Blessed v Western Sydney Local Health District

[2024] NSWSC 871

Supreme Court

New South Wales

Medium Neutral Citation:

Blessed v Western Sydney Local Health District [2024] NSWSC 871

Hearing dates:

2 May 2024

Date of orders:

05 August 2024

Decision date:

05 August 2024

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Dismiss orders (1), (2), (3), (5) and (6), of the Notice of Motion dated 16 April 2024.

(2) Grant order (4) of the Notice of Motion dated 16 April 2024 that the plaintiff’s Amended Statement of Claim filed 15 September 2022 be struck out.

(3) The litigant shall be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(4) Each party shall pay their own costs.

Catchwords:

CIVIL PROCEDURE – summary dismissal sought under UCPR rr 13.4(1)(c), 12.7 and 15.16 – underlying cause of action in tort for assault – more than a fanciful prospect of success – no intentional or contumelious default – complex proceedings involving involuntary admission under the Mental Health Act 2007 (NSW) – motion dismissed – order for referral to Registrar for Pro Bono legal assistance

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Mental Health Act 2007 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Cox v Journeaux(No 2) (1935) 52 CLR 713; [1935] HCA 48

Dickens v New South Wales (No 3) [2018] NSWSC 485

Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292

General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Hoser v Hartcher [1999] NSWSC 527

Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553

Lin v New South Wales [2024] NSWSC 77

McGuirk v The University of New South Wales [2009] NSWSC 1424

Mills v Dunpec Pty Ltd [2024] NSWSC 340

New South Wales v A [2012] NSWCA 248

O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71

Pagett v The Sydney Children’s Hospital Network; Kenny v The Sydney Children’s Hospital Network [2024] NSWSC 292

Pigozzo v Mineral Resources Ltd [2022] FCA 1166

PQ v Law Society of New South Wales (No 5) [2021] NSWSC 463

Category:

Principal judgment

Parties:

Robyn B Blessed (Plaintiff)
Western Sydney Local Health District (Defendant)

Representation:

Counsel:

Plaintiff (Self-represented)
KE Holcombe (Defendant)

Solicitors:

Plaintiff (Self-represented)
Minter Ellison (Defendant)

File Number(s):

2022/209774

Publication restriction:

Nil

JUDGMENT

1. By a Statement of Claim filed on 18 July 2022, Robyn B Blessed (“the plaintiff”) commenced proceedings against “Westmead Hospital” and “Cumberland Hospital”. On 15 September 2022, the plaintiff filed an Amended Statement of Claim (“ASOC”) naming the proper defendant, Western Sydney Local Health District (“the defendant”) and sought damages in the sum of $20,000,000. The plaintiff is currently self-represented.

2. In support of the ASOC, the plaintiff filed:

1. a statement of particulars on 30 September 2022 (“the statement of particulars”); and

2. an affidavit on 26 March 2024 (“the plaintiff’s affidavit”).

3. By a Notice of Motion dated 16 April 2024 (“the Motion”), the defendant sought the following orders:

1. The plaintiff's proceeding be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. Further, or in the alternative, the plaintiff's proceeding be dismissed pursuant to UCPR r 12.7(1).

3. Further, or in the alternative, the plaintiff's proceeding be dismissed pursuant to UCPR r 15.16.

4. In the alternative to orders 1 to 3 above, the plaintiff's ASOC be struck out.

5. The plaintiff to pay the defendant’s costs of the Motion and the proceeding to date.

6. Any other or further order as the Court deems fit.

4. In support of the Motion, the defendant filed an affidavit of Jacinta Smith on 16 April 2024.

5. This judgment concerns the Motion.

Factual background and cause of action

6. On 4 September 2020, the plaintiff suffered a seizure in the community and was transferred to Westmead Hospital in an ambulance. After arriving at the hospital, the defendant submitted that the plaintiff was found to be a mentally ill person pursuant to the Mental Health Act 2007 (NSW) ("MH Act") and, thereafter, was involuntarily admitted and treated. The plaintiff’s affidavit provided nine annotated pages from her "Patient Health Record" ("PHR") that records her admission to Westmead Hospital between 4 September 2020 at 17:40 AEST and 11 September 2020 at 2:40 AEST. However, the full document appears to be 180 pages in length. The PHR also made clear that a lumbar puncture procedure was performed on the plaintiff at 12:57 AEST on 5 September 2020.

7. To demonstrate that the plaintiff was "almost immediately treated as detained under the Mental Health Act", the defendant, in oral submissions, pointed to page 42 of the plaintiff's PHR under the heading 'progress' which stated the following:

“Difficult assessment because Robyn refused to disclose information. She was quite certain that she didn't need to provide any information to me but also understood that she was detained in hospital under the Mental Health Act.”

8. However, the defendant accepted, in this respect, that "it is difficult … to determine the date on which this record was entered". In oral submissions, the plaintiff stated “regarding the time factor between being admitted to hospital and being sectioned, it wasn't immediate. They went through many tests”.

9. The “3 MAIN COMPLAINTS” listed in the plaintiff’s affidavit are “misdiagnosis”, “assault” and “operate without consent”. The main thrust and substance of the plaintiff’s claim, which can be gleamed from the ASOC and accompanying affidavit, was that she was constrained and subjected to medical treatment without her consent giving rise to, inter alia, a cause of action in tort for assault.

10. During the hearing of the application, the plaintiff agreed that a subset of that broad claim was that, for at least some time before she was treated as a mentally ill involuntary patient under the MH Act, she was so constrained and treated without her consent.

11. There is some material in the plaintiff’s case which might support a claim on such a basis.

12. The text of the ASOC outlined the circumstances of the alleged assault that the plaintiff asserted. The plaintiff contended that, inter alia, at the hospital the following occurred:

1. The hospital “did many tests and found no cause”.

2. The plaintiff was “medicated with many different things”.

3. “[T]hey wanted to do an operation called a Lumbar Puncture”.

4. The plaintiff “said no. no more tests”.

5. “[T]hey continually tried to get me to agree to an operation. I declined.”.

6. The plaintiff “was then sanctioned – held against [her] will. This was not necessary”.

7. The plaintiff stated, “having a seizure does not equal mental illness”.

13. As I will mention later, the foundation of the plaintiff’s claim appears to be that she was “detained against her will without grounds”.

14. Select text on pages of the PHR, produced in the plaintiff’s affidavit, provide some support for those factual circumstances and aspects of the alleged assault:

1. Notes on p 1, provides ‘radiology results’ for the procedure ‘CT Brain Facial Bones’. The report notes the plaintiff’s ‘clinical history’ as “seizure” and provides, at 7:06pm on 4 September 2020, the following conclusion: “No acute intracranial, abnormality. No acute facial bone injury”.

2. Notes on p 42, under the heading ‘Assessment documents’, state “brought in by ambulance for witnessed seizure”. As mentioned earlier, notes further down the page under the heading ‘progress’ state that the plaintiff “understood that she was detained in hospital under the mental health act”.

3. Notes on p 43, reference “information obtained through notes and GP” of ‘psychiatry admissions’ in 2004, 2012 and 2017. Under the heading ‘Phoned’ it lists attempted calls to the plaintiff’s sister, son and ex-husband. Under the heading ‘Suggest’, the second suggestion is “suggest neurology team request for urgent guardianship hearing to complete seizure investigations”.

4. Pages 48 and 49, demonstrate that an application for “consent to medical or dental treatment” was made to the Guardianship division of the NSW Civil and Administrative Tribunal (“NCAT”) by a ‘junior medical officer’. The time and date of this application is not identifiable.

5. Notes on p 96, record that the plaintiff was “alert and oriented” and that the “pt can become verbally aggressive, was previously physically aggressive on morning shift, requiring sedation and 3 point restraint” and “due meds given as charted”.

6. Notes on p 97, made around midday on 5 September 2020, indicate that the plaintiff was “alert and oriented” and confirmed various medications that the plaintiff received in “resus”.

7. Notes on p 118, under the heading ‘Reason for Procedure’, state “Lumbar Puncture under sedation for erratic behaviour ?cause (sic)”. Under the heading ‘Procedure, Lumbar puncture’ the following was recorded “Consent obtained: Emergency”.

8. Notes on p 119, state “Emergency procedure with sedated patient and no NOK availability > performed as emergency procedure with avenues of consent exhausted”.

Submissions of the parties

The defendant

15. Aside from general propositions, the defendant’s submissions were broken down into categories of rules. The defendant, under the first order sought by the Motion, submitted that the proceeding was an abuse of process and should be summarily dismissed under r 13.4(1)(c) of the UCPR. Those submissions were as follows:

1. The Court's dismissal power may be exercised when a claim is so deficient that it would not be appropriate to allow the proceedings to continue (Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48).

2. First, the plaintiff seeks to bring claims which are patently unmaintainable. For example, part of the plaintiff’s claim, is said to arise from:

1. being treated in the presence of men;

2. having a male nurse in her ward over her objections;

3. being ignored when requesting to be released while an involuntary patient; and

4. suffering a sprained ankle while admitted to Cumberland Hospital, which “happed accidentally” but “wouldn’t have happened if I wasn’t there”.

3. Secondly, insofar as the plaintiff brings a negligence claim, the ASOC fails to plead the essential elements of that claim. For example, the plaintiff does not plead a duty of care, nor the scope of duty alleged. The plaintiff does not identify and articulate clearly the “risk of harm” in respect of which it is alleged the defendant was obliged to take precautions (Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292 at [60]-[61]).

4. Thirdly, the ASOC is scandalous (Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [24]). The plaintiff pleaded that she was taken advantage of and denied her rights. However, the facts which are said to establish these matters are vague and imprecise. In a response to a request for further and better particulars, the plaintiff explained her claim as follows: “I was operated on without consent, was detained against my will without grounds, was assault, abused, mistreated and medicated against my will. The hospital does not understand and accept that no means no. And for THESE REASONS I seek compensation.”

5. These are extremely serious allegations, made without any proper basis. The material facts stated in the ASOC are conclusory and inadequate to make allegations of this nature.

6. Fourthly, the ASOC is so ambiguous and vague, as to be embarrassing (McGuirk v The University of New South Wales [2009] NSWSC 1424 at [30]-[34]). The Statement of Claim is replete with statements that are conclusionary in form, and it is difficult to identify what material facts are relied upon.

7. Fifthly, the ASOC does not comply with the requirements for pleading in the UCPR; the allegations are not divided into consecutively numbered paragraphs (r 14.6, UCPR), and the claim appears to rely on conversations which are not set out in the ASOC (r 14.9, UCPR). It is trite to observe that these rules apply to all litigants, including those who are unrepresented (Lin v New South Wales [2024] NSWSC 77 at [23]).

8. In short, the ASOC failed to perform the essential function of a pleading, being to state with sufficient clarity the case that must be met by a defendant.

9. The Court would be satisfied that there is no real prospect that, with more time, the plaintiff will be able to produce a better pleading. The plaintiff has attempted to obtain pro bono assistance, with no success. The deficiencies in the ASOC have been communicated to the plaintiff multiple times. The plaintiff has indicated that she does not intend to further clarify her claim, writing “you do not need a further amended Statement of Claim which clarifies the allegations of negligence” and “you do not need further clarification, as I believe it is already stated plainly and clearly enough, and I believe your request is just to delay proceedings” (in the hearing of the matter, the plaintiff accepted that professional assistance would help her in formulating any claim she may have).

10. In this form, the proceeding is an abuse of the process of the Court. There is no utility in permitting an unknown number of further iterations before the proceedings are inevitably dismissed (Dickens v New South Wales (No 3) [2018] NSWSC 485 at [43]-[44]).

16. The second order sought under the Motion was that the proceeding should be dismissed for want of due dispatch under r 12.7 of the UCPR. In summary, those submissions were as follows:

1. The interests of justice, which are the primary consideration, together with the “overriding purpose” referred to in s 56 of the Civil Procedure Act 2005 (NSW) (Pagett v The Sydney Children’s Hospital Network; Kenny v The Sydney Children’s Hospital Network [2024] NSWSC 292 at [52]-[54]), weigh in favour of the Court exercising this power.

2. First, despite the proceeding having been on foot for almost two years, the plaintiff has not served any expert evidence on liability or damages. This is notwithstanding that it is a requirement in personal injury matters that an expert report on liability is served when the proceeding is commenced: UCPR r 31.36.

3. Secondly, the plaintiff has failed to attend four directions hearings listed in the proceedings. On two of those occasions, most recently on 7 February 2024, the Court issued letters to the plaintiff under UCPR r 13.6.

4. Thirdly, the plaintiff’s conduct in the proceeding has, to date, been inconsistent with s 56 of the Civil Procedure Act.

5. The plaintiff has claimed privilege over documents produced on subpoena by Services Australia and her treating general practitioners. There is no apparent or obvious basis on which documents held by non-lawyer third parties and treating practitioners could be the subject of privilege.

6. Further, the plaintiff has refused to voluntarily participate in an assessment by a medico-legal expert. The plaintiff has indicated that she will “consider if it is necessary when this goes to trial”.

7. To date, and having regard to the plaintiff’s failure to serve any expert evidence, the defendant has not incurred the cost of making applications to access the subpoenaed records or an application under UCPR r 23.4. However, the plaintiff’s approach to date in the proceedings make it likely that those steps will be required to progress the matter.

8. Having regard to these factors, and balancing the prejudice to the respective parties, the Court would be satisfied that justice demands the proceeding be dismissed for want of due despatch (Hoser v Hartcher [1999] NSWSC 527 at [20]).

17. The third order under the Motion sought was to dismiss the proceedings due to a failure to comply with Div 2 of the UCPR, titled “Personal injury cases” (r 15.16, UCPR). Those submissions were as follows:

1. In a claim for damages in respect of personal injuries, a plaintiff is required to serve on the defendant “copies of all documents available to the plaintiff in support of a claim for special damage and economic loss”, including hospital, medical and similar accounts, and copies of all hospital and medical reports on which the plaintiff intends to rely at the hearing: UCPR r 15.12.

2. A statement of particulars “must be as final and complete as to the plaintiff’s case as they can, with the exercise of reasonable diligence, be made” (UCPR r 15.14).

3. The plaintiff has not complied with UCPR r 15.12: to date, she has served only nine pages of medical records that appear to be from Westmead Hospital (which appear to have been annotated by the plaintiff). This is significantly fewer than the 200 pages referred to in the statement of particulars. She has served no doctors reports or copies of medical certificates.

4. The plaintiff has not complied with UCPR r 15.14: the statement of particulars is inconsistent with the further and better particulars she has provided. Further, it is not apparent on what legal basis the plaintiff contends an entitlement to damages of $20 million.

5. Accordingly, the Court ought to dismiss the proceeding under UCPR r 15.16.

18. Lastly, the fourth order sought under the Motion is that the ASOC be struck out. The defendant’s submissions, in this respect, refer to earlier submissions of the defendant which are outlined at par 15(1) – (10) of this judgment.

The plaintiff

19. Much of the plaintiff’s written submissions did not directly deal with the contentions put forward in the Motion by the defendant. However, it is clear that the plaintiff’s lack of legal representation is the source of many of the failures submitted by the defendant.

20. In the plaintiff’s oral submissions, she stressed she had made many attempts to access pro bono legal services but had not been successful as the community legal services she had sought assistance from, through ‘Law Access’, did not provide advice regarding “being scheduled unfairly under the Mental Health Act”. Nonetheless, as I have earlier mentioned, the plaintiff did articulate forcefully and with reasonable clarity a complaint about physical constraint and medical treatment without consent which is reflected in some respects in the ASOC and in the plaintiff’s affidavit thereinafter.

Legal Principles

21. Principles governing the Court’s exercise of discretion to summarily dismiss proceedings are well-settled and apply to r 13.4 of the UCPR: Mills v Dunpec Pty Ltd [2024] NSWSC 340 at [11] and [12] (Chen J).

22. Before a court will exercise such a discretion, it must be satisfied that the proceedings are so obviously untenable that they cannot possibly succeed or are “manifestly groundless”: General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; [1965] ALR 636 at 638. The Court of Appeal in Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 (“Leerdam”) followed that test and stated that summary dismissal (at [75] (Macfarlan JA (with whom Spigelman CJ and Allsop P agreed)):

“[75]    …should only be taken in a clear case. Descriptions of the test to be applied have included such phrases as ‘so obviously untenable that it cannot possibly succeed” and ‘manifestly groundless’: General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125 at 129; [1965] ALR 636 at 638 (General Steel). Particular caution is required where factual questions are involved as it is difficult to predict in advance of a final hearing the precise manner in which the evidence will unfold.”

23. In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 (“O’Brien”), the Court of Appeal confirmed that the following principles were of general application (at [3]):

1. On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded;

2. The critical question can be expressed as whether there is more than a “fanciful” prospect of success or whether the outcome is so certain that it would be an abuse of process of the Court to allow the action to go forward. Demonstration of the outcome of the litigation is required, not an assessment of the prospects of its success; and

1. Powers to summarily terminate proceedings must be exercised with exceptional caution.

24. However, despite the caution with which the Court must consider such an application, it is also important to have regard to the importance of not subjecting defendants to hopeless claims by plaintiffs which are, from the outset, doomed to fail: PQ v Law Society of New South Wales (No 5) [2021] NSWSC 463 at [23] (Adamson J).

25. Similarly, the Court should be reluctant to exercise its power to dismiss proceedings, under r 12.7 of the UCPR, where the plaintiff “does not prosecute the proceedings with due dispatch”, “without a hearing on the merits absent intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible”: New South Wales v A [2012] NSWCA 248 at [16] (Basten JA (with whom Beazley JA and Hoeben JA agreed).

26. The defendant’s reliance upon r 15.16 of the UCPR seeking summary dismissal in relation to defective pleadings, in my view, more properly goes to the question of whether the ASOC should be struck out. Defective pleadings do not, in and of themselves, justify summary dismissal of a claim.

Consideration

27. There is some real force in what the defendant submitted about the failure in the pleadings and in the ASOC and the evidence filed in support which has implications for the claims made under UCPR rules 13.4, 12.7 and 15.16. I note, however, in this respect, that some of the plaintiff’s failures to attend direction hearings, the date of which was to be communicated by the defendant to the plaintiff on at least two occasions, appears to be the result of an administrative error, namely, that the defendant’s solicitors sent correspondence to an incorrect email address.

28. As emphasised in Leerdam, “particular caution” is required when considering summary dismissal of a proceeding where factual questions are involved such that the outcome of the claim is difficult to predict. In this case, there is a central unresolved factual issue, namely, that the evidence might suggest, without any real clarity, a period of non-consensual constraint or treatment. In particular, the evidence does not disclose with precision what time and through what mechanism the defendant was found to be a mentally ill person under the MH Act and detained as an involuntary patient.

29. The evidence leaves open the possibility that there may have been a window when the plaintiff was unlawfully constrained and medically treated giving rise at least to a cause of action in tort for assault. Taken at its highest, the evidence led by the plaintiff may substantiate a case.

30. That fact, in and of itself, indicates that the outcome is not “so certain that it would be an abuse of process of the court to allow the action to go forward” (O’Brien at [3]).

31. I have earlier discussed aspects of the claim and evidence which gives rise to these considerations. I propose to explore briefly on some further aspects, although not entirely without repetition.

32. The plaintiff’s PHR indicates she was admitted to Westmead Hospital on 4 September 2020 after suffering a seizure and notes under the heading “Assessment documents” suggest that the “neurology team request for urgent guardianship hearing to complete seizure investigations”. The next day, on 5 September 2020 at 12:57 AEST, the plaintiff received a ‘lumbar puncture’ procedure via “Emergency” consent as no “NOK” (Next of Kin) was available and “avenues of consent exhausted”. In my view, the absence of evidence as to any medical emergencies suffered by the plaintiff between the time she was admitted to hospital, on 4 September, and the time the lumbar puncture procedure was performed, on 5 September, raises a question as to whether “Emergency” consent was, in those circumstances, available.

33. I also give some weight to the plaintiff’s written submission that “I was brought in due to a seizure not mental health issues and because I said no to an operation [being a lumbar puncture], they ‘sectioned’ me under the MH Act”. In this respect, the notes under the heading “Assessment documents” on the PHR appear to base the plaintiff’s characterisation as suffering from mental illness on “information obtained through notes and GP”. This information and diagnoses may have been historical and the PHR does not appear to provide information of the hospital’s own assessment and independent mental illness diagnosis of the plaintiff who attended the hospital due to a physiological rather than psychological condition.

34. Those factors, in my view, support the proposition that there is more than a “fanciful” prospect of success for the plaintiff’s case (O’Brien at [3]). The written and oral submissions of the plaintiff, supported by evidence received by the Court, indicates that there may be an underlying cause of action in tort for the plaintiff and therefore no proper basis to dismiss the proceedings under UCPR r 13.4.

35. It is true that the pleadings and particulars thereof are unclear and the assertation of a cause of action requires a combination of reading the pleadings in the light of oral submissions and in conjunction with the evidence. The pleadings, strictly speaking, are contrary to the requirements of the UCPR, and are more generally, inadequate. However, I do consider the deficiencies in the pleadings warrant dismissal of the proceedings. The applicant is self-represented, and, in some respects, the proceedings are complex. At least some allowance should be made, based on these factors, for a failure to file expert evidence. The plaintiff has disclosed a basis for her claim.

36. Similar factors suggest the proceeding should not be dismissed under Rule 12.7. I do not consider that the plaintiff is engaged in “intentional and contumelious default”. The plaintiff’s failure to take further steps in pleadings comes from a failure to grapple with her understanding of the basis for her claim and its articulation in pleadings. Further, there would appear to be a reasonable explanation for at least some delay.

37. Due to the circumstances which give rise to the bringing of the Motion and my conclusions in rejecting the dismissal, I consider this an appropriate case for referral to the Registrar for referral to a barrister or a solicitor on the Pro Bono Panel for legal assistance.

38. The Court’s power to refer a litigant to the Registrar for referral to a barrister or a solicitor on the Pro Bono Panel for legal assistance can be exercised where it is in the interests of justice (UCPR r 7.36).

39. In this case, it is clear that despite the plaintiff’s numerous attempts to obtain legal representation through ‘Law Access’ and community legal services she has not been successful. In oral submissions, the plaintiff stated, “I tried and tried and tried many times”.

40. As mentioned, it is conceivable the proceedings will involve some complexity (UCPR r 7.36(2)(c)). The legal issues concern the involuntary admission of persons under the MH Act which may involve matters relevant to law and fact. This is a confined area of law which may not be provided for in community legal services that generally receive funding for areas of law that persons more frequently seek advice regarding, such as property or employment law.

41. In my view, the serious nature of the allegations, properly acknowledged by the defendant in their written submissions, the plaintiff’s efforts to obtain legal assistance without avail and the nature and complexity of the proceedings indicate that the plaintiff’s referral to a barrister or a solicitor under r 7.36(1) of the UCPR is in the interests of justice.

42. In the result, the Court makes the following orders:

1. Dismiss orders (1), (2), (3), (5) and (6), of the Notice of Motion dated 16 April 2024.

2. Grant order (4) of the Notice of Motion dated 16 April 2024 that the plaintiff’s Amended Statement of Claim filed 15 September 2022 be struck out.

3. The litigant shall be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

4. Each party shall pay their own costs.

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Decision last updated: 05 August 2024