new solicitors but since that time he has breached a number of orders for the filing of evidence and more recently breached an order, if he could not file medicolegal evidence, to file updating treating doctor evidence. I am satisfied that he was aware of the order made and has not turned up on the last two occasions.

17. Exercising the discretion which I have as confirmed by the relevant authorities, in my view the proceedings should be dismissed for want of due despatch. The plaintiff has not satisfied me that he has shown cause why the proceedings should not be dismissed.

18. The orders I make are as follows. On the show cause hearing:

19. Pursuant to rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) the proceedings are dismissed for want of due despatch.

20. The plaintiff is to pay the defendants’ costs of the proceedings as agreed or assessed.

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