Sourian by his tutor Sourian v Northern Sydney Local Health District

[2020] NSWSC 1657

Supreme Court

New South Wales

Medium Neutral Citation:

Sourian by his tutor Sourian v Northern Sydney Local Health District [2020] NSWSC 1657

Hearing dates:

19 November 2020

Decision date:

19 November 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Refuse the defendants’ application for dismissal of the proceedings.

(2)   Direct the plaintiff to serve any outstanding expert reports by 14 January 2021.

(3)   Order the plaintiff to pay the defendants’ costs of the notices of motion filed by them on 29 June 2020.

(4)   List the matter for further directions on 11 February 2021 at 9.15am.

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Professional negligence claim — Failure to serve experts’ reports

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 31.36

Category:

Principal judgment

Parties:

Jerry Sourian by his tutor Leonor Elizabeth Sourian (Plaintiff)
Northern Sydney Local Health District (First defendant)
State of New South Wales (Second defendant)

Representation:

Counsel:
D Steiner (Plaintiff)
M J Gollan (First and second defendant)

Solicitors:
Capital Lawyers (Plaintiff)
Crown Solicitor’s Office (First and second defendant)

File Number(s):

2019/178404

Judgment (EX TEMPORE)

The procedural history

1. These proceedings, which were commenced by statement of claim filed on 7 June 2019, arise out of an incident alleged to have occurred on 9 June 2016, when the plaintiff, who at that time was an involuntary patient in a mental health facility, absconded and went to Westfield Shopping Centre with a knife. Police were alerted to his presence at the Westfield Shopping Centre. When they approached the plaintiff it is alleged that he stood up and brandished the knife in their direction. I understand it to be common ground that one of the police officers then shot the plaintiff more than once, thereby causing him injury.

2. There are two defendants: the Northern Sydney Local Health District (the Health District) and the State of New South Wales. The State of New South Wales is accepted to be vicariously liable for the conduct of the New South Wales Police (the Police).

3. In essence, the plaintiff alleges that the Health District was negligent in allowing him to abscond from the facility, and the Police were guilty of an intentional tort when the police officer shot him. This short summary suffices for present purposes.

4. The plaintiff's statement of claim was filed within the three-year limitation period. It is common ground that the plaintiff was required, and failed, to file, with the statement of claim, an expert report under Uniform Civil Procedure Rules 2005 (NSW) r 31.36.

5. Since the commencement of the proceedings there have been substantial defaults by the plaintiff in compliance with the rules of the Court and the directions of the Court. The matter was first listed for directions before the Registrar on 29 July 2019. At that time consent orders were made requiring the first defendant to seek particulars and file a defence, and, importantly, for the plaintiff to serve expert reports on liability by 25 October 2019 and on damages by 1 November. These directions were not complied with by the plaintiff. When the matter came before the Court on 4 November 2019, the plaintiff's solicitor was directed to provide an affidavit on the next occasion explaining non-compliance. The plaintiff in an affidavit of 18 November 2019 explained the reasons for the non-compliance and explained the difficulties of funding the litigation, having access to the plaintiff and complying with Court directions.

6. It is not necessary for present purposes to go through all the several occasions on which the matter has been before this Court for directions, which include the dates I have referred to as well as 18 November 2019, 30 January 2020, 28 February 2020 and thereafter.

The defendants’ application for dismissal

7. On 29 June 2020 notices of motion were filed on behalf of each of the defendants for an order that the proceedings as against the Health District be dismissed pursuant to r 31.36 of the UCPR, or alternatively, against both defendants pursuant to UCPR r 12.7.

8. The defendant has filed extensive evidence in affidavits of Amy Simpson of 29 June 2020 outlining the several defaults on the part of the plaintiff's solicitor.

9. The plaintiff's solicitor, Paul Crabb, has, in affidavits of 21 July 2020 and 17 November 2020, outlined the various difficulties associated with acting on behalf of the plaintiff, both practical difficulties and funding difficulties, and the time it has taken him to obtain expert reports to support the allegations made in the statement of claim. Mr Steiner submitted that the plaintiff is impecunious. The administration of justice depends on solicitors such as Mr Crabb being prepared to act for impecunious clients. Otherwise, whatever legal rights the plaintiff might have cannot be exercised or enforced in the courts. This Court is not unsympathetic to the position of solicitors in Mr Crabb’s position whose clients might lack the resources of publicly funded entities such as the defendants.

10. Since the motion was filed, a number of expert liability and damages reports have been served on behalf of the plaintiff. In Mr Crabb's most recent affidavit of 17 November 2020 he deposes that funding for the plaintiff's expert liability report on the acts of the Police has been obtained and it is estimated that the report will be available in four weeks' time.

11. Mr Gollan, who appears on behalf of the defendants, has emphasised the efforts made by the defendants to bring the plaintiff into compliance which have ultimately culminated in the filing of the notices of motion on 29 June 2020. He contended that this course was necessary to ensure that the plaintiff complied with the duty which is imposed on all parties by s 56(3) of the Civil Procedure Act 2005 (NSW) to assist the court to further the overriding purpose (to facilitate the just, quick and cheap resolution of the real issues in the proceedings) and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

12. If the proceedings were dismissed, the plaintiff’s claim would be statute-barred because he commenced these proceedings very shortly before the expiration of the limitation period. This would amount to a very substantial prejudice to the plaintiff.

13. On the other hand, the prejudice to the defendants, if the proceedings are not dismissed, is said to be that because of the delay in being served with expert reports, the defendants have not been in a position where they can understand the case they have to meet and investigate factual and other allegations made on behalf of the plaintiff, with a view to defending these proceedings as well as they would like to.

14. Although the delay by the plaintiff's solicitors has been considerable, it has in my view been adequately explained by Mr Crabb. The prejudice to the plaintiff by dismissal of the proceedings would be so significant that I am not persuaded that it would be consistent with the just, quick and cheap resolution of the proceedings to accede to the defendants’ application.

15. It is, however, important to put the proceedings on a proper footing. Mr Gollan submitted that, if I refused the defendants’ application for dismissal, I ought not permit the plaintiff to serve any further expert reports. I am not persuaded that such a direction would be appropriate. In my view, weight should be given to Mr Crabb's evidence that such a report is expected to be available in the next four weeks.

16. I also note the submission made by Mr Steiner, who appears on behalf of the plaintiff, that having regard to the fact that the plaintiff has a tutor, he being an incapable person by reason of mental illness, it would be appropriate to allow a further two weeks so that Mr Crabb can obtain instructions from the tutor. That would take the time within which the report is to be served to 31 December 2020. In light of the timing of the Court vacation, I consider it to be appropriate to allow until 14 January 2021 for service of that report.

17. Mr Gollan has suggested, in the alternative, that there be a guillotine order in respect of any further expert reports. I am not persuaded that that would be appropriate at this time, but it remains a possibility if there is any further default by the plaintiff.

Costs

18. On the question of costs, Mr Gollan seeks an order for costs on the basis that it was apparently only the bringing of the notices of motion by the defendants which has caused substantial activity by the plaintiff's solicitors, and that the plaintiff is essentially seeking an indulgence.

19. There is something to be said for the defendants not obtaining all of their costs of the motion, in the sense that the orders I propose to make accord with what Mr Steiner has indicated he is prepared to accept. Nonetheless, I accept that the defendants, in discharging their duty under the Civil Procedure Act under s 56(3), have endeavoured to assist the Court by bringing matters to a head. In those circumstances and having regard to the appropriate concessions made by Mr Steiner on behalf of the plaintiff, I accept the defendants’ submission that the plaintiff should pay the defendants' costs of the notices of motion.

Orders

20. For the reasons I have given, I make the following orders:

1. Refuse the defendants’ application for dismissal of the proceedings.

2. Direct the plaintiff to serve any outstanding expert reports by 14 January 2021.

3. Order the plaintiff to pay the defendants’ costs of the notices of motion filed by them on 29 June 2020.

4. List the matter for further directions on 11 February 2021 at 9.15am.

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Decision last updated: 20 November 2020