Workers Compensation Nominal Insurer v Khaled Zoud - [2015] NSWSC 476

Supreme Court

New South Wales

Medium Neutral Citation: Workers Compensation Nominal Insurer v Khaled Zoud [2015] NSWSC 476
Hearing dates: 23 April 2015
Date of orders: 28 April 2015
Decision date: 28 April 2015
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) The Notice of Motion filed on 24 March 2015 is dismissed.
(2) Costs on the ordinary basis in favour of the plaintiff.
(3) Defendant to file his defence within 14 days from today, 28 April 2015.
(4) Matter stood over for a directions hearing to 20 May 2015.

Catchwords: PRACTICE AND PROCEDURE – Notice of Motion – request for further particulars of the Statement of Claim before a Defence is filed – whether pleadings sufficient to enable defendant to identify the case he has to meet - allegation of fraud – distinction between pleadings and evidence – Notice of Motion dismissed
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Banque Commerciale SA (In Liq.) v Akhill Holdings Ltd (1990) 169 CLR 279
J Earle Hermann Ltd v Ferry (1915) 32 WN (NSW) 31
Middleton v O’Neill (1943) 43 SR(NSW) 178
Minister Administering the Crown Lands (Consolidation) Act And Western Lands Act and Ors v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201
Philliponi v Leithead (1958) 59 SR(NSW) 352; 76 WN(NSW) 150
Re Dependable Upholstery Ltd [1936] 3 All ER 741
Sims v Wran [1984] 1 NSWLR 317
Wallingford v Mutual Society (1880) 5 App Cas 685
Category: Procedural and other rulings
Parties: Workers Compensation Nominal Insurer (Plaintiff)
Khaled Zoud (Defendant)
Representation:
Counsel: Mr RR Stitt QC with Mr MJ Walsh and Ms HM
Mann (Plaintiff)
Mr Alexis SC (Defendant)
Solicitors: Victoria Lyn Sarfaty Legal Services (Plaintiff)
Dibbs Barker Lawyers (Defendant)

File Number(s): 2014/370552

Judgment

On 17 December 2014 the plaintiff, Workers Compensation Nominal Insurer, filed a Statement of Claim against Khaled Zoud, the defendant.
The Statement of Claim asserts fraudulent conduct on the part of the defendant, and seeks relief of payment of damages in the amount of $923,572.85, together with the payment of interest and costs. The claim includes some 43 pages of information by way of pleadings and particulars.
The defendant is a medical practitioner and registered dentist within the meaning of s.59 of the Workers Compensation Act 1987, and a registered oral and maxillofacial surgeon who is recognised by Medicare Australia as a provider of specialist medical services. The plaintiff’s claim against Dr Zoud in brief is that, in the course of providing medical treatment to Mr Kim Chhoeu [“the worker”] subsequent to a workplace injury suffered by that individual, the defendant fraudulently claimed $923,572.85 from the nominal insurer, such sum representing the amount by which the defendant is asserted to have falsely charged the nominal insurer in payment for medical treatment said to be given to Mr Chhoeu in 2008 and 2009.
The plaintiff alleges deceit by the defendant in his claims for payment for the medical treatment of…

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.

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Details

Case: [2015] NSWSC 476
Decision Date: 28 April 2015

CaseChat Overview and Summary

The Workers Compensation Nominal Insurer (WCN) filed a Notice of Motion in the Supreme Court of Queensland seeking an order for the Defendant, Khaled Zoud, to provide further particulars of the Statement of Claim before a Defence is filed. The WCN argued that the particulars provided were insufficient to enable Zoud to identify the case he has to meet. The allegation was that Zoud committed fraud, and the WCN sought more detailed information to prepare an adequate defence.

The court was required to decide whether the pleadings were sufficient for Zoud to identify the case he had to meet and if the allegation of fraud necessitated additional particulars. The WCN argued that the particulars provided were vague and did not specify the details of the alleged fraud. Zoud, on the other hand, contended that the particulars were sufficient and that the WCN’s request for further details was an attempt to obtain evidence rather than pleadings. The distinction between pleadings and evidence was central to the court's decision.

The court dismissed the Notice of Motion, holding that the pleadings were sufficient for Zoud to identify the case he had to meet. The court noted that while the allegation of fraud was serious, it did not necessitate further particulars before a Defence was filed. The court emphasised that the purpose of pleadings is to provide a fair indication of the case against the defendant, and that the particulars provided met this requirement. Zoud was not required to provide further details until the pleadings stage was complete. The court also highlighted that Zoud's request for further particulars was, in effect, a request for evidence, which is not permissible before a Defence is filed.

Orders