Zakaria v Dr Noyce

16Mr Ryan of counsel for the Plaintiff said that the present Notice of Motion was based on r 36.15 UCPR, alternatively, on the inherent jurisdiction of the Court. I note, however, that the Notice of Motion claims that Harrison J's order of 2 October be set aside on the basis that it is invalid and of no effect "on the grounds of a denial of natural justice". 17Rule 36.15 relevantly provides: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. 18Mr Ryan said first that the judgment of Harrison J of 2 October 2009 was given against good faith. He submitted alternatively that it was given irregularly. The basis for the judgment being entered against good faith or irregularly was said to be the fact that the matter had been listed on 1 October 2009 for mention and yet his Honour heard argument on the point in issue and delivered a judgment without giving the Plaintiff and her counsel the opportunity properly to address the issue whether Dr Sacks' report complied with the rule. The Plaintiff submitted that his Honour had made an error when he said (at [6]) that the opinion of a current treating specialist might have reasonably been thought to have identified the critical matters. This was because, the Plaintiff submitted, she had no current treating specialist and one was not identified to his Honour. 19The Plaintiff submitted further that there was an injustice in the circumstances where the operation had resulted in her losing her employment and prevented her from obtaining similar employment as a receptionist because of her inability to speak properly. The Plaintiff submitted further that there was injustice by reason of the fact that she had limited resources to obtain the requisite medical report and that she was faced with the difficulty of persuading an ENT surgeon to provide a report critical of the Defendant.

(1) Good faith 20In Coles v Burke (1987) 10 NSWLR 429 Kirby P (with whom Samuels and McHugh JJA agreed) said: The genus which is involved in the phrase "irregularly, illegally or against good faith" appears to me to be misconduct or dishonourable conduct of the person who procured the judgment which it is suggested undermines the authority of that judgment warranting the exceptional course for which r 12A provides. Here, there was no such lack of good faith on the part of the claimants. The signing of the judgment was made in accordance with the authority of the order earlier consented to and after a warning had been given by the letter to which I have referred. It is perhaps undesirable, in the modern practice of the legal profession (where much give and take is required) that judgment should be signed in this way without a final telephone call or other warning. However, the failure to give such a final and further warning could not, on any view, amount to a lack of good faith. Therefore, r 1 2A, likewise, has no application to these circumstances. No other rule or statutory provision was relied upon by the first opponents to support the order which Smyth DCJ made. 21This passage was approved by the Court of Appeal in Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193 at [44] and [53]. Bryson JA (with whom Hodgson and McColl JJA agreed) added at [45] that the rule requires "sufficient cause" which recognises the need for finality by protecting judgments from being set aside for slight or uncertain causes. 22The significant matter is that for a judgment to be set aside as having been entered against good faith there must be misconduct or dishonourable conduct by the person who procured the judgment. The matter is directed, not to the Court or the Judge who entered the judgment, but to the party who was responsible for bringing it about. Ordinarily such a judgment would be a default judgment or a consent judgment contingent upon the performance of some event. To the extent that the rule is, in that sense, confined to the behaviour of the other party it sits uneasily with a judgment obtained after a hearing at which the complaining party is present and/or represented. 23The judgment of 2 October 2009 was not given or entered against good faith.

(2) Irregularity 24Ordinarily irregularity is concerned with a failure to comply with the Rules of Court: Arnold v Forsythe [2012] NSWCA 18 at [88]. That will extend to the position where, for example, default judgment has been obtained on a Statement of Claim that does not properly plead a debt or liquidated sum: Arnold at [59]; or does not plead an essential element of the cause of action: Fenato v Chief Commissioner of State Revenue [2010] NSWCA 80; (2010) 78 NDWLR 20 at [39] and [63]. In addition, a judgment entered for more than is due will be irregular: Alexander v Ajax Insurance Co Ltd [1956] VLR 436; H R Turner & Son Pty Ltd v Rhodes [1970] 1 NSWR 305. 25A denial of procedural fairness will be a fundamental irregularity that will entitle a person aggrieved to set aside an order as a matter of unconditional right: Cameron v Cole (1944) 68 CLR 571. That right is part of the court's inherent power. Further, such an irregularity falls within r 36.15: Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38 at 85. 26The essence of the Plaintiff's complaint regarding procedural fairness is that Harrison J listed the matter for mention on 1 October but then proceeded to conduct a hearing, reserved his decision and gave judgment the following day. The further and associated complaint is that Mr Ryan of Counsel lodged a further written submission with the Judge the following day but, according to Mr Ryan, those submissions did not reach the Judge at least before he delivered his judgment. The Plaintiff submitted that Harrison J was exercising a discretion but that its exercise miscarried by reason of the denial of procedural fairness. 27In my opinion the Plaintiff has not established that she was denied procedural fairness. To show why, the chronology of the proceedings must be considered. 28The operation, about which the Plaintiff complains, took place on 21 October 2005. Only one week short of the expiry of the limitation period the Statement of Claim was filed on 14 October 2008 by the Plaintiff acting without a solicitor on the record. I have no doubt, however, that the Plaintiff had legal assistance in preparing the Statement of Claim. She gave evidence that she had been assisted during the period of the proceedings at various times by three different solicitors and by Mr Ryan. Having observed the Plaintiff in the witness box I do not believe that she could have used the legal phraseology contained in the Statement of Claim without legal assistance. 29However, a significant matter about the filing of the Statement of Claim without a solicitor being on the record is that the filtering process which operates by virtue of s 347 Legal Profession Act 2004 did not occur. That increases the significance of a Plaintiff complying with the provisions of r 31.36 to avoid the possibility of a claim with few prospects of success: Salzke v Khoury [2009] NSWCA 195 at [122]. It was never explained why the solicitors who provided assistance to the Plaintiff did not become the Plaintiff's solicitors on the record. 30In his judgment given on 7 August 2009 on the Defendant's Notice of Motion to dismiss the proceedings Harrison J dismissed the proceedings but stayed the order for six weeks to give the Plaintiff the opportunity to obtain a report which complied with r 31.36. The Plaintiff had Mr Ryan appearing for her at that time. 31Strictly speaking the proceedings were dismissed on 18 September 2009 but the Defendant and Harrison J acted on the basis that that had not happened by reason of the arrangement for a re-listing on 1 October. The reason for that was, probably, that the Plaintiff served a report from Professor Sacks dated 15 September. 32Whilst it is true that the letter from Harrison J's Associate said that the matter was to be listed for mention on 1 October, his Honour heard argument about whether the report from Professor Sacks complied with r 31.36. I have set out relevant portions of the transcript from that day. The significant matter is that Mr Ryan accepted that the report did not comply with the Rule but sought more time to obtain a report that complied. He was hopeful but not "extremely confident" that another report from Professor Sacks would be forthcoming by the following week. The Defendant submitted to Harrison J that an order for dismissal should be made. 33Before he finished dealing with the matter Harrison J summarised the position of each party and said he would give his decision the following morning. No complaint was made on behalf of the Plaintiff concerning his Honour's stated intention. No application was made to lodge a further submission. Although Mr Ryan forwarded a further submission to his Honour that submission was dated 2 October. No evidence was led which threw any light on what time that submission was forwarded to, or would have reached, his Honour. It is noteworthy that the further submission was entirely inconsistent with the concession made on 1 October that Dr Sacks' report did not satisfy r 31.36. 34When the matter was listed for judgment on 2 October there was no appearance for or on behalf of the Plaintiff. There could have been an appearance and a request for leave to make or file a further submission in the form of the written submission dated 2 October, or otherwise. 35His Honour, in his judgment of 2 October, did not simply base his decision to dismiss the proceedings on Mr Ryan's concession. He said the concession was properly made on the basis of his Honour's examination of the report itself, and his Honour concluded at [6] (paragraph [15] above) that it did not address or advert to the matters rule 31.36 emphasised. I have set out the report at [10] above. Plainly it does not deal with the matters with which r 31.36 is concerned. 36The Defendant quite properly referred me to the Court of Appeal's decision in Miltonbrook which might be thought to be against the position for which the Defendant contended. Certainly, that decision holds that a denial of procedural fairness comes within "irregularity" in r 36.16. However, its facts were sufficiently different to make it distinguishable on its result to the facts in the present case. In Miltonbrook the solicitor for the relevant party simply happened to be in Court when the matter was mentioned. The judgment then sets out facts showing the difference from the present matter: [83] The respondents took no steps to inform the applicants of the process of reinstatement. The fact that such would be sought was referred to in the draft Statement of Claim that was served. However, there was no mention of the process in correspondence between the solicitors about the dispute. [84] In my opinion, Miltonbrook was not given a reasonable opportunity to be heard. The information available to the solicitor was not, in my opinion, of a character which would enable him to question the basis upon which his Honour had formed the views expressed in his first judgment. Furthermore, that judgment, and the course of conduct on 5 March 2007 was such as to suggest that the matter had been determined on the previous occasion and all that remained was the making of orders. In my opinion, the presence of the solicitor on 5 March 2007 was not such as to give Miltonbrook a reasonable opportunity to be heard. 37In all of these circumstances I do not consider there was any failure to afford procedural fairness to the Plaintiff. I do not think any significance should attach to the words "for mention" in the Associate's letter. The Plaintiff's counsel argued for his client's position, was warned that judgment would be delivered on the parties' competing submissions, and had two further opportunities (the lodgement of a further written submission in due time, and appearance the following day to request further time) if additional submissions needed to be made.

(3) Compliance with r 31.36 38Even if there was a failure to accord procedural fairness to the Plaintiff it is necessary to consider if, at the present time, the Plaintiff has complied with r 31.36. This is because it is difficult to conceive a case where an order striking out proceedings for a default will be set aside if the default has not been cured: National Parks and Wildlife Service v Pierson [2002] NSWCA 273; (2002) 55 NSWLR 315 at [19]. 39The Plaintiff submitted that the report obtained from Dr Ghabrial was a report which complied with r 31.36. The first part of the report assesses the Plaintiff in terms of Whole Person Impairment (why that has been done is not made clear). The second part of the report says this: I note that in a report dated 28/11/2005 Dr. Thompson says he was advised that the tonsils were 'deeply buried' and that the resultant procedures left 'deep tonsillar fossae'. This would indicate to me that excessive physical force was used in the removal of the tonsils and that due care and skill was not exercised by Dr. Noyce and my opinion is as follows. A. The soft palate permanent deformity and Impairment resulted from the failure of the operating surgeon to apply reasonable standards of medical practice. This amounts to a breach of professional duty by Dr. Noyce and this caused the said impairment. 40An "expert's report" is defined r 31.18 as meaning: A written statement by an expert ... that sets out the expert's opinion and the facts, and assumptions of fact, on which the opinion is based. 41Dr Ghabrial was an "expert witness" as defined in r 31.18 because he was: An expert engaged ... for the purpose of (a) providing an expert's report for use as evidence in proceedings or proposed proceedings. The report's "use" was for the purpose of r 31.36 if nothing else. 42Dr Ghabrial acknowledged the Code of Conduct as he was bound to do. Clause 5 of the Code (Schedule 7 to the Rules) set out what must be included in the expert's report. That partly repeated matters in the definition of an "expert's report", but in total dealt with the matters discussed by Heydon JA (as he then was) in Makita v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. 43Having every regard for what is said in Salzke v Khoury, especially at [123], I do not consider Dr Ghabrial's report satisfies the requirements of the Rule because the report does not satisfy the definition of "expert's report" nor does it comply with the requirements of the Code. The facts and assumptions of fact on which Dr Ghabrial based his report are not set out. He appears to base his conclusion on what Dr Thompson said he was advised but by whom he does not say. Contrary to the Code's requirements no reasons are given for Dr Ghabrial's conclusions. The conclusions are what Heydon JA in Makita described as ipse dixits at [87]. 44Accordingly, the Plaintiff's default has not been cured. Not only does the principle in Pierson operate but other matters involving ss 56 and 58 Civil Procedure Act are relevant.

(4) Earlier Motion and s 56 CPA 45On 19 October 2009 the Plaintiff filed a Notice of Motion seeking, as the present Motion seeks, that Harrison J's order be set aside on the grounds of a denial of natural justice. She also filed an affidavit in support sworn 19 October 2009. She said that either Warwick Cottee or Mr Ryan were acting for her at the time although (as noted earlier) Mr Cottee was never a solicitor on the record. In the affidavit she said: "I am presently making arrangements to obtain a medicolegal opinion from a specialist in Melbourne and I am awaiting an appointment." 46She said that she filed the Notice of Motion herself. She said that she read the document when it was handed back to her and she "probably would have seen" that the Notice of Motion was listed on 6 November 2009. On 6 November nobody appeared for the Plaintiff (including the Plaintiff herself) and the Notice of Motion was dismissed. She could not provide an explanation for why she did not appear. 47It is apparent from the affidavit that at the time of the filing of that Motion the Plaintiff had not rectified the default (the failure to file and serve a report which complied with r 31.36) because the affidavit said that she was arranging an appointment with a specialist in Melbourne to obtain a medicolegal report. The likelihood is, therefore, that the Plaintiff's Motion would have been dismissed even if she had appeared and pursued it but it was, in any event, dismissed. 48Where there has been a prior application which has been dismissed in circumstances where the default had not been cured a second application made prior to the default being cured will usually be dismissed out of hand as an abuse of process because there has been no relevant change of circumstance since the first application: Pierson at [18]; Nominal Defendant v Manning (2000) 50 NSWLR 139 at [72]. 49After the dismissal of the Plaintiff's Notice of Motion of 19 October 2009 nothing was done in the proceedings until the present Notice of Motion - a period of 2 years and 8 months - although it seems the Plaintiff obtained a report from a Dr Ghabrial on 18 October 2011, two years after the filing of the first Notice of Motion. Delay is a relevant matter even where a party seeks to set aside an irregular judgment although it may only result in terms being applied to its setting aside: R T Company Pty Ltd v Minister of State for the Interior (1957) 98 CLR 168 at 170. 50The Plaintiff's explanation for this delay was contained in her affidavit of 16 July 2012: [6] I did not understand until after 2 October 2009 that my case had been dismissed and then I was informed by my lawyers that my barrister had sent a letter to the judge asking for further consideration. I enclose a copy of the letter to the Judge's associate dated 2 October 2009 with the attached letter to the judge, marked "F1 & F2" J [7] After the dismissal of my case, I became very depressed and I just could not bring myself to follow up anything further. I just could not concentrate on anything at all even looking after Zach properly. Eventually I got so down and anxious and panicky and unable to focus that at about the middle of 2010, I arranged with my husband, who lived with his mother and from whom I was separated, to take care of Zach because I was unable to do so. [8] On 13 March 2011, my grandfather died and I missed him terribly. This made me further depressed and I was not able to do anything at all in pursuing my case because I could not find the energy or the will to do so. Later on in 2011 my mother kept reminding me that I had to do something and after her constant urging I went to the Healthcare Complaints Commission but they did not support my claim. Annexed hereto and marked "G" is a true copy of the letter from the Healthcare Complaints Commission dated 18 May 2011. 51However, as noted above the Plaintiff was able to file a Notice of Motion, swear an affidavit and apparently arrange an appointment with some un-named specialist in Melbourne in order to obtain a report which complied with r.31.36. 52 Cross-examination of the Plaintiff elicited that she was able at some time in the period, probably early 2011, to make a complaint to the Health Care Complaints Commission about the Defendant. She was also able to consult a further firm of solicitors, Stephen Smart and Associates, and to see Dr Ghabrial who provided her with his report in November 2011. The Plaintiff also agreed that throughout the period she was the primary care giver for her father in respect of which she received a support pension. 53I did not find the Plaintiff an entirely satisfactory witness. When she was asked about the statement in her affidavit of 19 October 2009 about arranging to see a doctor in Melbourne she gave this evidence: Q. And so it's fair that his Honour may accept that arrangements had been made for you to obtain a medicolegal opinion from a specialist in Melbourne and that you were awaiting an appointment with that specialist? A. Yes. Q. But you don't recall making that appointment? A. There's been so many doctors, I don't know which one is which. It was in 2009. I have been to so many doctors, if I don't remember, it's not my fault. I have probably been to every single doctor there is in Sydney, Canberra and Melbourne and I don't remember. It was in 2009 so maybe there was an appointment or I was waiting for an appointment and I don't remember. 54Yet a little later there was this evidence: Q. And you can't recall the name of the doctor in Melbourne? A. No. Q. It would have been another doctor that you have seen? A. I don't recall that, no. Q. But you have said you went to Melbourne and you saw a doctor; you don't recall his name? A. I didn't say I went to Melbourne. Q. I thought the answer to my question was that you have seen doctors in Sydney, Canberra and Melbourne? A. I did not say Sydney, Canberra and Melbourne. You have asked me about a doctor in Melbourne and it says here I was waiting for an appointment. I never said a I saw a doctor in Melbourne, no. ,.. 55No report from a doctor, except Dr Ghabrial, has ever been produced. 56Despite what the Plaintiff said in her affidavit of 16 July 2012 about being too depressed to do anything further in the case or concentrate on anything at all, she did not disclose in that affidavit anything about the October 2009 Notice of Motion, the appointment with the Melbourne doctor nor the care for her father. Further, she said nothing of these things (except the care of her father) or about the complaint to the Health Care Complaints Commission to Dr Robert Hampshire, a psychiatrist, from whom she obtained two reports. In the second of these Dr Hampshire said: I have no doubt that with the combination of psychological problems described above which came on sometime following the surgery from Dr Thompson that this could easily have left her so psychologically unwell as to be unable to organise her life in an appropriate manner which would include preventing her from pursuing further medical evidence until she saw Dr Gabriel (sic) on the 29th September 2011. 57It is difficult to accept Dr Hampshire's conclusion when he was not provided with all relevant information. 58There was no explanation of the delay from the receipt of Dr Ghabrial's report until the filing of the present Motion in June 2012 - a period of eight months. 59I do not accept the Plaintiff's evidence that she was unable to do anything about obtaining a complying report or filing a Motion to set aside Harrison J's order. Mr Ryan pointed to the fact that the Plaintiff was impecunious and was acting for herself. In fact she had Mr Cottee acting for her at the relevant time in 2009 and subsequently consulted Mr Smart almost a year before the present motion was filed. In any event, the Plaintiff herself did not say that she was impecunious nor did she say that that was the reason for the delay. 60In my opinion the chronology of events and the delays, which are ultimately unexplained, are inconsistent with the requirements of ss 56 and 58 Civil Procedure Act 2005. The Plaintiff has not been without legal assistance. She has had a number of opportunities to get these proceedings into order by compliance with r 31.36. Her failure to do so bears out what Harrison J said in his judgment of 2 October 2009 at [6]: I am inclined to think, having regard to the fact that the plaintiff is legally represented, and the fact that she has been searching for expert support for some years without success, that no support is available and none is now likely to emerge. 61As the report of Dr Ghabrial does not comply with r 31.36 there has been no relevant change of circumstance since the filing of the earlier notice of motion of 19 October 2009. That would mean that the present Motion should be dismissed even if there had been some procedural unfairness contrary to what I have found. 62Further, even if Harrison J erred in referring to the Plaintiff having a then current treating specialist (and there was no evidence led about tis matter before me) the continuing failure of the Plaintiff to comply with r 31.36 would mean that such error would not prevent the Notice of Motion being dismissed.

63I make the following orders: (1)The Plaintiff's Notice of Motion filed 28 June 2012 is dismissed. (2)The Plaintiff is to pay the Defendant's 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. Decision last updated: 12 October 2012