Pi v State of New South Wales (No 6)

[2017] NSWSC 874

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Pi v State of New South Wales (No 6) [2017] NSWSC 874
Hearing dates:	29 June 2017
Date of orders:	29 June 2017
Decision date:	29 June 2017
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Pursuant to Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings brought by Guang Hua Pi and Holly Tan are dismissed due to a failure to prosecute the proceedings with due despatch.  2. Costs against the plaintiff in favour of the defendant on an ordinary basis.
Catchwords:	PROCEDURE – notice of motion – orders sought to dismiss proceedings – Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) – failure to prosecute the proceedings with due dispatch – proceedings dismissed – costs
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30
Category:	Procedural and other rulings
Parties:	Guang Hua Pi (First Plaintiff) Holly Tan (Second Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Plaintiff in person M Hutchings (Defendant)   Solicitors: Plaintiff in person McCabes (Defendant)
File Number(s):	2014/3768
Publication restriction:	No

Judgment

1. HER HONOUR: Before the Court is a notice of motion filed on 19 April 2017 in which the defendant seeks orders dismissing the plaintiff's claim against it pursuant to r 12.7 of the Uniform Civil Procedure Rules2005. Filed in support of the motion and read without objection is an affidavit of James Thompson of 20 April 2017. The affidavit annexes a considerable volume of material in two lever-arch folders. In response is an affidavit of the first plaintiff of 22 June 2017. There is no appearance of the second plaintiff and no response from her to the State's notice of motion.

2. Earlier today I declined what appeared to be an application from the second plaintiff to permit the first plaintiff to act for her in today's proceedings.

3. The evidence filed by the State is, as I have noted, voluminous. Mr Thompson's affidavit gives some history of this matter, which is borne out by the very large file amassed by the Court over the years in which the matter has been before the Court. Whilst I do not propose to give a full account of that history, it is relevant to note some features of it.

4. The incident that gives rise to the plaintiff's claim occurred on 12 January 2011.

5. On 6 January 2014, the plaintiff filed a statement of claim naming a number of police officers as defendants.

6. On 22 April 2014, Registrar Bradford ordered the plaintiff to file an amended statement of claim adding the State of New South Wales as the fifth defendant, by 19 May 2014. An amended statement of claim was filed by the plaintiff on 15 May 2014.

7. On 27 May, the Registrar ordered the plaintiff to file and serve a statement of particulars. A statement of particulars was filed on 20 June 2014. There followed a deal of correspondence concerning the particulars, together with various orders of the Court directing the plaintiff to provide better particulars.

8. On 20 July 2014, the plaintiff filed a document entitled "Responds and Asking" seeking to add his daughter, Holly Tan, as the second plaintiff in the proceedings.

9. On 26 August 2014, the plaintiff filed a notice of motion and supporting affidavit seeking to make further amendments to the pleading. The motion was listed for hearing on 4 September 2014. Registrar Kenna ordered the plaintiff to serve the State with a proposed further amended statement of claim, a statement of particulars and a consent to act as tutor by 11 September 2014. The plaintiff served a bundle of documents in purported compliance with those orders on 30 September 2014.

10. The matter came before Campbell J in September and October 2014, and his Honour made various orders, including referring the plaintiff to the pro bono scheme. Nothing appears to have come from that referral or a later referral made by Bellew J.

11. On 1 December 2014, Registrar Kenna ordered the plaintiff to serve on the State a proposed amended statement of claim by 16 February 2015; such a document was filed on 9 February 2015.

12. The State filed a notice of motion seeking the removal of the police officer defendants from the claim. That was listed for hearing on 5 March 2015 before the duty judge. It was adjourned on 5 March due to the plaintiff's failure to appear that day.

13. Later, on 27 March, Harrison J made orders, including that the plaintiff's claim for defamation be dismissed, that the plaintiff's then current version of the statement of claim be struck out, but granting leave to file and serve an amended statement of claim no later than 23 April 2015. His Honour listed the matter for further directions and case management by him, making orders for the plaintiff to pay the State's costs incidental to the motion. Case management by his Honour, who plainly endeavoured to have the plaintiff proceed with proper diligence, followed. The State subsequently filed an unsealed copy of its defence, in July 2015.

14. On 14 July 2015, the plaintiff was granted leave to file a further notice of motion seeking leave to join Holly Tan to the proceedings. On 18 September 2015, Beech-Jones J heard that motion, but rejected the plaintiff's application to join Holly Tan to the proceedings, or for the plaintiff to be appointed as her tutor. Notwithstanding that ruling, Holly Tan continues to appear listed as the second plaintiff on all material filed with the Court.

15. To that point, very little had occurred, despite the frequent exhortations of the Court, to either articulate a proper claim and the basis upon which the claim was made, or to file and serve any evidence in support of the claim.

16. In May 2016, the State filed a notice of motion seeking summary dismissal of the claim for want of prosecution. That motion was heard by Hoeben CJ at CL on 13 May 2016, and a judgment was handed down by his Honour on 19 May 2016. His Honour noted then that it was clear that the plaintiff did not appreciate the significance of the criticisms and complaints which the defendant made against the October 2015 Statement of Claim. His Honour further noted that it was also clear that the plaintiff did not understand the problem created by the lack of particularisation of the series of claims set out in his claim.

17. In the various exchanges between the Court and the plaintiff during the hearing of the matter, his Honour tried to make clear that it was important that the plaintiff obtained legal advice so that the claim which he wished to make could be set out accurately and succinctly rather than, in his Honour's description, the “rambling document” which was currently before the Court. His Honour referred to both the October and December 2015 statements of claim as very “discursive and made up of a series of factual allegations without particularisation.”

18. It is clear from the judgment that his Honour endeavoured to make clear to the plaintiff that he must proceed with diligence.

19. Ultimately, his Honour struck out the statement of claim of 27 October 2015, ordering costs against the plaintiff. He did, however, grant leave to the plaintiff to file and serve a further statement of claim.

20. On 16 June 2016, the plaintiff filed a document entitled "Further Statement of Claim". It continued to name Holly Tan as the second plaintiff, despite the orders of Beech-Jones J.

21. The defendant raised a number of issues about the pleading and the claims in the statement of claim. On 4 July 2016, the defendant's solicitor wrote to both the first and purported second plaintiff seeking further and better particulars of the further statement of claim.

22. On 6 July 2016, the matter was listed for directions before Registrar Bradford and a number of orders were made. Those orders were not complied with; a matter raised by the defendant with the plaintiff in correspondence which proceeded over some months.

23. On 23 August 2016, the State filed its defence to the further statement of claim, which was served the following day.

24. On 11 November 2016, the plaintiff filed an affidavit containing a number of annexures. The affidavit could not be said to be in comprehensible form.

25. There followed further directions hearings where various orders were made, including orders seeking to have the plaintiff comply with earlier orders regarding service of a forensic accounting report. Further affidavits were served.

26. On 2 December 2016, the matter came before Bellew J for the plaintiffs to show cause as to why the proceedings should not be dismissed. The matter was adjourned, and his Honour made orders directing both Mr Pi and Ms Tan to appear before him in person. Four days later, the matter again came before his Honour for a show cause hearing. Ms Tan did not appear, despite his Honour's order, and the matter was further adjourned.

27. On 10 March 2017, the matter was listed for directions before Bellew J. His Honour made various orders, including an order requiring the plaintiff to file and serve expert evidence. No expert evidence seems ever to have been forthcoming.

28. Bellew J case managed the matter over a number of months. In exchanges with the plaintiff during the various mentions of the matter, his Honour made it clear that the Court would not tolerate further failures by him to abide by court orders.

29. In a judgment from Bellew J on 6 December 2016, his Honour said:

“It is up to the first named plaintiff, if he wishes to continue these proceedings, to assemble the evidence that he considers he requires and to file it in accordance with the orders of the Court.”

30. He also observed:

"Despite an order made by me on the last occasion requiring Holly Tan to attend, the second named plaintiff has not appeared before the Court today."

31. His Honour continued:

“Having read the file, there is, in my view, an issue as to whether or not the second named plaintiff has standing to bring these proceedings. I make that observation in the light of the cause of action which the first named plaintiff appears to bring against the defendant.”

32. Despite those comments and the censure of the conduct of the matter by the plaintiff by his Honour, his Honour was prepared to grant him a degree of latitude. He noted, though, that in allowing that latitude he wished to make clear that the Court, as he said, "will simply not sit back and allow these proceedings to go ahead at a pace suitable to the plaintiffs." His Honour continued:

“These proceedings were commenced in 2014. As things presently stand, they are unlikely to obtain a hearing date until the latter part of 2017. The first named plaintiff, Mr Pi, should clearly understand that the Court will not tolerate any further breaches of its orders.”

33. That is a relatively brief history of the matter drawn from the evidence placed before the Court by the State.

34. In response to the defendant's notice of motion, the plaintiff filed an affidavit of 22 June 2017, admitted without objection, although with the qualification that the affidavit, insofar as it is comprehensible, makes unsupported allegations of malfeasance and impropriety against the solicitor for the defendant. I admitted the document on the basis that it appeared to contain submissions rather than evidence.

35. Mr Pi's oral submissions, given with the aid of a Mandarin interpreter, were to the same effect as the material in his affidavit. He asserts that he has never breached any order of the Court and that the defendant is misleading the Court to say so. He demanded particulars of the breaches of court orders, appearing to ignore the voluminous material in evidence which demonstrate the breaches he has made of court orders.

36. Rule 12.7 of the Uniform Civil Procedure Rules are set out in these terms, r 12.7(1):

“If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.”

37. Here, the matter has lingered before the Court for over three years. It is still not in a state for a trial date to be fixed, and there is no reason to suppose that it ever will be. The delay is inordinate and largely unexplained. Whilst it may be that the plaintiff struggles to follow court orders and procedural rules because he is unrepresented, that can only aid him so far.

38. The Court was referred to the decision of McHugh J in Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30, in which McHugh J said "the rules of a court must prima facie be obeyed"; later observing, "lack of legal knowledge is a misfortune, not a privilege."

39. It is now over six years since the events the subject of the claim, and the defendant is in no better position than it was three years ago to understand the case advanced against it in support of the claim.

40. The evidence which has been filed to date is unorthodox in form and content, and, as far as I can see, incapable of supporting the claim.

41. The Court has devoted many hours to encourage the plaintiff to get his case in order; that has not happened, despite the two referrals to the pro bono scheme to which I have referred and despite the very considerable latitude allowed to the plaintiff by the Court.

42. The status of Holly Tan continues to be unclear, despite the numerous orders designed to clarify the position. As best I can understand the history of the matter, Ms Tan has no standing.

43. The matter cannot continue in this way. Whilst courts are generally loath to dismiss a claim summarily; here, the plaintiff, Mr Pi, has had every opportunity to put his claim in a form in which it can proceed. He has not done so. Ms Tan has never appeared before the Court, and her name on the pleadings as second plaintiff appears to be in breach of the orders of Beech-Jones J. It is clear the matter has not been prosecuted with due despatch. Indeed, it has barely been prosecuted at all.

44. I propose to dismiss the statement of claim filed for Mr Pi; and insofar as there is a valid claim brought by Holly Tan, I propose to dismiss it also.

orders

45. The orders that the Court makes are these:

1. Pursuant to r 12.7 of the Uniform Civil Procedure Rules2005 (NSW), the proceedings brought by Guang Hua Pi and Holly Tan are dismissed due to a failure to prosecute the proceedings with due despatch.

46. Whilst there is an application for the plaintiffs to pay the defendant's costs on an indemnity basis, I propose to order :

47. (2)   Costs against the plaintiff in favour of the defendant on an ordinary basis.

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Amendments

12 April 2018 - added (No 6) to Medium Neutral Citation

Decision last updated: 12 April 2018