Zhang v Hardas [2017] NSWSC 876 | Case summary

Supreme Court of NSW|2017-06-27|Before: Harrison J

Judgment

HIS HONOUR: By her amended statement of claim filed on 24 June 2017, Yingjie Zhang claims damages for personal injuries allegedly sustained by her as the result of negligent chiropractic treatment provided by George Hardas. The events that give rise to these proceedings all took place at Mr Hardas' professional rooms between February 2007 and September 2007. The proceedings were not commenced until the filing of the original statement of claim on 2 August 2013. The defence filed for Mr Hardas pleads that the claim is statute barred. No application has ever been made by Ms Zhang to extend the time provided by the Limitation Act 1969 within which to bring the present proceedings.
By his notice of motion filed on 23 December 2016, Mr Hardas seeks an order that the proceedings be dismissed for want of due despatch pursuant to UCPR 12.7. The application is opposed.
That application is supported by two affidavits affirmed by Jodie Odell on 23 December 2016 and 26 June 2017. Ms Zhang relies on three affidavits sworn by her current solicitor Antonin Sebesta on 15 December 2016, 10 March 2017 and 26 June 2017. These affidavits were all read without objection. Mr Sebesta was briefly cross-examined. Ms Zhang's response to the application did not include an affidavit from her.
For the reasons that follow, I do not consider that the proceedings should be dismissed. However, the orders that I propose are based upon my ultimate conclusion that Ms Zhang's approach to, and conduct of, the proceedings has been recalcitrant and include an order that she should pay the costs.

Consideration

The following things are worthy of note in the context of the present application. First, Ms Zhang has not herself given any evidence in response to an application to strike out her claim. I accept immediately that Mr Hardas bears the onus of satisfying me that the proceedings should be dismissed, and that Ms Zhang can choose, if she wishes, to do nothing at all. However, Ms Zhang has proffered evidence, in the form of Mr Sebesta's three affidavits, and in that sense has mounted active opposition to the application. It strikes me as at least very unusual and at most very unsatisfactory that the person with the greatest interest in opposing Mr Hardas' attempt to dismiss the proceedings should not have contributed to the evidence that will decide the outcome.
Secondly, Mr Sebesta did not give an explanation of why Ms Zhang did not give evidence herself. Once again I hasten to add that the absence of an explanation is not determinative of any issue that I am required to consider, but I would have taken some comfort from a proper understanding of her apparent lack of practical interest in what is occurring. Mr Barry of Queen's Counsel, who appeared for Ms Zhang, suggested from the bar table that he had serious doubts about Ms Zhang's ability to give instructions, having regard to his assessment of her mental state. While I accept and understand his concerns in that regard, I have not been provided with evidence that might substantiate them, or upon which I could reliably proceed.
Thirdly, with the greatest of respect to Mr Sebesta, I have not, in my opinion, been provided with an explanation of why Ms Zhang's case continues even now to limp along in a constant state of somnambulant desuetude. It will be recalled that in his 10 March 2017 affidavit Mr Sebesta said this: "6. From the outset of my being retained to act for the plaintiff in this matter, I have been instructed to make all preparations necessary to prepare the plaintiff's case for hearing before this Honourable Court with the greatest possible dispatch. 7. I have no reason to doubt the veracity of those instructions. Indeed at all times the plaintiff has provided me with instructions in a timely and very efficient manner and I expect that this will continue. 8. I am instructed that the many and various substantial issues that have beset the plaintiff in the past, preventing her from providing instructions to her previous solicitors to bring this case to finality, have been largely resolved. 9. Fundamental to the preparations on behalf of the plaintiff to advance her case is to be in a position to adequately peruse and assess all of the evidence and supporting material obtained and served on her behalf. This has in turn depended on my obtaining the plaintiff's file from her previous solicitors."
Despite what I am prepared to accept are Mr Sebesta's best efforts, those paragraphs are utterly devoid of instructive comment. Mr Sebesta does not complain or assert that his ability to progress the case has been impaired or impeded by an inability to obtain the file from any one or more of his five predecessors, nor does he offer any real explanation at all concerning the need to obtain further medical reports when at least one of those predecessors indicated that Ms Zhang's evidence was complete. If Ms Zhang is refusing to give instructions that Mr Sebesta needs, or if she is impecunious or otherwise disinclined to put Mr Sebesta in funds to pay for medical reports and the like, Mr Sebesta does not say so.
Fourthly, there is no evidence that Ms Zhang has signed off on her evidentiary statement for the purposes of the final hearing. In the same vein, Mr Sebesta was not able in evidence to say that Ms Zhang's evidence in response to the limitation issue raised by Mr Hardas in his defence has been assembled or even considered. I rather feel that no attention at all has been directed to the need for Ms Zhang to explain why the proceedings were commenced several years out of time, or to the question of precisely when she first became aware that she might have had a cause of action against Mr Hardas. Even a passing reference to these matters might have given some insight into the real state of preparedness of this case for trial.
Mr Hardas has submitted that despite Mr Sebesta's three affidavits, there is still no explanation for the delay. No explanation has been provided concerning any difficulties that Ms Zhang is or may be experiencing with respect to the retention of experts or the provision of reports. In the most extreme case, the evidence says only that Dr Phillips' report cannot be finalised until 28 September 2017. No explanation is provided.
There are no rigid rules in respect of applications of this nature. In particular, there is no rule that Ms Zhang's default must be intentional or contumelious or amount to inordinate and inexcusable delay: Micallef v ICI Australia Operations Pty Ltd [2011] NSWCA 274 per Heydon JA at [51].
The interests of justice are the primary consideration: Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412.
In considering prejudice to the party responsible for the impugned delay, the Court will have regard to: 1. the nature and extent of the delay, as well as any party's explanation for any of it: Petronaitis v Rowles [2012] NSWCA 236; 2. the party's degree of personal fault for the delay: Building Insurers Guarantee Corporation v Touma [2010] NSWCA 4; and 3. the degree to which the party has kept the other parties informed of the cause of the delay: Calvert v Stollznow (NSWSC per Cross J, 1 April 1980, unrep).
In exercising the discretion the Court is informed by sections 56, 59 and 61 of the Civil Procedure Act 2005: Building Insurers Guarantee Corporation at [31].
Here those principles are engaged as follows: 1. the nature and extent of the delay is significant with very little cogent explanation as to why it has occurred; 2. Ms Zhang has been at fault throughout the process of the delay; 3. Mr Hardas has not relevantly been at fault but has been kept in the dark in respect of the delay all the while incurring costs and enduring the stress of litigation with no clear end in sight.
In this last respect, Ms Odell has given evidence that Mr Hardas is suffering both personally and professionally as the result of the delays. Ms Odell understands that Mr Hardas is suffering from a degree of depression and is experiencing difficulty sleeping. He also suffers from hypertension for which he takes medication. Mr Hardas has become withdrawn from friends as these proceedings have continued to play upon him. Mr Hardas has also withdrawn to a considerable extent from his professional community.
Mr Hardas has so far incurred legal costs in the order of $300,000.

Disposition

There is no satisfactory explanation for the delay in the proceedings so far. Ms Zhang has shown a level of contemptuous disregard for the orders of this Court and the need to prosecute her case in accordance with the rules. Her solicitors have previously indicated that her evidence is "complete". There cannot be any need for further evidence to be gathered in the circumstances. Indeed, the matter has been to mediation on two occasions, rather suggesting that Ms Zhang and her then current legal advisers were sufficiently well armed with expert support to understand and promote her case at its highest.
I am not prepared to dismiss the proceedings. In my experience, an order doing so would not be the end of this matter.
In my opinion, the proceedings should be brought to an end at a hearing allocated for that purpose without further avoidable delay. The parties should be directed forthwith to approach the list manager for the appointment of a hearing. Ms Zhang should not be permitted to serve any further evidence of any type later than 56 days before the date that is obtained. Any application by either party for additional orders or directions should be made to me by arrangement with my Associate. Ms Zhang should pay the costs of this application.

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: 30 June 2017

Zhang v Hardas

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