Taouk v Bradstreet

[2020] NSWDC 663

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Taouk v Bradstreet [2020] NSWDC 663

Hearing dates:

16 October 2020

Date of orders:

16 October 2020

Decision date:

16 October 2020

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

See [12]

Catchwords:

CIVIL LITIGATION – PRACTICE & PROCEDURE

Proceedings dismissed for want of prosecution when P was unrepresented and not present in Court – Medical certificate sent to Court inadequate – What certificate ought to have said – Order dismissing proceedings set aside when P tendered appropriate evidence establishing that he was unfit to attend Court at the time of dismissal.

Legislation Cited:

Uniform Civil Procedure Rules 2005

Category:

Consequential orders (other than Costs)

Parties:

Halim Taouk (Plaintiff)
Michael Bradstreet (Defendant)

Representation:

Grimes (Plaintiff)
Faggionato (Defendant)

N A Lawyers (Plaintiff)
Gilchrist Connell (Defendant)

File Number(s):

2019/00171336

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: This matter has an unfortunate history. On 31 May 2019, the plaintiff filed a statement of claim. According to the statement of claim, the plaintiff was involved in an industrial accident on 22 October 2010, almost ten years ago. On 23 March 2011, he retained the current defendant, Mr Michael Bradstreet, to provide him with legal advice resulting from the industrial accident. On 11 June 2013, the plaintiff alleges that, acting on the advice of the defendant, he compromised his personal injury claim for damages and/or workers compensation by agreeing to accept $250,000 in full settlement of the claim. The statement of claim further alleges that, from that sum, there was deducted workers compensation paid to date, amounting to $125,000, and the plaintiff’s costs, such that the net payment to the plaintiff was $59,176. The plaintiff alleges that the advice given to him by the defendant was negligent. It ought be clear from what I have just cited that the statement of claim was filed almost six years after the date of the advice given to him by the defendant.

2. The statement of claim was served on Mr Bradstreet on 13 June 2019. An appearance was filed on 9 September and a defence on 17 October 2019. The defendant obtained the leave of the Court to file an amended defence, which was due to be filed by 25 March 2020; however, it was not filed until 31 March 2020, but, in the grand scheme of this case, six days can be ignored. On 12 March 2020, the judicial registrar had set the matter down for three days, commencing on 28 July 2020.

3. The statement of claim had been filed on behalf of the plaintiff by Mr Steven Mousas of AJB Lawyers of this city. On 12 May 2020, they filed a notice of intention to cease to act for the plaintiff. On 15 June 2020, they filed a notice of ceasing to act. The plaintiff was then unrepresented. On 8 July 2020, no doubt because of the filing of the notice of ceasing to act, the matter was listed for directions before the list judge on 16 July 2020. There was no appearance by or on behalf of the plaintiff on that occasion. On 23 July 2020, the matter was again listed for directions before the list judge and on that occasion the plaintiff appeared in person and advised Letherbarrow DCJ that Mr Cham of Gerard Malouf Partners would be acting for him. His Honour then stood the matter over for directions on 27 July, the day before the hearing was scheduled to commence. On 27 July 2020, Mr Cham appeared before his Honour, not on behalf of the plaintiff but as amicus curiae. His Honour vacated the dates of the hearing commencing on 28 July and stood the matter over to 24 August.

4. On 18 August, the defendant filed a notice of motion seeking to strike out the proceedings, for want of prosecution. That came before the Court on 24 August 2020. The matter was listed before the list judge, Balla ADCJ. The plaintiff forwarded to the Court a medical certificate from Dr Koonal Prasad, a general practitioner at the Eldridge Road Medical Health Centre at Bankstown. The medical certificate was this:

“This is to certify that Halim Taouk has a medical condition and is unfit for work from 20 August 2020 to 25 August 2020 inclusive. He has strongly been advised to rest for recovery. Will follow up with the blood results.”

It is because of that certificate that her Honour adjourned the matter to 28 August 2020.

5. The medical report is quite inadequate. Certifying a “medical condition” means nothing. A medical certificate ought provide the diagnosis and, preferably, a prognosis, as well. The Court is not concerned with whether a person is fit to work or not; indeed, the plaintiff’s whole case depends upon the fact that he is unfit to work. What the Court is concerned about is whether a person is fit to appear before the Court and to give evidence.

6. When the matter came before Balla ADCJ again, on 28 August, a medical certificate in identical terms was put before her Honour, the only difference being that the period of incapacity was said to be from 27 August 2020 until 4 September 2020. Again, the certificate does not speak of unfitness to give evidence but an unfitness for work. Her Honour was not satisfied with that certificate and dismissed the matter for want of prosecution.

7. The plaintiff now moves the Court to set aside the interlocutory order dismissing the plaintiff’s claim for want of prosecution, pursuant to UCPR 36.16(2)(b).

8. Paragraphs [14] to [19] of the plaintiff’s affidavit of 30 September 2020 clearly depose to his difficulties in finding a solicitor to act for him. Initially, after the solicitors who filed the statement of claim ceased to act for him, he sought to retain a Mr Bazouni of Prominent Lawyers, but after about a week the plaintiff was advised that Mr Bazouni would be unable to act for him. It was then that the plaintiff turned to Gerard Malouf Partners, on or about 22 July 2020. They made it clear to him that they would not act for him at the hearing but they would seek to have the hearing vacated in order to assist him; they were acting pro bono. The plaintiff then phoned the Law Society and was given contact details for a number of solicitors; however, none of those would accept his instructions.

9. The directions date, 24 August, was fast approaching but the plaintiff felt that he was unwell. He went to see Dr Prasad on 20 August and obtained the certificate that was before her Honour on 24 August 2020. The plaintiff again attended upon Dr Prasad, on 27 August 2020, and obtained the second certificate, to which I have referred. However, there is much more medical evidence now and it appears to me, on that evidence, that the plaintiff was very much unwell and hardly in a position to prosecute his case in late August 2020. For example, there is a report of a CT scan of the plaintiff’s abdomen and pelvis, reported by Dr Seymour Atlas on 28 August 2020. The CT scan report is lengthy but the comment is much shorter and raises a distinct suspicion that the plaintiff had a perforated appendix and a subacute condition, meaning that, although appendicectomy was not immediately necessary, it was causing the plaintiff symptoms.

10. On 31 August 2020, the plaintiff was sent by Dr Prasad to the Bankstown Hospital, where he was admitted. The emergency department notes indicate that the plaintiff had been feeling tired for two to three days two weeks earlier and consulted with his general practitioner. When the general practitioner examined the plaintiff, he felt extreme pain whenever his abdomen was palpated. By 31 August, the plaintiff was on antibiotics; he was also suffering from diarrhoea. In addition to the antibiotics, the plaintiff was taking Endone, an opiate based medication, for his low back pain. The discharge summary from the hospital refers to a protracted history of pain in the right iliac fossa. The clear diagnosis is of a perforated appendix. The plaintiff was stabilised in hospital until his discharge, on 2 September, but the plan was for the plaintiff to undergo appendicectomy within a relatively short period of time, under the care of Dr Das, a gastrointestinal surgeon.

11. I do not know whether the surgery has yet been conducted. However, the need for the plaintiff to be hospitalised for three days is indicative of the extent of his abdominal discomfort and pain, and explains much more clearly the condition being diagnosed by Dr Prasad, but not being adequately explained by him, in the certificates that he issued. I am confident that, had her Honour had before her the medical evidence that is now before me, all indicating that the plaintiff did have a subacute ruptured appendix, she would have not have dismissed the case for want of prosecution in the plaintiff’s absence. I am now told that both parties are ready to proceed with a trial that will take three days.

12. For those reasons, pursuant to UCPR 36.16(2)(b), I set aside the orders made by Balla ADCJ on 28 August 2020. I order that the costs of 24 August, 28 August and of the notice of motion filed on 1 August 2020 be the defendant’s costs in the cause. I return the matter to the Judicial Registrar, to fix a three-day hearing.

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Amendments

03 November 2020 - Typographical error amended in catchwords.

Decision last updated: 03 November 2020