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

1. 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’).

2. 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.

3. The plaintiff did not appear today. The matter was called outside of Court.

4. 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 Court that I am leaving to overseas because personal reasons and family commitment for that reason I would like to adjourn my matter till new advise.

5. The proceedings were listed for directions before the Common Law Registrar on 15 December 2022. On that date, the plaintiff appeared, and a number of procedural orders were made in connection with the second defendant’s notice of motion, as well as fixing the second defendant’s notice of motion for hearing today.

6. In those circumstances I am satisfied that the plaintiff has notice of the hearing of the second defendant’s notice of motion, and that it is appropriate to proceed in her absence.

7. It should also be noted that in connection with the procedural orders made by the Common Law Registrar – relevantly, the plaintiff was required to file and/or serve all evidence in response to the notice of motion by 31 March 2023, and that the plaintiff was to file and serve written submissions by 26 April 2023 – the plaintiff has not complied with these orders.

Dismissing or striking out pleadings: the principles

8. The second defendant seeks an order under r 13.4(1) of the UCPR – it is said that no reasonable cause of action is disclosed, and should be dismissed – and, in the alternative, pursuant to r 14.28(1) – it is also said that no reasonable cause of action is disclosed, that the proceedings otherwise have a tendency to cause prejudice, embarrassment and delay and should be struck out.

The rules and principles: a short summary

9. Rule 13.4(1) of the UCPR provides:

13.4 Frivolous and vexatious proceedings

(cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

10. The approach to take, and the principles to apply, in determining whether summary relief is appropriate, pursuant to this rule, are well-known: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69. It is sufficient simply to note that an order of that kind is not appropriately made except in the clearest of case, and the power that is available is to be exercised sparingly and with restraint.

11. Rule 14.28(1) of the UCPR provides:

14.28 Circumstances in which court may strike out pleadings

(cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3)

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading--

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

12. When a pleading is “unintelligible, ambiguous, vague or too general”, the rule typically employed in those circumstances is r 14.28(1)(b): Gunns Ltd v Meagher [2005] VSC 251 at [57]. The rule is also available when a pleading does not comply within the general or specific principles of pleading such as those set out in rr 14.6-14.20.

13. In my view, it is beyond argument that the pleading fails to conform with these last mentioned rules and the minimum requirements for an acceptable pleading in this Court. I turn now to explain, briefly, why that is so.

The defective pleading: the ASOC

14. The ASOC is not easy to follow: the paragraphs are not numbered; the pleading makes reference to next to no dates; nor is there contained within it a coherent timeline. To attempt to summarise the “claim” – what is alleged – would be difficult, if not impossible.

15. In any event, there is little point in attempting to summarise what is alleged in the ASOC because it is, in my respectful view, patently defective and should be struck out. Notwithstanding, I will illustrate, in connection with each defendant, why that order must be made, by brief reference to parts of the ASOC:

1. In relation to the first defendant, Simon Ford (ASOC, p 3):

[The first defendant] recently comes to myself himself also jumped into my brain together with her ex-wife [the fourth defendant] with the intention to kill my brain this miserable man together with her actual wife as a Merna come to myself again to commit sacrilege and strong sexual harassment again together with Merna.

2. In relation to the second defendant, the Prince of Wales Hospital (ASOC, p 5):

This horrendous hospital allow that an strong sexual harassment happened at the work place …

The “claim” against the Prince of Wales Hospital is far more extensive than this short statement, but is otherwise unintelligible. Following the amount claimed ($100 million), the plaintiff set out the following:

For Prince of Wales Hospital

Strong sexual harassment at the workplace

Vilification against my gender

I have been discriminated at the work place because my health issues.

Injury to vaginal parts

Heavy harassment by the doctors as Dr Ben Hanson placing an illness that I do not have I did never have doctor hired by Prince of Wales Hospital

Heavy harassment set up by Dr Ben Hanson against my mental life using scammers till now.

David Ford is also referred to in the ASOC (p 7), but he is not a named defendant.

3. In relation to the third defendant, David Armour (ASOC, p 4):

This man set up a defamation against myself using the embassies where I did go for help around Chile and Argentina advising himself to be thrown to the street without any help from themselves so many times sleeping at the street by myself because the help of this man as [the second defendant] whom makes an enemy from myself against myself because of his terrible dealing with Ben Hanson and the embassies in Chile on the name of Prince of Wales also.

4. In relation to the fourth defendant, Rebecca Armour (ASOC, p 5):

This miserable woman together with her husband called as a Frank a medical scientist come to myself in the middle of the night to cut my brain on 12 oct, 2022 so she herself jumped in into my brain in the middle of the night to cut with her strength together with the husband to cut my brain next day it was painful and with blood till now.

5. In relation to the fifth defendant, “Frank husband of Rebecca Armour” (ASOC, p 5):

Follow Rebecca advised to cut my brain out with his miserable skills of being an spiritual belief and strength this miserable man organise a terrible night to myself himself jumped in into my brain and together with [the fourth defendant] proceed to cut my brain and leave bleeding it out committing in this way a crime.

6. In relation to the sixth defendant, Dina Tsimbas (ASOC, p 7):

This despicable woman … assaulted my mind … [she] menaced to myself with cut of my brain she in effect did it. She herself sent spiritual beliefs to cut my brain which was left with haematoma and bleeding …

Consideration and disposition

16. The second defendant submitted that the ASOC “does not coherently, properly or meaningfully plead the material facts relied upon, or properly or meaningfully set out the legal claims brought by the plaintiff against the second defendant or any defendant”. I agree.

17. In my view the second defendant is entitled to an order that the ASOC be struck out: the pleading, at a minimum, “has a tendency to cause prejudice, embarrassment or delay in the proceedings”: r 14.28(1)(b) of the UCPR.

18. The second defendant sought, in the alternative, an order that the proceedings be dismissed. I am not persuaded to make that order, for the following reasons: (a) first, although I tend to doubt this, I cannot exclude the possibility that there is a claim that is capable of being advanced by the plaintiff; and (b) secondly, even if I were to dismiss the proceedings, the plaintiff would, in the absence of an order to the contrary effect, be entitled to file further proceedings having regard to s 91 of the Civil Procedure Act 2005 (NSW).

Orders

19. For the above reasons I make the following orders:

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.

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Decision last updated: 02 May 2023