Laurence Foreman v Life Style Solutions Pty Ltd

[2019] NSWSC 902

Supreme Court

New South Wales

Medium Neutral Citation:	Laurence Foreman v Life Style Solutions Pty Ltd [2019] NSWSC 902
Hearing dates:	28 May 2019
Decision date:	28 May 2019
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) Pursuant to r 12.7 or r 13.4, the proceedings are dismissed. (2) Plaintiff is ordered to pay the Defendant’s costs.
Catchwords:	CIVIL PROCEDURE — Summary disposal — dismissal of proceedings — want of due despatch - just, quick and cheap resolution of proceedings
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW)
Cases Cited:	Foreman v Life Style Solutions Pty Ltd [2019] NSWSC 332
Category:	Principal judgment
Parties:	Laurence Foreman Life Style Solutions Pty Ltd
Representation:	Counsel: L Robb Vujcic (Defendant)
File Number(s):	2018/00231013
Publication restriction:	Nil

Ex Tempore Judgment

1. HAMILL J: The defendant by notice of motion seeks an order dismissing proceedings commenced (ultimately) by an amended statement of claim filed by the plaintiff, Laurence Foreman. The amended statement of claim set out in its pleadings and particulars in a most discursive and difficult to comprehend way, what is said to be a cause of action. Putting aside some of the very discursive aspects, the thrust of it seemed to be that the plaintiff had suffered damage or loss, as it is put, to his reputation, physical, psychological, mental character and considerable trouble, inconvenience, anxiety and expense, as well as some matters particularised earlier in the pleadings as being some form of sexual harassment and some form of bullying.

2. The defendant is a corporation that, with a number of individuals and third parties, are nominated in the course of those pleadings as being responsible for the alleged sexual harassment and bullying.

3. The matter has been before the Court for a while and on 27 March 2019 in Foreman v Life Style Solutions Pty Ltd [2019] NSWSC 332, RA Hulme J made orders striking out the pleadings.

4. His Honour also made orders for costs and relevantly gave the plaintiff who was then not represented by a lawyer, although it seems he was represented by a friend, the opportunity to obtain pro bono legal assistance. The order his Honour made was that any such application should be brought and made by way of notice of motion by 29 April 2019. That was never done.

5. Meanwhile the matter was stood over to the Registrar’s call over on 7 May 2019 and then in turn adjourned to today’s date and has been referred to me as Duty Judge to consider the defendant’s application to dismiss the statement of claim.

6. The plaintiff was present in Court at the time that RA Hulme J made the orders striking out the pleadings and particulars and has been kept informed by lawyers for the defendant as to what has happened since that time. He has been, on the evidence before me, aware of when the matter was before the Court.

7. He has not appeared today. He has been called outside of this Court and did not appear. He did not appear before the Registrar and there is ample evidence by way of emails from the defendant’s solicitors to him or to an address known to be his, indicating that he was well aware of today’s date.

8. As a consequence of the considerable body of evidence provided to me by the defendant as to the plaintiff’s awareness of the proceedings, and indeed the likely ramifications of the success of this notice of motion, I have taken the view that the matter should proceed ex parte.

9. I have received a number of documents in the form of annexures to affidavits of the solicitor for the defendant. The application is really twofold. The first, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (‘UCPR’) (NSW) is that the proceeding should be dismissed because no reasonable cause of action was disclosed. There is also a suggestion, although it has not been pushed because it is unnecessary to do so, that the proceedings may also be an abuse of the Court’s process and I might add, even though it has not been articulated by the defendant, frivolous or vexatious.

10. In the alternative, the defendant relies on r 12.7 of the UCPR, asserting that the plaintiff has not prosecuted the proceedings with due dispatch. Once again, the rule empowers the Court to dismiss the proceedings.

11. Having heard the helpful submissions of Ms Robb Vujcic, I am satisfied that both parts of the rules are satisfied and that an order dismissing the proceedings should be made.

12. Looking at it in its most basic form, the order made by RA Hulme J striking out the pleadings means that there is literally no cause of action pleaded at all. Whilst that may be an unusual case and counsel for the defendant has not been able to point to a similar case, it is inescapable that those circumstances fall within r 13.4(1)(b), such that no reasonable cause of action is disclosed.

13. At this stage no cause of action is disclosed because since the proceedings were struck out by RA Hulme J, there has been no attempt to plead any alternative case or indeed any case at all. So I am satisfied that that circumstance exists and that the proceedings should be struck out pursuant to that rule.

14. But even assuming for a moment that one could look back and somehow try to divine a cause of action from the amended statement of claim, which essentially no longer exists as a consequence of RA Hulme J’s decision, the fact of the matter is that since his Honour made the orders on 27 March 2019 the plaintiff has done nothing to advance the proceedings in any way and for that reason I would find that the plaintiff has not prosecuted the proceedings with due dispatch.

15. Insofar as this is a discretionary decision to dismiss, I accept the submissions made by Ms Robb Vujcic that there are many factors favouring the exercise of the discretion to dismiss, not least of which are the significant serious allegations made against particular individuals who are not parties to the proceedings and have no opportunity, as things stand, to defend themselves against the allegations made against them.

16. It is also the fact that a reading of all of the material demonstrates that the defendant and its lawyers have conducted themselves in an exemplary fashion and in the great traditions of the legal profession in dealing with an unrepresented litigant. They have time and again attempted to give the plaintiff the opportunity to plead his cause and have consented to adjournments and, most recently, consented to some pro bono assistance being provided to him.

17. The defendant has incurred considerable cost and expense in preparing itself for the various hearings before Registrars and Judges. The fundamental principles at the heart of the Civil Procedure Act2005 (NSW) and the Uniform Civil Procedure Rules regarding the just, quick and cheap resolution of proceedings lead inexorably to the decision that the defendant has made out its case for dismissal.

18. Pursuant to r 12.7 or r 13.4, the proceedings 2018/00231013 between Laurence Foreman as plaintiff and Life Style Solutions Australia Limited as defendant are dismissed.

19. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 15 July 2019