Constantinidis v Kehagiadis (No. 2)

[2011] NSWSC 1226

Supreme Court

New South Wales

Medium Neutral Citation:

Constantinidis v Kehagiadis (No. 2) [2011] NSWSC 1226

Hearing dates:

4 November 2011

Decision date:

04 November 2011

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) The proceedings are dismissed.

(2) The Plaintiffs are to pay the Defendants costs of the proceedings.

Catchwords:

PROCEDURE - application to file amended statement of claim - application follows earlier judgment striking out statement of claim - history of unsatisfactory pleading - whether further opportunity should be given to replead - proceedings dismissed.

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Constantinidis v Kehagiadis [2011] NSWSC 974

Category:

Procedural and other rulings

Parties:

George Constantinidis (First Plaintiff)
Gemma Constantinidis (Second Plaintiff)
Meropi Kehagiadis (Defendant)

Representation:

Self represented (Plaintiffs)
M Dicker (Defendant)
Self represented (Plaintiffs)
Colin Biggers & Paisley (Defendant)

File Number(s):

2009/297696

Judgment

1. On 2 September 2011 I delivered judgment on the Plaintiff's Notice of Motion filed 30 June 2011 seeking leave to amend the Statement of Claim in the form annexed to the Notice of Motion: see Constantinidis v Kehagiadis [2011] NSWSC 974.

1. I dismissed that Notice of Motion. I further ordered that any further application to file a Statement of Claim or an Amended Statement of Claim be confined to the claims contained in section (2) of that judgment, and that any further application to amend the Statement of Claim was to be filed by no later than 4 October 2011.

1. On 4 October 2011 the Plaintiffs filed a Notice of Motion seeking leave to file an Amended Statement of Claim in the form annexed to the Notice of Motion.

1. Contrary to the orders I made on 2 September 2011 the proposed Amended Statement of Claim was not confined to the causes of action discussed in section (2) of my earlier judgment. It sought to replead a large number of the matters that I held in the earlier judgment were untenable or hopeless claims.

1. In relation to the matters in section (2) of my judgment, the Plaintiffs have, for the most part, repleaded matters pleaded in the earlier form of the proposed Amended Statement of Claim but have added a number of particulars to some of the paragraphs. This section of the proposed pleadings still suffers from a number of the problems to which the Defendant drew attention when the earlier Motion was argued before me on 28 July 2011. It contains paragraphs which appear to bear no relationship to the claim being made and, in that regard, are embarrassing as that word is understood in the Rules.

1. Further, contrary to what I directed in my earlier judgment, the claim in relation to the Victims Compensation has again been included as a particular of the loss associated with the first cause of action pleaded arising out of the Ms Saglimbeni assault rather than as a separate cause of action.

1. A further difficulty is that the claims arising out of this assault are only matters in respect of which the First Plaintiff, George Constantinidis, has or may have any cause of action. The matters do not concern the Second Plaintiff. She, however, remains as a Plaintiff in the proceedings.

1. When the present Motion came before me for the first time on 14 October 2011 Mrs Constantinidis appeared but her husband did not. This was said to be because the listing time was changed the day before and he was not able to be present because of a medical appointment.

1. Mrs Constantinidis addressed me about the matter. She told me that, despite my earlier judgment, the Plaintiffs wish to pursue the claims now contained in the further proposed Amended Statement of Claim. She asked me to review the judgment that I had delivered. She said that the Plaintiffs would not agree to confine their pleading to the matters that I had ordered.

1. I informed Mrs Constantinidis that if she was not satisfied with my judgment she would need to seek leave to appeal to the Court of Appeal. She told me that she had had advice that such a course would be unsuccessful and that she intended to take other action including taking the matter to the media.

1. I stood the Motion over part heard to 4 November 2011 to enable Mr Constantinidis to make whatever submissions he wished, and in particular to put forward any matters against the dismissal of the proceedings in the circumstances.

1. Mr Constantinidis has put forward 3 matters. First, he says that he wishes to file a statement of claim in the General List of the Court rather than in the Professional Negligence List because what the Plaintiffs are concerned about is obtaining damages from the Defendant and not about negligence on her part. Secondly, he says that he has cut down the proposed statement of claim to about 50% of what has been previously claimed in the hope that he would be able to persuade me to review my earlier judgment. Thirdly, and in the alternative, he said that he would confine any further statement of claim to the Saglimbeni assault matter. He asked for 7 days in which to put forward a statement of claim that complied with my judgment. He said that if the proceedings were dismissed the Plaintiffs would not be able to pay the costs and that would preclude them from bringing fresh proceedings in that regard.

1. The present Notice of Motion does not comply with the orders that I earlier made. Order (4) of my earlier orders was that if no such application (that is, an application to amend confined to the claims contained in section (2) of my earlier judgment) was filed by 4 October 2011 the proceedings be dismissed with costs. Even if I was prepared to reconsider that self executing order, in the light of what the Plaintiffs have said, namely that they will not confine any proposed pleading to the matters I directed, the only appropriate order is that I should dismiss the proceedings.

1. Even if the Plaintiffs confined themselves to the causes of action associated the Saglimbeni assault they have not pleaded the matter in the proposed statement of claim as I have set out in my judgment. I have no confidence that, if a further opportunity is given to them to put forward a pleading that complies with my judgment, this would happen in the light of the history of the matter, and particularly in the light of the proposed statement of claim annexed to the present Motion which was proffered in the face of what I said in my judgment.

1. In an earlier judgment of 16 June 2011 I detailed some of the history of earlier forms of pleading put forward to various judges of the Court. The entire history of the matter shows that the Plaintiffs have been given ample opportunity to prepare, and if appropriate, to file a proper Statement of Claim in the matter. In addition to what other judges of the Court have informed the Plaintiffs about the form of their pleading, I have considered 2 forms of the pleading discussed in my earlier judgments.

1. Consideration must be given to the position of the Defendant. On two previous occasions the Defendant has asked that I should dismiss the proceedings. I declined to do so, and have given the Plaintiffs two further opportunities to get their pleadings into order. The pleadings are still not in order despite the guidance given to the Plaintiffs in my last judgment. In the light of the two opportunities I have given, coupled with the advice provided by other Judges of the Court on earlier applications concerning the pleading, and bearing in mind the provisions of s 56 Civil Procedure Act 2005, the only appropriate order to make is that the proceedings should be dismissed.

1. I therefore make these orders:

(1) The proceedings are dismissed.

(2) The Plaintiffs are to pay the Defendant's costs of the proceedings.

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