Vicharra v Ford - [2023] NSWSC 458

Supreme Court

New South Wales

Medium Neutral Citation: Vicharra v Ford & Ors. [2023] NSWSC 458
Hearing dates: 02 May 2023
Date of orders: 02 May 2023
Decision date: 02 May 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Order that, as against the second defendant, the amended statement of claim filed 14 October 2022 be struck out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW).
(2)   Order that the plaintiff pay the second defendant’s costs of, and incidental to, the notice of motion dated 28 November 2022, and of the proceedings.
(3)   Order that the proceedings, as against the remaining defendants, be listed for directions before the Common Law Registrar on 1 June 2023.
(4)   Direct that the plaintiff file an affidavit of service in connection with the service of the amended statement of claim upon the first, third, fourth, fifth and sixth defendants or, if the amended statement of claim has not been served on all or any of them, an affidavit to that effect by 25 May 2023, 5 PM.
(5)   Note: The Court will send a Notice of Orders Made to the plaintiff.

Catchwords:
CIVIL PROCEDURE – pleadings – whether pleadings disclose a reasonable cause of action – pleadings struck out

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gunns Ltd v Meagher [2005] VSC 251

Category: Procedural rulings
Parties: Erika Judith Vicharra (plaintiff/respondent) (self-represented)
Simon Ford (first defendant)
South Eastern Sydney Local Health District trading as Prince of Wales Hospital (second defendant/applicant)
David Armour (third defendant)
Rebecca Armour (fourth defendant)
Frank husband of Rebecca Armour at present (fifth defendant)
Dina Tsimbas (sixth defendant)
Representation:
Counsel:
Mr SM Kettle (second defendant/applicant)
Solicitors:
Hicksons Lawyers (second defendant/applicant)

File Number(s): 2022/280009
Publication restriction: Nil

JUDGMENT EX TEMPORE

Introduction

Erika Vicharra (‘the plaintiff’) commenced proceedings against five defendants by statement of claim filed 19 September 2022, claiming $100,000,000.00 in damages apparently in consequence of alleged “strong sexual harassment” and discrimination she suffered whilst employed by the Prince of Wales Hospital. A sixth defendant was also added by an amended statement of claim filed 14 October 2022 (‘the ASOC’).
By notice of motion filed 28 November 2022, the South Eastern Sydney Local Health District trading as Prince of Wales Hospital (or, ‘the second defendant’) seeks to strike out the ASOC pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’), or to dismiss the proceedings pursuant to r 13.4(1) of the UCPR.
The plaintiff did not appear today. The matter was called outside of Court.
From an affidavit dated 18 December 2022 (it is unclear whether it was sworn or affirmed) that was filed by the plaintiff on 19 December 2022, the plaintiff deposed as follows:

I would like to inform to this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vicharra v Ford

Details

AGLC: Vicharra v Ford [2023] NSWSC 458
Case: [2023] NSWSC 458
Decision Date: 02 May 2023

CaseChat Overview and Summary

In the case of Vicharra v Ford, the Federal Court was called upon to decide whether the plaintiff's pleadings disclosed a reasonable cause of action. The plaintiff, Vicharra, brought proceedings against the defendant, Ford, alleging that Ford had failed to warn about the risk of a defect in the design of a vehicle that resulted in a serious accident. The court was required to determine whether the pleadings were sufficient to warrant further proceedings or whether they should be struck out as disclosing no reasonable cause of action.

The legal issues before the court involved the standards for assessing whether pleadings disclose a reasonable cause of action. The court had to consider the pleadings in their entirety and determine whether they provided sufficient facts to support a viable claim. The court also needed to assess whether the plaintiff had provided enough detail to enable the defendant to respond appropriately to the allegations.

The court found that the pleadings did not disclose a reasonable cause of action. The plaintiff's claims were vague and lacked the necessary detail to support the allegations. The court held that the pleadings were insufficient to establish a prima facie case, as they did not provide enough information for the defendant to understand the basis of the claim or to prepare a meaningful defence. Consequently, the court ordered that the pleadings be struck out.

Orders