Richard Churchill v The University of Sydney [2020] NSWSC 1343

Supreme Court New South Wales

Medium Neutral Citation: Richard Churchill v The University of Sydney [2020] NSWSC 1343 Hearing dates: 22 September 2020, 25 September 2020 Date of orders: 25 September 2020 Decision date: 25 September 2020 Jurisdiction: Common Law Before: Wilson J Decision: (1) Leave to file a further amended statement of claim is refused. (2) Leave to replead a further amended statement of claim is refused. (3) The statement of claim filed in this court on 15 June 2018 is struck out, and the proceedings are dismissed. Catchwords: CIVIL – Notice of motion – leave to file further amended statement of claim – history of filing amended statement of claims – revised further amended statement of claim – incapability of document to serve its purpose – claim in negligence – claim under Australian Consumer Law – request for judicial review – no legitimate basis for claims – statement of claim struck out – leave to re-plead refused – no utility in proceedings Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: McGuirk v University of Sydney (2009) NSWSC 1424 Category: Principal judgment Parties: Richard Churchill (Plaintiff) University of Sydney (Defendant) Representation: Counsel: J Emmett (Defendant)

Solicitors: Plaintiff (Self-represented) DLA Piper (Defendant) File Number(s): 2018/186070 Publication restriction: Nil

EX TEMPORE Judgment 1. HER HONOUR: Before the Court is a Notice of Motion filed for the plaintiff, Richard Churchill, seeking orders granting leave to file a redrafted amended Statement of Claim upon the defendant, the University of Sydney. As that nomenclature, "a redrafted amended Statement of Claim", suggests, the plaintiff's attempts to file and proceed upon a Statement of Claim against the University of Sydney now has a lengthy and somewhat regrettable history. It is appropriate to set that history out, drawn from the undisputed evidence of James Burg in an affidavit of 26 September 2019, together with a more recent affidavit from Clancy O'Donovan of 20 July 2020, and further, from the Court's own record. 2. In February 2008, the plaintiff was offered and took up a place, as a student in a Bachelor of Dentistry degree, a course offered by the Faculty of Dentistry at the University of Sydney. The plaintiff was excluded from that course in 2011. His claim against the defendant pleaded in negligence, under Australian Consumer Law, and as a request for judicial review, relates to that exclusion. 3. On 15 June 2018, six years to the day from the date on which the defendant refused the plaintiff an extension of time in which to appeal against his exclusion, the plaintiff filed an incomplete 22 page long Statement of Claim ("SOC"). The incomplete SOC was not served upon the defendant until about 7 November 2018. In the interim, between 15 June 2018 and 7 November 2018, the Court listed the matter for directions on three separate occasions; each date was necessarily vacated. 4. On 31 October 2018, the plaintiff filed but did not serve a Notice of Motion seeking leave to file an amended SOC. Service was finally effected on the University, as I have indicated, on about 7 November 2018, although without the proposed amended SOC. At a directions hearing on 15 February 2019, the plaintiff was ordered to serve the proposed amended SOC upon the defendant by 19 April 2020, with the plaintiff precluded from proceeding on any amended SOC not served by that date, without leave of the Court. 5. The plaintiff did not serve the amended SOC as ordered, instead filing a further Notice of Motion on 18 April 2019 seeking an extension of time in which to serve the proposed amended SOC. On 2 May 2019, the Court ordered that the plaintiff file and serve his proposed amended SOC by 3 June 2019, with the plaintiff's motion listed for hearing on 12 June 2019. 6. A draft amended SOC was served late, on 4 June 2019, by email. It is a document of 124 pages in length. Despite that great length, it was marked as "incomplete". On 12 June 2019, the plaintiff was ordered to provide his proposed amended SOC to the University by 26 June of that year. On the due date for service, the plaintiff sent an email to the court seeking a further extension of time. The time for service was extended to 3 July 2019. 7. The day before that deadline, on 2 July 2019, by email the plaintiff again sought further time to serve the proposed amended SOC. He was given until 8 July 2019. On that date, the plaintiff emailed a second draft amended SOC which, like its predecessor, was marked as "incomplete". This document ran to some 325 pages. 8. On 15 July 2019, the plaintiff emailed a third draft of his proposed amended SOC which was some 367 pages in length. 9. Although the defendant to that point had either consented to extensions of time or neither consented nor opposed such extensions, the defendant opposed leave being granted to the plaintiff to file the third draft amended SOC. 10. On 6 August 2019, the Court ordered the plaintiff to file and serve a Notice of Motion seeking leave to file an amended SOC and affidavits in support by 10 September 2019. The matter was listed for directions a week later on 17 September 2019. The hearing of that Notice of Motion was ultimately listed before the Court on 18 February 2020. 11. On that date, 18 February this year, the matter came before Button J. The plaintiff appeared for himself or, as he regularly describes himself, as "a first time self-represented litigant before the Court." As an indulgence to his self-represented status, Button J dealt with the motion on an informal basis. His Honour was able to distil from the voluminous and rather emotionally charged documentation filed to that stage by the plaintiff the three causes of action pleaded by the plaintiff, to which I have already referred, at [2] above. 12. His Honour identified, for the plaintiff's assistance, some of the perceived problems with the existing process, and enumerated for him features that were important in preparing a statement of claim. His Honour did that, as I understand it, because, as he observed (in the unreported judgment of 18 February 2020), the process filed by the plaintiff to that date was: "A repetitive document, a document that sets out alleged events not always in chronological order, a document that mixes in less important details with more important allegations, a document that is expressed in emotive terms and a document that in truth in terms of being a useful concise starting point summary of his claim does more harm than good." 1. With the defendant cooperating in the provision of assistance to the plaintiff at that informal hearing, his Honour made orders by consent dismissing the plaintiff's Notice of Motion and ordering him to provide the defendant a further draft amended SOC by 14 April 2020. Costs were to be costs in the cause. 2. On 6 April 2020, the plaintiff contacted the defendant asking for its consent to a further extension of time for the service for that document. A three-week extension was granted by consent and the Court ordered the plaintiff to provide the defendant with his amended draft SOC by 5 May 2020. 3. On that date, the plaintiff sought a further extension and, without opposition from the defendant, the plaintiff was again granted further time, being another week, until 12 May 2020, to file and serve the document. 4. On 18 May 2020, out of time by six days, the plaintiff provided the defendant via email with a further, now fourth, draft amended SOC, a document of some 277 pages. The defendant opposes leave being granted to the plaintiff to file and rely upon that amended SOC. 5. The plaintiff was ordered to file and serve any Notice of Motion seeking leave to file the further draft amended SOC by 5 June 2020. He did not do so, again, seeking an extension of the timetable set by the Court. 6. With the consent of the defendant, the Court again allowed an extension of time until 11 June 2020. The Notice of Motion was provided by email to the defendant on that date. 7. It is that notice of motion, supported by the plaintiff's affidavits of 29 October 2019, 10 June 2020, and 2 September 2020, that the Court is now considering. The defendant read affidavits of James Burg of 26 September 2019 and Clancy O'Donovan of 20 July 2020 in support of its opposition to leave being granted. 8. Both parties have filed written submissions, and I have heard additional oral submissions from the parties, both earlier this week in Mr Churchill's case, and today from both parties. 9. I do not for present purposes pretend to summarise the whole of the submissions that were put to the Court but, in very brief terms, the plaintiff contends that he should be permitted to file his final amended SOC because, he submits, the document is properly pleaded, it is not seeking to commence an action which is statute barred - despite the lapse of time since the events said to give rise to the cause of action – and, it clearly delineates, in the plaintiff's submission, the basis of the claim, which he contends is one of much wider importance than simply an action in his own favour. 10. Criticising the defendant for opposing a grant of leave, the plaintiff submits that he should be permitted to litigate his claim because, again, in summary form: "In the wake of a patently unjust permanent annihilation of my hard won anticipated career in professional dentistry, I was left utterly DEVASTATED and indeed have suffered now eight lonely years of devastation, loss, despair and ex-communicated ignominy since." 1. The defendant submits that the amended SOC is little different to that which Button J rejected in February of this year as unable to serve its purpose. The defendant contends that the revised proposed amended SOC is convoluted and emotional; it mixes argument with allegation; and it is a document wholly inadequate to the task of articulating the case that the plaintiff seeks to advance against the defendant. The deficiencies of the revised proposed amended SOC go further, in the defendant's submission, than deficiency of form and content. There are real questions as to the proceedings being statute barred with respect to both the action in negligence and to the claim under Australian Consumer Law. The same is true; it is submitted, of the claim for judicial review with respect to the seven impugned decisions made by the University. The latter claims, those seeking judicial review, it is submitted, have no utility, in any event.