Pantel v Northern Sydney Local Health District - [2016] NSWSC 602

Supreme Court

New South Wales

Medium Neutral Citation: Pantel v Northern Sydney Local Health District [2016] NSWSC 602
Hearing dates: 6 May 2016
Date of orders: 06 May 2016
Decision date: 06 May 2016
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. The proceedings be dismissed for breach of r 31.36 of the Uniform Civil Procedure Rules 2005 (NSW).
2. The plaintiff is to pay the defendant’s costs of the proceedings, including the defendant’s motion, on an ordinary basis, however, such order to be stayed and only to become enforceable if the plaintiff re-commences these proceedings or otherwise commences proceedings seeking the same or similar relief in respect of the same cause of action.

Catchwords:
PRACTICE AND PROCEDURE – notice of motion - claim against defendant for professional negligence – no expert’s report pursuant to r 31.36 of the UCPR – unrepresented litigant - proceedings dismissed
COSTS – costs to follow the cause – plaintiff does not seek enforcement of costs order – costs order stayed
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Category: Principal judgment
Parties: Michael Pantel (Plaintiff)
Hornsby Hospital Mental Health Services (Defendant)
Representation: Counsel:
Ms N Pantel (Tutor for the Plaintiff)
Mr B Watts (Defendant)

File Number(s): 2014/00328843
Publication restriction: None

EX TEMPORE Judgment

By Notice of Motion filed in the Registry of this Court on 22 September 2015, the defendant, the Northern Sydney Local Health District, seeks orders dismissing proceedings filed against it by Michael Pantel, the plaintiff.
It is necessary to go into some detail as to the overall history of the matter as this is of direct relevance to the determination of the Notice of Motion.
The proceedings before the Court were first commenced in 2014 by the filing of a Statement of Claim nominating two plaintiffs, being the current plaintiff, Michael Pantel, and the second plaintiff, Natalie Pantel, and naming the current defendant as the first defendant together with a number of named doctors as subsequent defendants.
That initial summons was dismissed or struck out because neither the plaintiff nor Ms Pantel appeared to prosecute it.
On 17 February 2015 the plaintiff and Ms Pantel filed a Notice of Motion seeking to re-open the proceedings. The notice of motion came before the court on 3 March 2015 and the court made orders reinstating the proceedings with an order for the filing of a Statement of Claim by 2 April 2015 nominating simply the current defendant as the defendant.
The Statement of Claim was subsequently filed on 2 April 2015, although it has been replaced by a Further Amended Statement of Claim, referred to as the Amended Statement of Claim filed on 24 June 2015.
The plaintiff was not represented, it would appear, at the time of the filing of either the Statement of Claim on 2 April 2015 or the Amended Statement of Claim filed on 24 June 2015. It is evident from consideration of the pleadings and particulars that they have not been drafted with the benefit and the assistance of a legal representative.
Part of the defendant’s complaint goes to the nature of the Statement of Claim and specifically the difficulty of identifying any cause of action. Without wishing to be critical of an unrepresented plaintiff and acknowledging how difficult it is to comply with complex and extensive procedural rules, the claim obviously suffers from some very significant difficulties to which I will return.
The Statement of Claim that was filed in April 2014 was not accompanied by any expert report and the statement of claim itself did not go sufficiently far as to identify precisely the negligence alleged and the consequences of any such alleged negligence. An expert report was clearly necessary.
Subsequently the matter came before the court on a number of occasions. There was a directions hearing on 9 April 2015 with the matter coming before his Honour Garling J on that date to make orders specifically in relation to pro bono assistance to the plaintiff.
There was a further directions hearing on 4 June 2015 and, on the basis that some pro bono assistance had been made available to the plaintiff, there was an order for the filing of an Amended Statement of Claim, by 28 June 2015.
Such an order was obviously necessary in an endeavour to receive a Statement of Claim which put the claim into some proper and comprehensible form. The Amended Statement of Claim was filed, as I have already indicated, on 24 June 2015, and served on the defendant shortly thereafter.
It would appear that from that date that there was an amendment of the nomination of the plaintiff so the action, now in its current form, nominates the plaintiff simply as Mr Pantel and Mrs Pantel acting in the capacity of tutor.
Subsequent to the filing of that Amended Statement of Claim there was a directions hearing on 30 June 2015. There was an issue then about access by the plaintiff to medical documentation necessary to advance the claim and the Court made orders that the defendant provide informal production of documents relating to the plaintiff’s treatment by the defendant by 14 July 2015, and further orders for the plaintiff to serve expert evidence in support of the Amended Statement of Claim by 21 August 2015.
Although the defendant provided access to the relevant material, on or about 10 July 2015, the plaintiff did not comply with the order to file and serve expert evidence in support of the Amended Statement of Claim. There was a directions hearing on 25 August 2015 when the matter was stood over by consent to 30 August 2015. Orders were made on that day for the defendant to file and serve any Notice of Motion to dismiss or strike out the plaintiff’s claim by 22 September 2015.
At around that time the plaintiff engaged a legal representative, Fox Staniland Lawyers. These lawyers appear to have remained in the matter regrettably only for a short time. In compliance with the Court’s order with respect to a Notice of Motion, the defendant filed and serve a Notice of Motion which is currently before the court, filed on 22 September 2015. A further directions hearing followed on 30 September 2015, when the proceedings were adjourned by consent to 10 November 2015.
On that date there was a further adjournment by consent to 24 November 2015. When the matter came before the Court for directions on that day, the Court made further orders for the plaintiff to file and serve an expert report in support of the Amended Statement of Claim by 26 February 2016. There were additionally orders for the plaintiff to file and serve a further amended Statement of Claim by 11 March 2016. I assume this was a further attempt to have the plaintiff put the claim into a comprehensible form.
The matter was next listed on 15 March 2016. The plaintiff’s solicitors withdrew from the matter the previous day. On 15 March 2016 the defendant sought to move on the Notice of Motion. That was opposed by the plaintiff, it would appear because the plaintiff was unrepresented. The Court adjourned the matter until 1 April 2016 for hearing.
On 30 March 2016 the plaintiff filed and served an affidavit from Ms Pantel, the plaintiffs’ tutor of 30 March 2016, and a copy of that affidavit is before the Court and I have had regard to it in hearing and determining the current motion.
Annexure B of the affidavit is a report from Dr Alnutt, Dr Alnutt being a forensic psychiatrist. The report had been obtained by Fox Staniland prior to their withdrawal from the matter.
Dr Alnutt’s report does not support the plaintiff’s action and accordingly it does not fulfil the Court’s orders to file and serve an expert report in support of the Amended Statement of Claim.
On 1 April 2016, the matter came before Harrison J. Although it was for hearing his Honour was not able to hear the matter because of an apprehension that the matter would take some significant period of time and certainly a greater period of time than his Honour had available.
The plaintiff was represented only by the appearance of his tutor, Ms Pantel, on that day. Ms Pantel filed in court the affidavit of 30 March to which I have already referred, and his Honour granted leave to her to do so. On that date Ms Pantel indicated that she was in some difficulty in dealing with the defendant’s motion. She referred to her affidavit and the many times on which she had made attempts to gain some assistance, albeit without success.
His Honour urged the plaintiff to obtain some appropriate legal assistance and the matter was further adjourned. The matter came before me in the Duty List this morning for hearing of the motion. Mr Pantel, the plaintiff, was represented by counsel but counsel’s instructions extended only to the extent of making an application for an adjournment of the hearing of the motion. That application was refused.
The Notice of Motion is supported by two affidavits, both of Gayle Peres da Costa. The first of the affidavits was filed in the Registry of the Court on 22 September 2015, the second having been sworn on 29 March 2016 and filed with leave in Court.
Ms da Costa’s affidavit sets out the history of the matter together with what is known of the plaintiff’s claim. Ms da Costa affirmed that the plaintiff was first diagnosed with schizophrenia in 1993 and that diagnoses was confirmed by a number of doctors over the following 12 or so years, including six doctors employed by the defendant and a further four experts not employed by the defendant (by experts, I take that to mean psychiatrists).
Affidavit evidence of 22 September 2015 refers to conversations between the tutor and the defendant’s legal representatives about assisting the plaintiff from time to time, and it is clear that there has been difficulties for the plaintiff in engaging either a solicitor or counsel.
There has been some pro bono assistance but that has appeared not to have led to any material assistance. It might be inferred from the evidence of the defendant that that is because those who have looked at the matter have concluded that the claim has no prospect of success.
By the current Motion, the defendant seeks orders that the Amended Statement of Claim be dismissed because of the breach of r 31.36 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).
That relates to the service of expert reports in professional negligence claims and notes that where a party fails to comply with r 31.36, that is the service of expert evidence in support of a claim, the court may dismiss the whole or any part of the proceedings.
Alternatively the defendant by the Motion seeks an order that the proceedings be dismissed for want of due despatch pursuant to r 12.7 of the UCPR. Regulation 12.7 provides a power for the courts to order that proceedings be dismissed if the plaintiff does not prosecute the proceedings with due despatch.
Finally, and also in the alternative, the defendant seeks an order striking out the Amended Statement of Claim pursuant to r 14.28 of the UCPR.
Regulation 14.28 provides a power for the court to strike out pleadings. Such an order can be made at any stage of the proceedings where the whole or any part of the pleading discloses no reasonable cause of action and has a tendency to cause prejudice, embarrassment or delay in the proceedings or there is otherwise an abuse of the process of the court.
The plaintiff opposes the granting of any order sought by the defendant and relies upon the evidence of the tutor contained within the affidavit of Ms Pantel of 30 March 2016.
Whilst the document is sworn as an affidavit, it is perhaps better to characterise the contents of the documents as submissions. It goes some way to recount the history of the matter and the difficulties that the plaintiff has had in obtaining legal assistance, and the assistance of the expert who an able to provide a report in support of the claim.
To some extent it functions as a plea to the Court for assistance in advancing the claim.
The proceedings have now been before the Court for close to two years and they are no further advanced than they were when the original Statement of Claim was first filed. That is, the Amended Statement of Claim does not disclose a reasonable cause of action, indeed, it is difficult from the pleadings and particulars to determine what the negligence alleged is and what injury is said to flow from the negligence.
No expert evidence is filed in support of it and the only expert evidence the plaintiff has been able to obtain does not support the claim in any way. I am told by Mr Watt, counsel for the defendant, that the defendant sees that report as indicative of the unmeritorious nature of the claim. It would appear on the material before the Court that even were the Court to have granted the adjournment sought earlier today, so that the plaintiff could seek further expert evidence, there is no reasonable basis to conclude that expert evidence would have furthered the claim before the Court.
In so far as it is possible to determine the nature of the claim, there is no reasonable evidence before the Court to conclude that it could succeed.
I have already referred to the difficulties that face an unrepresented, or largely unrepresented litigant, and the Court is not unsympathetic to those difficulties. I apprehend that at least part of the reason for the many adjournments granted in this matter is because of the plaintiff’s unrepresented status and because the Court acknowledged the difficulties faced by a self-represented litigant in allowing extra time. However, proceedings cannot be allowed to simply go on and on in the hope that at some point an unrepresented litigant may be able to put them into a comprehensible form and obtain supporting evidence. That is particularly so in circumstances where the only expert evidence filed does not support the claim which appears to be advanced.
The Court has made a number of orders for the plaintiff to file and serve expert evidence and those orders have been breached. The Court referred the plaintiff to the pro bono scheme for assistance and, whilst it appears there has been at least some advice provided on a pro bono basis, that also has not furthered the prosecution of the matter.
As I understand it, today’s hearing is something like the 12th occasion on which the matter has been before the Court. Sections 56 and 57 of the Civil Procedure Act 2005 (NSW) provide objectives which the Court must have regard to, with the overriding purpose of the Act to facilitate the just, quick and cheap resolution of claims.
The quick resolution of this claim certainly has not been obtained and there is no reason to conclude that if granted some further time there would be a quick resolution of the claim. The costs of proceedings is something that the Court is entitled to have regard to, and whilst the plaintiff has largely been self-represented and legal costs are therefore kept to a minimum, the defendant has not, meaning that every court appearance and every motion that has to be dealt with corresponds with mounting costs.
Whilst it is perhaps easy to say that the defendant, as a public authority with access to the Crown Solicitor’s Office, is in a better position than is the plaintiff, there are still costs to be borne and those costs have to be met at some stage.
In additional to financial costs, there are personal costs associated with litigation and those personal costs are also a factor which is of some relevance.
Initially the plaintiff’s action nominated a number of named individual doctors and those doctors would naturally have been made aware of an allegation against each of professional negligence.
The allegations against those doctors appear to found the current claim against the defendant and those individual doctors must have suffered some level of distress at the allegations made against each. They are also entitled to have this matter advanced with due efficiency.
On all the evidence before the court there has been a lack of due despatch in prosecuting the Amended Statement of Claim. Whilst I appreciate and accept that it is difficult for a largely unrepresented plaintiff to prosecute a matter with expedition, the time frame that pertains here goes beyond even what might be accepted as reasonable in those circumstances.
On all the evidence I am satisfied that there has been a want of due despatch and that gives the court the power to dismiss the proceedings against the defendant pursuant to r 12.7.
The alternatives which are sought by the defendant rest upon a contention that the pleadings disclose no reasonable cause of action or that the evidence has not been filed in support of them.
Turning to the latter of those contentions first, it is undeniable that there has not been service of professional expert evidence in support of the Amended Statement of Claim and that the rule requiring such service and, indeed, the court orders for service, has been breached.
That being the case, the court has the power pursuant to r 31.36 of the UCPR to strike out the Amended Statement of Claim.
The other basis, that no reasonable cause of action has been disclosed, appears to be the case but because of the conclusions I have already reached in relation to the want of due despatch and the failure to file evidence in support, I do not propose to formally determine that prayer.
Accordingly I propose to make order one sought by the defendant and that is to dismiss the proceedings on the basis that the plaintiff has not filed and served an expert report. That being the orders in relation to the filing and serving of an expert’s report including an affidavit supporting a breach of duty of care or contractual obligation alleged against the defendant and the damage alleged in relation to that claim and the causal relationship between the breach of duty application and the agreement.
That being the case I need not consider the orders noted in 2 and 3 which are sought as they are in the alternative.

COSTS

There is an application for costs by the defendant. Costs ordinarily follow the cause and this is a matter where costs should, in the ordinary course, be made in favour of the defendant.
However, the defendant has indicated that whilst an order of that nature is sought, it would not seek to enforce any such order unless put to the expense of further litigation.
That is a feature that I have had regard to because, as I apprehend it, an order for costs may well cause some financial difficulty to the plaintiff. That is of course not necessarily a relevant consideration but it is something that I have had regard to.
I propose to make the orders sought in the terms sought by the defendant. I will make the order for costs in the terms suggested by Mr Watts.

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Decision last updated: 11 May 2016

Medium Neutral Citation:	Pantel v Northern Sydney Local Health District [2016] NSWSC 602
Hearing dates:	6 May 2016
Date of orders:	06 May 2016
Decision date:	06 May 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. The proceedings be dismissed for breach of r 31.36 of the Uniform Civil Procedure Rules 2005 (NSW). 2. The plaintiff is to pay the defendant’s costs of the proceedings, including the defendant’s motion, on an ordinary basis, however, such order to be stayed and only to become enforceable if the plaintiff re-commences these proceedings or otherwise commences proceedings seeking the same or similar relief in respect of the same cause of action.
Catchwords:	PRACTICE AND PROCEDURE – notice of motion - claim against defendant for professional negligence – no expert’s report pursuant to r 31.36 of the UCPR – unrepresented litigant - proceedings dismissed COSTS – costs to follow the cause – plaintiff does not seek enforcement of costs order – costs order stayed
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Category:	Principal judgment
Parties:	Michael Pantel (Plaintiff) Hornsby Hospital Mental Health Services (Defendant)
Representation:	Counsel: Ms N Pantel (Tutor for the Plaintiff) Mr B Watts (Defendant)
File Number(s):	2014/00328843
Publication restriction:	None