Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital

[2018] NSWSC 1682

Supreme Court

New South Wales

Medium Neutral Citation:

Chandrasekaran v Western Sydney Local Health District t/a Westmead Hospital [2018] NSWSC 1682

Hearing dates:

2 November 2018

Decision date:

02 November 2018

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) By consent of the first and second defendants, strike out paragraphs [15] and [16(d)] of the amended statement of claim filed on 10 September 2018;

 

(2) Direct the plaintiff to file and serve a further amended statement of claim by 23 November 2018.

 

(3) By consent, dismiss the second defendant’s notice of motion filed 21 September 2018.

 

(4) Order that each party pay its or her own costs of the second defendant’s notice of motion filed 21 September 2018.

 (5) Stand the proceedings over to the Registrar’s list on 27 November 2018 for further directions.

Catchwords:

PRACTICE AND PROCEDURE – application to dismiss statement of claim – no reasonable cause of action disclosed – counsel indicated proposed causes of action in submissions – application dismissed – plaintiff granted leave to replead

  PRACTICE AND PROCEDURE – reason to depart from general rule that costs follow the event – application brought about by deficiencies in the plaintiff’s pleading – each party to bear own costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), Pt 6, ss 57, 58, 146
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 42.1

Cases Cited:

Ford v Nagle [2004] NSWCA 33
Wickstead v Browne (1992) 30 NSWLR 1

Category:

Procedural and other rulings

Parties:

Sujatha Chandrasekaran (Plaintiff)
Western Sydney Local Health District t/a Westmead Hospital (First Defendant)
Charterhouse Medical Pty Limited (Second Defendant)

Representation:

Counsel:
PE King (Plaintiff)
TL Wong (First Defendant)
K Petch (Second Defendant)

  Solicitors:
McKell’s Solicitors (Plaintiff)
Crown Solicitor’s Office (First Defendant)
Horton Rhodes Legal Pty Ltd (Second Defendant)

File Number(s):

2018/177874

Judgment – EX TEMPORE

Introduction

1. By notice of motion filed on 21 September 2018, Charterhouse Medical Pty Limited (the second defendant) sought to have the proceedings brought by Sujatha Chandrasekaran (the plaintiff) dismissed against it pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4(1)(b) on the basis that no reasonable cause of action is disclosed.

2. Although Western Sydney Local Health District t/a Westmead Hospital (the first defendant) was not a party to the notice of motion, Ms Wong appeared on its behalf because of the potential for matters to arise which might affect the first defendant.

The second defendant’s application to dismiss the proceedings

3. Ms Petch, who appeared on behalf of the second defendant, provided detailed written submissions as to why the claim against her client ought be dismissed. Mr King, who appeared on behalf of the plaintiff, informed me that he was first instructed in relation to the matter last night. In the course of the hearing Mr King made various submissions, which indicated that there was at least one potential cause of action which the plaintiff might have against the second defendant. I had not appreciated, from a reading of the amended statement of claim, which was filed on 10 September 2018, that the plaintiff alleged these causes of action.

4. As a matter of general principle, it is important in the interest of justice that plaintiffs have an opportunity to put their claims properly and that proceedings not be dismissed lightly when there could well be reasonably arguable causes of action available. However, it is also important, in the interests of justice, that causes of action be properly pleaded. This is an aspect of procedural fairness in that a proper pleading not only enables a defendant to understand the case it has to meet, but it also enables the Court to appreciate what is in issue between the parties.

5. All three parties - the plaintiff, the first defendant and the second defendant - consented to an order that the second defendant’s notice of motion be dismissed. In these circumstances it is not necessary for me to give reasons why I would also have made the same order had it not been made by consent.

6. I raised in the course of the hearing the potential benefit of leave being granted to the plaintiff to file a further amended statement of claim dealing with her claim in paras [15] and [16] of the current pleading. The first and second defendants proposed that directions be made relating to that matter, that the costs of the second defendant’s motion be reserved and that the proceedings be listed before the Registrar on 27 November 2018.

7. Mr King submitted that it is incumbent upon me, pursuant to s 57 of the Civil Procedure Act 2005 (NSW), to dispose of the business of the Court efficiently. He submitted that the only business of the Court which is actually before me is the second defendant’s notice of motion for dismissal and that, accordingly, I ought not make orders relating to the pleading. He submitted that the notice of motion ought be dismissed and that I ought order the second defendant to pay the plaintiff’s costs on an indemnity basis, on the basis of his written outline of the case for the plaintiff, which was handed up and relied by Mr King today.

8. I am required by Pt 6 of the Civil Procedure Act to exercise the powers conferred on me to facilitate the just, quick and cheap resolution of the real issues in the proceedings. I am required to follow the dictates of justice and to take into account the various matters referred to in Pt 6, and, in particular, the matters referred to in s 58(2) of the Civil Procedure Act.

9. While the only formal motion before the Court is the second defendant’s notice of motion for dismissal, it appears to me that at least part of the reason for the notice of motion having been filed was the deficiencies in the pleading of the amended statement of claim filed on 10 September 2018. These deficiencies made it difficult for the second defendant, and I might add for the Court, to appreciate the nature and extent of any claims made by the plaintiff against the second defendant. As it appears to me, and as is conceded by the second defendant, the plaintiff may have an arguable cause, or causes, of action against the second defendant. I am satisfied that it is in the interests of justice that I make directions relating to the pleading rather than refer the matter back to the Registrar for such further directions to be made. This course is also in the plaintiff’s interests. I understand from Mr King that the plaintiff did not have the benefit of legal advice from either himself or his instructing solicitors when the amended statement of claim was filed. The directions proposed will provide the plaintiff with an opportunity to have the causes of action which she proposed to allege against the second defendant properly pleaded.

Costs

10. Mr King submitted that the second defendant ought pay the plaintiff’s costs of the motion on an indemnity basis. He contended that there was really no basis for the second defendant to bring its notice of motion since the plaintiff plainly had arguable causes of action against it. As I have said earlier in my reasons, I regard the deficiencies in the amended statement of claim as being an effective cause of the second defendant’s notice of motion. In these circumstances, it is not appropriate that indemnity costs be ordered against the second defendant. It is important, where pleadings are, for whatever reason, deficient, that a party bring these matters to the Court’s attention. It is understandable that the second defendant framed its notice of motion in the way in which it did (as opposed to a motion to strike out the plaintiff’s pleading against it), although, as it has turned out, I propose to make directions about the pleading.

11. Mr King further contended that the plaintiff ought have her costs on an indemnity basis as the second defendant’s application was bound to fail because of the principle enunciated in Wickstead v Browne (1992) 30 NSWLR 1, which was the subject of consideration by the Court of Appeal in Ford v Nagle [2004] NSWCA 33. I do not regard those cases as relevant to the present. Those cases established, and applied, the principle that a plaintiff’s claim against one defendant ought not be summarily dismissed if any deficiency in the plaintiff’s case could be made good by evidence from the other defendant. The application made by the second defendant in the present case was that the proceedings against it be dismissed on the basis that no reasonable cause of action is disclosed. The second defendant’s submissions were put on the basis of a pleading which did not allege any cause of action against the second defendant at all. The single allegation in the amended statement of claim against the second defendant was contained in [15] of the pleading and merely alleged the contents of an email. There was no allegation that it was defamatory or that it amounted to an injurious falsehood. There was thus no allegation of any cause of action.

12. It was, in these circumstances, not inappropriate for the motion to be brought although the second defendant has not, for the reasons given above, been successful. The reason for the dismissal of the notice of motion is that there appears to be at least one cause of action which the plaintiff ought be permitted to bring notwithstanding that it is not apparent from the current pleading.

13. Mr King submitted, in the alternative, that the second defendant ought pay the plaintiff’s costs of the notice of motion on the ordinary basis.

14. The general rule is that costs follow the event (UCPR, r 42.1). However, for the reasons I have already given, it appears to me that the effective cause of the second defendant’s notice of motion was the deficiencies in the plaintiff’s pleaded claim. Had the plaintiff made it plain in her pleading that she brought proceedings in defamation against the second defendant, the second defendant would have been able to appreciate that there was at least one cause of action disclosed by the pleading.

15. The first and second defendants agreed with my suggestion that costs be reserved. Mr King submitted that it was undesirable that costs be reserved and that, since I heard the notice of motion, I ought determine the question of costs. I accept this submission and am persuaded that it would be more appropriate to determine the question of costs now rather than reserve it for a later date.

16. In my view, having regard to the matters I have referred to above, it is appropriate that there be a departure from the general rule that costs follow the event. I consider that each party ought bear its or her, as the case may be, own costs of the notice of motion. As I have said, the effective cause of the motion was the plaintiff’s deficient pleading and, in those circumstances, it is not appropriate that the second defendant ought bear the plaintiff’s costs of the notice of motion, notwithstanding that it has been dismissed.

Proposed transfer

17. There is a further matter, which I raised with the parties and that is whether the Court should at some stage refer the matter to another court, as it would appear that the plaintiff’s claim may fall well below the jurisdictional limit of this Court. I drew the parties’ attention to s 146 of the Civil Procedure Act.

18. As this matter was not raised by any of the parties and has been raised by the Court today, I am satisfied that it is not appropriate that I make an order of that nature today. However, I note that I have foreshadowed that an order of that type may well be considered by the Court, whether on application by any of the parties, or by the Court of its own motion. I accept that today is not the day for such an order to be made and it would be preferable for the plaintiff’s pleading to be in a better state, before consideration is given to any such transfer.

Orders

19. For the reason given above, I make the following orders:

1. By consent of the first and second defendants, strike out paragraphs [15] and [16(d)] of the amended statement of claim filed on 10 September 2018;

2. Direct the plaintiff to file and serve a further amended statement of claim by 23 November 2018.

3. By consent, dismiss the second defendant’s notice of motion filed 21 September 2018.

4. Order that each party pay its or her own costs of the second defendant’s notice of motion filed 21 September 2018.

5. Stand the proceedings over to the Registrar’s list on 27 November 2018 for further directions.

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Decision last updated: 05 November 2018