Zhang v Hardas - [2017] NSWSC 876

Supreme Court

New South Wales

Medium Neutral Citation: Zhang v Hardas [2017] NSWSC 876
Hearing dates: 27 June 2017
Date of orders: 30 June 2017
Decision date: 30 June 2017
Jurisdiction: Common Law
Before: Harrison J
Decision:
See [55]

Catchwords: PRACTICE AND PROCEDURE – application to dismiss proceedings for want of due despatch – UCPR 12.7 – where no satisfactory explanation for extreme delay and disregard for orders – where plaintiff has not given any evidence in response to application to strike out
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Limitation Act 1969
Cases Cited: Building Insurers Guarantee Corporation v Touma [2010] NSWCA 4
Calvert v Stollznow (NSWSC, 1 April 1980, unrep)
Micallef v ICI Australia Operations Pty Ltd [2011] NSWCA 274
Petronaitis v Rowles [2012] NSWCA 236
Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405
Category: Procedural and other rulings
Parties: Yingjie Zhang (Plaintiff)
George Hardas (Defendant)
Representation:
Counsel:
C T Barry QC (Plaintiff)
M Fordham SC with C P O’Neill (Defendant)
Solicitors:
Walker Law Group (Plaintiff)
Norton Rose Fulbright (Defendant)

File Number(s): 2013/235239
Publication restriction: Nil

Judgment

HIS HONOUR: By her amended statement of claim filed on 24 June 2017, Yingjie Zhang claims damages for personal injuries allegedly sustained by her as the result of negligent chiropractic treatment provided by George Hardas. The events that give rise to these proceedings all took place at Mr Hardas’ professional rooms between February 2007 and September 2007. The proceedings were not commenced until the filing of the original statement of claim on 2 August 2013. The defence filed for Mr Hardas pleads that the claim is statute barred. No application has ever been made by Ms Zhang to extend the time provided by the Limitation Act 1969 within which to bring the present proceedings.
By his notice of motion filed on 23 December 2016, Mr Hardas seeks an order that the proceedings be dismissed for want of due despatch pursuant to UCPR 12.7. The application is opposed.
That application is supported by two affidavits affirmed by Jodie Odell on 23 December 2016 and 26 June 2017. Ms Zhang relies on three affidavits sworn by her current solicitor Antonin Sebesta on 15 December 2016, 10 March 2017 and 26 June 2017. These affidavits were all read without objection. Mr Sebesta was briefly cross-examined. Ms Zhang’s response to the application did not include an affidavit from her.
For the reasons that follow, I do not consider that the proceedings should be dismissed. However, the orders that I propose are based upon my ultimate conclusion that Ms Zhang’s approach to, and conduct of, the proceedings has been recalcitrant and include an order that she should pay the costs.

Background

Mr Hardas is a chiropractor. Ms Zhang attended his practice in 2007 seeking treatment for what is described as muscle tension in her neck and shoulders. It seems to be entirely uncontroversial that Mr Hardas treated Ms Zhang on 19 occasions that year and that his treatment…

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 Zhang v Hardas

Details

AGLC: Zhang v Hardas [2017] NSWSC 876
Case: [2017] NSWSC 876
Decision Date: 30 June 2017

CaseChat Overview and Summary

The parties involved in this case were Zhang and Hardas, and the dispute was brought before the court in an application for dismissal of the plaintiff's claim for want of due despatch. The application was made pursuant to UCPR 12.7, and the court had to determine whether the plaintiff had acted unreasonably in delaying the proceedings, thereby warranting dismissal. The plaintiff, Zhang, had filed a statement of claim against Hardas but had not advanced the case for an extended period. Hardas applied to the court for dismissal, arguing that the plaintiff's delay was unreasonable and that there was no satisfactory explanation for the disregard of court orders.

The court needed to consider whether the plaintiff's delay was justified and whether the plaintiff had provided a reasonable explanation for the delay. The court also needed to determine if the plaintiff's failure to respond to the application to strike out warranted dismissal of the proceedings. The court examined the plaintiff's conduct throughout the proceedings, including the plaintiff's failure to comply with court orders and provide any evidence in response to the application to strike out. The court considered the principle that the court must ensure that the administration of justice is not unduly delayed.

After considering the evidence and arguments presented, the court concluded that the plaintiff had acted unreasonably in delaying the proceedings. The court found that the plaintiff had not provided a satisfactory explanation for the extreme delay and disregard for orders. Additionally, the plaintiff had not given any evidence in response to the application to strike out. The court held that the plaintiff's conduct warranted dismissal of the proceedings for want of due despatch. The court dismissed the plaintiff's claim and made orders for costs against the plaintiff.

Orders