Qasim v Bird (No 4) - [2022] NSWSC 722

Supreme Court

New South Wales

Medium Neutral Citation: Qasim v Bird & Ors (No 4) [2022] NSWSC 722
Hearing dates: 29 April 2022
Date of orders: 3 June 2022
Decision date: 03 June 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Dismiss the proceedings against the third defendant pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).
2. Reserve the question of costs.
3. The third defendant is to file and serve all affidavits and submissions in relation to any application for a lump sum costs order by 10 June 2022.
4. The plaintiff is to file and serve all affidavits and submissions in reply to the third defendant’s material by 17 June 2022.

Catchwords:
CIVIL PROCEDURE – summary disposal - dismissal of proceedings – plaintiff unrepresented – application for summary dismissal by one of fifteen defendants – proceedings commenced by summons in 2021 – defendant was a solicitor who had been retained by the plaintiff in 2013 - affidavit material suggesting claims in negligence and/or breach of retainer – where retainer terminated in 2013 - any claim of plaintiff statute-barred – where no loss caused by any breach of duty or retainer – no reasonable cause of action – proceedings dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 61
Uniform Civil Procedure Rules 2005 (NSW) rr 6,29, 13.4, 14.28
Limitation Act 1969 (NSW) s 14

Cases Cited:
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
General Steel Industries Inc. v Commissioner for Railways (1962) 112 CLR 125
Health Care Complaints Commission v Qasim [2014] NSWCATOD 42
Qasim v Bird & Ors [2022] NSWSC 258
Qasim v Bird (No 2) [2022] NSWSC 411
Qasim v Health Care Complaints Commission [2015] NSWCA 282
Qin v He [2017] NSWSC 978
Shaw v State of New South Wales [2012] NSWCA 102
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 533; [1992] HCA 55

Texts Cited:
Nil

Category: Procedural rulings
Parties: Shaheen Qasim (Plaintiff)
Stephen McNamee (Third Defendant)
Representation:
Counsel:
In person (Plaintiff)
A Avery-Williams (Third Defendant)
Solicitors:
Self-represented (Plaintiff)
Slater & Gordon (Third Defendant)

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

Judgment

By a notice of motion filed 9 April 2022, the third defendant seeks an order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) that the proceedings be dismissed insofar as any claim is made against him; alternatively, an order pursuant to r 6.29 UCPR that he be removed as a party to the proceedings; alternatively, an order pursuant to either r 14.28 UCPR or s 61(3)(d) of the Civil Procedure Act 2005 (NSW) that the whole of the plaintiff’s summons be struck out.
The basis of the orders sought, as outlined by the third defendant, is that no reasonable cause of action is disclosed against him.
The plaintiff commenced these proceedings against, inter alia, the third defendant, by way of a summons filed on 8 September 2021. The plaintiff has at…

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 4)

Details

AGLC: Qasim v Bird (No 4) [2022] NSWSC 722
Case: [2022] NSWSC 722
Decision Date: 03 June 2022

CaseChat Overview and Summary

The plaintiff, Qasim, filed proceedings against one of fifteen defendants, Bird, a solicitor retained by the plaintiff in 2013. The proceedings were initiated in 2021 via a summons, and the plaintiff was unrepresented. Bird, the defendant, applied for the summary dismissal of the proceedings on the basis that any claims were statute-barred, and that there was no reasonable cause of action. The court had to determine whether the claims were statute-barred and whether there was a reasonable cause of action.

The court considered the legal issues surrounding the statute-barred nature of the claims, given that the retainer had terminated in 2013, and the absence of any loss caused by any breach of duty or retainer. The court determined that any claims, including those for negligence and/or breach of retainer, were indeed statute-barred, as they were brought outside the statutory limitation period. Furthermore, the court found that there was no reasonable cause of action, as the plaintiff had failed to demonstrate any loss or damage caused by the alleged breaches.

Accordingly, the court dismissed the proceedings, finding that the plaintiff's claims were statute-barred and there was no reasonable cause of action. The proceedings were dismissed with costs. This decision underscores the importance of the statute of limitations in legal proceedings, as well as the necessity for a plaintiff to demonstrate a loss or damage caused by the alleged breaches.

Orders