Qasim v Bird & Ors

Supreme Court of NSW|2022-04-29|Before: Davies J

Judgment

By a notice of motion filed 9 April 2022, the third defendant seeks an order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) that the proceedings be dismissed insofar as any claim is made against him; alternatively, an order pursuant to r 6.29 UCPR that he be removed as a party to the proceedings; alternatively, an order pursuant to either r 14.28 UCPR or s 61(3)(d) of the Civil Procedure Act 2005 (NSW) that the whole of the plaintiff's summons be struck out.
The basis of the orders sought, as outlined by the third defendant, is that no reasonable cause of action is disclosed against him.
The plaintiff commenced these proceedings against, inter alia, the third defendant, by way of a summons filed on 8 September 2021. The plaintiff has at all times acted for herself. The summons, which named 15 defendants, sought orders as follows: 1. Claim allowed. 2. The cost order of HCCC be dismissed against Shaheen Qasim . In light of alleged misconduct of Kate Richardson of the lower court in 2014 & the Supreme Court, Court of appeal in 2015. 3. Cost order of $110,000 with interest be made against Heath Care Complaints Commission. 4. An order, for an arrest warrant be made against the defendant. Sharon Armstrong aka Sutherland. In light of alleged procedural irregularities, misconduct of NCAT 2014-2020.
The summons described the "claim type" as "prerogative writ work, related".
On 17 March 2022, I gave judgment in respect of a number of motions brought by the first, second, fourth, fifth, sixth, seventh, eleventh, twelfth, thirteenth and fifteenth defendants. I made orders for the removal of some of those defendants from the proceedings, and orders summarily dismissing the proceedings against others of those defendants on the basis that no reasonable cause of action had been disclosed: Qasim v Bird & Ors [2022] NSWSC 258 (Qasim v Bird & Ors). On 14 April 2022, I dismissed the proceedings against the eighth, ninth, tenth and fourteenth defendants: Qasim v Bird (No 2) [2022] NSWSC 411.

Background

I summarised the background to these proceedings in Qasim v Bird & Ors at [1]-[14], but it is necessary to outline briefly the background concerning the third defendant.
On 25 January 2011 the Medical Council of New South Wales (the Medical Council) determined to suspend the plaintiff's registration as a health practitioner. In December 2010, the Medical Council had referred the complaints made against the plaintiff to the Health Care Complaints Commission (HCCC) for investigation, after which the complaints were referred for hearing to the Medical Tribunal of NSW (which was subsumed into the NSW Civil and Administrative Tribunal (NCAT) before that hearing took place in 2014).
The third defendant is Mr Stephen McNamee. He is a solicitor who was employed, at the relevant time, by Slater & Gordon. He was first contacted by the plaintiff in July 2013. At the time the plaintiff contacted the third defendant, she was represented by a separate lawyer from HWL Lawyers, Ms Kerry Chambers, in relation to the hearing before the Medical Tribunal.
On 30 July 2013, the third defendant sent the plaintiff an email regarding her intention to commence legal action against the Medical Council in the Supreme Court with respect to her suspension. He advised the plaintiff that it would be appropriate to wait for the outcome of the proceedings in NCAT before commencing such an action. On that date, the plaintiff replied by an email in which she stated: 1) My action against the Medical Council is not for reinstatement but for Compensation of UNPROVED aggression & harassment. With failure to investigate. Also I was suspended on wrong premise of impairment. That was a ploy to stop me from working. … 3) This woman of HWL is not a fit & proper person to assist me. It's simple. The layer who left. Did so because of him being bulled by her.
On 9 August 2013 the plaintiff entered into two retainers with the third defendant. The first was in respect of the proposed Supreme Court action against the Medical Council. The second concerned a dispute over a special levy between the plaintiff and the Owners Corporation of the building in which she resided.
The third defendant issued two tax invoices to the plaintiff in relation to the Medical Council retainer for the work comprising the period 5 August 2013 to 26 September 2013. He issued two invoices to the plaintiff for his work regarding the Owners Corporation dispute for the period from 6 August 2013 to 26 September 2013. No further work in relation to either retainer was completed by the third defendant after 26 September 2013. The affidavit of Ms Catherine Hannebery filed in support of this motion indicates that the plaintiff made her final payment on 19 December 2013 and collected her Medical Council file from Slater & Gordon that month.
On 2 May 2014, NCAT cancelled the plaintiff's registration: Health Care Complaints Commission v Qasim [2014] NSWCATOD 42. The plaintiff appealed from the decision of NCAT to the Court of Appeal. On 22 September 2015, the Court of Appeal dismissed the appeal and ordered the plaintiff to pay the costs of the HCCC: Qasim v Health Care Complaints Commission [2015] NSWCA 282 (and see, Qasim v Bird & Ors at [10]-[11]).
The third defendant was not involved in the decision of NCAT to cancel the plaintiff's registration, nor in the challenge from that decision to the Court of Appeal.

Summary of material filed by the plaintiff

The plaintiff's affidavit, sworn on 31 August 2021 in support of the summons contains two references to the third defendant. The first is on page 8 at paragraph 43: 43. Mr Steve McNamee PRINCIPAL of Slater &/Gorden was briefed about the basis of decision .He took the monies, but failed to do the job. annexed F
The second reference is in a document headed "Summary" on page 72 at paragraph 45: Mr Steve McNamee PRINCIPAL of Slater &/Gorden was briefed about the basis of decision. He took the monies, but failed to do what was required of him (Annexure F, Pg. 2).
Annexure F is a single-page photograph of the front page of a folder which reads "Basis of decision in 2014". It is unclear how this relates to Mr McNamee. It likely refers to the decision of NCAT which was in 2014 (in which Mr McNamee was not involved). Even if the annexure was referring to the decision of the Medical Council in 2011 about which the plaintiff instructed Mr McNamee, it does not provide any support for the plaintiff's allegations.
The plaintiff filed a further document on 31 March 2022 entitled "Submission", which appears to have been prepared in relation to the directions hearing of 1 April 2022. It makes the following allegations: 10. Plaintiff will not entertain any consent orders from S & G. Another very dishonest firm. She tried to resolve the issues with the madam ages ago. She failed to reply. All she asked for was an apology from the Irishman. A dishonest man. Who often spoke of his many children & his impoverished ancestors. He was given clear instructions to file but he failed to do so. A lazy and an incompetent lawyer … 13. S & G are not a good mob to be dealing with, they don't care except $ Another very greedy lawyer is Mr Steven McNamee.
At the directions hearing on 1 April 2022, I pointed out to the plaintiff that her summons did not seek any relief against (inter alia) the third defendant. She informed me that she was seeking relief against them. Accordingly, I gave her leave to send to my Associate a draft of a proposed amended summons. Such a document was forwarded. It claimed "Damages [ liquidated and unliquidated, exemplary] <$5,800,000… Further or alternatively, equitable compensation". There was still no mention of the third defendant, but I am prepared to infer that the damages and compensation referred to, are sought against the third defendant.
The plaintiff also filed a further affidavit affirmed on 13 April 2022. She alleges in that affidavit that Mr McNamee "performed poorly", failed to brief the plaintiff's chosen counsel, failed to follow instructions, and that he "seemed to have his own narrative, agenda, to mislead the plaintiff & put her career at risk". She alleges that she "has been, was severely disadvantaged by Mr McNamee 's (sic) poor performance". She alleges that the third defendant "continued to ramp up bills without an interest in assisting the plaintiff's case or her with the white collar crime of [the Owners Corporation]".
Under the heading "orders sought" in her affidavit of 13 April 2022, the plaintiff states: 1. Motion of Ms Catherine Hannebery be dismissed under S 13.4 of UCPR 2005. 2. The motion be struck out under 14.28 r UCPR 2005. 3. Relief sought is of exemplary damages to reimburse all monies with interest as part of the notice to defendants served on Mr S McNamee dated Sept 2021. Plaintiff's registration was cancelled on wrong premise which McNamee failed to understand.

Submissions

Counsel for the third defendant, Ms Avery-Williams, submitted that the claim against Mr McNamee should be dismissed or struck out, or that Mr McNamee be removed as a party because, in the first place, no relief was sought against him in the summons.
Although the material contained in the plaintiff's affidavits and her submissions suggests that the basis for the summons is the plaintiff's dissatisfaction with the results of the proceedings in NCAT and subsequently the Court of Appeal, Ms Avery-Williams submitted that Mr McNamee has neither a logical nor plausible connection to any of those decisions. She submitted that the plaintiff has not identified any cause of action against the third defendant.
Ms Avery-Williams submitted that even if the plaintiff's references to Mr McNamee being briefed about the "basis of decision" (being the decision of the Medical Council) and the allegation that he failed to assist her with the Owners Corporation dispute were read generously to amount to a claim of professional negligence, whether arising from a contract of retainer or from a general duty of care, there were two primary bases upon which the claim ought to be dismissed as frivolous and vexatious and disclosing no reasonable cause of action.
The first basis, relevant to both retainers, was that any claim arising in contract or negligence in respect of either or both of the retainers would be statute-barred by reason of s 14 of the Limitation Act 1969 (NSW).
The second basis in relation to the Medical Council retainer was that, even if the plaintiff's allegations were true, no loss would flow from them. Counsel submitted that the third defendant could not incur a liability to the plaintiff in circumstances where NCAT ultimately cancelled the plaintiff's registration.
I endeavoured, unsuccessfully, to ascertain from the plaintiff what cause of action she had against the third defendant. The plaintiff said: Mr McNamee failed to follow - do what he was supposed to do in the best interests of myself, that is to brief the counsel I had chosen and she has made things up. I was not given all the files. He did what was best for him and I did bring it to the attention of all performance managers. They failed to reply. They did not even sit down or say "you can have a conference." … NCAT were coerced by Medical Council. That has been discovered. That is the matter. I gave him all the evidence. He is not a good lawyer. It is not just breach. It was brought to the attention of Slater & Gordon immediately. He is not a good lawyer.
The plaintiff's submissions dealt with her substantive complaints about the third defendant. I explained to her about the provisions of the Limitation Act and how it might operate on the plaintiff's proceedings when she had waited more than six years to bring her proceedings. I sought submissions from her on that point. She said: That is right, but they have suddenly come out of blue. All I wanted was an apology and explanation that he is not a good lawyer. Trying to ride on the back of the name of "Slater & Gordon", they are not good lawyers and it will be taken up and there was a representative error which is not statute barred at all. He does not know what he is doing.
The plaintiff said also: The representative error is not statute barred at all and he will not be let off the hook.

Consideration

Proceedings may be dismissed under UCPR r 13.4 if they disclose no arguable cause of action, are clearly untenable and are doomed to fail, if they are an abuse of process, or if they are frivolous or vexatious: General Steel Industries Inc. v Commissioner for Railways (1962) 112 CLR 125 at 128-9; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [15]; see also, Shaw v State of New South Wales [2012] NSWCA 102 at [30]-[33].
Notwithstanding the third defendant's submission that he is not a proper party to the proceedings because no claim is made against him, it seems the basis upon which the third defendant seeks the orders is that no reasonable cause of action is disclosed by the plaintiff. That is because of the limitation defence in relation to both retainers and, in the case of the Medical Council retainer, no loss flows from any breach because of NCAT's subsequent determination. Those matters are more appropriately dealt with by r 13.4 UCPR. At the hearing, Ms Avery-Williams confirmed that the primary relief sought by the third defendant was under r 13.4 UCPR.
In Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 533; [1992] HCA 55 the majority described it as undesirable that limitation questions be decided in interlocutory proceedings, except in the clearest of cases. However, in the present case it is clear that any cause of action the plaintiff might have in negligence or breach of contract would be statute-barred.
The evidence is that the work in each of the retainers was completed in September 2013, the plaintiff paid her final bill on 19 December 2013 and collected her file from Slater and Gordon in that month. Taking the plaintiff's complaints at their highest (as best can be discerned from her material), any breach (if established) must have occurred no later than December 2013, and any loss would have commenced to be sustained no later than that time. The plaintiff's summons was filed on 8 September 2021, more than 7 years later.
The proceedings in relation to both retainers are statute-barred. No reasonable cause of action is disclosed.
In relation to the Medical Council retainer, even if the proceedings were not statute-barred, no loss would flow from any breach. Any loss sustained by the by the plaintiff flowed from the findings and orders of NCAT.
As I noted in Qin v He [2017] NSWSC 978 at [23]: The principles to be applied when considering applications under r 13.4 are well known. Great care must be taken before depriving a plaintiff of his or her opportunity to have a full trial of the case. The claim made must be "so obviously untenable that it cannot possibly succeed", "manifestly groundless", "so manifestly faulty that it does not admit of argument" or "discloses a case which the Court is satisfied cannot succeed". (Citations omitted.)
I am entirely satisfied for the reasons I have given, that the various descriptions used in General Steel Industries are applicable in the present case. No reasonable cause of action is shown against the third defendant. The proceedings should be summarily dismissed pursuant to r 13.4 UCPR.
If I am wrong in determining that no reasonable cause of action is disclosed, I would have struck out the summons pursuant to r 14.28. Rule 6.3 UCPR requires proceedings to be commenced by statement of claim where the claim is for relief in relation to a tort and for a claim of damages for breach of a duty.
The third defendant has indicated that, if successful on the notice of motion, it will seek a lump sum costs order. In those circumstances, I will reserve the question of costs but make directions for such an application. The application will be dealt with on the papers.

Conclusion

I make the following orders: 1. Dismiss the proceedings against the third defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). 2. Reserve the question of costs. 3. The third defendant is to file and serve all affidavits and submissions in relation to any application for a lump sum costs order by 10 June 2022. 4. The plaintiff is to file and serve all affidavits and submissions in reply to the third defendant's material by 17 June 2022.

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: 03 June 2022

Uniform Civil Procedure Rules 2005(NSW)rr 6,29, 13.4, 14.28

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