HIS HONOUR: This matter was listed for final hearing before me commencing today for ten days.
When the matter was called on for hearing, Mr Downing of counsel appeared for the defendants and brought to the Court's attention correspondence by way of email from the plaintiff dated 1 February 2019 sent at 8.47pm. That email to the solicitor for the defendants was as follows:
"I have spent the last month trying to prepare for this trial but these drugs are simply too destructive. I have decided that it is not possible and not fair to attempt a trial whilst being heavily drugged, I can barely think and the toxicity is very painful. I am going to have one last attempt at getting these drugs stopped, and if I am successful I will then be able to have a fair trial. I am sorry for the inconvenience but I find it totally unacceptable that someone can be left suffering from drug toxicity and no none [sic] is willing to intervene."
The solicitor for the defendants responded to that email and said:
"Can you please advise if you will be attending Court this morning. If so, will you be providing a medical certificate or report to the Court when seeking the adjournment? At this stage the defendant intends to seek that the matter proceed".
See Exhibits 1 and 2 on the applications.
The plaintiff was called outside court three times at 10.13am and there was no appearance by her. In light of the policy and procedures of the Court, I referred what I regarded as an implied vacation of hearing application to the List Judge to consider.
The List Judge refused what his Honour Judge Letherbarrow SC regarded as an adjournment application and referred the matter back to me to deal with. It is noted that in the orders made by his Honour, the plaintiff was called outside Court at 1pm and there was no appearance by her.
Mr Downing, in the light of that, makes an application for the Court to dismiss the proceedings. He refers the Court to Part 29.7 of the Uniform Civil Procedure Rules 2005 ("UCPR"). That rule provides as follows:
29.7 Procedure to be followed if party is absent
(1) This rule applies when a trial is called on.
(2) If any party is absent, the court:
(a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or
(b) may adjourn the trial.
(3) If, in relation to a liquidated claim, the plaintiff appears, but a defendant does not appear, the court may, without proceeding to trial, give judgment against that defendant on evidence of:
(a) the amount then due to the plaintiff in respect of the cause of action for which the proceedings were commenced, and
(b) any payments made or credits accrued since the commencement of the proceedings in reduction of the amount of the plaintiff's claim or costs.
(4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings.
(5) Subrules (3) and (4) do not limit the court's powers under subrule (2).
Accordingly, if a trial is called on and a party is absent, the Court may proceed with the trial generally or so far as concerns any claim for relief in the proceedings or it may adjourn the trial. If the defendant appears and the plaintiff does not, the Court may dismiss the proceedings.
Mr Downing of counsel submits on behalf of the defendants that even though the List Judge has refused the vacation/adjournment application that in deciding whether it is appropriate, as the defendants submit, to dismiss the proceedings in the circumstances, the Court has an independent discretion which must be exercised. I respectfully concur with that submission. As the dismissal application is a separate application, the Court must form its own view as to whether the proceedings should be adjourned or the matter should be dismissed or some other order should be made.
Mr Downing said from the bar table, and I accept, that the defendants' solicitor was able to locate a contact number for the plaintiff, and contact was made by ringing that number, but the telephone directed the caller through to the voice mail of the plaintiff and contact could not occur with the plaintiff herself.
It is important in considering this application to consider the background. It appears to me that at least the following matters are relevant:
1. That these proceedings were commenced in 2016 and have accordingly being on foot for over two years;
2. That very serious allegations are made against the defendants in the pleadings in tort which include allegations of misfeasance in public office, false imprisonment, assault and negligence. This relates to alleged conduct by members of the New South Wales Police Force, ambulance officers and medical practitioners within the relevant hospitals falling within the second defendant, the Sydney Local Health District;
3. That the matter was fixed on 22 February 2018 for hearing for 10 days by the Judicial Registrar;
4. That there have been a substantial number of interlocutory disputes between the parties;
5. That the allegations of the plaintiff as revealed in the Further Amended Statement of Claim filed 9 August 2017 include that the plaintiff was suffering for some time prior to the events involving the defendants which appear to allegedly commence on and after 13 June 2016, with the ill effects of what the plaintiff asserts was non-consensually administered drugs by a person or persons unknown;
6. That the defendants have come to Court today to deal with a ten day hearing.
The further matter to be considered is the nature of the communication from the plaintiff which is Exhibit 1 on the application to dismiss. It seems clear that the plaintiff asserts that she is suffering from the effect of heavy and toxic drugs. It is also suggested by the plaintiff that she has spent the last month trying to prepare for the trial. It seems that for at least a month the plaintiff has been attempting to undertake trial preparation despite the asserted inability to undertake the proper preparation of the trial. The plaintiff points to the ill effects from the alleged drugs as preventing her doing so. It seems in those circumstances that for at least one month or slightly less the plaintiff was aware of her difficulties in preparing for the trial of which she had notice.
In those circumstances, it would seem to have been appropriate and reasonable for the plaintiff to have made an application well before today to vacate the hearing date and to have obtained medical evidence to support the allegations of the effects of the drugs as suggested in Exhibit 1 on the application.
Mr Downing has brought to the Court's attention the decision of Van Gorp v Davy [2017] NSWCA 167 where the Court of Appeal considered an application for leave to appeal from a dismissal order where no contact had been made by the plaintiff in relation to his absence. It refused the application: see at [18] to [23]. Mr Downing quite properly distinguishes that case by saying that here some contact had been made albeit late on the night of the last Friday before trial and well after normal business hours.
In all those circumstances, the Court must consider what orders should be made. Mr Downing points to Part 36.16(2)(b) of the UCPR which provides in substance that the Court may set aside or vary a judgment or order even after it has been entered if it has been given or made in the absence of a party whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order.
Accordingly, it is submitted by Mr Downing that even if the Court was minded to make the dismissal order as sought by the defendants, that the plaintiff could bring an application to set aside the order and bring appropriate evidence to support that application. See Van Gorp above at [27]-[30].
I take into account:
1. The background that I have set out above;
2. The correspondence in Exhibits 1 and 2 before me;
3. The decision in Van Gorp that I have been referred to;
4. The anticipated length of the listed trial;
5. The importance of the application to both the plaintiff and the defendants;
6. The fact that the plaintiff asserts that her inability to run the trial is due to a health issue;
7. The lack of medical evidence before me;
8. The fact that the application to vacate and adjourn was made indirectly and impliedly on the morning of the commencement of the trial;
9. The sparsity of evidence before the Court in relation to the plaintiff's drug issues as alleged which appear to be, from the Further Amended Statement of Claim and from prior interlocutory hearings, to be long standing.
Taking into account all of those matters and in particular taking into account Part 36.16(2)(b) of the Rules and also taking into account ss 56 to 58 of the Civil Procedure Act 2005, in my opinion the application should be granted. The matters I have referred to and in particular the plaintiff's failure to bring proper evidence before the Court including to support an application to adjourn, the late nature of her application and taking into account the length of the trial and a matter of fairness not only to the plaintiff but also to the defendants (while taking into account the defendants' superior financial capacity to absorb the financial costs of the adjournment), indicate that it is in the interests of justice to make the orders sought by the defendants.
In all those circumstances I make the following orders:
1. Pursuant to Part 29.7(4) of the UCPR, the proceedings are dismissed.
2. The plaintiff is to pay the defendants' costs of the proceedings as agreed or assessed including the costs related to the plaintiff's application to adjourn the proceedings and of the defendants' application to dismiss the proceedings.
3. The Exhibits on the application are to be retained on the court file.
4. Direct that the solicitors for the defendants inform the plaintiff of these orders by way of email by 5pm on 5 February 2019.
[3]
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: 08 February 2019