Taing v Nguyen (No 2)

[2016] NSWSC 1440

Supreme Court

New South Wales

Medium Neutral Citation:	Taing v Nguyen (No 2) [2016] NSWSC 1440
Hearing dates:	22 September 2016
Date of orders:	22 September 2016
Decision date:	22 September 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1) The proceedings be dismissed pursuant to Uniform Civil Procedure Rules, r 12.7(1).  (2) The plaintiff pay the first defendant’s costs of the proceedings.
Catchwords:	PROCEDURE – notice of motion – show cause – no question of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Taing v Nguyen [2015] NSWSC 1011 Seam Taing v Thi Thuy Trang Nguyen (Supreme Court (NSW), Harrison J, 1 October 2015, unrep)
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: No Appearance (Plaintiff) M Custovic, solicitor (First Defendant)   Solicitors: Barry.Nilsson.Lawyers (First Defendant)
File Number(s):	2011/397183

EXTEMPORE Judgment

1. HIS HONOUR: This is a matter that was listed in the Registrar's list for the plaintiff to show cause why the proceedings should not be dismissed under Uniform Civil Procedure Rules r 12.7, for the plaintiff's alleged failure not to prosecute the proceedings with due dispatch. Upon the non-appearance of the plaintiff, the matter was referred to me as duty judge.

2. The solicitor for the first defendant has stated on oath that this morning she has attempted to contact the plaintiff via the mobile phone number that he has provided to advise him of the necessity to attend court. The Registrar's note of proceedings on 9 September 2016 reveals that on that day the plaintiff, Mr Seam Taing, appeared, along with the solicitor for the first defendant, and that the Registrar stood the proceedings over to today for referral to the Duty Judge for show cause.

3. In those circumstances, and bearing in mind the long history of the proceedings that I am about to describe, which indicates that Mr Taing has been interacting with the courts for a number of years, I am satisfied that he was aware that the matter was listed today.

4. According to one of the iterations of the statement of claim filed by Mr Taing, on or about 19 November 2010 he was assaulted by the second defendant and the third defendant at or near the vicinity of a store owned and operated by the first defendant. On 8 December 2011 he filed a summons naming the first defendant. He sought damages. On 30 January 2013 the matter was listed for a directions hearinq. The Court brought to the plaintiff's attention that he had used the incorrect court document, the possibility that the matter should be transferred to the District Court of New South Wales, and the necessity for him to obtain legal advice.

5. Further directions were made on 29 February 2012, which included an order for the service of a statement of claim. On 11 May 2012 the plaintiff filed a statement of claim. Five days later he filed an affidavit. On 18 May 2012 the plaintiff filed an amended statement of claim which included the second defendant, even though no leave had been granted to file that document.

6. On the same day, the first defendant filed a notice of motion seeking to strike out that claim. On 28 June 2012, Schmidt J ordered that the summons, the statement of claim filed 11 May 2012, and the amended statement of claim filed 18 May 2012 be struck out pursuant to Uniform Civil Procedure Rules r 14.28(1)(a).

7. Her Honour did not, however, dismiss the proceedings. Instead, her Honour ordered that the plaintiff be referred to the Registrar for assistance in redrafting the pleadings under the pro bono legal assistance scheme, and ordered the plaintiff to pay the first defendant's costs of and incidental to its motion. According to the affidavit read on this application, there was, in effect, no substantial development in the proceedings for the next three years.

8. On 13 March 2015, the plaintiff filed a notice of motion seeking leave to file an amended statement of claim and join a third defendant. That notice of motion was heard before Davies J on 24 July 2015. After some debate, his Honour granted the plaintiff leave to join the third defendant, granted the plaintiff leave to file a statement of claim in the form that was annexed to his affidavit, and ordered the plaintiff to pay the costs of his motion (see Taing v Nguyen [2015] NSWSC1011).

9. At the time that his Honour granted leave, his Honour observed that Mr Taing's explanation for the delay in the conduct of the proceedings was “not a very satisfactory one" (at [15]). However, his Honour considered that, given the plaintiff's impecuniosity, his mental health issues and his inability to obtain other legal assistance, there was sufficient explanation to justify permitting him to file an amended statement of claim. His Honour observed at [16] that that 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."

10. As stated, the cause of action is assault.

11. On 15 September 2015, the first defendant requested further and better particulars from the plaintiff in relation to quantum and liability. The form of that request is attached to a document filed in court on 23 November 2015 headed, "Statement of issues". It is a lengthy document which seeks extensive materials in support of the claim for damages, including future and past economic loss. On 23 October 2015, the plaintiff responded. At least to the extent of describing the events said to give rise to the assault, the response probably provides adequate particulars. However, to the extent that the plaintiff maintains various heads of damages and asserts that his damages are a very large amount, his response was completely inadequate.

12. In the meantime, on 25 September 2015 the plaintiff was ordered to answer the defendant's request for particulars and, as well, serve an evidentiary statement on or before 16 September 2015. On 1 October the plaintiff served a notice of motion in which he sought an order for pro bono legal assistance. That application was allowed by Harrison J (see Seam Taing v Thi Thuy Trang Nguyen Supreme Court (NSW), Harrison J, 1 October 2015, unrep).

13. Various directions hearings were heard between then and December 2015. On 7 December 2015 the plaintiff informed the Court that he had not yet received pro bono legal representation or received any correspondence from the New South Wales Bar Association. Consequential orders were made extending time for him to provide an evidentiary statement and providing for the Court to cause a letter to be sent to the Bar Association.

14. The matter came before the Court on 18 March 2016. At that stage, pro bono counsel appointed by the Bar Association, Mr Yin, appeared for the plaintiff. Mr Yin advised the Court the matter was likely to resolve as the parties were in settlement discussions and requested that the directions hearing stand over.

15. According to the solicitor for the first defendant, on 30 March 2016, counsel for the plaintiff contacted her and advised that the plaintiff was undergoing a mental health assessment. This led to various extensions of the orders while the plaintiff was seeing various psychiatrists. Ultimately, they were to no avail. On 4 August 2016, Mr Yin advised the first defendant's solicitor that he had just met with the plaintiff and the plaintiff stated he no longer wanted Mr Yin to act on his behalf.

16. A directions hearing was held on 5 August 2016, in which the plaintiff appeared for himself. The plaintiff told the Court he had contacted South West Sydney Legal Centre in order to make an appointment. The proceedings were stood over to 26 August 2016.

17. On 26 August 2016 the plaintiff told the Court that he was waiting to hear back from the South West Sydney Legal Centre. The matter was adjourned for further directions on 9 September 2316. According to the first defendant's solicitor, on 9 September 2016 the plaintiff confirmed he did not have legal representation but believed he would be in a better position to obtain it once he had obtained the unedited and uncut CCTV footage in relation to the incident.

18. In the meantime, the solicitors for the defendant had been making enquiries of the South West Sydney Legal Centre as to whether they may be providing assistance or even acting on behalf of the plaintiff. On or about 2 September 2016, the solicitors were advised that the Legal Centre was not acting for the plaintiff and did not anticipate acting for him. As I have stated, on 9 September 2016, the matter was stood over to today for referral for a show cause hearing.

19. One part of the show cause hearing asserts that the statement of claim does not disclose a reasonable cause of action. I do not accept that. In my view, that submission is foreclosed by the order made by Davies J which granted leave to file the statement of claim that I have referred to earlier. In any event, on my own view of the statement of claim and the particulars, there is sufficient material to identify an assault. It is sufficient to enable the defendants to know the case they have to meet.

20. However, for a long period of time the plaintiff has been required to provide a response to the particulars that sought details of his damages claim as well as a proper evidentiary statement. Those orders were only made after there had already been some three and a half years of delay by the plaintiff in pursuing his claim. The plaintiff has already had the benefit of two referrals to the pro bono scheme, the last of which appeared to be making some progress before he terminated that counsel's retainer.

21. In my view, the point has been reached where the Court simply cannot offer the plaintiff any more indulgences given his failure to get his case to the barrier. ln the circumstances, I am satisfied that the plaintiff has not prosecuted the proceedings with due dispatch. Notwithstanding that it is a claim for personal injury, I consider that in the above circumstances and given the extraordinary length of time since the proceedings were first commenced, that they should be dismissed pursuant to Uniform Civil Procedure Rule r 12(7(1).

22. Accordingly, the Court orders that,

(1) The proceedings be dismissed pursuant to Uniform Civil Procedure Rules r 12.7(1).

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

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Decision last updated: 23 April 2018