Hordern v State of New South Wales

[2018] NSWSC 1515

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hordern v State of New South Wales [2018] NSWSC 1515

Hearing dates:

2 October 2018

Date of orders:

02 October 2018

Decision date:

02 October 2018

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The plaintiff’s amended statement of claim filed 31 August 2017 is struck out.

 

(2) Leave is granted to the plaintiff to replead paragraphs 1 to 6, 15 to 20, 24 to 29, 56 (except for 56.7) and 57 that were pleaded in the amended statement of claim filed 31 August 2017.

 

(3) The plaintiff is file and serve a further amended statement of claim by 4.00 pm on 30 October 2018.

 

(4) The first defendant’s notice of motion filed 12 October 2017 is dismissed.

 

(5) The second defendant’s notice of motion filed 13 October 2017 is dismissed.

 

(6) The plaintiff’s notice of motion filed 25 September 2018 is dismissed.

 

(7) The plaintiff is to pay the defendants’ costs of the notices of motion 25 September 2018, 12 October 2017 and 13 October 2017.

 (8) The matter is stood over for directions before the Registrar on 9 November 2018 at 9.00 am.

Catchwords:

CIVIL PROCEDURE – Statement of claim – Amendments – No point of principle

Legislation Cited:

Civil Liability Act 2005 (NSW), s 21
Felon (Civil Proceedings) Act 1991 (NSW), ss 4 and 5
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 31.36

Cases Cited:

Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Category:

Procedural and other rulings

Parties:

Timothy Eli Hordern (Plaintiff)
State of New South Wales (First Defendant)
GEO Group Australia Pty Ltd (Second Defendant)

Representation:

Counsel:
Self-represented (Plaintiff)
S Woods (First Defendant)
J Raftery (Second Defendant)

  Solicitors:
Self-represented (Plaintiff)
Crown Solicitors of NSW (First Defendant)
Legal Manager, GEO Group Australia Pty Ltd (Second Defendant)

File Number(s):

2013/227373

Publication restriction:

Nil

EX TEMPORE Judgment

1. HER HONOUR: There are three notices of motion before the Court.

2. One by the first defendant filed 12 October 2017. One by the second defendant filed 13 October 2017. On 31 August 2017, Davies J granted leave to the plaintiff to file an amended statement of claim. Leave was granted pursuant to ss 4 and 5 of the Felon (Civil Proceedings) Act 1991 (NSW) and limited to the causes of action pleaded against the first and second defendants only. As leave was not granted for the plaintiff to plead as against the third defendant the whole cause of action against Justice Health & Forensic Mental Health Network is struck out.

3. The motions by the defendants basically seek that the proceedings against them be dismissed as pursuant to Rule 31.36(1) and (2) and rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

4. By notice of motion filed 25 September 2018, the plaintiff seeks an order that the proceedings be adjourned. The plaintiff relied upon his affidavit filed 25 September 2018.

5. The plaintiff is Timothy Eli Hordern. The first defendant is the State of New South Wales. The second defendant GEO Group Australia Pty Ltd.

Background

6. On 22 February 2018, Schmidt J ordered that the plaintiff be referred by the Registrar for pro bono legal assistance for the purpose of contacting a medical practitioner to obtain a medico legal report and listed the notices of motion before me for hearing on 28 February 2018.

7. On 28 February 2018, the plaintiff sought an adjournment. I granted the adjournment and stood both notices of motion over for hearing before me to 7 May 2018.

8. On 7 May 2018, the plaintiff sought a further adjournment. I granted the further adjournment, specially fixed the matter for hearing before me on 2 October 2018 and made the following orders:

“2. If the plaintiff is to seek an adjournment, he is to file a notice of motion on or before 18 September 2018.

3. The plaintiff is to forward to the defendants a copy of the proposed amended statement of claim on or before 18 September 2018.

4. Costs of today are reserved.

5. The matter is to proceed on 2 October 2018 save for exceptional circumstances.

6. The second defendant is to forward a copy of these orders to the plaintiff.”

9. On both these occasions the plaintiff appeared by videolink. Mr S Woods of counsel appeared for the first defendant and Mr Raftery of counsel appeared for the second defendant.

10. On 7 May 2018, the Prothonotary emailed my associate in relation to the pro bono legal assistance. The email reads:

“On 22 February 2018, Schmidt J ordered that Mr Hordern receive pro bono assistance for the purpose of contacting a medical practitioner to obtain a medico-legal report. When referrals are made, we use the Bar Association’s Legal Assistance Referral Service (LARS) to locate a barrister to assist. LARS have indicated that as appointments and payment for reports can only be made by a solicitor and not counsel, LARS contacted the Law Society’s pro bono scheme to see if they could assist. The Law Society has now informed LARS that they cannot access money from the Pro Bono Disbursement Trust Fund to fund a report for Mr Hordern. This is because the trust fund is a reimbursement fund and it is not accessible to fund matters upfront but functions to reimburse practitioners on production of a tax invoice and receipt. If a practitioner was willing to pay for the report on Mr Hordern’s behalf, they could apply to have the payment reimbursed.

At this point in time, a practitioner has not been located that is willing to make payment of the fee on Mr Hordern’s behalf.

…”

11. UCPR 13.4 and 31.36(1) and (2) read:

“13.4 Frivolous and vexatious proceedings

(cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

31.36 Service of experts’ reports in professional negligence claims

(cf SCR Part 14C, rules 1 and 6; DCR Part 28, rule 9B)

(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert’s report that includes an opinion supporting:

(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.

(2) In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert’s report or experts’ reports supporting the claim.

(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.

(4) Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial.

(5) Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion.

(6) Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence:

(a) has been filed and served under subrule (1) or (2), or

(b) has been served pursuant to directions given under subrule (4).”

12. I emphasise that mainly the function of pleadings is to state, with sufficient clarity, the case that has to be met by the defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhill Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287 and 302-3.

13. The plaintiff did not prepare a proposed amended statement of claim. The contents of his affidavit details difficulties he has had obtaining computer access while in prison. However, he could have at the very least drafted a proposed further amended statement in handwriting and then use what computer time he was allocated to type the document.

The amended statement of claim

14. Paragraphs 1 to 4 sets out why the first and second defendants are being sued. Paragraphs 5 and 6 relate to an alleged assault that occurred in prison on 24 April 2013. Leave is granted to replead paragraphs 1 to 6.

15. Paragraph 7 contains an allegation that the plaintiff was transferred unlawfully to Parklea Correctional Centre and that he lodged an appeal in the District Court against the conviction. This paragraph does not give rise to a cause of action and is struck out with no leave granted to replead.

16. Paragraphs 8 and 9 are a stream of consciousness as to what happened in prison. They do not give rise to a cause of action and are struck out with no leave granted to replead.

17. Paragraph 10 is an allegation that the plaintiff suffered post traumatic stress disorder, depression, anxiety and panic attacks as a result of having been transferred to a different prison. This does not give rise to a valid cause of action as there is no recognised duty of care owed to the plaintiff in relation to the transfer of a prisoner. This paragraph is struck out with no leave granted to replead.

18. Paragraph 11 is an allegation that because the plaintiff had to carry his bag to the reception area this caused him “aggravation of existing shoulder injury” and “depression, anxiety and panic attacks”. This paragraph is struck out with no leave granted to replead.

19. Paragraph 12 has no relevance to any pleaded cause of action. It is struck out with no leave granted to replead.

20. Paragraph 13 does not advance the pleading and is struck out with no leave granted to replead.

21. Paragraph 14 relates to medical negligence. The plaintiff was not granted leave to join Justice Health & Forensic Mental Health Network as a defendant. It is struck out with no leave granted to replead.

22. Paragraphs 15 to 20 relate to an alleged assault that occurred on 24 April 2013. These events would give rise to a cause of action if properly pleaded. Leave is granted to replead paragraphs 15 to 20.

23. The allegations set out in paragraphs 21 to 23 have no relevance or relationship to any known cause of action. They are struck out with no leave granted to replead.

24. Paragraphs 24 to 29 also relate to an alleged assault that occurred on 8 March 2013. These paragraphs are struck out with no leave granted to replead.

25. Paragraph 30 relates to the medical negligence claim. The plaintiff was not granted leave to join Justice Health & Forensic Mental Health Network as a defendant. Paragraph 30 is struck out with no leave granted to replead.

26. Paragraphs 31 to 49 plead no known cause of action and have no reasonable prospects of success. These paragraphs are struck out with no leave granted to replead.

27. Paragraphs 50 to 52, do not give rise to any cause of action. These paragraphs are struck out with no leave granted to replead.

28. Paragraph 53 alleges negligence and abuse of process arising from the alleged lack of computer access. Again, it raises no cause of action. This paragraph is struck out. Leave is not granted to replead.

29. Paragraphs 56 concerns damages. Leave is granted to replead this paragraph other than 56.7. In 56.7 the plaintiff makes a claim for “unnecessary time spent in custody”. This does not flow from the assault. Hence leave is not granted to replead 56.7.

30. Paragraphs 58 and 59, the plaintiff claims aggravated and exemplary damages. Section 21 of the Civil Liability Act 2005 (NSW) does not permit those types of aggravated or exemplary damages. Section 21 of the Civil Liability Act reads:

“In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.”

31. Paragraphs 58 and 59 are struck out with no leave granted to replead.

32. Paragraphs 60 to 86 relate to the proposed third defendant. As leave was not granted for the plaintiff to plead as against the third defendant the whole cause of action against Justice Health & Forensic Mental Health Network is struck out. Therefore, paragraphs 60 to 86 are struck out with no leave granted to replead.

33. Paragraphs 87 to 143 concern the claim against the first defendant as to what allegedly happened pursuant to the plaintiff’s community corrections order. It does not give rise to a cause of action. These paragraphs are struck out with no leave granted to replead.

34. Leave is given to replead paragraphs 1 to 6; 15 to 20; 24 to 29; 56 (except for 56.7) that were pleaded in the amended statement of claim filed 31 August 2017. The plaintiff is to file and serve a further amended statement of claim by 4.00 pm on 30 October 2018.

35. The defendants seek their costs of the motions as the plaintiff has been granted an indulgence to replead. The plaintiff opposes the orders sought on the basis that he has no funds to pay costs. It is my view that the defendants have allowed the plaintiff numerous adjournments in order for him to replead his amended statement of claim and he has not done so. In these circumstances, the appropriate order is that the plaintiff should pay the defendants’ costs of their motions.

Costs

36. The plaintiff is to pay the defendants’ costs of the notices of motion filed 12 October 2017, 13 October 2017 and 25 September 2018,

37. The first defendant’s notice of motion filed 12 October 2017 is dismissed. The second defendant’s notice of motion filed 13 October 2017 is dismissed. The plaintiff’s notice of motion filed 25 September 2018 is dismissed.

The Court orders that:

(1)   The plaintiff’s amended statement of claim filed 31 August 2017 is struck out.

(2)   Leave is granted to the plaintiff to replead paragraphs 1 to 6, 15 to 20, 24 to 29, 56 (except for 56.7) and 57 that were pleaded in the amended statement of claim filed 31 August 2017.

(3)   The plaintiff is file and serve a further amended statement of claim by 4.00 pm on 30 October 2018.

(4)   The first defendant’s notice of motion filed 12 October 2017 is dismissed.

(5)   The second defendant’s notice of motion filed 13 October 2017 is dismissed.

(6)   The plaintiff’s notice of motion filed 25 September 2018 is dismissed.

(7)   The plaintiff is to pay the defendants’ costs of the notices of motion 25 September 2018, 12 October 2017 and 13 October 2017.

(8)   The matter is stood over for directions before the Registrar on 9 November 2018 at 9.00 am.

**********

Amendments

10 October 2018 - Amendment to Catchwords

Decision last updated: 10 October 2018