Shaikh v Michael Looi Pty Limited trading as Southlands Medical Clinic

[2022] NSWSC 1174

Supreme Court

New South Wales

Medium Neutral Citation:

Shaikh v Michael Looi Pty Limited trading as Southlands Medical Clinic [2022] NSWSC 1174

Hearing dates:

29 August 2022

Date of orders:

29 August 2022

Decision date:

29 August 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Under r 12.7(1) Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed for want of prosecution with due dispatch.

(2) The plaintiff is to pay the defendant's costs of the proceedings.

Catchwords:

CIVIL PROCEDURE – dismissal of proceedings – proceedings dismissed for want of prosecution with due dispatch

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 14.28, 15.16

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Azeem Shaikh (Plaintiff)
Michael Looi Pty Limited trading as Southlands Medical Clinic (Defendant)

Representation:

Counsel:
No appearance (Plaintiff)
J. Harris (Defendant)

Solicitors:
Self litigant (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s):

2021/305094

Publication restriction:

Nil

extempore Judgment – (revised)

1. I am considering an application by the defendant for: first, dismissal of the plaintiff's proceedings for want of due dispatch; secondly, and in the alternative, striking out the pleadings pursuant to r 14.28 Uniform Procedure Rules 2005 (NSW) (“UCPR”); and thirdly, further in the alternative, dismissing the proceedings under r 15.16 UCPR for failing to file a full statement of particulars of personal injury with the statement of claim.

2. The plaintiff has not appeared today. Indeed, from the affidavits of Mr Paul Morrison Baram affirmed on 3 March 2022, 23 March 2022 and 21 June 2022, read in support of the application, the plaintiff has failed to appear on each occasion on which his proceedings have been listed for directions before the court. This is a prominent ground for the first application.

3. I am satisfied that the plaintiff has had adequate notice of the hearing date, despite his non-appearance. Annexure K to Mr Baram's third affidavit is an email exchange passing between the plaintiff and the solicitor with carriage of the matter, Ms Louise Hazelton, concerning the hearing date. On 5 April 2022, Ms Hazelton informed the plaintiff of the orders that had been made by the Registrar on 1 April 2022, including listing this application for hearing today, 29 August 2022. On 6 April the plaintiff responded, stating: “29 August 2022 is ok as long as my health condition allows me to attend."

4. Exhibit 1 in these proceedings is an email chain passing between Ms Hazelton and the plaintiff. It is not strictly relevant to the application, but Ms Hazelton notified the plaintiff of a change of firm; the plaintiff sought some irrelevant information, to which Ms Hazelton responded; and on 22 August she served the court book for today to the plaintiff's notified email address.

5. The plaintiff responded to the first email on 12 August 2022, as I have said, but did not at that time suggest any ill health or other incapacity which would prevent him from attending today. He has not contacted the registry, my chambers or indeed the defendant's solicitor to seek an adjournment. When he failed to appear upon the matter being called for hearing this morning, in accordance with the usual convention his name was called outside this courtroom three times and there was no appearance.

6. I am well satisfied that the plaintiff has had adequate notice of today's hearing and a reasonable opportunity to attend, appear and present evidence and argument in response to the defendant's motion. There is nothing before me to suggest that he has suffered any incapacity preventing him from appearing, and given, may I say, his unbroken record of non-attendance when required before the court, there is nothing in the circumstances of the case leaving open an inference that he has some other reasonable excuse for his non-appearance. In these circumstances, I determined to permit the defendant to proceed ex parte.

7. It is tolerably clear that the plaintiff was a sometime patient of the defendant's medical practice, but the document by which he has commenced these proceedings, which he has styled "Statement of Claim," is opaque and terse, if not taciturn, in its language. The document was filed on 27 October 2021 but the only "pleading" advanced is as follows: “Acting in bad faith Refusal of medicine refusal of service (sic)”. That is the extent of it.

8. Manifestly, it fails to make even an honest attempt to do one's best to comply with the rules of pleading in Pt 14 UCPR. Not a single fact, let alone a material fact, is pleaded. It is hardly surprising then that when the matter came before the Common Law Case Management Registrar on 25 November 2021, the first date for directions and on which the plaintiff did not appear, that Registrar Jones made directions for the preparation of the case including a direction that the plaintiff was to file any proposed amended statement of claim by 24 January 2022.

9. From the evidence, it is quite clear that Ms Hazelton informed the plaintiff of these orders. It is also quite clear that when he failed to meet that deadline, Ms Hazelton provided him with a gentle reminder. On 2 February 2022 she wrote by email to the plaintiff, asking if he intended to file the proposed amended statement of claim. He responded that he would submit one. Later, the same day, and indeed at 8.09pm, he provided a copy of a document by email which he described as "the amended SOC."

10. This is an entirely informal document. It has not been engrossed in an approved form for filing. It is not set out in logical sequence and its paragraphs are unnumbered. However, having said that, it is perhaps fair to say that the plaintiff's complaint is set out in a style which is intelligible. From it, it is quite clear that he avers that he is a sometime patient of the defendant and that he has a number of chronic pre-existing medical conditions, including a history of a psychotic illness. Although there are no dates pleaded, I am prepared to infer that his complaint relates to a fairly recent matter and certainly one within the limitation period. His complaint seems to be that he sought referral to a psychologist for his mental health issues. His case is that he sought referral to a psychologist "is covered on Medicare" (sic). If that is what he requested, doubtless the doctor at the practice who provided the referral complied.

11. However, it may be that he wanted referral to a psychologist who was happy to bulk bill Medicare. I do not know, because it is not made clear on the face of this proposed document. In any event, after one session he received a bill, which he asked the defendant to pay, and the defendant apparently declined. The plaintiff then avers that he telephoned the defendant to request a prescription, which service was refused. He concludes the document in the following manner:

“The plaintiff pleads compensation and damages caused by the practitioner's action of bad faith, fault and deception.

The plaintiff pleads compensation for ongoing maintenance of loss of vision, anus destruction (he suffers badly from Crohn’s disease), and family breakdown and inability to continue work.”

Had the document been produced in a form fit for filing, the deficiencies in the pleading would have remained obvious, although a number of facts which could possibly be material have been pleaded.

12. In any event, as I have said, the defendant primarily seeks to dismiss the proceedings on the basis of r 12.7 UCPR. Subrule (1) is in the following terms:

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

13. The circumstances primarily relied upon are the plaintiff's failure to appear before the Registrar on 25 November 2021, Harrison J in the Professional Negligence List on 4 March 2022 and the Registrar again on 4 April 2022. Other than producing the informal document styled "amended SOC", which has not been filed, the plaintiff does not appear to have complied with any of the directions made on any of those occasions so far as they concerned him. The perhaps pertinent example is that he has not filed any evidence in response to this application by the defendant.

14. The defendant, on the other hand, has strictly complied with the obligations imposed upon him so far as he could, bearing in mind that he could not respond to the omission of the plaintiff to take steps required of him. Ms Hazelton, I am satisfied from the affidavits to which I have referred, has attempted to assist the plaintiff to comply with his obligations under the directions, and, if I may say so, has been patient and forbearing with him, always dealing with him in a polite and respectful tone.

15. One would perhaps be very reluctant to dismiss proceedings under r 12.7 UCPR when they have been on foot for less than 12 months. However, one has to consider and assess each case on its own facts and the application for dismissal on its own merits. I am of the view that even if it may be said the delay is not long, the simple fact is that the plaintiff has, in all respects, failed to comply with his obligations in the conduct of the proceedings.

16. As I have said, he has not even appeared as required for directions hearings. That is, I repeat, he has failed to appear on each occasion when the matter has been before the court, including today. Although Ms Hazelton has been forbearing, she has not been acquiescent in the plaintiff's delay. It certainly could not be said that the defendant has other than acted entirely appropriately, both in relation to discharging its obligations as a litigant but also, as I have said, in doing what may be proper to assist the plaintiff to comply with his.

17. It is not insignificant that the plaintiff has made no real attempt to plead a coherent case. By that, I mean that the plaintiff has not made any real attempt to set out what his case might be in an intelligible manner and in a comprehensive way. I do not mean to suggest his cause of action should have been set out elaborately or in a lengthy fashion. However, each of the elements ought to have been made clear in his pleading, even if only in language appropriate to a legal layman.

18. I have borne in mind that it seems unlikely the applicable limitation period has expired, so that the dismissal of these proceedings under this rule will not lead to any irretrievable prejudice to the plaintiff in respect of any properly arguable cause of action he may have. At the same time, the defendant is incurring what must be completely unnecessary costs in continuing to manage the file and to take such steps as the court requires of him while the proceedings remain on foot.

19. It seems to me unlikely that the defendant would have any real prospect of recoupment of those costs from the plaintiff, given the email correspondence he has sent from time to time talking about his chronic ill health and his inability to work by reason thereof. I do not draw any particular inference, but the consideration that he may have been seeking consultations with a psychologist who was prepared to bulk bill may suggest he is a person of very modest means.

20. Of course, that does not mean that the door of the court is closed to him; quite the contrary. But it does highlight the prejudice, so far as costs are concerned, that the defendant is subject to in having to respond to what appears to be poorly conceived proceedings which the plaintiff has, from the very outset, not prosecuted with any semblance of due dispatch. For those reasons, I am of the view that the defendant has made good its argument under r 12.7 and I will dismiss the proceedings accordingly.

21. Before I make the orders, I would also be of the view, were it necessary to say so, that the defendant had demonstrated that the statement of claim disclosed no reasonable cause of action. I have quoted it in full, and it is indeed a very obvious case. It is hard to imagine one that would be more obvious.

22. Having considered the "amended SOC", I am not satisfied that there is any underlying pleadable case based on that document. Although, having said that, summary dismissal is not sought. It is sufficient that I contingently express the opinion that even had that document been propounded in a fileable form, it would not in my judgment disclose a reasonable cause of action.

23. I consider it unnecessary to turn to the third alternative of non-compliance with Pt 15 Div 2. Certainly, the proposed amended pleading had about it the flavour of a claim for personal injury, but even that was far from certain.

24. My orders are:

1. Under r 12.7(1) Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed for want of prosecution with due dispatch.

2. The plaintiff is to pay the defendant's costs of the proceedings.

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Decision last updated: 01 September 2022