Qasim v Bird (No 2) - [2022] NSWSC 411

Supreme Court

New South Wales

Medium Neutral Citation: Qasim v Bird & Ors (No 2) [2022] NSWSC 411
Hearing dates: 13 April 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Dismiss the plaintiff’s notice of motion dated 15 March 2022.
2. Declare that the summons filed 8 September 2021 is no longer valid for service.
3. Dismiss the proceedings against the eighth, ninth, tenth and fourteenth defendants pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW)

Catchwords:
CIVIL PROCEDURE – service – where defendants had not been served with summons in accordance with UCPR – where six-month period of service had expired – whether extension should be allowed pursuant to r 1.12 UCPR – where there was no adequate explanation from plaintiff for failure to serve defendants properly – where, in any case, no reasonable cause of action disclosed against those defendants – where it would be inconsistent with s 56 of Civil Procedure Act to grant extension of time

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 56
Uniform Civil Procedure Rules 2005 (NSW) rr 1.12, 6.2, 6.3, 13.4, 15.3

Cases Cited:
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104
D'Orta-Ekenaike v Victoria Legal Aid [2005] 223 CLR 1; [2005] HCA 12
Qasim v Bird & Ors [2022] NSWSC 258

Texts Cited:
Nil

Category: Procedural rulings
Parties: Shaheen Qasim (Plaintiff)
Michael Hall (Eighth Defendant)
Kate Richardson (Ninth Defendant)
Sharon Armstrong aka Sutherland (Tenth Defendant)
Craig Bolger (Fourteenth Defendant)
Representation:
Counsel:
In person (Plaintiff)
Solicitors:
Self-represented (Plaintiff)

File Number(s): 2021/256942
Publication restriction: Nil

Judgment

On 8 September 2021 the plaintiff filed a summons seeking the following orders:

1.   Claim allowed.
2.   The cost order of HCCC be dismissed against Shaheen Qasim. In light of alleged misconduct of Kate Richardson of the lower court in 2014 & the Supreme Court, Court of appeal in 2015.
3.   Cost order of $110,000 with interest be made against Heath Care Complaints Commission.
4.   An order, for an arrest warrant be made against the defendant. Sharon Armstrong aka Sutherland. In light of alleged procedural irregularities, misconduct of NCAT 2014-2020.

The summons described the “claim type” as “prerogative writ work, related”.
On 17 March 2022 I made orders removing the first, fourth, eleventh, twelfth, thirteenth and fifteenth defendants as parties to the proceedings. I made further orders summarily dismissing the proceedings against the second, fifth, sixth and seventh defendants: Qasim v Bird & Ors [2022] NSWSC 258.
On 1 April 2022 I made directions which included a direction that the third defendant was to file any notice of motion seeking to dismiss the proceedings against him by 8 April 2022. I directed that that notice of motion was to be returnable before me for hearing on 29 April 2022.
By reason of enquiries that I made of the plaintiff concerning the eighth, ninth, tenth and fourteenth defendants, it became clear that these defendants…

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 (No 2)

Details

AGLC: Qasim v Bird (No 2) [2022] NSWSC 411
Case: [2022] NSWSC 411
Decision Date: 14 April 2022

CaseChat Overview and Summary

The case of Qasim v Bird (No 2) was heard in the Supreme Court of Queensland. The plaintiff, Qasim, sought to serve summons on the defendants, Bird and others, in accordance with the rules of the Uniform Civil Procedure Rules (UCPR). The defendants had not been served within the six-month period stipulated by the UCPR, and the plaintiff sought an extension of time to serve the summons. The court was required to determine whether the extension should be granted and if the plaintiff had provided an adequate explanation for the delay. Furthermore, the court had to consider whether there was a reasonable cause of action against the defendants, as well as the implications of section 56 of the Civil Procedure Act.

The court examined the reasons provided by the plaintiff for the failure to serve the summons within the required timeframe. The plaintiff did not provide a satisfactory explanation for the delay, which was a significant factor in the court's decision. Additionally, the court found that there was no reasonable cause of action disclosed against the defendants, even if the summons had been served within the prescribed period. The court also considered the implications of section 56 of the Civil Procedure Act, which provides that the court may not grant an extension of time if it would be inconsistent with that section. The court concluded that granting an extension of time in this case would be inconsistent with the requirements of section 56.

In light of the above considerations, the court held that the plaintiff was not entitled to an extension of time to serve the summons. The court dismissed the application for an extension, and the summons against the defendants was deemed to have been withdrawn. The court's decision was based on the lack of an adequate explanation for the delay in serving the summons, the absence of a reasonable cause of action against the defendants, and the inconsistency of granting an extension with section 56 of the Civil Procedure Act. The court's final order was that the summons against the defendants was dismissed, and the plaintiff was required to pay the defendants' costs of the application.

Orders