Ergashova v Aslan

[2025] NSWSC 208

Supreme Court

New South Wales

Medium Neutral Citation:

Ergashova v Aslan [2025] NSWSC 208

Hearing dates:

16 August 2024

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Proceedings be dismissed.

(2)   The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch — Civil Procedure Act 2005 (NSW) — defamation — injurious falsehood

Legislation Cited:

Uniform Civil Procedure Rules 2005 rr 6.3, 12.7, 13.4

Category:

Procedural rulings

Parties:

Narghiza Ergashova (Plaintiff)
Dina Jamil Hamid Aslan (Defendant) (self-represented)

Representation:

Counsel:
Solicitors:
Stewart & Associates (Plaintiff)

File Number(s):

2023/00302451

JUDGMENT

1. HIS HONOUR: The history of this proceeding raises significant issues associated with the appropriate prosecution and conduct of litigation. The Statement of Claim, filed 22 September 2023, seeks remedies for defamation and injurious falsehood. It extends to 51 pages plus annexures which include that which purports to be a Concerns Notice dated 11 August 2023 of 11 pages, a copy of the impugned publications, and correspondence between the parties, the relevance of which some is questionable.

2. On 9 November 2023, the defendant filed a “Defence Statement” in answer to the Statement of Claim. By a Notice of Motion filed 12 December 2023, the defendant moved for dismissal of the proceedings seemingly on the basis of: a failure to state a valid claim or cause of action and/or insufficient evidence (reliant upon the Uniform Civil Procedure Rules (UCPR) r 13.4); abuse of process (reliant upon UCPR r 6.3); vexatious litigation and malicious intent (reliant upon UCPR r 12.7); and a failure to particularise. Directions were given for the filing of an outline of submission in relation to the motions. The motion was extended to rely upon the failure of the plaintiff to prosecute the claim in a timely manner or appropriately.

3. Earlier motions seeking interlocutory relief were filed by the plaintiff on 22 and 25 September 2023 and heard and determined on 5 October 2023. It is necessary to set out some of the history, which includes some issues that occurred prior to the filing of the Statement of Claim and any motion.

Background

4. The material that follows is taken from the affidavit of the plaintiff and the affidavit of the defendant. The defendant is unrepresented.

5. During the period since the filing of the Statement of Claim, apart from a short delay associated with the appointment of different lawyers, the plaintiff has claimed illness which has prevented her from complying with orders of the Court, attending Court and providing instructions. A short chronology needs to be recounted.

6. According to the plaintiff’s affidavit, in June 2023, the plaintiff underwent a thyroid biopsy which found that which was to be examined to be “benign”. Nevertheless, there was that which the plaintiff perceived was a lump that had enlarged. It had not enlarged any further but was removed as will be seen later in this chronology.

7. At the first directions hearing, on 29 September 2023, the plaintiff moved the Court for interim relief and interlocutory injunctions. The Court denied the injunctions and rescheduled the matter for hearing at that time and gave each of the parties an opportunity to prepare more fully.

8. On 1 October 2023, the plaintiff underwent a scan of the thyroid at Baulkham Hills, which, by a report of 5 October 2023, demonstrated no significant changes and seemingly no urgency.

9. On 3 October 2023, an apprehended domestic violence order was issued by the plaintiff against the defendant. On 5 October 2023, the Court heard the claim for interlocutory injunctions and denied the claim.

10. On 16 October 2023, the plaintiff appointed a new legal representative. On 17 October 2023, the hearing for the apprehended domestic violence order occurred in the Local Court. The order was refused at that time and scheduled for a full hearing in November 2023.

11. On 23 October 2023, according to the affidavit of the plaintiff, there was an “urgent referral” to a specialist. On 27 October 2023, the Court adjourned the proceedings on the application of the plaintiff because the plaintiff sought to see the defence prior to proceeding further.

12. On 2 November 2023, the plaintiff presented a 37-page statement in the Local Court for the apprehended domestic violence order matter, a copy of which was annexed to an affidavit to this Court. On 3 November 2024, the plaintiff published comments on LinkedIn relating to the defendant refusing to respond to Court orders. Between 4 and 7 November 2024, the plaintiff was admitted to Cumberland Hospital.

13. On 17 November 2023, proceedings were commenced in the Fair Work Commission by the plaintiff and documents were filed. The filings occurred on 21 November 2023 and, on 30 November 2023, an application for an Assisted Dispute Resolution was filed. On the same date, namely 30 November 2023, a further thyroid scan occurred in which, once more, there were no changes or “urgency”.

14. On 4 December 2023, a letter was written, seemingly at the instigation of the plaintiff, confirming an appointment for surgery for 12 December 2023 which letter forms part of the plaintiff’s affidavit. On 8 December 2023, the Fair Work Commission proceeded without the attendance of the parties.

15. According to the material now before the Court and filed by the plaintiff, on 15 December 2023, it was alleged that the plaintiff was being admitted for a “malignant” thyroid condition. There is no evidence that the thyroid condition was malignant, and instead, the evidence tendered by the plaintiff was to the effect that the condition was benign. A letter to the effect that the plaintiff needed to undergo urgent surgery was also sent to the New South Wales Civil and Administrative Tribunal and to the Family Court for other proceedings.

16. The matter came before the Court on 15 December 2023 and was adjourned by the Court because it was said that the plaintiff was ill. The date of 15 December had been set by consent of the parties, and, in particular, the legal representative of the plaintiff. It was also the date of the day surgery for the removal of the lobe of the thyroid gland.

17. No prior notice was provided to the Court or the defendant of the necessity to adjourn. This was not the first time that the matter had been adjourned on the basis of alleged ill-health. The Court made it clear that future adjournments on the basis of ill-health would need to be supported by a medical certificate.

18. On the same date that the plaintiff was allegedly ill and could not attend the Supreme Court, a mediation occurred in the Fair Work Commission.

19. On 19 December 2023, a medical certificate was issued for the 15 December 2023. On 22 December 2023, a medical certificate was issued for 8 January 2024 based upon the same procedure said to have been necessary on 15 December 2023. On 4 February 2024, the plaintiff published an article in the “Ritz Herald”, a copy of which is before the Court in the affidavit of the defendant of 21 March 2024.

20. On 8 February 2024, according to material presented by the plaintiff, there is an email confirming admission for a procedure to be performed on 11 March 2024.

21. On 23 February 2024, notwithstanding the earlier orders of the Court, the Court adjourned the proceedings without the medical certificate on the basis of the plaintiff’s ill-health.

22. On 29 February 2024, the mediation in the Fair Work Commission was finalised.

23. On 19 March 2024, at the return of subpoenas relating to the alleged medical condition of the plaintiff, the plaintiff notified the Court that she would seek to set aside the subpoena. Orders were made that any motion to that effect would need to be filed within a week of that date. No motion was ever filed and the reports were ordered to be released.

24. On 21 and 22 March 2024, the Court was informed by the solicitor appearing for the plaintiff that the plaintiff was incapable of providing instructions and that they were contemplating the appointment of a tutor. On 22 March 2024, an application to appoint a tutor was presented, which had not been filed and which was irregular in form.

25. On 24 May 2024, the solicitor representing the plaintiff declared that the plaintiff was “fit to attend to the matter”. The Court ordered the production of documents from Cumberland Hospital. On 5 July 2024, the plaintiff failed to file a submission, required by orders of the Court, in relation to the motions.

26. On 26 July 2024, the Court was informed by the solicitor representing the plaintiff that the plaintiff sought to file contempt of court proceedings against the defendant. The Court informed the plaintiff’s representative that such proceedings would not interfere with the progress of the matter before the Court and required strict adherence to the Rules and forms for such procedure.

27. The Court ordered that any application for contempt or any other interlocutory application was required to be filed by 31 July 2024. Orders were made seeking to regularise the proceedings. The Court ordered that the plaintiff file any affidavit upon which she sought to rely for the purpose of any interlocutory application by 2 August 2024.

28. The defendant served a Notice to Produce in relation to certain documents to be answered by 29 July 2024. By 2 August 2024, no interlocutory application or affidavit had been filed and there was no response to the Notice to Produce.

29. On 12 August 2024, a further complaint was made as to the failure by the plaintiff to respond to the notice to produce. The matter was listed for hearing on interlocutory applications on 14 August 2024. The foregoing date was set by consent as to availability.

30. On 12 August 2024, application was made by the plaintiff to adjourn the hearing listed for the 14 and 15 August 2024. The application for adjournment was listed for 14 August 2024.

31. On 14 August 2024, the Court refused the application for adjournment of the hearing and vacation of the hearing over the next two days. The interlocutory hearing continued over two days. On the last day, namely 16 August 2024, the plaintiff provided what she described as “confidential and restricted access” to documents from Cumberland Hospital. This was made available to the defendant in Court for a short period.

32. On 6 September 2024, the plaintiff filed an affidavit with copies of the documents contained in the “confidential and restricted access” documents.

33. The Court has not been provided with any material supporting the submission earlier made, that the plaintiff was so unwell or sufficiently ill to warrant consideration of the appointment of a tutor. Further, the material before the Court indicates that at times when the Court was informed that the plaintiff was too unwell to attend Court and proceed with the matters before the Court, the plaintiff was either involved in hearings in other courts or tribunals or preparing and filing material for said courts and tribunals.

34. Submissions filed by the solicitor for the plaintiff on 5 December 2024 indicate that on 15 December 2023, the plaintiff was admitted to Sydney Southwest Private Hospital, three days earlier (12 December), for a left hemithyroidectomy, the basis for which was Ex NE-1 of the affidavit filed in relation to the material. The submission suggests that the plaintiff was not medically or mentally fit to provide instructions. Moreover, the medical records indicate that the hemithyroidectomy was performed as day surgery and the plaintiff was not admitted as an inpatient to hospital.

35. However, as earlier indicated, the medical records disclose that on 30 November 2023, there had been no change or urgency associated with the thyroid issues said to exist in relation to the plaintiff and the earlier report found the thyroid to be “benign”. As already stated, the matter had been listed on 15 December 2023 by the Court by agreement between the parties.

36. The submission on behalf of the plaintiff is to the effect that the plaintiff “was not medically or mentally fit to provide instructions”. There is no evidence before the Court that the plaintiff was not mentally nor medically fit to provide instructions, even if there were a hemithyroidectomy on 12 December 2023, i.e. three days earlier than the directions hearing on 15 December 2023.

37. On 23 February 2024, the matter was listed again before the Court for directions. According to the plaintiff’s submission, the plaintiff was “suffering from psychological issues including severe depression, anxiety and stress” apparently associated with the conduct of these proceedings (which she had commenced) and other external stressors. There is no medical evidence supporting the submission that the plaintiff was incapable of attending Court or providing instructions. The only “evidence” suggesting any such difficulty is that the plaintiff’s husband called police to conduct a welfare check on the plaintiff at her residence on 15 February 2024.

38. On 22 March 2024, it is said that the plaintiff was suffering from stress induced stomach ulcers which required “surgery for stomach tissue lacerations on 11 March 2024” from which, it is said, the plaintiff spent “a few weeks recovering and was unable to provide instructions”. An affidavit of the plaintiff’s husband was produced which went to the application, ultimately withdrawn, for the appointment of a tutor and in which the plaintiff’s husband referred to the stress and other medical conditions.

39. No medical evidence was adduced in support of these latter-related issues. Indeed, as earlier indicated, the medical report of 30 November 2023, which details the size and thickness of the thyroid lobes, reports no change from the time at which the previous study had been performed, namely 10 July 2023. Further, the report suggests that the lobe did not appear significantly changed since the previous October.

40. The report of 30 November suggests that the lobe did not appear significantly changed since October. The medical report in October recorded that the plaintiff was on sleep medication (Melatonin) and Yasmin which is a synthetic progestin used for birth control and menopause.

41. Notwithstanding the fact that the plaintiff felt that her thyroid had enlarged, the medical reports are to the contrary. It is true that there is medical evidence to suggest that there was a medical appointment on 12 December 2023 for a left hemithyroidectomy, which was done as day surgery. The appointment was made on 4 December 2023. No notice was given to the Court of any unavailability, and it was unnecessary for the plaintiff to attend Court on 15 December in order for the matter to proceed.

42. Before the Court is a supplementary report attached to the affidavit of the plaintiff’s husband, which report was sent to Bartier Perry, a law firm, and related to Personal Injury Commission and Federal Circuit Court proceedings. That report indicates that on 23 August 2023, when interviewed, the plaintiff reported no previous psychiatric history. The psychiatric report does not indicate an inability to provide instructions. Nor does it indicate an inability to conduct normal life.

43. Subsequent affidavits have been filed by the plaintiff, but none take the matter any further.

Consideration

44. The plaintiff has failed abysmally to proceed with this matter in a manner that is appropriate. The overriding purpose of the Civil Procedure Act 2005 (NSW), which imposes an obligation on the Court, practitioners and parties, is to “facilitate the just, quick and cheap resolution of the real issues” between the parties. The defendant has had proceedings hanging over her head since 22 September 2023, during which time there has been an abject failure by the plaintiff to proceed with the matter.

45. The alleged defamation, assuming for present purposes that the publication is untrue and that it occurred, is not so significant that any party should be forced to endure 18 months without any process or progress. The plaintiff has failed to appear on a number of occasions; failed to abide by orders of the Court; failed to abide by timetables which were set by agreement; and the matter has not proceeded beyond the filing of the defence in November 2023. The plaintiff, through her legal representative, seems to have misled the Court as to her state: claiming malignancy; claiming an incapacity which did not eventuate or was not extant or for which there is no evidence.

46. While each case depends upon its own facts, the Court is required to abide by the overriding purpose as previously described. I have considered the explanations offered for the delay and the failure to abide by the steps ordered by the Court.

47. Each of those steps was ordered having taken into account the agreement as to the timetable ordered. The explanations that have been given do not withstand scrutiny.

48. That the plaintiff has had medical issues is evidenced. However, that which is not evidenced is that the medical issues have prevented the plaintiff from providing instructions, notwithstanding the submission that was put to the Court in relation thereto. Further, the medical issues do not, on examination, provide a sufficient basis for a delay in the proceedings from November 2023.

49. The principles applicable to the striking out of proceedings on the basis of a want of due despatch, pursuant to UCPR r 12.7, are well known. Defamation proceedings, in particular, are intended to be dealt with expeditiously. No proper excuse has been given for the delay in the provision of documents, in the filing of applications, and in dealing with the matters before the Court.

50. Moreover, the distinct impression from the applications that have been made to the Court by the plaintiff is that the plaintiff is more concerned with ensuring that the proceedings remain on foot, without being resolved, than with the resolution of the matters or the determination of the respective rights of the parties to the litigation. The parties have shown a belligerent, obsessive predisposition to further a petty dispute beyond that which is reasonable. Affidavits were continued to be filed beyond the hearing without leave and as late as today.

Conclusion

51. I consider that the Court has been fundamentally misled about the state of health of the plaintiff. I do not, with that statement, attribute any fault to the solicitors acting on the plaintiff’s behalf, but I do consider that the plaintiff has failed to progress the proceedings before the Court in circumstances where other proceedings in which the plaintiff was involved were able to be progressed without any delay associated with the medical issues raised in relation to these proceedings.

52. For these reasons, I consider that the proceedings have not been prosecuted with due despatch. The Court makes the following orders:

1. Proceedings be dismissed.

2. The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.

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Decision last updated: 14 March 2025