Williams v Nielssen

[2019] NSWSC 1336

Supreme Court

New South Wales

Medium Neutral Citation:

Williams v Nielssen [2019] NSWSC 1336

Hearing dates:

2 October 2019

Date of orders:

02 October 2019

Decision date:

02 October 2019

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Direct the plaintiff to file and serve a statement of claim on or before 30 October 2019.

 

(2) Direct any defendant who wishes to move to strike out the statement of claim or the proceedings to file a motion to that effect on or before 13 November 2019.

 

(3) List the matter before the Registrar on 18 November 2019 for referral of any such motion or, if no such motion has been filed, for further directions.

 (4) Reserve costs.

Catchwords:

CIVIL PROCEDURE – plaintiff no longer under legal incapacity – timetabling orders made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 3
Mental Health Act 2007 (NSW)
Uniform Civil Procedures Rules (NSW) (UCPR), r 7.14

Category:

Procedural and other rulings

Parties:

Jason Williams (Plaintiff)
Dr Olav Nielssen (First Defendant)
New South Wales Bar Association (Fifth Defendant)
South Eastern Sydney Local Health District (Sixth Defendant)

Representation:

Counsel:
Plaintiff in person
G M Gregg (First Defendant)
P Griffin SC (Fifth Defendant)
A Talbot (Sixth Defendant)

  Solicitors:
Meridian Lawyers (First Defendant)
Hicksons Lawyers (Fifth Defendant)
Crown Solicitor’s Office (Sixth Defendant)

File Number(s):

2019/272742

Judgment – ex tempore

1. This matter has come before me today as duty judge by reason of orders made by Lonergan J on 13 September 2019 which were as follows:

“(A)   The plaintiff’s application for a restraining order to be made today against the NSW Bar Association is refused.

(B)   Procedural Orders:

(1)   The plaintiff is to provide a copy of the draft statement of claim to any proposed defendant by 16 September 2019.

(2)   Any defendant who wishes to object to the statement of claim being filed is to notify the plaintiff by 19 September 2019.

(3) Any defendants referred to in order 2 are to file and serve any evidence and written submissions regarding whether leave should not be granted for the plaintiff to file a statement of claim pursuant to rule 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) by 23 September 2019.

(4)   The plaintiff is to file and serve any evidence and any written submissions regarding the relief question he wishes to rely upon by 27 September 2019.

(5)   The matter is listed before the Registrar on Wednesday 2 October 2019 for referral to the duty judge regarding the leave question and for further timetabling orders.

(6)   I reserve the question of costs.”

2. The basis for the orders made by her Honour has changed in that on 25 September 2019 the plaintiff was formally discharged from hospital and is, accordingly, no longer an involuntary patient within the meaning of the Mental Health Act 2007 (NSW). That has the consequence that he no longer meets the description of a person under legal incapacity within s 3 of the Civil Procedure Act 2005 (NSW). Accordingly, Uniform Civil Procedures Rules (NSW) (UCPR), r 7.14 does not apply to him and he may file a statement of claim without a tutor.

3. The plaintiff, who has appeared by telephone from Byron Bay, has indicated that, although he handed up a statement of claim to Lonergan J at the hearing before her Honour on 13 September 2019, he would like a further 28 days to finalise the statement of claim.

4. Mr Gregg, who appears on behalf of the first defendant, Dr Nielssen, has foreshadowed a potential application by his client to strike out the statement of claim. I will make provision for any such motion in the directions without, of course, making any assumption that any such application will be brought.

Orders

5. For the reasons given above, I make the following directions:

1. Direct the plaintiff to file and serve a statement of claim on or before 30 October 2019.

2. Direct any defendant who wishes to move to strike out the statement of claim or the proceedings to file a motion to that effect on or before 13 November 2019.

3. List the matter before the Registrar on 18 November 2019 for referral of any such motion or, if no such motion has been filed, for further directions.

4. Reserve costs.

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Decision last updated: 02 October 2019