Xu v South Eastern Sydney and Illawarra Area Health Service

Supreme Court of NSW|2009-08-07|Before: Harrison J, Hunt J

CITATION : Xu v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 786

Dismiss so much of the plaintiff's claim as alleges professional negligence against the first defendant pursuant to UCPR 31.36 (3) for want of compliance with UCPR 31.36 (1). DECISION : 2. Order that the further amended statement of claim be struck out pursuant to UCPR 14.28 (1) (a) and (b). 3. I will hear the parties on the question of costs.

CATCHWORDS : PROCEDURE - application that proceedings be dismissed - whether in relation to proceedings generally a reasonable cause of action disclosed - whether plaintiff failed to prosecute proceedings with all due despatch - PLEADINGS - whether reasonable cause of action disclosed - whether there is a tendency to cause prejudice, embarrassment or delay - PROFESSIONAL NEGLIGENCE - where plaintiff does not comply with UCPR 31.36(1) - whether proceedings should be dismissed

LEGISLATION CITED : Mental Health Act 1990 Uniform Civil Procedure Rules 2005

Bruce v Odhams Press Ltd [1936] 1 KB 697 Cox v Journeaux [No 2] [1935] HCA 48; (1935) 52 CLR 713 CASES CITED : Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62 Peter Kent Development Pty Ltd v ANZ Banking Group Ltd (Supreme Court of New South Wales, Hunt J, 6 May 1980, unreported) Phornpisutikul v Mileto [2006] NSWSC 57 Sims v Wran [1984] 1 NSWLR 317

Li Na Xu (Plaintiff) PARTIES : South Eastern Sydney and Illawarra Area Health Service (First Defendant) Dan Jun Shen (Second Defendant)

SOLICITORS : Francesca Menniti, General Insurance Law Department (First Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20419/2008 Li Na Xu v South Eastern Sydney & Illawarra Area Health Service

JUDGMENT 1 HIS HONOUR: By notice of motion filed on 29 May 2009 the first defendant seeks the following relief: 1. The proceedings be dismissed generally pursuant to UCPR 13.4(1)(b).

In the alternative, the proceedings be dismissed pursuant to UCPR 31.36(3).

In the alternative, the proceedings be dismissed generally pursuant to UCPR 12.7(1).

In the alternative, the amended statement of claim be struck out pursuant to UCPR 14.28(a) and (b). 2 The plaintiff filed a further amended statement of claim in Court on 7 August 2009 after the first defendant's notice of motion had been filed. However, the parties agreed that the amended pleading should be treated as the proper subject matter of the first defendant's notice of motion. 3 The plaintiff opposes the relief sought and has filed a notice of motion of her own. That motion does no more than seek to maintain the proceedings against the first defendant on foot until the hearing of her case on the merits, unaffected by the first defendant's notice of motion. It can be treated as a clear indication of her opposition to the present application. 4 The plaintiff relied upon two affidavits sworn by her on 29 May 2009 and 2 August 2009. The first defendant relied upon an affidavit of Jacqueline Anne Marie Fox sworn 4 June 2009. Reference to some of this material is made later in these reasons. The nature of the plaintiff's case 5 It would appear that on 17 April 2007, after having been assessed in her home by the Mental Health Team from the Port Kembla Hospital, the plaintiff was admitted to Shellharbour Hospital as an involuntary patient pursuant to the provisions of the Mental Health Act 1990. She was discharged from that hospital three days later. 6 These proceedings were commenced on 26 September 2008. The plaintiff alleges that on the evening of 15 April 2007, following the visit to her home referred to above, she telephoned the 24-hour Mental Health Support Service and told the operator that she did not want the Mental Health Team to come to her home to check on her. At approximately 9.00am on 16 April 2007 the plaintiff telephoned Port Kembla Hospital and told it that she did not agree to the Mental Health Team visiting her home that day. At approximately 11.00am on 16 April 2007 a doctor, a nurse, an interpreter and two other people attended the plaintiff's home. She was told that she had a mental illness and that the police would be coming. The plaintiff opened the door of her house to let her friend inside and the police came in at the same time. The doctor then took her to Shellharbour Hospital. 7 The plaintiff alleges that the first defendant "have professional negligence, loss profession responsibility, morality and have liability for wrong". The plaintiff pleads that "[t]he defendant have professional negligence". The first defendant anticipates that the plaintiff intends to plead causes of action in professional negligence, trespass to the person, unlawful imprisonment and defamation. The plaintiff contends that she has suffered loss and damage and claims damages of $7M. No reasonable cause of action disclosed 8 UCPR 13.4(1) is as follows: " 13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 9 The rule gives the Court a discretion where the case is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Development Pty Ltd v ANZ Banking Group Ltd (Supreme Court of New South Wales, Hunt J, 6 May 1980, unreported); Cox v Journeaux [No 2] [1935] HCA 48; (1935) 52 CLR 713. The exercise of this power is only appropriate where the defect in the plaintiff's claim is clearly established. An order may be made on an examination of the pleadings if that examination shows that the cause of action is absolutely hopeless or that there is no possibility of the facts pleaded giving rise to a good cause of action: Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62 at [90]. 10 The first defendant submitted that all previous versions as well as the current version of the plaintiff's statement of claim have failed to disclose any cause of action or sufficient material facts to ground a potential cause of action. The first defendant submitted that the plaintiff had not heeded a previous order made by the Registrar to amend the pleadings in order to comply with the rules. 11 The plaintiff is unrepresented and English is clearly not her first language. She made no comprehensible submissions directed to this aspect of the first defendant's case against her. I have no reason to suspect that the plaintiff understood or appreciated the deficiencies in her statement of claim for which the first defendant contended and to which it drew attention. The plaintiff indicated that she did not want to obtain legal advice, even though she had previously been represented. There is no doubt that the amended statement of claim was not prepared by or with the assistance of a competent legal practitioner. 12 In my opinion it cannot be said that the facts pleaded could not possibly give rise to a good cause of action or that the plaintiff's case is hopeless. The difficulty lies in identifying that case or if in fact the plaintiff has a case. In these circumstances it is preferable to deal with the matter in terms of the other ways in which the first defendant seeks relief. Failure to serve expert report in a professional negligence matter 13 UCPR 31.36 provides relevantly as follows: " 31.36 Service of experts' reports in professional negligence claims

(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting:

(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(2) In the case of a professional negligence claim against a legal practitioner, . .

(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate." 14 The plaintiff was ordered by the Registrar to serve an expert's report complying with this rule on 18 March 2009. In purported compliance with that order the plaintiff served a report from Dr Eddie So dated 31 May 2007 and Dr Leonard Lee dated 9 January 2008. These reports were prepared in relation to other proceedings for the purposes of opposing orders sought by the Department of Youth and Community Services in relation to the plaintiff's two sons. They address the plaintiff's mental status and lack of any psychotic episode at the time of examinations in May 2007 and January 2008 respectively. 15 The plaintiff appears to contend that a report is not necessary although the basis of that submission or even the fact that the plaintiff advances it is in neither case clearly explained. 16 I have read these reports in detail. Neither appears to refer to the first defendant in any way at all. The first defendant is certainly not mentioned in terms and nothing that I can discover from the reports could be taken as an implied reference to the first defendant in any way. My attempts to have the plaintiff tell me how these reports could be used to satisfy the rule in question were not successful. The plaintiff's language difficulties and lack of apparent legal skills added once again to the problems in understanding her position on this issue. 17 The reports do not comply with the rule. There is not even a flavour, as there sometimes is in cases such as this, that the expert or experts concerned might be likely to produce a report complying with the rule if given some further or other material or information that addressed the critical issues within a reasonable time. The problem is compounded in this case by the obvious deficiencies with the further amended statement of claim, which provides no comprehensible framework within which to formulate an expert opinion of any value. The negligence alleged against the first defendant is simply not particularised and is not otherwise identifiable. The losses alleged by the plaintiff are also not particularised or identified so that it is difficult to know how any expert could be expected to speak to the causal relationship between the plaintiff's unspecified damage and the breach of duty referred to in the rule. 18 The rule would appear to operate as a filter of unmeritorious claims at an early stage in the proceedings. It also operates in an attempt to ensure that no proceedings are commenced before the plaintiff and the plaintiff's legal representatives (if any) have had the advantage of an opinion from a suitably qualified expert in the relevant field of knowledge supporting the necessary relationship between the hypothetical legal framework of the pleaded cause of action and the particular facts of the instant case. 19 In par [9] of her 2 August 2009 affidavit the plaintiff deposes that "[t]his is not a medical negligence case only . . . [but] . . . is a criminal case, that is judge need to decide by the law". The affidavit later suggests that the [first] defendant has persecuted her and "has professional misconduct". The affidavit also deposes that the first defendant has "absolute liability". At par [20] the plaintiff deposes to this case as "a case of international [sic, 'intentional'] harm". At par [33] the plaintiff says this: "33 The defendant has tort involving negligence. Tort affecting economic right. Tort affecting reputation. Tort affecting the family. Tort affecting the person. Tort involving intention." 20 It is arguable, although the plaintiff did not argue in this way, that the case is one that alleges a combination of things that include but are not limited to allegations of professional negligence so that the instant rule has only limited application to the proceedings or the further amended statement of claim. The obvious response to such a contention, as the plaintiff herself acknowledges, is that she persists with her allegations that the first defendant breached a professional duty that it owed to her. In those circumstances at least, the plaintiff should have filed and served the required expert's report. 21 In my opinion the plaintiff should have complied with the rule. To the extent that she persists with an allegation of professional negligence the plaintiff should be required to provide evidence of the matters that the rule demands. If the plaintiff formed the view that such allegations were not pressed any longer she should be offered the opportunity to formulate her position in a clear and binding way so that the first defendant is not subject to the continuing spectre of claims of this sort that have not been adequately identified. Want of prosecution 22 UCPR 12.7(1) provides as follows: " 12.7 Dismissal of proceedings etc for want of due despatch

(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." 23 The first defendant referred to Phornpisutikul v Mileto [2006] NSWSC 57 in which Campbell J (as his Honour then was) said this: "[9] The substantive provisions of the Civil Procedure Act 2005 commenced on 15 August of 2005. That Act alters in significant ways the power of the Court to give directions concerning the conduct of proceedings, and in broad terms expects the Court to take a firmer hand in the preparation of matters than had previously been the case. Section 56 requires the overriding purpose of any decision made under the Act to be the just, quick and cheap resolution of the real issues in the proceedings. As well, though, section 57 allows the Court to have regard to not only the just determination of proceedings but also the efficient disposal of the business of the Court, the efficient use of judicial and administrative resources, timely disposal of the proceedings and all other proceedings in the Court at a cost affordable by the parties. Section 61(1) and (2) confers on the Court a wide power to give pre trial directions. Section 61(3) specifically provides that if a party to whom a direction has been given fails to comply with the direction the Court may, amongst other things, dismiss the proceedings. I would accept that the powers under section 61 should be exercised bearing in mind the principle that (to adopt the words used by section 62(4) in relation to directions as to the conduct of a hearing) each party is entitled to a fair hearing and must be given a reasonable opportunity to lead evidence, make submissions, present a case and, at a trial, to cross-examine witnesses. However, a reasonable opportunity does not mean multiple repeated opportunities. Litigants and the profession should not expect that failure to comply with pre trial directions will be accepted lightly by the Court." 24 I have earlier referred to the plaintiff's personal position. There is evidence as well that she is not in robust health in all respects. Her failure, if that is what it is, to prosecute these proceedings with all due despatch and with a studied regard for the several directions that have been made would not be a sufficient reason at this stage of the proceedings to dismiss them. I do not in any event consider that the plaintiff has so far failed to prosecute the proceedings with due despatch or that she has defaulted in some other way related to, or causing, such delay that would warrant the making of any order under this rule. No reasonable cause of action etc 25 UCPR 14.28(1) is as follows: " 14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 26 An impermissible pleading will be embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim. The onus is on the plaintiff in her statement of claim clearly and transparently to set out the material facts in order that the defendant can become aware of the precise allegations that are made and hence the case it must plead to and meet: Sims v Wran [1984] 1 NSWLR 317. A plaintiff is required to plead all of the material facts necessary to formulate the cause of action: Bruce v Odhams Press Ltd [1936] 1 KB 697. 27 The plaintiff has so far filed and served four versions of her statement of claim. The first defendant has submitted that this Court could not be confident that any opportunity that might be given to the plaintiff to re-plead her case would produce any better result. 28 The plaintiff's further amended statement of claim contains 10 paragraphs. Paragraph 2 is as follows: "2 This is a action against tortfeasors, action by parent for injuries to children, action for damages action for libel, action for indemnity, action negligence, action for reimbursement, action founded on torts the cases". 29 Paragraphs 3, 4 and 5 are irrelevant. Paragraphs 6 to 10 inclusive are then in these terms: "[6] On 15 April 2007 the defendant send lady coming to my home. They talk to me use English. That time I'm English not very good I don't understand what they say then they give me one card they say they come back tomorrow.

[7] I see that card have Wollongong Hospital mental part 24 hour service telephone number in there. I ring Wollongong Hospital this telephone number I said: "I'm English not very good I try talk to you. I want to know what mental illness means". The lady in the telephone she explains to me said: "that means is you brain has problem your brain has sick". Then I say to her: "by the law what I can do". She talk to me said: "did you want they coming to check you or not". I said: "I don't want". Then she said: "if you don't want you just told them. By the law they can't coming. By the law you are free person now".

[8] On 16 April 2007 morning about 9 o'clock I ring Port Kembla Hospital number I said to them: "last night I ring Wollongong Hospital mental part 24 hour service number they give me legal advice by the law I don't want you coming anymore and by the law you can't coming to my home".

[9] On 16 April 2007 the defendant still coming my home. The defendant have doctor, nurse and interpreter and another two people they together coming my home. When I saw so many people coming my home I start very very unhappy. Then they start talk to me when we talk one nurse he start said: "you have mental illness I call police coming now we need send you go to Shellharbour hospital to check". Then he start ring police and Docs. Five minutes Docs come that day was Sunday Shellharbour Docs was close noboday work. Then I start close the door. I start ring my solicitor Ellen Wang. He said to me I will rung another lawyer to let her know and when police come you rung me again I will take to police and doctor. Then I stay rung my husband friend I said to he I need he come to look after kids. When he come I open door that he come police follow he come then police and doctor make me go to Shellharbour hospital. This is absolute fact to proof the defendant have accident involving criminal liability. The defendant have Professional Negligence.

[10] This is at begin the defendant start made damages to me and my two sons now the plaintiff have right of claim right of relief. The defendant have to pay this claim to plaintiff." 30 It is tolerably clear that the plaintiff wishes to contend that the officers of the first defendant entered her home without her permission and against her will, in the company of the police, and took her to Shellharbour Hospital. It cannot be said that in these limited circumstances that the plaintiff does not or could not have a cause of action of some sort against the first defendant. There is clearly more to the facts that are pleaded than are contained in the amended statement of claim. Some background is available in some of the documents that are annexed to the plaintiff's affidavits. However, even with the benefit of those documents and a vivid imagination it is not possible to construct what the plaintiff's case is said to be in fact. More importantly, neither this Court nor the first defendant should be required or expected to do so if the plaintiff herself has not. It is not appropriate to make an allowance for the difficulties under which the plaintiff obviously labours in a way that becomes unfair or unjust to the first defendant. The first defendant is entitled to know the case that it is required to meet and cannot be expected to remain subject to a vague and unstructured claim in hopeful anticipation that it will possibly be clarified or explained later. 31 The plaintiff's further amended statement of claim does not disclose any cause of action, quite apart from a reasonable one. It clearly has a tendency to cause prejudice and embarrassment to the first defendant. But for the particular difficulties confronting the plaintiff I would also have characterised it as an abuse of process. The pleading is certainly not something to which a meaningful response by the first defendant could be formulated. Conclusions 32 In my opinion the plaintiff should be required to comply with UCPR 31.36 or otherwise elect to abandon any claims against the first defendant that are alleged or said to be claims for professional negligence. I am also of the opinion that the further amended statement of claim discloses no cause of action at all and is clearly embarrassing and prejudicial and should be struck out. Orders 33 It is difficult in the particular circumstances of this case to have any confidence concerning the orderly prosecution of the proceedings by the plaintiff, or at least within any reasonably foreseeable or acceptable timeframe. However, as presently advised, I consider that the following orders should be made in any event: 1. Dismiss so much of the plaintiff's claim as alleges professional negligence against the first defendant pursuant to UCPR 31.36 (3) for want of compliance with UCPR 31.36 (1).

Order that the further amended statement of claim be struck out pursuant to UCPR 14.28 (1) (a) and (b).

I will hear the parties on the question of costs.

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.

At a glance

Court

Decision date

Before

Source

Judgment (36 paragraphs)

Parties

Cases Cited (5)