Kiparoglou v Dr Azghandi Pty Ltd (ABN 416 30147 107)
[2021] SADC 76
•30 June 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KIPAROGLOU v DR AZGHANDI PTY LTD (ABN 416 30147 107)
[2021] SADC 76
Reasons for Decision of his Honour Judge Slattery
30 June 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL
The applicant commenced proceedings against the respondent claiming in negligence and for a payment of $33,000. The basis of the application was an allegation that the respondent had failed to provide his medical records upon request.
The respondent denied the allegations in its defence and brings an application for summary disposal of the action pursuant to UCR 143 or for the striking out of the claim pursuant to UCR 70.3(1)(a)-(c). This application is supported by an affidavit of the solicitor, Ms Cliff, who deposes that the medical records had been sent to the applicant on 16 October 2020 by email and in the form of an electronic record on a USB device.
These records sent by the respondent were received by the applicant who does not put these facts in contention. The applicant complains about the sending of the documents to his address. The applicant further seeks to amend his claim to plead a series of allegations and to transfer the action to the Supreme Court.
Held:
1. Action struck out under UCR 143;
2. In the alternative, action struck out pursuant to UCR 70.3(1);
3. Leave to file any amended or substituted pleading refused;
4. Applicant by the respondent to amend the claim refused;
5. Application for leave to transfer the matter to the Supreme Court refused.
District Court Rules 2006 R 193, 117 and 98(2); Uniform Civil Rules 2020 (SA) UCR 70.3(1)(a)-(c), UCR 143 , referred to.
Adelaide Brighton Cement Ltd v Hallet Concrete Pty Ltd and Ors [2020] SASC 161, discussed.
JT Nominees Pty Ltd v Macks (2007) 97 SASR 471; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 ; Tavitian v Commissioner of Highways (2015) 123 SASR 306 ; Jennings v Police (2019) 133 SASR 520, considered.
KIPAROGLOU v DR AZGHANDI PTY LTD (ABN 416 30147 107)
[2021] SADC 76
Civil
Mr Kon Kiparoglou commenced proceedings in this court on 22 December 2020 (case number CIV-20-006499) and his claim comprised a notice of claim and a statement of claim. The respondent to the claim was Dr Mehri Azghandi-Gonabadi, it is now the incorporated medical practice, Dr Azghandi Pty Ltd. The claim details are described as: “Matter Type: Medical Negligence” and a payment of the sum of $33,000 is sought. A statement of claim is attached and it provides as follows:
Part 1
Introduction by Applicant Summary of claim – Summarise the claim in one or two sentences
Many attempts at requesting the applicant’s medical files have been made by the applicant & other GP’s. These have NOT been released to date.
Legal basis of claim – List causes of action/statutory claims
PATIENT ACCESS TO MEDICAL RECORDS
7.1 National Privacy Principle 6 (NPP 6) establishes the general rule that an organisation is required on request to provide an individual with access to personal information held about him or her. This rule applies both in relation to personal information generally and to health information which is defined as:
health information means:
(a) information or an opinion about:
(i) the health or disability (at any time) of an individual; or
(ii) an individual’s expressed wishes about the future provision of health services to him or her; or
(iii) a health service provided, or to be provided, to an individual; that is also personal information; or
(b) other personal information collected to provide, or in providing, a health service; or
(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances.
Part 2
Background/uncontroversial matters
Facts expected to be agreed in separate numbered paragraphs
1. The applicant was a patient of Dr. Mehri Azghandi-GONABADI
2. The applicant has requested on many occasions his medical records be released by Dr. Mehri AzghandiGONABADI.
3. The applicant has been refused or many occasions via various methods of requesting these files.
4. The applicant was recently diagnosed with cervical stenosis & has an impinged spinal cord (07th May 2020) which can result in death or quadriplegia (imminently).
5. The applicant further was diagnosed having C5/6 & C6/7 disc bulges which need replacing & are causing arthritic pains to his lower neck
6. The applicant also has cervical foraminal narrowing impinging on the spinal cord nerve roots which is the cause of his rear right shoulder (sub-scapularis region) pains which further radiates down the right arm all the way down to the hand/fingers.
7. Each specialist visit/consultation costs the applicant circa $1500 - $2000 as the applicant/patient resides in a rural town.
8. The patient records of 2 years are worth at face value $20,000.
9. The patient records of 2 years are worth at medical value $infinity – how does one put a price on life &/or their medical information during a time of medical crisis.
Part 3
Other facts forming the basis of the claim
1. The applicant has on many occasions requested his own patient medical records for ongoing medical requirements. These have not been provided.
2. The applicant has requested that his private health fund medical forms be signed & returned to him via email so that he may claim rebate(s). These have also not been provided.
Part 4
Orders sought
1. Relief as outlined above
2. All medical files as requested to be out onto a USB thumb drive
3. All medical files/information from Dec 2018-Dec 2020
4. Sign 4x HCF Travel & Accomodation rebate claims form (to be provided – if these haven’t been forwarded)
5. PATS (Patients Assistance Travel & Accomodation) Section 1 forms to be completed, signed & emailed back to patient <applicant’s email address provided>
The respondent filed a defence. It provides as follows:
Part 1
Response to background/uncontroversial matters
Set out agreement or disagreement with facts In this Part of the Statement of Claim In matching numbered paragraphs as well as any additional facts expected to be agreed.
1. The Respondent admits the allegations contained in paragraph 1.
2. The Respondent admits the allegations contained in paragraph 2.
3. The Respondent denies the allegations contained in paragraph 3 and says that the medical records of the Applicant other than three specialist reports were released to the Applicant by the Roxby Downs Doctors Surgery.
4. The Respondent denies the allegations in paragraph 4.
5. The Respondent admits that the Applicant was diagnosed with having C5-6 and C6-7 disc bulge but says that all of his conditions and symptoms can be treated conservatively.
6. The Respondent denies paragraph 6.
7. The Respondent does not know and cannot admit the allegations contained in paragraph 7.
8. The Respondent denies the allegations contained in paragraph 8.
9. The Respondent denies the allegations contained in paragraph 9.
Part 2
Response to other facts forming the basis of the claim/defences
1. The Respondent says that Dr Gonabadi is a registered medical practitioner providing medical services at the Roxby Downs Doctors Surgery (RDDS).
2. The Respondent says that RDDS operates and provides medical services in Roxby Downs.
3. The Respondent says that RDDS as practice operator is the owner of all medical records of its patients, including those of the Applicant.
4. The Respondent says that RDDS provided the Applicant with a complete copy of his medical records (except for three letters from specialists), both in hard copy by email dated 16 October 2020 and by USB on or about 16 October 2020.
5. The Respondent says that it does not own any medical records of the Applicant.
6. The Respondent says that Dr Gonabadi signed the Applicant's private health fund medical forms and on 9 December 2020 sent the forms to RDDS as requested by the Applicant.
7. The Respondent says that the Court has no power to make the Orders sought by the Applicant.
8. The Respondent says that the Applicant has not pleaded a cause of action and that this claim should be struck out and/or dismissed by reason that it does not comply with the Rules, is vexatious and /or an abuse of process and does not disclose a reasonable cause of action.
Part 3
Orders sought Response to orders sought in the Statement of Claim.
1. The Respondent says that the Applicant is not entitled to the relief claimed or any relief.
2. That the claim be struck out and/or dismissed for failure to plead a cause of action, is vexatious and/or an abuse of process.
3. That the Applicant pay the Respondent's costs.
This defence puts in issue the refusal of the respondent to make available to the applicant his medical files. It positively pleads that medical records of the applicant other than three specialist reports were released to him both in hard copy via email on 16 October 2020 and by a USB device on or about 16 October 2020. It also pleads that the signed private health fund medical form had been provided and sent to his treating GP at the Roxy Downs Doctors Surgery. These pleas, if factually correct, appear to be a complete answer to the claims of the applicant.
The applicant has also made an application that the name of the respondent be changed to “Dr Azghandi Pty Ltd (ABN 416 301 47107)”. I will assume the success of that application in these reasons.
The respondent now brings an interlocutory application dated 22 April 2021 (FDN 10) which seeks the following orders:
Application Details
This Application is for
Summary Dismissal of the Claim or the striking-out of the Claim of the Applicant
This Application is made under UCR 143 and UCR 70.3(1)(a)-(c) of the Uniform Civil Rules 2020
The above named party seeks the following orders:
1. That the Applicant's action be dismissed pursuant to UCR 143 by reason that the Claim discloses no reasonable cause of action and that the action is frivolous, vexatious or an abuse or process.
2. In the alternative, that the Claim be struck out by reason that it does not comply with the Rules, is frivolous, vexatious or an abuse or process and does not disclose a reasonable cause of action.
3. The Applicant pay the Respondent's costs of the Claim and this Application.
4. That this Application be listed as soon as practicable on the basis identified in the supporting Affidavit.
5. That the Settlement Conference listed for 4 June 2021 at 9:30am be adjourned and await re-listing until this Application is determined.
This Application is made on the grounds set out in the accompanying affidavit sworn by Joanne Cliff on 22/04/2021
Accompanying the application is the affidavit of the solicitor Joanne Cliff dated 22 April 2021 (FDN 12). It is a brief affidavit and it provides as follows:
I, Joanne Cliff, do truly and solemnly affirm that:
1. I am a member of the firm DW Fox Tucker Lawyers and have the care and conduct of this matter on behalf of the Respondent.
2. The Respondent has made application that:
a. The Applicant’s action be dismissed pursuant to UCR 143 by reason that the Claim discloses no reasonable cause of action and that the action is frivolous, vexatious or an abuse of process;
b. In the alternative, that the Claim be struck out by reason that it does not disclose a reasonable cause of action.
3. In support of the application for summary dismissal and strike out, and relevant to vexation and abuse of process, I attach the following documents which form part of the business records of the Respondent or records associated with dealings with the Applicant and sent to the solicitor for the Respondent being:
3.1 Copy of email from DW Fox Tucker Lawyers to the Applicant dated 16 October 2020 exhibited hereto and marked JC-1 which relate to the provision of the medical records the subject of this Claim. The PDF attachment shown in that email is a copy of the applicant’s medical records;
3.2 Copy of the HCF forms signed by Dr Gonabaldi on 30 November 2020 exhibited thereto and marked JC-2 which relate to the completion of the forms the subject of the Claim and their provision; and
3.3 Copy of an email from the Applicant to DW Fox Tucker regarding the receipt of the USB containing the medical records marked JC-3.
4. The Respondent seeks this matter be listed as soon as practicable to the court to avoid further vexation of the Respondent (and its director) by these proceedings, and the further unnecessary expense caused to it caused by these proceedings. It seeks such a listing before the settlement conference listed on 5 June 2021 at 9.30 am.
5. I know the facts deposed to herein of my own knowledge and from instructions from the Respondent.
The respondent’s application is brought under UCR 143 and UCR 70.3(1)(a)-(c). Those two Rules provide as follows:
Part 3—Failure to disclose basis for action or defence or abuse
143.1—Judgment for failure to disclose basis
(1)The Court may grant judgment dismissing an action on the ground that no reasonable cause of action in the case of a claim, or basis for the application in the case of an originating application, is capable of being disclosed.
(2)The Court may grant judgment in favour of an applicant in an action on the ground that no reasonable defence in the case of a claim, or basis to contest the application in the case of an originating application, is capable of being disclosed.
143.2—Judgment for abuse of process
(1)The Court may grant judgment dismissing an action on the ground that it is frivolous, vexatious or an abuse of the process of the Court.
(2)The Court may grant judgment in favour of an applicant in an action on the ground that a defence of or contest to it is frivolous, vexatious or an abuse of the process of the Court.
70.3—Strike out
(1) The Court may strike out all or part of a Claim or pleading if—
(a) it does not comply with these Rules;
(b) it is frivolous, vexatious or an abuse of the process of the Court; or
(c) it does not disclose a reasonable cause of action or defence (as applicable).
(2)If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.
Those Rules, to an extent, mirror R 193, 117 and 98(2) of the District Court Rules 2006.
In Adelaide Brighton Cement Ltd v Hallet Concrete Pty Ltd and Ors,[1] Doyle J considered the operation of these two Rules at [61] et seq. At [61]-[70], Doyle J held as follows:
[1] [2020] SASC 161.
Summary dismissal and striking out: general principles
[61] The grounds upon which the Court may strike out a pleading under UCR 70.3, or summarily dismiss an action under UCR 143 are expressed in similar terms. The grounds for each encompass both (a) a claim, pleading or action that is frivolous, vexatious or an abuse of process and (b) the failure or inability to disclose a reasonable cause of action.[2]
[62] The courts have generally eschewed any attempt to define frivolous and vexatious. While the concepts overlap to some extent, and are sometimes treated as a single compendious concept, the former invites a focus upon whether the claim or issue is worthy of serious attention, whereas the latter invites a focus upon whether the claim or issue is being pursued for the purposes of harassing or vexing the other party.
[63] Abuse of process is a broad concept. It may take a number of different forms, but is usually associated with some improper or collateral purpose. Relevantly in the present context, it will be informed by the overarching obligations of the parties and their lawyers under UCR 3.1, and extend to the pursuit of a claim which does not have a proper basis in light of that rule. The claim might lack a proper basis because it is based upon an assertion for which there is no basis in the material available to the party, which misstates the material upon which it is based, or which extends beyond any assertion for which that material might provide a basis.
[64] As to this last matter, I refer to my earlier articulation (at [26]-[28] above) of the distinction between a pleaded case which is based upon a general inference with a proper foundation, and a pleaded case that involves impermissible fishing or trawling for a case. The latter may be seen as either a species of abuse of process, or the absence of a reasonable basis for the pleaded case.
[65] It has been suggested that abuse of process in this context may include the pursuit of a pleading that does not disclose a reasonable cause of action.[3] However, I consider it unnecessary to dwell on whether abuse of process extends this far given that the failure or inability to disclose a reasonable cause of action is itself a basis for striking out a pleading or summarily dismissing an action.
[66] While the criteria for the exercise of the Court’s power to strike out and summarily dismiss are expressed in similar terms, the difference between the two mechanisms for challenging an applicant’s claim lies in the nature and focus of the challenge. The power to strike out under UCR 70.3 is directed to the applicant’s “Claim or pleading” (with the former defined as the document by which an action is commenced[4]), whereas the power to dismiss is directed to the applicant’s “action” (which is defined to mean a claim in the sense of a proceeding in which the applicant claims a remedy for a cause of action[5]). The focus of the former is thus upon the articulation of the applicant’s case in the relevant document, usually a pleading. And the focus of the latter is upon the applicant’s case itself.
[67] The difference in focus between the two has implications for the use that may be made of evidence in the determination of the applications. In the case of a strike out application, the Court’s consideration of the nature and adequacy of the claim, as disclosed in the pleading itself, may require recourse to a document or documents referred to in the pleading (such as a contract) in order to make sense of the pleading. It may also require consideration of some evidence so as to enable the Court to understand the pleaded allegations in their proper context, and hence expose their inadequacy or their frivolous, vexatious or abusive character. However, it will not ordinarily require any consideration of evidence going to the underlying merits of the applicant’s claim, let alone making findings on that evidence.[6]
[68] In the case of a dismissal application, on the other hand, there will often be greater scope for reliance upon evidence so as to make good the proposition that the applicant’s case itself is deficient in some respect, or is otherwise frivolous, vexatious or an abuse of process.[7] That said, the nature of the exercise will nevertheless differ from that which is undertaken on a summary judgment application. While the difference is difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.
[69] The difference between strike out and dismissal applications also relates to, and explains, the difference in the consequences to which they lead. The former leads to an order that the relevant pleading (or part thereof) be struck out. However, as the conclusion justifying this order is one based upon a deficiency in the pleading, and not necessarily the case itself, the applicant is usually given an opportunity to replead. The latter, on the other hand, because it is predicated upon a defect in the applicant’s case (rather than merely the pleaded articulation of it), leads to an order that the action or proceeding itself be dismissed. Whilst such an order brings the relevant action or proceeding to an end, it does not ordinarily give rise to res judicata or otherwise prevent a fresh claim being brought in appropriate circumstances.[8]
[70] While I have attempted to summarise what I see as the key features of, and differences between, summary judgment, summary dismissal and strike out applications, I accept that in practice the distinctions are often difficult to draw and observe, and there is, quite appropriately, scope for overlap and flexibility in their operation.
[2] A pleading may also be struck out on a third basis, namely that it does not comply with the Uniform Civil Rules.
[3] JT Nominees Pty Ltd v Macks (2007) 97 SASR 471 at [30].
[4] See the definition of “Claim” in UCR 2.1, which cross-refers to UCR 63.1.
[5] “Action” is defined in UCR 2.1 by reference to a “claim”, which is in turn defined in UCR 2.1 in terms that cross-refer to UCR 51.2.
[6] Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 941.
[7] Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944.
[8] Tavitian v Commissioner of Highways (2015) 123 SASR 306 at [20]; although in Jennings v Police (2019) 133 SASR 520 at [31], Kourakis CJ suggested it may do so in some circumstances.
There are some fundamental principles that are to be applied in any application under UCR 143. They are well settled and understood and may be briefly stated without the need for citation of authority. In reaching my decision on this application, I have applied the principles derived from those authorities.
An order dismissing these proceedings under UCR 143 may not be made where it is primarily at odds with the right of any litigant to have a justiciable claim heard and determined in the court. That right is pervasive and a court will in general allow a claim with sufficient merit to be litigated before it. A decision about a claim of sufficient merit is, in general, one to be made with a predisposition to a justiciable claim being heard and determined in the court. This is fundamental to the rights of all citizens and the development of the common law.
A number of things follow. A court will be very cautious about the exercise of this power and any claim that is dismissed in the exercise of the power must be unsustainable and it cannot be cured by amendment. It is often difficult to prescribe a particular test for the exercise of the power which, by its nature, is confined to a narrow range of cases that are truly so bad that they are irredeemable. The court’s conservatism about the exercise of such a plenary power is such that it will not be exercised in a case when a cause of action may be identified by the pleadings, in an argument about those pleadings, or by a judge upon consideration of the arguments. That approach is consistent with the exercise of the judicial function, the development of the common law and the right of citizens to have their disputes heard by and resolved by a judgment of the court. That is the approach that I have adopted here.
As I pointed out to the parties at the time of this application, any power to strike out under UCR 70.3 is directed to the claim or pleading which is the document by which the action is commenced. The power to dismiss is directed to the applicant’s action which is defined to mean the claim which describes the remedy sought. As I also informed the parties, it is necessary to maintain vigilance about the distinction between the operation of the two Rules when referring to any evidence filed in support of the application. A strike-out application is, in the usual course, confined to criticisms of the pleaded case. There is some scope for a reference to a document that may be described as the basis of the claim. The usual example is that of a contract which is said to be breached and which is the basis of an applicant’s claim. If, for example, the contract does not reflect the pleaded case, that contract may be viewed in the context of the application to strike out.
Where there is a dismissal application, there is a greater scope for the court to receive evidence in order to disclose that the claim of the applicant is so wholly deficient or is so vexatious that it constitutes an abuse of the process of the court because it is impossible, for example, to identify a proper justiciable claim between the parties. As Doyle J explained in Adelaide Brighton Cement at [69], the consequences are also different. A strike-out would normally lead to the exercise of the discretion in favour of a responding party to be given an opportunity to replead. The application for dismissal relies upon a defect in the case and if successful, the proceeding itself will be dismissed.
In this instance, I will proceed first upon the basis of UCR 143.
In support of the application, the respondent reads the affidavit of the solicitor Ms Cliff sworn 22 April 2021 (FDN 12). I have set out that affidavit in full earlier in these reasons. In the affidavit, Ms Cliff deposes to the fact that on 16 October 2020, DW Fox Tucker, the solicitors for the respondent, emailed to Mr Kiparoglou a copy of the medical records that he sought as the basis of his claim and which is reflected in his pleaded case. The first exhibit to the affidavit is an email from Susy Daly to Mr Kiparoglou at his email address with a copy to Ms Cliff dated 16 October 2020. The content of this email is now set out:
From: Susy Daly
Sent: Friday 16 October 2020 4:11 pm
To: <Mr Kiparoglou>
Cc: Joanne Cliff
Subject: Kon Kiparoglou v Roxy Downs Doctors Surgery
Attachments: Medical records for Mr Kon Kiparoglou – 16.10.20.pdf
Dear Mr Kiparoglou,
Please find attached your Medical Records.
We will forward same to you Express Post tonight on a USB, as requested by you.
Kind regards,
DW Fox Tucker
Susy Daly
The email discloses that the firm of solicitors has sent to Mr Kiparoglou by email a copy of his medical records. The firm of solicitors also sent to Mr Kiparoglou a copy of those records on a USB device via an express post envelope, as requested by him. It discloses that Mr Kiparoglou has been sent a copy of the medical records that he seeks and about which he now complains as the basis of his claim.
The second exhibit to the affidavit comprises copies of the HCF forms signed by Dr Azghandi-Gonabadi on 30 November 2020. Each of these forms involve an application to claim travel and accommodation expenses for Mr Kiparoglou and are all dated 30 November 2020. Each concern a consultation by Mr Kiparoglou with a medical specialist in Adelaide and each claims for accommodation expenses at the Arkaba Hotel. They are all dated 30 November 2020. It appears that Mr Kiparoglou came to Adelaide and saw four medical specialists.
The third exhibit is an email from the applicant to Ms Cliff, dated 25 October 2020. It provides as follows:
From: <Mr Kiparoglou>
Sent: Sunday 25 October 2020 2:29 pm
To: Joanne Cliff; Susy Daly
Subject: Kon Kiparoglou v Roxy Downs Doctors Surgery – CIV-20-003465
Dear Joanne,
I have attached some pictures of a letter & USB device sent to my home address…
I am a little confused & I have made this point very very clear to you & as a long time litigator & lawyer you’re more than knowledgeable when it comes to the law…
How, who & when gave anyone any permission to disclose my PRIVATE & CONFIDENTIAL medical records?
You’re having a lot of trouble hearing & understanding me…
RDDS are NOT my doctors or GP’s, Dr. M. GONABADI is my Doctor & only she has Doctor-patient privilege to my medical information.
When this is all done & dusted, expect a civil law suit against DWFT & yourself.
Further to this if you would like to send me mail (for whatever reason) then my postal address is <ADDRESS>.
The photograph accompanying the email is of the express post envelope addressed to Mr Kiparoglou and also the USB device sent to Mr Kiparoglou and referred to in the email from the firm of solicitors of 16 October 2020, to which I have earlier made reference. In the hearing before me, Mr Kiparoglou did not put in issue any of this evidence that he had received these medical records and that he had responded to the solicitor Ms Cliff in his email of 25 October 2020.
As I have earlier described, the claim of the applicant is for provision of his medical records. I am satisfied, and it is not put in contention by Mr Kiparoglou, that these medical records have been sent to him by email and in a letter accompanied by a USB device. I am also satisfied that he has been sent a copy of the HCF application to claim travel and accommodation expenses forms and he has not put in issue his receipt of those documents.
In its submissions in support of its application, the respondent canvassed the amounts of the claim and then what appears to be the two claims of the applicant. The first, that many requests have been made by the applicant to obtain his medical files and these have not been released to him. The respondent then canvassed the contents of Part 2, background/uncontroversial matters in his claim which I have earlier set out in full. The respondent submitted that the claim discloses no reasonable cause of action and is vexatious because it is an abuse having regard to the facts as they are known and which are not in contest between the parties. The respondent submits, correctly in my view, that these proceedings are intended to vex the respondent because by no later than October 2020, the applicant had received the materials he sought from the doctor’s file. He has also received the HCF form that I have earlier described. The exchange of emails bears out the correctness of that view.
The respondent therefore submits that these proceedings can have no utility or purpose because the applicant has, by the date of commencement (20 December 2020), already received everything that he seeks in these proceedings. They are therefore an abuse of process and are vexatious.
Mr Kiparoglou made submissions in response and I have taken them all into account in reaching my decision.
The respondent also addressed the late application by the applicant to strike out the interlocutory application of 22 April 2021 to amend the claim form dated 23 April 2021 to add a second respondent and to transfer the claim to the Supreme Court. The content of the proposed pleading is as follow:
Part 1
Introduction by Applicant
The applicant was the respondents patient, the applicant was diagnosed with a life threatening &/or debilitating medical condition. The respondents failed to provide in a timely manner his medical files, a formal written notice outlining any reasons as to why she thought she could no longer treat him. The respondent further without any permission expressed nor implied divulged the applicant's private medical information to the courts, SAPOL on various occasions.
1. Acts endangering life &/or causing serious risk to life
2. Assault by way of omission
3. Serious assault by way of omission
4. Further Acts endangering life &/or causing serious risk by eliminating USA VISA successful application
Part 2
Background/uncontroversial matters
1. The respondent previously worked at the Royal Adelaide Hospital (prior to Dec 2018)
2. The respondent to some extent had moved to Roxby Downs & started practicing there due to an affiliation with Dr. Nirmal GREWAL from the RAH
3. The respondent was the applicants doctor (GP) from Dec 2018 up until ??06th July 2020??
4. Circa May 2020 the applicant was diagnosed with a life threatening &/or debilitating medical condition
5. According to the respondent the patient-doctor relationship ended on the 06th July 2020 (no evidence of any such entitlements has be shown/provided)
6. The applicant had NOT been told that the patient-doctor relationship had ended at any time directly nor had the applicant received any formal written explanation(s) to the why.
7. If the relationship had ended on the 06th July 2020, the respondent failed to formally provide this to the applicant by the 08th July 2020 @ 4:15PM.
8. Since the respondent "allegedly" stopped the doctor-patient relationship on or circa 06th July 2020 the respondent is legally no longer privileged to the applicants medical information apart from keeping it for the purpose to provide it to the next GP &/or to the patient directly
9. Since the respondent "allegedly" stopped the doctor-patient relationship on the 06th July 2020, the respondent has no legal right(s) to make any assumptions, opinions, diagnosis etc about the applicants medical conditions - after all she did "end" the relationship - so did all her legal rights to any medical opinions etc.
10. The applicant made an online appointment at 3am on the 08th July 2020 to seek a medical certificate as he was in agony/pain due to his medical condition.
11. The respondent failed to formally end the doctor-patient relationship with the applicant on the 08th July 2020 as required within the guidelines for GP's &/or medical practitioners (i.e. in writing & any reasons explaining why). The respondent had 6 - 8 hours to do so on the 08th July 2020.
12. The applicant was subsequently arrested & seriously assaulted & his life was in serious danger too by police given the medical condition the applicant was & still is having.
Part 3
Other facts forming the basis of the claim
1. The applicant made an appointment to see his doctor on the 08th July 2020 to obtain a medical certificate
2. The respondent failed to formally inform her patient that she no longer wanted to see him (either that day 08th July 2020, any time prior or after) as required by the medical association - Formally in writing & outlining any reasons of why
3. The respondent failed to in a timely manner provide the applicant his medical files (in fact under the law, the respondent has NOT provided any medical files to date).
4. The respondent on the 23rd July 2020 divulged private & confidential medical information to the courts & to SAPOL. There was NO permission given nor implied by the applicant.
5. The respondent further provided misleading medical information to the courts & to SAPOL to where the respondent had NO LEGAL medical authority to be divulging any opinions regarding the applicants medical condition
6. The respondent further without the applicants implied or expressed permission further divulged medical information to RDDS (Roxby Downs Doctors Surgery).
7. The respondent further without the applicants implied or expressed permission further divulged medical information to Teresa HODGETTS
8. The respondent further without the applicants implied or expressed permission further divulged medical information to Nirmal GREWAL
9. The respondent was without any implied nor expressed permission divulging the applicants private medical files, information & appointments to SAPOL - more correctly FANTINEL
10. FANTINEL, was an informant to a summary offence criminal matter which was then in preliminary proceedings
11. FANTINEL along with other SAPOL members had provided FALSE EVIDENCE & DISCLOSURE
12. FANTINEL & other SAPOL members given that they had provided the false evidence & disclosure were under the law "causing serious risk to life &/or endangering life" - This is a serious offence
13. The said SAPOL member(s) could not allow any medical information pertaining to the applicants condition to be entered into the court room proceedings
14. Since the respondent was illegally providing SAPOL & the courts with private & privileged patient-doctor medical information the respondent conspired with others to have the applicant arrested & did so knowing that she could put the applicants life in serious "danger" to where further injury to his already existing medical condition could have been created - risk of serious harm &/or endangering life.
15. Since the respondent conspired with SAPOL & the courts & further to cover the act(s) of divulging medical information, the applicant was arrested this has now left the applicant with zero possibility to obtain a USA VISA so he can get an urgent surgical procedure which can ultimately save his life &/or to where the applicant can enjoy the remainder of his life without the stress/worry of one day being suddenly paralysed
16. On the 13th Aug 2020 the applicant suffered/experienced a medical episode due to his recently then discovered condition. This was a very serious debilitating episode that could have left the applicant paralysed to some degree (A form of plegia - worse case quadriplegia)
17. The respondent was careless in her actions & with regards to her patients condition & needs
18. The respondent had a duty of care to provide the applicant with a reasonable expectation to "formally end" any patient-doctor relationship
19. The respondent had a duty of care to provide the applicant with "ALL" his medical files within a reasonable amount of time if the respondent as alleged ended the "relationship" on the 06th July 2020
20. If the relationship did end on the 06th July 2020, its only logical & reasonable that the applicant would have collected his medical files that day ( The applicant did have an appointment with the respondent that day). The applicant DID NOT collect any medical files, he was under NO reasonable assumption that anything was problematic with the patient-doctor relationship).
21. The respondent failed to do so because she was hiding the truth about his true medical condition for the sole purpose of the SAPOL members & the courts & all the legal issues they would get themselves into.
Part 4
Orders sought
1. Relief sought $2,000,000.00 DR. AZGHANDI PTY LTD (ABN 41630147107)
2. Relief sought $2,000,000.00 Mehri Azghandi GONABADI
When viewed in its totality, Part 1 of the proposed amended pleading purports to allege against a doctor, acts endangering life, assault by way of omission, serious assault by way of omission and further and other acts endangering life or causing serious harm. A number of these claims are unknown to the law. When Part 2, which contains the background uncontroversial matters is read, there is no connection identifiable between Part 1 and Part 2. It is a prolix, rambling, meaningless discourse.
Part 3 purports to be a plea of other facts forming the basis of the claims. It alleges, for example, at paragraph 11 that persons including members of the South Australian Police, provided false evidence and disclosure although it is not clear to what such disclosure pertains. It is again a prolix rambling and meaningless discourse. The pleading is almost impossible to understand. A separate claim has been made by Mr Kiparoglou against the State of South Australia in Supreme Court Action CIV-20-003469. That pleading has been struck out. It was the subject of a judgment of Judge Dart, a Master of the Supreme Court of South Australia of 25 March 2021. Portions of that judgment shed some light on the confused nature of the proposed pleading.
The pertinent paragraphs of that judgment are as follows:
Background
[2] On 2 October 2018 the applicant was driving a motor vehicle near Roxby Downs and was stopped by officers from SAPOL. He was issued with a speeding fine. It was alleged that the applicant was driving at a speed of 113kph in a 100kph zone. The applicant elected to be prosecuted, rather than expiate the offence. The claims of the applicant arise from the circumstances of the prosecution. The allegations are that the prosecution was dishonest and that false affidavits were used in the prosecution.
[3] The matter proceeded in the Magistrate's Court; first at Roxby Downs and subsequently at Port Augusta. This claim was instituted before the prosecution in the Magistrate's Court was finalised. Initially damages in the amount of $500,001.99 were claimed. There have been five versions of the statement of claim. It is the fifth version of the statement of claim1 that was the subject of the most recent interlocutory application2 of the respondent. The amount now claimed is $12,150,181.50.
[4] The statement of claim is difficult to follow. The legal basis of the claim is stated in the preamble to be:
Absolute Liability common/tort law & criminal law, Negligence &/or Personal Injury due to false affidavits & disclosure to where the applicant was pointlessly stripped of money/funds & time due to the necessity of needing to spend it on Vexatious, Frivolous & Malicious long distance court attendances & highly expensive legal advice for where there were NO valid legal reasons to do so given the aforementioned false evidence & disclosure produced by the respondents to the allegations brought forth in MCPAU-19- 1135.
All this, whilst the applicant was inadvertently & unknowingly medically ill & having of a serious medical condition which could seriously debilitate (a form of paralysis such as quadriplegia) &/or cause death & where surgical intervention was required but couldn’t be obtained due to the respondents & its interested parties unlawful attempt to prosecute on false disclosure & affidavits. The respondents & all of its interested parties put the life of the applicant in serious risk of harm &/or being endangered & being reckless/indifferent in doing so - S.A. Criminal Law Consolidation Act of 1935, Part 3, 1 Filed 4 March 2021, FDN26. 2 Filed 2 March 2021, FDN25. 3 Revised Claim filed 4 March 2021, FDN26. 2 Division 7A, Section 29 (Acts endangering life or creating risk of serious harm), Subsection (1)(a) & (1)(b), (2)(a) & (2)(b) & (3)(a) & (3)(b).
[5] In the claim itself it is pleaded that:
1. Kon KIPAROGLOU was pulled over by FANTINEL & STARKEY on the 02nd Oct 2018 @ approx. 2:05PM
2. A speeding fine was issued (110 KM – 119KM speeding offence bracket).
3. The defendant KIPAROGLOU elected for the matter to be prosecuted.
4. SAPOL Prosecutions unfortunately from here on in did NOT comply as they should of & the list is very very long as to all the illegal activities that transpired.
5. In a nut shell from the very beginning of the criminal litigation MCPAU-19-1135 the applicant had received nothing but false disclosure & affidavits. Further the applicant to this litigation was denied exculpatory evidence.
6. Multiple instances of creating serious risk of harm &/or endangering life whilst having a total disregard &/or being indifferent to the applicant’s life &/or well-being.
The respondent’s application
[7] The application of the respondent is made pursuant to r 70.3 of the Uniform Civil Rules 2020, which provides as follows:
70.3—Strike out
(1) The Court may strike out all or part of a Claim or pleading if—
(a) it does not comply with these Rules;
(b) it is frivolous, vexatious or an abuse of the process of the Court; or
(c) it does not disclose a reasonable cause of action or defence (as applicable).
(2) If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.
[11] It is generally accepted that no duty of care arises in the conduct of a criminal prosecution. In Cran v State of New South Wales the question of a duty of care was considered by the Court of Appeal in New South Wales. Santow JA said:
Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by Police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. This is so though the decision is itself ministerial. As Ipp JA explains, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity.
[12] The complaints about alleged dishonesty in respect of the prosecution are best understood to be an allegation of malicious prosecution. There are a number of relevant authorities. One is A v State of New South Wales & Anor, a judgment of the High Court. In the principal judgment the High Court said:
This appeal raises issues concerning two of the four elements of the tort of malicious prosecution. For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause.
[16] The claim in relation to personal injury is vexatious. A claim may be vexatious where it is difficult or impossible to understand or follow. That is the case here. There is no proper causal link pleaded between the injury the applicant says he has and any conduct of a SAPOL officer or any other party for which the respondent would be liable. Nor is it likely such a link exists.
[17] Often it is appropriate, when there is a strikeout application, to grant permission to re-plead. In this matter, however, it needs to be recognised that this is the fifth attempt by the applicant to plead a claim. There appears to be no realistic prospect of the applicant being able to properly plead a claim of the type presently before the Court. There are fatal flaws in relation to both aspects of the claim which cannot be overcome.
An appeal from the judgment of Judge Dart was dismissed by Parker J on 29 June 2021.
Part 3 of the proposed amended pleading purports to claim damage arising (now) from a failure to inform Mr Kiparoglou of the cessation of the doctor/patient relationship. Alternatively, he complains that the doctor/patient relationship between he and the respondent was not terminated correctly.
Mr Kiparoglou then repeats the alleged failures to supply medical files which is factually incorrect. Neither allegation can be the basis of the claim for damages because his demand for his medical file was acceded to by the doctor.
There are then allegations made of the dissemination of these medical files to a number of persons and to the members of SAPOL. The members of SAPOL mentioned in these pleadings are the same persons named in the Supreme Court proceedings that have now been struck out.
There is no factual basis set out for these pleadings in [4]-[15] of Part 3 of the proposed amended statement of claim. Then in [16], the applicant Mr Kiparoglou pleads a medical episode which is not factually causally linked to anything done by the respondent.
The applicant Mr Kiparoglou then returns to the pleas about the failure of the respondent to properly end the doctor/patient relationship which has already occurred. He finally alleges that this occurred because of the respondent was hiding the truth about his true medical condition. This allegation is made, as are all the allegations in Parts 2 and 3 of the proposed amended pleading, without any factual basis. The only pleading which could potentially raise any issue reminiscent of a cause of action is [17] of the proposed claim in which Mr Kiparoglou alleges that the respondent doctor was careless in her actions and with regard to her patient’s condition and needs. However, on the basis of the pleadings, this event took place on 13 August 2020 which was after the doctor/patient relationship had ended on 6 July 2020, the factual basis of which is set out in [19] of the proposed pleading. Therefore, following the termination of the doctor/patient relationship, it could not be said that the respondent was in any way guilty of a breach of duty as a medical practitioner in affording treatment and care to the applicant. Rather, any allegation must be connected to the question of the delivery up of the medical files which Mr Kiparoglou now concedes has taken place. Therefore, there is no factual or legal basis for the plea. It is also bad for the same reasons. The whole pleading is irredeemable.
I would not allow the application for amendment based upon the content of that material.
Turning then to the application of R 143, I am satisfied that this proposed pleading fails to disclose any reasonable cause of action and I am satisfied that no reasonable cause of action is capable of being disclosed. I grant the application of the respondent.
I am also of the view that the proceedings are, for all of the same reasons, an abuse of process. I am satisfied that the only intention of the applicant in bringing these proceedings is to vex the doctor involved and to continue to vex her. The proceedings are frivolous and vexatious; they are an abuse of process.
If I am wrong about my view, I would strike out the whole of the applicant’s claim because I am satisfied that it does not comply with the rules of pleadings, it is frivolous, vexatious or an abuse of the process of the court for the reasons I have given and it does not disclose a reasonable cause of action. Notwithstanding the orders that I would make under R 70.3(1)(a), (b) and (c), I would not give leave to the applicant to replead the statement of claim either in the form proposed. I would for the same reason refuse the application to join a further party. This is because I am satisfied that there is no claim which could be pleaded which could not be described as frivolous. The use of the proceedings is intended to vex the respondent. It is an abuse of process. In the exercise of my discretion I would not grant leave to file any amended or substituted document rectifying the pleadings.
The action is dismissed. I will hear the parties further on the issue of costs and any consequential orders.
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