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Qasim v Bird

Qasim v Bird

Case [2022] NSWSC 258 17 March 2022

Misjoinder

Dismissal of Proceedings

No Reasonable Cause of Action

Statute-Barred

Immunity from Suit

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Qasim v Bird & Ors [2022] NSWSC 258
Hearing dates: 10 March 2022
Date of orders: 17 March 2022
Decision date: 17 March 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) In relation to the first defendant’s notice of motion filed 29 October 2021:
(a) Order that the first defendant be removed as a party to the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW);
(b) Reserve the question of costs.
(2) In relation to the second defendant’s notice of motion filed 29 October 2021:
(a) Dismiss the proceedings against the second defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW)
(b) Reserve the question of costs.
(3) In relation to the notice of motion filed by the fourth, eleventh, twelfth, thirteenth and fifteenth defendants on 29 October 2021:
(a) Order that the fourth, eleventh, twelfth, thirteenth and fifteenth defendants be removed as parties to the proceedings pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW);
(b) Reserve the question of costs.
(4) In relation to the fifth defendant’s notice of motion filed 29 October 2021:
(a) Dismiss the proceedings against the fifth defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW);
(b) Reserve the question of costs.
(5) In relation to the sixth defendant’s notice of motion filed 29 October 2021:
(a) Dismiss the proceedings against the sixth defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW);
(b) Reserve the question of costs.
(6) In relation to the seventh defendant’s notice of motion filed 29 October 2021:
(a) Dismiss the proceedings against the seventh defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW);
(b) Reserve the question of costs.
(7) In relation to the plaintiff’s notice of motion filed 2 November 2021;
(a) Dismiss the motion;
(b) Reserve the question of costs.

Catchwords:
CIVIL PROCEDURE – parties – misjoinder – where no relief sought against a number of parties – order removing the parties from the proceedings pursuant to r 6.29 UCPR
CIVIL PROCEEDINGS – summary disposal - dismissal of proceedings – no reasonable cause of action disclosed - where plaintiff practised as endocrinologist until suspension due to impairment – where NCAT cancelled plaintiff’s registration as a doctor – where Court of Appeal upheld cancellation - where plaintiff named fifteen defendants in summons – where no relief sought against defendants – where claim in substance appeared to be negligence - where defendants as tribunal members, barristers and expert witnesses had immunity from suit – where proceedings statute-barred - orders dismissing proceedings pursuant to r 13.4 UCPR

Legislation Cited:
Civil and Administrative Tribunal Act 2013 No 2 (NSW) Sch 2 cl 4
Civil Procedure Act 2005 (NSW) s 56
Crimes Act 1900 (NSW) s 319
Federal Court of Australia Act 1976 (Cth) s 31A
Health Practitioner Regulation National Law 2018 (NSW) No 86a s 237
Limitation Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Qasim v Bird

Details

AGLC: Qasim v Bird [2022] NSWSC 258
Case: [2022] NSWSC 258
Decision Date: 17 March 2022

CaseChat Overview and Summary

In the case of Qasim v Bird, the plaintiff, who had previously been practising as an endocrinologist, faced suspension due to impairment and subsequently had his registration cancelled by the NCAT. The Court of Appeal upheld this cancellation. The plaintiff initiated legal proceedings against fifteen defendants, including NCAT tribunal members, barristers, and expert witnesses, among others. However, the plaintiff did not seek any relief against these defendants. The claim appeared to be one of negligence, but the defendants held immunity from suit, and the proceedings were statute-barred.

The court was required to determine whether the proceedings were correctly brought and if there was a reasonable cause of action disclosed against the defendants. The court also needed to consider whether the inclusion of the defendants constituted a misjoinder of parties and whether the proceedings could be summarily dismissed.

The court found that the plaintiff had not sought any relief against the defendants, and the claim in substance appeared to be one of negligence. The defendants, as tribunal members, barristers, and expert witnesses, had immunity from suit, and the proceedings were statute-barred. The court held that the inclusion of the defendants constituted a misjoinder of parties and that there was no reasonable cause of action disclosed against them. Therefore, the court ordered the dismissal of the proceedings pursuant to r 13.4 UCPR and removed the parties from the proceedings in accordance with r 6.29 UCPR.

Orders