26 The summons came on before me in the Practice Court on 20 September 2006. I heard submissions from counsel for the doctor and the hospital. Mr Richards wanted more time to consider their submissions and to put in further material, so I adjourned the matter off part-heard until 29 September. Mr Richards subsequently filed a further affidavit[5] and written submissions. I heard further oral submissions on 29 September.
27 The matter was initially approached on the assumption that it was an application for an extension of time, and questions of prejudice and delay were addressed, as well as discussion of the merits of Mr Richards' claim. In the course of discussion, it became apparent that the application and proceeding were both misconceived, in that there is no statutory limitation period applicable for an action to set aside or rescind a contract on equitable principles, therefore no requirement to bring the application made by this originating motion. Of course, questions of laches and delay would become relevant, were such a proceeding to be commenced.
28 It follows that the originating motion and summons should both be dismissed on that basis alone.
29 However, as so much time was spent arguing about the merits of Mr Richards' case against the doctor and hospital, I will make some observations about that matter. I make these observations in an attempt to assist Mr Richards to understand why I believe that his proposed claim against the doctor and hospital is misconceived. They also explain why I do not think it would be appropriate to allow the originating motion or statement of claim to be amended and to continue as a substantive claim, instead of simply dismissing the proceeding.
30 The terms of settlement were negotiated between the lawyers; Mr Richards played no direct part in them. He does not point to any representation or other conduct on the part of the doctor or the hospital or their lawyers which caused or induced him to enter into the terms of settlement, or might somehow give rise to a claim to have the terms of settlement set aside. On the contrary, his real complaint seems to be that his lawyers forced him to accept a settlement with which he was unhappy. But even if it could be established that his lawyers had forced him in that way, that would not entitle him to set aside the terms of settlement as between himself, the doctor and hospital. There would have to be some wrongdoing by the doctor or hospital, of a type that is recognised by the courts, before the terms of settlement could be set aside. Even making allowance for the fact that Mr Richards is not represented by a lawyer, he has not identified any conduct which might entitle him to rescission of the terms of settlement.
31 I pressed Mr Richards for further explanation as to the matters pleaded in his statement of claim. He said that the only "fraudulent misrepresentation" which he relies upon relates to what was in the various medical reports exchanged in the original proceeding. Mr Richards believes that all of the doctors, including those retained by his own lawyers, deliberately and falsely reported that his injuries were less serious than he knows them to be, in order to "protect their own". He also believes that because his former solicitors acted for other doctors and hospitals, they were party to some sort of conspiracy to protect the medical profession. There is simply no evidence before me to support any such conspiracy. The other problem which Mr Richards faces with such an argument is this: on his own case, he did not rely on the truth of any of the medical reports in deciding to settle the original proceeding. He says that he believed throughout the original proceeding that the doctors reports were all wrong. True it is that he says that since 1988, he has come to realise just how wrong they were, but it seems clear that he never accepted them or acted in reliance on their truth at the time.
32 I do not doubt that Mr Richards sincerely believes that his injuries are worse than any of the doctors say, that the doctors have all conspired against him, that the neglect by the doctor and the hospital are "the worst case in history"[6], and that his damages claim is now worth $13,000,000. But the fact that his beliefs are sincere does not mean that they are grounded in reality or supported by evidence.
33 I have carefully looked at all of the folders of evidence and legal cases filed by Mr Richards in this proceeding. I have also had regard to what Mr Richards has said orally on each of the 4 occasions on which he has been before me, to see whether there is anything further that he might plead or put into evidence in support of his case. The fundamental evidentiary problem which Mr Richards faces is this: there is simply no evidence of any wrongdoing by either the doctor or the hospital in relation to the 1988 terms of settlement.
34 Among the material filed by Mr Richards in this proceeding are a number of psychiatric reports, including two from Dr Stella Kwong. In her report of 23 June 2003, she said she believed that Mr Richards was suffering from "a delusional disorder which is kept in good remission by taking medication." However, in a more recent report dated 4 May 2006, she noted that Mr Richards was on Zoloft for his depression but "is not accepting any treatment for his delusional psychosis." It may be that his psychiatric state has contributed to the strength of his beliefs about the wrongs which he perceives have been done to him.
35 As an aside, I note that there is evidence that Mr Richards may not always have found an offer of $60,000 unacceptable. For example, one of his own affidavits in this proceeding says that Mr Richards suggested to his solicitor in the late 1970s that he would accept a settlement of $25,000, as long as he got the money quickly to enable him to purchase and develop some units[7]. Elsewhere, he has deposed that he thought about "forgetting the medical side of the case and just suing for business losses" when his solicitor told him that he could not get medical support for his case[8].
Leave to proceed against the hospital
36 The second defendant sold the Allendale Private Hospital around late 1996 and went into liquidation on 16 December 2002. The liquidator has deposed that the company is without funds and would not be in a position to defend any proceeding brought against it. There seems to be no insurance policy which would cover a claim by Mr Richards. The liquidator also deposes to the fact that at the time of the 2003 proceeding, and since then, he has not been able to locate any person who knows anything about Mr Richards' case or any documents relating to his original treatment. In the normal course of the winding up, all matters necessary to finalise the liquidation are near completion and the liquidator understands that the Australian Securities and Investments Commission will deregister the company within 3 months thereafter.
37 Section 471B of the Corporations Act 2001 prevents a person from beginning or continuing a proceeding against a company which is being wound up, except with the leave of the court. Whilst it is not possible to state in an exhaustive manner all the circumstances in which leave to proceed may be appropriate, they include factors such as the amount and seriousness of the claim and the stage to which the proceedings, if already commenced, may have progressed.