Taing v Nguyen

[2015] NSWSC 1011

Supreme Court

New South Wales

Medium Neutral Citation:

Taing v Nguyen [2015] NSWSC 1011

Hearing dates:

24 July 2015

Date of orders:

24 July 2015

Decision date:

24 July 2015

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Leave to the Plaintiff to add Sok Uriy Soy as the Third Defendant.

 

2. Leave to the Plaintiff to file and serve a Statement of Claim in the form annexed to his affidavit of 13 March 2015 (sworn in support of Notice of Motion dated 13 March 2015) by 7 August 2015.

 3. Plaintiff to pay the First Defendant’s costs of the Notice of Motion of 13 March 2015.

Catchwords:

PROCEDURE - pleadings – proceedings commenced in 2012- plaintiff self-represented - two versions of Statement of Claim struck out in 2012 – plaintiff applies in 2015 to add defendant and file further Statement of Claim - adequate but scarcely satisfactory explanation for delay – proposed pleading adequately pleaded - leave to add defendant and to file further version of Statement of Claim

Category:

Procedural and other rulings

Parties:

Seam Taing (Plaintiff)
Thi Thuy Trang Nguyen (First Defendant)
Van Thang Huynh (Second Defendant)
Sok Uriy Soy (Third Defendant)

Representation:

Counsel:
In person (Plaintiff)
S Ipp (First Defendant)
No appearances (Second and Third Defendants)

  Solicitors:
Self-represented (Plaintiff)
Gadens Lawyersnotio (First Defendant)
Self-represented (Second and Third Defendants)

File Number(s):

2011/397183

Judgment

1. These proceedings commenced by Summons on 8 December 2011. A Statement of Claim was filed on 11 May 2012 and an Amended Statement of Claim was filed on 18 May 2012. At all times the Plaintiff has acted for himself.

2. The proceedings came before the Registrar on a number of occasions in early 2012. They were ultimately referred to the Duty Judge on 28 June 2012. On that day the then Defendants in the matter sought that the Summons, the Statement of Claim and the Amended Statement of Claim be struck out; alternatively, they asked that the proceedings be dismissed altogether.

3. The matter came before Schmidt J on that day. Her Honour delivered judgment on the Defendants’ Motion. Her Honour struck out all of the documents filed by the Plaintiff up to that point. She did not, however, dismiss the proceedings. She gave the Plaintiff a further opportunity to plead his case as the Court's rules and practices require. She said in her reasons:

If the necessary steps are not taken, Mr Taing should expect that his proceedings will be dismissed.

4. In addition, her Honour referred Mr Taing to the Registrar of the Court for referral to a solicitor or barrister under the Court's Pro Bono Legal Assistance Scheme.

5. The Plaintiff has applied by Motion filed 13 March 2015 to add a Third Defendant to the proceedings and for leave to file an Amended Statement of Claim. The proposed Amended Statement of Claim discloses that the basis of the Plaintiff's claim is one for assault said to have been committed by the Second Defendant on 19 November 2010, although I note in passing that in the earlier versions of the pleadings the incident was said to have taken place on 19 October 2010.

6. The First Defendant was sued because it was alleged he was the owner of the shop and business in which the assault took place. The Second Defendant, who is said to have assaulted the Plaintiff, was alleged to have been an employee of the First Defendant.

7. The Plaintiff has sworn an affidavit in support of the present Motion, in which he deposes to having made enquiries both at the Department of Fair Trading and what appears to be the Land Titles Office. According to the Plaintiff's affidavit, what he ascertained was that the First Defendant and theproposed defendant were in business together in the shop. Hence he wishes to join the Third Defendant, because the allegations against the owners of the business and the shop were, first, that they failed to prevent an employee from assaulting the Plaintiff in the shop and, secondly, that they failed to provide a safe environment for the Plaintiff.

8. The assault found its genesis in an error on the Plaintiff's part, where he left the shop, not having paid for certain items that he took out of the shop. The allegation is that he returned to the shop to pay for those items but was at that time assaulted and threatened that if he did not pay what can only be regarded as an exorbitant amount of money for the items concerned, the police would be called.

9. The detail of the incident is now set out in the proposed Amended Statement of Claim and also in a draft affidavit that it appears the Plaintiff intends to file in support of that Statement of Claim.

10. There was no appearance for the Second Defendant, nor the Third Defendant, when the matter was called this morning. Both were present before the Registrar on 9 June 2015 when this Motion was fixed for hearing today.

11. However, on 2 July the Third Defendant filed an affidavit in the proceedings, acting for himself. In that affidavit he says that he sold his share of the business concerned on 30 June 2006, some four and a half years before the incident alleged, and his ABN for the partnership in the business was cancelled from 1 July 2008. In that regard he has annexed a copy of his tax return or part thereof for the financial year ending 30 June 2006. That tax return appears to contain some contradictory information. It discloses on the one hand that the business ceased to operate on 30 June 2006, but in answer to the question whether the tax return being lodged was a final one, the answer given was that it was not.

12. The evidence that the Plaintiff leads to justify joining the Third Defendant must be said to have some difficulties. However, in the absence of the Third Defendant this morning and given that the application is merely to add him as a defendant, I do not think it would be appropriate to refuse that application simply because of the doubt about his ownership of the business at the time. If in fact he had ceased to have any involvement in the business that will amount to a complete defence in the matter and may justify an application for summary dismissal of the claim against him at an early time.

13. Mr Ipp of counsel has appeared for the First Defendant in the matter. He has drawn attention to the extensive delay between Schmidt J’s judgment in June 2012 and the present Notice of Motion. His client's view was that there would need to be a satisfactory explanation for that delay but that otherwise the First Defendant neither consented to nor opposed the present Notice of Motion.

14. The Plaintiff's explanation for the delay was, first, that he was waiting to hear from the pro bono scheme to which he had been referred by Schmidt J. Thereafter, he was informed that he would not be able to obtain pro bono assistance through that scheme. He had approached legal aid to see if they would assist, but was told that it was a civil matter and they could not do so. He said that he has not had any money or means of engaging a solicitor in that time. In addition, he has mental health issues. It was only when he met a law student at the Fairfield library that he was able to obtain the assistance of that student to draft the proposed amended Statement of Claim and the affidavit that is intended to go with it.

15. The explanation for the delay is not a very satisfactory one and I do not overlook what Schmidt J said in her judgment, that if necessary steps are not taken by the Plaintiff, he should expect that the proceedings would be dismissed. However, in all the circumstances of the Plaintiff's impecuniosity, his mental health issues and his inability to obtain any other legal assistance, I consider that there is a sufficient explanation to justify permitting him to proceed by the filing of the proposed amended Statement of Claim.

16. The document, whilst not a perfect example of pleading as one might expect, nevertheless sufficiently identifies the claims that the Plaintiff wishes to make and the causes of action against each of the Defendants in the proceedings. There is certainly sufficient contained in the material to enable the Defendants to plead to the Statement of Claim.

17. A further matter which causes me to be of the view that the Plaintiff ought, notwithstanding the delay, to proceed with his claim is that no application has been made by the Defendants under r 12.7 in the three-year period. I do not say that to be at all critical of the Defendants, and I have already indicated that the First Defendant has taken an entirely proper and helpful approach to the present Notice of Motion.

18. I consider in all the circumstances that the Plaintiff's Notice of Motion should be acceded to.

19. Accordingly, the Plaintiff is given leave to add Sok Uriy Soy as the Third Defendant and to file a Statement of Claim in the form annexed to his affidavit of 13 March 2015 sworn in support of his Notice of Motion filed the same day within 14 days of today, that is, by 7 August 2015.

20. The Plaintiff is ordered to pay the costs of the Notice of Motion of 13 March on the basis that he has sought an indulgence from the Court. If proper pleadings had been filed at the outset, this Motion would have been unnecessary and the First Defendant would not have incurred the costs. The Plaintiff is to pay the First Defendant's costs of the Motion.

21. I stand the matter into the Registrar's list on Friday, 25 September 2015.

22. I grant the parties liberty to apply to my Associate on two days' notice.

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Decision last updated: 24 July 2015