Sahid v Brydens Lawyers

[2025] NSWDC 335

District Court

New South Wales

Medium Neutral Citation:

Sahid v Brydens Lawyers [2025] NSWDC 335

Hearing dates:

7 and 31 July 2025

Date of orders:

25 August 2025

Decision date:

25 August 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

(1) The Defendant’s amended Notice of Motion filed on 28 May 2025 is dismissed.

(2) The costs of the motion are to be costs in the cause.

(3) The plaintiff has leave to rely on her affidavit of 28 July 2025 in the substantive proceedings.

(4) The plaintiff may not rely on further evidence without the leave of the Court.

(5) The proceedings are listed for directions before the Judicial Registrar on 15 September 2025 to fix a date for the hearing of the matter.

Catchwords:

CIVIL PROCEDURE — Originating process — application for summary dismissal – alternatively, application for orders setting aside the statement of claim

Legislation Cited:

Safety Rehabilitation and Compensation Act 1988 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Agius v New South Wales [2001] NSWCA 371

Clarke v GEO Australia Pty Ltd [2023] NSWSC 716

Dickson v Chaffey & Reddawn [2012] NSWSC 336

Findlay v Victoria [2009] VSCA 294

Martin v Gill [2025] NSWSC 385

O’Brien v Bank of Western Australia Limited [2013] NSWCA 71

Richmond Valley Council v JLT Risk Solutions Pty Ltd [2022] NSWSC 1761

Salmon v Albarran (2023) 414 ALR 36; [2023] NSWSC 1238

Simmons v NSW Trustee and Guardian [2014] NSWCA 405

Category:

Procedural rulings

Parties:

Nazrana Sahid (Plaintiff)
Brydens Lawyers (Defendant)

Representation:

Counsel:
S Sykes (Defendant)

Solicitors:
A Sarfraz (Plaintiff)
Mills Oakley (Defendant)

File Number(s):

2024/133189

Publication restriction:

Nil

JUDGMENT

1. The defendant, Brydens Lawyers, applied by Notice of Motion on 28 May 2025 to have these proceedings summarily dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’). In the alternative, the defendant seeks to have the statement of claim struck out pursuant to rule 14.28 of the UCPR.

2. The plaintiff, Ms Sahid, opposes the defendant’s application.

Rule 13.4 and 14.28

3. The UCPR say, in r 13.4:

13.4   Frivolous and vexatious proceedings

(1)  If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

4. The UCPR say, in r 14.28:

14.28   Circumstances in which court may strike out pleadings

(1)  The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)  has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)  is otherwise an abuse of the process of the court.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

The proceedings

5. The plaintiff initiated these proceedings by filing a statement of claim on 10 April 2024 against Ms Silva Ishac.

6. Subsequently, on 27 March 2025, the plaintiff sought leave to file an amended statement of claim. Leave was granted for the filing of the amended statement of claim on 14 March 2025. The sole amendment made in the amended statement of claim was to change the defendant from Ms Ishac to Brydens Lawyers.

7. The plaintiff was an employee of the Commonwealth Bank of Australia (‘the Bank’). The plaintiff claims to have suffered injury in the course of her employment at the Bank.

8. It is alleged in the amended statement of claim that the plaintiff lodged a claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) with the Bank, and that the Bank, at all material times, was a self-insured licensee under the Commonwealth Comcare scheme.

9. The Bank rejected the plaintiff’s claim on 12 March 2021.

10. The SRC Act provides, in s 62(3)(b), for a period of thirty days from the date of the determination coming to the notice of the claimant within which the claimant may request the reconsideration of a determination. The plaintiff says that the last day of that thirty day period was on or about 11 April 2021.

11. The amended statement of claim says:

6.   On or about 31 March 2021, the Plaintiff attended the offices of the Defendant and informed the Defendant of her injuries and compensation claim under the SRC Act.

7.   By verbal agreement entered into on that occasion, it was agreed that the Defendant would act for the Plaintiff in relation to advising on her rights and entitlements under the SRC Act and her claim for compensation , and would so act for the Plaintiff on the basis that she pay her usual fees and any disbursements on a ‘No Win No Fee’ basis.

8.   It was a term of the agreement, implied at law, the Defendant would use all reasonable care, skill and diligence in the provision of her professional services to the Plaintiff.

9.   Further, the Defendant owed to the Plaintiff a duty of care requiring her to use all reasonable care, skill and diligence in the provision of her professional services to the Plaintiff.

10.   Between March 2021 and November 2022, the Defendant purported to act on behalf of the Plaintiff in respect of her claim.

11.   On or about 31 March 2021, the Plaintiff instructed the Defendant to request reconsideration of the employer’s decision dated 12 March 2021 to protect her interests before the reconsideration date.

12.   The Defendant failed to request reconsideration of the employer’s decision dated 12 March 2021 before the reconsideration date resulting in the Plaintiff being unable to dispute the decision further and obtain entitlements under the SRC Act.

13.   Further, the Defendant’s initial letter of advice dated 30 April 2021, which was received after the reconsideration date, provided legal advice that did not relate to the Plaintiff’s entitlement under the SRC Act, but rather advice relating to entitlements under the New South Wales Workers’ Compensation scheme.

14.   The Defendant was negligent in the conduct of the Plaintiff’s claim in that she [sic]:

i.   Failed to make any or sufficient inquiries to ascertain the limitation period applicable to such claim, which inquiries would have alerted her to the fact that the applicable time limit to request reconsideration was 30 days as aforesaid;

ii.   Failed to lodge such request for reconsideration within the statutory period provided in the SRC Act;

iii.   Failed to act for the Plaintiff in a proper and professional manner;

iv.   Failed to consult or seek advice and/or assistance from other specialist Comcare lawyers before permitting or allowing the Plaintiff’s rights to request reconsideration to extinguish.

15.   The Plaintiff suffered loss and damage by reason of the negligence of the Defendant in that she: [sic]

i.   Was unable to have the employer’s decision dated 12 March 2021 reconsidered and, if affirmed, disputed to the Administrative Appeals Tribunal to dispute the merits;

ii.   Lost any statutory entitlements under the SRC Act, including incapacity payments, medical expenses and compensation for permanent impairment and non-economic loss, that she would and could have received upon overturning the employer’s decision;

iii.   Lost the ability to pursue the employer for Common Law damages.

12. On 10 April 2025, the Judicial Registrar extended the time for the plaintiff to file any affidavits and expert evidence in relation to her claim to 9 May 2025.

The Defence

13. The defendant filed its defence on 24 January 2025. The defence was filed prior to the amended statement of claim and no further defence has been filed. The Notice of Motion the subject of this decision was filed shortly after the filing of the amended statement of claim.

14. The defence says, in part:

6.   In relation to paragraph 6 of the SOC, the defendant:

a.   admits the plaintiff attended on the defendant on or about 31 March 2021;

b.   denies this occurred at the offices of the defendant and says this occurred at the offices of Brydens, being the defendant’s employer;

c.   denies the defendant was informed that the plaintiff had made any compensation claim under the Safety, Rehabilitation and Compensation Act 1988 Cth) (the SRC Act as pleaded in the SOC or otherwise;

d.   admits that the plaintiff informed the defendant that she had suffered injury, but the defendant cannot admit the injury the plaintiff informed her of in the absence of particulars requested by the defendant that have not yet been provided; and

e.   otherwise does not admit paragraph 6.

7.   In relation to paragraph 7 of the SOC, the defendant;

a.   denies she was informed that the plaintiff had made any compensation claim under the SRC Act as pleaded in the SOC or otherwise;

b.   says that the plaintiff instructed the defendant on 31 March 2021 to not take any steps on her behalf in relation to any claim for compensation until the plaintiff said to do so;

c.   says that any agreement entered into with the plaintiff (which is not admitted) would have been done in her capacity as an employee of Brydens, and on behalf of Brydens; and

d.   otherwise does not admit paragraph 7.

…

15. Further, in the defence, the defendant says the following:

• The plaintiff instructed Ms Ishac not to take any steps on her behalf and not to contact anyone on her behalf because she did not want Comcare to know that she had retained lawyers;

• The plaintiff did not give instructions to take steps to progress her claim prior to the reconsideration date;

• The plaintiff was given a costs agreement and authorities to obtain her records after the conference on 31 March 2021. She did not sign and return these documents. On 31 May 2021, a letter was sent to her by the defendant advising that Brydens were unable to assist her further because she had not returned an executed costs agreement;

• The plaintiff returned an executed costs agreement after the reconsideration date;

• Ms Ishac was not aware of the plaintiff’s application to the Bank under the SRC Act and the decision of the Bank until about 1 July 2022;

• Ms Ishac asked the plaintiff at the conference on 31 March 2021 if she had already made a claim for compensation, and the plaintiff said that she had not;

• Ms Ishac gave the plaintiff advice about making a SRC Act claim and asked her if she wished for a claim to be made on her behalf. The plaintiff said that she did not want any steps taken on her behalf and that no contact was to be made with anyone on her behalf as she did not want Comcare to know that she had retained lawyers.

16. The defendant denies that it has breached its duty of care to the plaintiff in any way.

The defendant’s case on the Notice of Motion

17. Ms Tamara James, a solicitor employed by Mills Oakley, the solicitors for the defendant, provided an affidavit dated 26 May 2025.

18. In her affidavit, Ms James said the following:

• At a directions hearing on 14 February 2025, the Court directed the plaintiff to file an amended statement of claim to change the name of the defendant to Brydens;

• The Court further ordered the plaintiff to file the evidence upon which she intends to rely by 4 April 2025;

• On 7 April 2024, Ms Brooke Volbrecht, a solicitor at Mills Oakley, received an email from the plaintiff with attachments. The attachments were provided as annexures to Ms Volbrecht’s affidavit. They are the amended statement of claim and a letter from the plaintiff to the Court dated 27 March 2025;

• At the further directions hearing on 10 April 2025, the Court extended the time within which the plaintiff could file an amended statement of claim to 17 April 2025 and, in order 2, extended the time within which the plaintiff could serve affidavits and expert reports to 9 May 2025. There was also an order in the following terms:

4.   If the plaintiff does not comply with order 2 any further adj to be supported by an affidavit otherwise defendants notice file 24/1/25 will be listed for hearing.

• On 13 May 2025, Ms Volbrecht received two emails from the plaintiff, at 1:59 pm and 2:14 pm respectively. The email had two attachments, labelled District Court.pdf and SAHID Nazrana.pdf. The documents comprised in those attachments were the following documents;

-   the orders of 10 April 2025,

-   a one page letter written by Dr Renata Abraszko, a Neurosurgeon and Spinal Surgeon, who is the plaintiff’s treating Neurosurgeon, dated 25 March 2021,

-   a one page document dated 14 June 2021 from Dr Jeff Kuan of Bayscan Imaging to Dr Chandra Dave reporting his findings in relation to an MRI of the plaintiff’s right shoulder,

-   a two page document dated 17 June 2021 from Dr Kuan to Dr Dave reporting his findings in relation to an MRI of the plaintiff’s left shoulder,

-   a one page document dated 1 July 2021 from Dr Ramesh Cuganesan of Spectrum Medical Imaging to Dr Greg Natale concerning an examination of the plaintiff’s left elbow,

-   a one page document dated 4 July 2021 from Dr Bryan Barry of Spectrum Medical Imaging to Dr Natale concerning an examination of the plaintiff’s right elbow and forearm,

-   a two page letter dated 9 December 2020 from Dr Renata Abraszko, neurosurgeon and spinal surgeon to Dr Nilofur Ali in relation to the plaintiff,

-   a one page letter dated 7 April 2021 from Dr Abraszko to Dr Natale concerning the plaintiff,

-   a one page letter dated 9 December 2020 from Dr Abraszko to Dr Ali in relation to the plaintiff,

-   a one page document dated 2 March 2021 (which may be incomplete) from Spectrum Imaging to Dr Abraszko concerning an MRI of the plaintiff’s lumbar spine,

-   a two page Centrelink Employment Separation Certificate dated 27 July 2022,

-   a one page letter dated 22 July 2022 from the “Head of HR Direct” at the Bank to “Whom it may concern” regarding the employment of the plaintiff at the Bank,

-   a two page letter dated 7 July 2022 from the “Area Manager – Macarthur, Customer Service Network”, to the plaintiff regarding her possible “Ill health separation”,

-   a six page extract from a 12 page report dated 13 November 2021 of Dr Roger Rowe, orthopaedic surgeon, to the Bank, regarding his clinical assessment of the plaintiff,

-   a four page report dated 20 April 2022 of Dr Rowe to the Bank regarding his further clinical assessment of the plaintiff,

-   a document which appears to be a two page extract (pages 1 and 7) from a seven page letter dated 5 August 2022 from the “National Compliance and Audit Manager, Workers Compensation, HR – Group People Services” of the Bank to the plaintiff regarding the plaintiff’s application for an extension of time within which to obtain a review of the Bank’s determination of her compensation claim which said, on the first page:

On 7 July 2022, your legal representatives from Bryden’s Lawyers formally submitted a request for reconsideration of the primary determination dated 12 March 2021. I have had an opportunity to review the relevant evidence and correspondence from your solicitors.

In accordance with section 62 of the SRC Act, I am authorised by the CBA to review the primary determination dated 12 March 2021.

Pursuant to section 63 of the Act, this determination sets out the terms of the decision, reasons for the decision and your rights and responsibilities in respect of the decision.

The Decision

I have considered your request for reconsideration of the primary determination dated 12 March 2021 and in particular whether an extension of time ought to be granted in relation to your late application.

Five pages of the letter are then missing, and page 7 begins:

You must lodge your application within 60 days of receiving this determination as this is a statutory timeframe. Applications lodged after the 60 day period may not be entertained by the Tribunal. If the application is lodged after 60 days, you will first be required to provide an acceptable explanation for the delay. …

-   a three page letter dated 30 April 2021 from Ms Ishac of the defendant to the plaintiff regarding her workers compensation claim

19. In her affidavit, Ms James says that, on 16 May 2025, the Judicial Registrar made orders including the following orders:

1. The plaintiff is granted leave to file in Court the Amended Statement of Claim filed on 27 March 2025.

2. The defendant is to file and serve an Amended Notice of Motion seeking to have the proceedings summarily dismissed and/or striking out the plaintiff’s Statement of Claim, and evidence in support of the Amended Notice of Motion, by 4:00 pm on 23 May 2025.

3. The plaintiff is to file and serve any evidence on the defendant’s Amended Notice of Motion by 4:00 pm on 6 June 2025.

20. Ms James said that, during the 16 May 2025 directions hearing, the plaintiff confirmed that the material served on 13 May 2025 was her evidence in the proceedings.

21. The defendant relied upon the following passage of the judgment of Pike J in Martin v Gill [2025] NSWSC 385 at [23] in relation to an application for summary dismissal under r 13.4 of the UCPR:

23.   I gratefully adopt what was recently said by Faulkner J in Westwood v Gulliver [2024] NSWSC 1323 at [70]-[74] (Westwood) as follows:

[70] The power to dismiss proceedings under this rule will only be exercised where the claim is so obviously untenable that it cannot possibly succeed: General Steels Industries v Commissioner of Railways NSW (1964) 112 CLR 125 at 129; [1964] HCA 69 (Barwick CJ). In Agar v Hyde (2000) 201 CLR 552 at 576; [2000] HCA 41 at [57], Gaudron, McHugh, Gummow and Hayne JJ said the proceedings may be dismissed where there is a high degree of certainty about the ultimate outcome of the proceedings if they were allowed to go to trial in the ordinary way.

[71] In O’Brien v Bank of Western Australia Limited [2013] NSWCA 71 at [3], Macfarlan JA, with whom Beazley P agreed, identified the following relevant principles:

1.   the real issue is whether there is an underlying cause of action, not simply whether one is pleaded;

2.   demonstration of the outcome of the litigation is required, not an assessment of the prospects of its success; and

3.   the power summarily to terminate proceedings must be exercised with exceptional caution.

[72] In considering whether the General Steels test is met, the Court is to have regard to the fact that the plaintiff is self-represented and must satisfy itself that there is no viable course of action of which the plaintiff will be deprived if the case is dismissed: Wentworth v Rogers (No.5) (1986) 6 NSWLR 534 at 536 (Kirby P, with whom Hope and Samuels JJA agreed).

[73] The Court may find that a pleading discloses no reasonable cause of action merely by reference to the pleading itself and without regard to any evidence. If so, the Court must assume the truth of all the allegations made in the pleading: Agius v State of New South Wales [2001] NSWCA 371 at [24] (Priestley, Powell and Giles JJA).

[74] The Court may alternatively, determine the application having regard to evidence adduced by the parties: r 13.4(2). However, if the Court receives evidence on an application like this it must not make findings of fact based on that evidence unless there is no other evidence which might emerge during the further conduct of the proceedings which could add to or qualify those “facts”: Bass v Permanent Trustee Co Limited [1999] HCA 9; 198 CLR 334 at [50] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

22. The defendant also relied upon the following passage from the judgment of Gleeson JA, with whom Beazley P and Barrett JA agreed, in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196] – [200]:

Relevant principles on summary dismissal application

196   It is not in dispute that "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal": General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel)[1964] HCA 69; 112 CLR 125at 130 (Barwick CJ).

197   More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:

"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

198   Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].

199   In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:

"The question is...whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated."

200   Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].

23. In Agius v New South Wales [2001] NSWCA 371, Giles JA, with whom Priestly and Powell JJA agreed, said at [24] – [25]:

24       Although evidence may be received on an application under either Pt 11A r 3 or Pt 9 r 17 in relation to disclosure of a reasonable cause of action, and possibly on other of the grounds in the relevant rules, an order may be made simply on an examination of the pleading. The application may be on the basis that the pleaded facts can not give rise to a good cause of action, without regard to evidence (eg Tampion v Anderson (1973) VR 321; Penthouse Publications Ltd v McWilliam (CA, 14 March 1991, unreported)): this is like the old procedure on demurrer. The application may be on a like basis, but with evidence to explain the pleading or demonstrate a pleading fault (eg Day v William Hill (Park Lane) Ltd (1949) 1 KB 632 (affidavit annexing documents referred to in the pleading); Dougherty v Nationwide News Pty Ltd (1968) 88 WN (Pt 1) 146 (affidavit to show variance between pleaded and published defamatory matter)): this adds to the old procedure on demurrer. Or the application may be on the basis that the evidence shows that the pleaded cause of action, although on its face good, must fail on the facts or is otherwise an abuse of process (eg Laurance v Norreys (1890) LR 15 App Cas 210 (affidavits showing that “the story told in the pleadings is a myth, which has grown with the progress of the litigation, and has no substantial foundation” (at 220); Tampion v Anderson (so far as an affidavit was received explaining procedures in an inquiry relevant to immunity from suit): see generally Peter Kent Developments Pty Ltd v Australia and New Zealand Banking Group Ltd (Hunt J, 6 May 1980, unreported)).

25      In the first two situations, to which Pt 9 r 17 is particularly pertinent, an action may be bound to fail because the pleading shows its deficiency, perhaps with evidence to explain the pleadings; that is why the appropriate order is that the pleading be struck out, and there may be leave to file an amended pleading. In the third situation, to which Pt 11A r 3 is pertinent, an action may be shown by evidence to be bound to fail or otherwise an abuse of process, although the pleading is on its face satisfactory; that is why the appropriate order is that the proceedings be stayed or dismissed.

24. The defendant submitted that the plaintiff could not succeed in her claim on the basis of the evidence she has served. The evidence does not demonstrate a link between anything done or not done by the defendant and a lost chance to commence proceedings against the Bank in the AAT.

25. The defendant referred to the judgment in Dickson v Chaffey & Reddawn [2012] NSWSC 336 at [25] – [26], where Beech-Jones J said:

25.   The second matter concerns the principle in Wickstead v Browne which I referred to above at [20]. The relevant passage from the judgment of Handley JA and Cripps JA is as follows (at 11-12):

"However for another reason, which was first raised by the Court, the respondent as one of a number of defendants cannot be entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff's case. If at the close of the plaintiff's case at the trial there was no evidence against this respondent he would not be entitled at that stage to judgment if any of the other defendants intended to go into evidence: see Menzies v Australian Iron & Steel Ltd (1952) 52 SR (NSW) 62; 69 WN (NSW) 68. The effect of this rule is now embodied in Supreme Court Rules Pt 34, r 7(6) and r 8(5). The reason for the rules is clear and was explained in the decision referred to. At the close of the plaintiff's case there may be evidence against some defendants but not against others. The court will not entertain a motion for judgment by some only of the defendants because any gaps in the plaintiff's case against those defendants may be filled when the other defendants go into evidence. In particular one or more of the defendants going into evidence may seek to exculpate themselves by inculpating defendants against whom the plaintiff had no admissible evidence at the close of his case. If the respondent would not be entitled to succeed on a no evidence point at the trial until all the evidence has been called, including that from other defendants, it is clear that there can be no such entitlement on an application by one of several defendants for summary dismissal."

26   It is to be noted that this principle is described as being referrable to "evidence" and where there are "gaps in the plaintiff's case". It has been subsequently applied by both the Court of Appeal (Breheny v Cairncross & 2 Ors [2002] NSWCA 69) and at first instance (see for example Australian Securities Investments Commission v Sydney Investment House Equities Pty Ltd [2007] NSWSC 434 at [12] to [13] per Barrett J). However it has its limits. In Breheny at [7] Hodgson JA noted that:

"... I would say that there may be cases where, following compliance with directions for particulars and service of evidence, it may be possible to say, before a hearing, that a case of one defendant will certainly not implicate another defendant; and thus there may be circumstances in which one defendant may be dismissed from a case before the actual hearing".

26. In the present matter there is only one defendant, so there is no other defendant whose evidence may “fill the gaps” in the plaintiff’s evidence.

27. The defendant referred to what the plaintiff would be required to prove to make out her allegation of a loss of chance. In Salmon v Albarran (2023) 414 ALR 36; [2023] NSWSC 1238 at [413] – [421], Nixon J said:

Loss of opportunity

413.   As set out above, the Plaintiffs’ claims for equitable compensation and for damages all consist of claims in respect of opportunities which TCBS allegedly lost as a result of the Defendants’ breach of duty.

414.   When dealing with a claim for loss of opportunity, it is necessary to keep distinct the concepts of causation and assessment.

415.   A person claiming loss of an opportunity must establish on the balance of probabilities that he or she has lost a valuable opportunity. “An opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired or a detriment avoided”: Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18at [39] per French CJ, Kiefel and Keane JJ.

416.   In assessing the question of causation, the usual onus and standard of proof applies, such that a plaintiff must establish on the balance of probabilities that there was a substantial prospect of a beneficial outcome: Badenach v Calvert at [40]. In that case, French CJ, Kiefel and Keane JJ observed (at [41]) that:

“The onus of proving causation of loss is not discharged by a finding that there was more than a negligible chance that the outcome would be favourable, or even by a finding that there was a substantial chance of such an outcome. The onus is only discharged where a plaintiff can prove that it was more probable than not that they would have received a valuable opportunity.”

417.   In Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4, Mason CJ, Dawson, Toohey and Gaudron JJ emphasised (at 353) that:

“When the issue of causation turns on what the plaintiff would have done, there is no particular reason for departing from proof on the balance of probabilities notwithstanding that the question is hypothetical.”

418.   In Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445; [2011] FCAFC 55 at [166], Keane CJ, Lander and Besanko JJ quoted this statement from Sellars and made the following observation which is of particular relevance for this case:

“That authoritative statement applies with no less force where the issue is not only what the plaintiff would have done, but also involves questions as to what others would have been disposed to do in relation to reaching an agreement with the plaintiff.”

419.   Once it has been established that it is more probable than not that a claimant would have received a valuable opportunity, the Court may then proceed to assess the value of that opportunity by reference to probabilities or possibilities of various factual hypotheses. “If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring”: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643 per Deane, Gaudron and McHugh JJ; [1990] HCA 20.

420.   In Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 at [101], Barrett AJA noted that:

“An assessment made at the second stage by reference to the degree of probabilities and possibilities of factual hypotheses may require a process of estimation extending even to a degree of guesswork and may lie at any point within a broad range”.

421.   Similarly, in Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27 at [32], Bell, Keane and Nettle JJ observed that the value of a lost opportunity must be ascertained “by reference to hypotheses and possibilities” which, though “speculative and therefore not capable of proof on the balance of probabilities, could be evaluated as a matter of informed estimation.”

28. The defendant submitted that, on the basis of the medical evidence served by the plaintiff, the loss of a chance or opportunity has not been established because there is no admissible medicolegal evidence to found a conclusion that there was a link between the plaintiff’s medical injuries and her employment. There is, at best, only a speculative prospect that a benefit would have been acquired or a detriment avoided.

29. The defendant further submitted that the plaintiff has failed completely to serve any evidence concerning what transpired in the meeting on 31 March 2021.

30. The defendant submitted that the plaintiff has failed to serve any evidence of any loss.

31. The defendant relied upon the judgment of Maxwell P in Findlay v Victoria [2009] VSCA 294 at [2] in the context of pleading causation in “failure to advise” cases:

2    … When – as here – a plaintiff alleges a negligent failure to act, the causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no relevant failure to act. The plaintiff’s counterfactual hypothesis must identify:

(a) what the defendant would have done had reasonable care been exercised; and

(b) how the taking of that action (or those actions) would have averted the loss or damage which the plaintiff in fact suffered.

32. The defendant also relied upon the judgment of Rothman J in Clarke v GEO Australia Pty Ltd [2023] NSWSC 716 at [77]:

77   It is well-established law that a pleading of causation must go beyond a mere assertion that a defendant’s negligence led to a plaintiff suffering harm. A pleading must use material facts to establish the causal link which will be used at trial to sheet liability home to the defendant. The requirement to do so accords with the overarching purpose of the pleading to identify the issues to be tried.

33. Further, Williams J in Richmond Valley Council v JLT Risk Solutions Pty Ltd [2022] NSWSC 1761 at [130] said:

130   There is no rule of law that requires a plaintiff in every case to plead the material facts constituting each and every variation of the counterfactual scenarios that might be relied on to establish causation. However, a defendant is “entitled to a direct and unambiguous identification of the material facts relied on to establish the causal link between the conduct which plaintiffs impugn and the loss they allegedly suffered”,except in cases where the causal link between the impugned conduct and the alleged loss is obvious: DSHE Holdings Ltd (receivers and managers appointed) (in liq) v Potts; HSBC Bank Ltd v Abboud; Potts v National Australia Bank Ltd [2022] NSWCA 165 at [312]-[313] (Leeming and Kirk JJA and Basten AJA), referring to Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; (2020) 381 ALR 427; [2020] HCA 27 at [72] (Gageler and Edelman JJ); English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 at [102]-[104] at (Murphy and Vaughan JJ), citing Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No. 7) [2019] QSC 241 at [17]-[21]. That entitlement is an incident of the essential function of pleadings, which is to ensure the basic requirement of procedural fairness that a defendant should have the opportunity to meet the case put against it: Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 at 169 CLR 286-287 (Mason CJ and Gaudron J).

34. The defendant argued that the plaintiff’s causation pleading is insufficient to permit the Court to determine what the plaintiff says would have happened if the allegedly negligent advice had not been given. A bare assertion that a challenge ought to have been lodged and AAT proceedings ought to have been commenced is not enough. The evidence served makes the counterfactual no clearer than the pleadings, it was submitted.

The plaintiff’s case on the Notice of Motion

35. Initially, the plaintiff served no additional evidence in relation to the Notice of Motion, but relied upon the material she had served on the plaintiff, which is annexed to Ms James’ affidavit and described at [18] above.

36. The plaintiff said, at the hearing on 7 July 2025, in relation to the material which is annexed to Ms James’ affidavit and described at [18]:

… This is all the evidence I had and I forwarded to the other party and I lodged it in with the Court as well.

37. In the course of the hearing of the Notice of Motion, a detailed explanation of the deficiencies in her evidence was given to the plaintiff, both from the bench and from the defendant’s side of the bar table. The plaintiff was given breaks to read and re-read documents and to consider what was said to her during the hearing. The question of legal representation was canvassed with the plaintiff.

38. Ultimately, the plaintiff sought an adjournment of the hearing, which was granted.

39. The hearing resumed on 31 July 2025. The plaintiff filed submissions on 30 July 2025, which were prepared by her solicitor, Ms Sarfraz. Ms Sarfraz represented the plaintiff at the resumed hearing.

40. An affidavit of the plaintiff, dated 28 July 2025, was relied upon by the plaintiff at the resumed hearing. The plaintiff, in her affidavit, gave evidence of her interaction with Ms Ishac at the conference in March 2021. The plaintiff says, in her affidavit, among other things:

62.   I met with Silva Ishac, a solicitor at the firm, who I was advised was the only solicitor in the firm who specialised in Comcare matters. By verbal agreement, it was agreed that she would act on my case. [sic]

63   I provided Silva Ishac with all relevant information, including treatment providers and all paperwork received from the Bank, date of injury and supporting documentation to assist in lodging the claim on time. My dispute should have been lodged around 9 April 2021.

…

70.   During my initial consultation, I was also advised that the firm would arrange for an independent medical examination (IME) to obtain supportive medical evidence for by claim. …

41. There are medical reports and letters annexed to the plaintiff’s affidavit. Most of them had been provided by the plaintiff to the defendant by email on 13 May 2025.

42. The written submissions dated 28 July 2025 assert that the plaintiff’s affidavit “provides detailed evidence of the instructions given to the defendant, including the request to lodge a reconsideration application under the SRC Act”. This description can only be a reference to paragraphs 62, 63 and 70 of the plaintiff’s affidavit, set out at [40] above. There is no other direct reference to what was said during the March 2021 conference.

43. The written submissions state:

36.   The Plaintiff has pleaded that the Defendant’s failure to act within the statutory timeframe caused her to lose the opportunity to:

36.1.1   Dispute the employer’s decision before the AAT.

36.1.2   Access statutory entitlements under the SRC Act, including incapacity payments, medical expenses, compensation for whole person impairment, and non-economic loss.

36.1.3   Pursue common law damages.

44. It is asserted that “Plaintiff has provided extensive medical evidence that substantiates her injuries and their causative link to her employment. This evidence demonstrates the Plaintiff’s entitlement to compensation under the SRC Act, which was lost due to the Plaintiff’s negligence”.

Consideration

45. The defendant seeks the summary dismissal of these proceedings, which were commenced on 10 April 2024. In considering whether the proceedings should be summarily dismissed, I take it into account that the plaintiff has been unrepresented for much of the time that the proceedings have been in train.

46. In the event that there were to be a trial of this matter, the evidence served by the plaintiff on 13 May 2024 might be considered at the trial. I will, therefore, take it into account. The material provided in the Court Book at tab 4 and the material annexed to the plaintiff’s affidavit might also be considered, even though it has been provided well outside the timetable. I will consider that material in relation to the Notice of Motion.

47. The plaintiff claimed workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 by application dated 13 January 2021 in relation to alleged injuries to her “Neck/Shoulders and Back (Injury to my neck shoulder/arm and back)” (see annexure G to the plaintiff’s affidavit). On 8 March 2021, the plaintiff was given six physiotherapy sessions “as part of your pre-claim” (see annexure G to the plaintiff’s affidavit). Subsequently, on 12 March 2021, the plaintiff’s claim was refused by the Bank. The document recording the Bank’s refusal is not before me. I note that Dr Abraszko, in her letter of 7 April 2021 says, in relation to the plaintiff, “Her claim was rejected on the basis that there is no causation between her work and her injury”.

45. The medical evidence before me which was in existence when the plaintiff made her application for workers compensation includes the results of a CT scan of 22 October 2020, the results of an MRI scan on 14 November 2020 and the results of an ultrasound and x-ray of her left shoulder and an x-ray of her right knee also on 14 November 2020. That evidence establishes that the plaintiff, by October 2020, had some degenerative changes to her neck. The evidence also establishes that the plaintiff had a tear in the anterior supraspinatus tendon (in the left shoulder) together with bursitis and a degenerative AC joint. The CT scan and the MRI scan establish the existence of degenerative changes in the neck and left shoulder, and a tear in the tendon in the left shoulder, but they say nothing, of course, about causation. The only other medical evidence prior to the lodging of the plaintiff’s claim is a letter of 9 December 2020 from Dr Abraszko to Dr Ali, the plaintiff’s general practitioner at the time, in which Dr Abraszko says, in relation to the plaintiff:

…who presented with neck pain. She complains of pain located in the neck and both shoulders and both hands. She had a nerve conduction studies which showed mild carpal tunnel on the right side.

On examination, poser, tone, reflexes and sensation are normal. She points the pain in all the joints. CT scan of the cervical spine did show disc-osteophyte complex at the left C5-C6 level indenting on the left anterior aspect of the spinal canal, and at C4-5 level there is the disc osteophyte complex which is narrowing of the spinal canal; that was confirmed with the MRI. Her pain is not related purely to that. I recommend her bone scan and x-ray flexion and extension views of the cervical spine.

She underwent ultrasounds of the shoulder which showed full thickness tear of the supraspinatus tendon on the ultrasound of the right shoulder.

She works in a bank. Few years ago, she was asked to carry the coins in and out of the teller, and since that time she developed some neck pain. Then she changed the role and was moved to a different bank and was doing customer service, and the pain subsided. After that she returned to work recently and was asked to lift the coins again which aggravated her pain.

I recommend her x-ray flexion and extension view of the cervical spine and a bone scan and I will review her with results. I told her this might be a work related injury, since that disc is quite old and most likely happened a few years ago. [sic]

49. The opportunity that the plaintiff pleads that she lost was the opportunity to seek the internal review of the decision by the Bank in relation to her workers compensation claim which, if unfavourable, would have created the opportunity for an appeal to the Administrative Appeal Tribunal.

50. The document which appears to be a two page extract (pages 1 and 7) from a seven page letter dated 5 August 2022 from the “National Compliance and Audit Manager, Workers Compensation, HR – Group People Services” of the Bank, referred to and quoted from at [18] above, gives rise to some doubt about whether the plaintiff lost the opportunity for an internal review.

51. The defendant argued that a lost opportunity for the plaintiff to pursue her claim through an internal review and an appeal to the AAT could not constitute a head of damages as a lost opportunity or loss of a chance in these proceedings. This is because such a loss is speculative and not substantial. On the available evidence, it was argued, the plaintiff cannot prove that it is more probable than not that she would have been awarded compensation or that there was a substantial prospect of a beneficial outcome.

52. Dr Farhan Shahzad, an occupational physician, in his report of 8 March 2021 in relation to the plaintiff, given as an independent expert, said, after describing the plaintiff’s history, and his examination of her (see CB Tab 4 p 23 - 24):

Overall, Ms Sahid presents with longstanding degenerative issues. It is hard to marry causation to the nature and condition of the role. No particular causation could justify the degenerative findings noted on clinical imaging.

…

The causative factors for Ms Sahid’s presentation remain unclear. She reported that this was related to her work at Westfield Liverpool from 2020. She has reported multiple musculoskeletal issues although the findings on clinical imaging are noted to be of a chronic, longstanding nature with degenerative findings noted above.

It is also difficult to correlate how Ms Sahid would have sustained a full thickness tear in the shoulder when there was no overhead activity and no pushing or pulling against resistance noted, whilst pushing the trolley.

The mechanism of activity is very unclear and I was unable to establish causation, related to work. Work is not identified to be a substantial contributing factor in Ms Sahid’s presentation.

53. In a letter dated 25 March 2021 to Dr Greg Natale, the plaintiff’s general practitioner at the time, Dr Abraszko says:

…Mrs Sahid presented today. She told me that she started to have pain in the neck and lower back after working in Casula for a month. She was lifting heavy bags of coins, putting up on the shelves, and then developed the pain in the neck and shoulder and lower back. She didn’t want to be singled out in her job, therefore, she didn’t reported initially but with time and the type of her work, customer service and lifting the bags of money, the back pain, neck pain and shoulder pain progressed and finally she couldn’t work anymore and had to talk to her doctor. This injury then was happening over the time of six years. Therefore, it is not surprising there are some degenerative changes in the particular discs, but not in the whole spine as indicated by the independent medical assessment. [sic]

Therefore, in my opinion, her injuries are related to the nature and condition of her work. I recommend her further conservative management and physiotherapy.

54. In her two paragraph letter of 7 April 2021 to Dr Natale, Dr Abraszko says:

We went through her injury; and in my opinion, she does have a neck injury arising from her work, C4-5 and C5-6 disc bulges, as well as a small disc bulge in the lumbar spine, which were caused by the prolonged standing.

I cannot comment on both shoulders’ injury, since that is not my area of expertise.

55. Dr Banda, occupational physician, in his independent report of 13 September 2021, repeats what the plaintiff told him about her work and her belief that it was causative of her condition, but does not provide his own opinion as to causation. Dr Banda found that the plaintiff was fit for work, with some adjustments.

56. Dr Rowe, orthopaedic surgeon, in his independent report of 13 November 2021, also repeats what the plaintiff told him, but does not provide his own opinion as to causation. Dr Rowe diagnosed the plaintiff as suffering from “largely chronic pain syndrome”. He finds the plaintiff to be incapable of fulfilling the duties of her role at the Bank. In his further report of 22 April 2022, Dr Rowe says that the plaintiff is getting worse rather than improving and that she continues to be unfit for work. Again, he provides no opinion as to causation.

57. The defendant’s argument that the plaintiff does not have admissible evidence which could establish a causal link between her work and her neck and shoulder condition would be more persuasive had the system within which the plaintiff claims compensation required findings of fact from a court bound by the rules of evidence. However, neither the internal reviewer in the Bank, nor the AAT, would have been bound by the rules of evidence. The review in both cases is an administrative process and the term usually given to the standard of proof is ”reasonable satisfaction”. Material which would not be admitted to evidence in a court may be considered in such a process if it has sufficient integrity and is sufficiently relevant.

58. For these reasons, whilst the plaintiff’s case in relation to a loss of opportunity, on the material before me, is a very weak case, I cannot find that it is “so obviously untenable that it cannot succeed” (see [21] above). The outcome of the present litigation cannot be demonstrated on the basis that loss of opportunity as a head of damages would certainly fail (see [21] above). However, if the entire letter of 5 August 2022 from the National Compliance and Audit Manager, Workers Compensation, HR-Group People Services of the Bank, to the plaintiff, of which only the first and last of seven pages has been provided by the plaintiff, shows that an internal review did take place in July or August of 2022, and that a pathway for an administrative appeal was therefore created at that time, then it is not apparent on the material before me that the plaintiff could prove a loss of opportunity to pursue her workers compensation claim as a head of damages in these proceedings.

59. In relation to proof of negligence against Brydens, in these proceedings, which requires that the plaintiff prove its case on the balance of probabilities, once again, the plaintiff’s case, on the material before me, is very weak. The defendant relies upon her allegation in the statement of claim that:

11.   On or about 31 March 2021, the Plaintiff instructed the Defendant to request reconsideration of the employer’s decision dated 12 March 2021 to protect her interests before the reconsideration date.

60. As I have said, the only evidence in the plaintiff’s case regarding the conversation between her and Ms Ishac in the meeting of 31 March 2021 is set out in [40] above. The plaintiff said that she provided to Ms Ishac all relevant information, including “all paperwork received from the Bank” … “to assist in lodging the claim on time”.   The paperwork is not identified and it is not in evidence.

61. Ms Ishac’s version of the events at the conference of 31 March 2021 is different in critical aspects from the plaintiff’s version of events. The plaintiff’s pleading of her claims is little more than a bare assertion, and her evidence in support of it is threadbare, but it is not possible to say that the outcome of the litigation can be demonstrated. I bear in mind that a decision in relation to an application for summary dismissal is not an assessment of the prospects of success of the matter (see O’Brien v Bank of Western Australia Limited referred to at [21] above). I also bear in mind that the power to dismiss a matter summarily must be exercised with great care (see [22] above).

62. The defendant’s application for the summary dismissal of these proceedings under r 13.4 of the UCPR will be refused.

63. The defendant also seeks to have the plaintiff’s amended statement of claim struck out under r 14.28 of the UCPR.

64. As I have said, the amended statement of claim pleads the plaintiff’s case in a manner which is mostly bare assertion. However, a cause of action is disclosed and none of the other grounds for the striking out of the pleadings has been made out.

65. The defendant’s application for the striking out of the statement of claim pursuant to r 14.28 of the UCPR will be refused.

66. The defendant has indicated that, in the event that it is unsuccessful in its Notice of Motion, it does not object to the plaintiff being given leave to rely on her affidavit of 28 July 2025.

Orders

67. The following orders will issue:

1. The Defendant’s amended Notice of Motion filed on 28 May 2025 is dismissed.

2. The costs of the motion are to be costs in the cause.

3. The plaintiff has leave to rely on her affidavit of 28 July 2025 in the substantive proceedings.

4. The plaintiff may not rely on further evidence without the leave of the Court.

5. The proceedings are listed for directions before the Judicial Registrar on 15 September 2025 to fix a date for the hearing of the matter.

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Decision last updated: 25 August 2025