Supreme Court New South Wales Medium Neutral Citation: Seidler v Carroll & O'Dea (No 2) [2013] NSWSC 1172 Hearing dates: 23 August 2013 Decision date: 23 August 2013 Before: McCallum J Decision: Proceedings dismissed for want of due despatch Catchwords: PROCEDURE - plaintiff failing to comply with orders for service of proposed amended pleading - where original pleading embarrassing and liable to be struck out - exercise of discretion to dismiss proceedings for want of due despatch Legislation Cited: Uniform Civil Procedure Rules, r 12.7 Cases Cited: Seidler v Carroll & O'Dea [2013] NSWSC 338 Category: Interlocutory applications Parties: Kathryn Seidler (plaintiff) Carroll & O'Dea (defendant) Representation: Counsel: Plaintiff in person M Windsor SC (1st-15th defendants) C Purdy (proposed 16th defendant) Solicitors: File Number(s): 2011/372531 Publication restriction: None JUDGMENT 1HER HONOUR: These proceedings were commenced by Miss Kathryn Seidler against the law firm, Carroll & O'Dea, by statement of claim filed on 21 November 2011. The proceedings have an unhappy history, part of which is recorded in my earlier judgment in the proceedings refusing leave to the plaintiff to amend that pleading: see Seidler v Carroll & O'Dea [2013] NSWSC 338. PLAINTIFF: Your Honour HER HONOUR: Please, Miss Seidler, I am giving a judgment, please don't interrupt me. PLAINTIFF: Sorry, your Honour, there is one thing, we haven't heard a motion about the current statement of claim. If I am forced to proceed on that then we have to have a motion on that, though. HER HONOUR: I have determined that I am going to dismiss the proceedings for want of due despatch. Please take a seat and please don't interrupt my judgment again. (Last sentence of judgment read at request of her Honour) PLAINTIFF: Sorry, your Honour, there is one thing, though, that is HER HONOUR: Miss Seidler, please, I am giving a judgment. If you interrupt me again I am going to ask my Tipstaff to contact the Sheriff's Office to have you removed from the court because you are disrupting the process of the court, do you understand? Please don't interrupt again. PLAINTIFF: One question? 2These reasons should be considered in the context of the history set out in that judgment. Since that time, the plaintiff has twice failed to comply with orders to serve a proposed amended pleading. 3Those orders were made in the following context. First, the plaintiff herself had acknowledged deficiencies in the existing statement of claim and, further, had articulated her desire to amend it. Secondly, I had in the course of my lengthy case management of these proceedings considered the terms of the pleading and formed the view that it is liable to be struck out as embarrassing. 4I reviewed the pleading yesterday in preparation for the hearing today and remain of that view. It suffers from many of the vices of the proposed amended pleading the subject of my earlier judgment. It wholly fails to identify the facts, matters and circumstances on the strength of which various contentions are made against the defendants, including failing clearly to identify the circumstances of the retainers relied upon, the content of those retainers and the content of any alleged negligence. It is, as is the case with many of the documents I have seen prepared by Miss Seidler, a rambling and incoherent document which is liable to cause embarrassment to the defendants in the legal sense. PLAINTIFF: Your Honour that's not fair. That's not fair. A lot of things have changed between now and then. HER HONOUR: Will you please contact the Sheriff's Office? 5Plainly the proceedings cannot continue on the strength of that document. Separately, as I have indicated, in any event Miss Seidler has said that she herself acknowledged deficiencies in the pleading and wished to amend it. 6On 10 May 2013 the plaintiff was directed to provide to the defendants any proposed further amended statement of claim on or before 4pm on 4 June 2013. Further directions were made fixing a timetable for the defendants to identify any objections to that proposed amended pleading and bringing the matter back before me for argument, if any, as to whether the plaintiff should have leave to file it. The plaintiff failed to serve a proposed amended pleading in accordance with that direction or at all. 7On 5 July 2013 I again ordered the plaintiff to serve any proposed amended pleading on or before 2 August 2013, again with a timetable calculated to bring any objections to that document before the court for argument today. Once again, Miss Seidler has failed to serve any proposed further amended pleading. 8Leaving aside those two breaches of the directions of the Court, I have regard to the following additional material. First, the defendants rely upon the affidavit of Mr Michael Nguyen sworn 23 August 2013. Apart from reciting the history I have already recited that affidavit sets out many of the other interlocutory steps that have been taken by me in the proceedings in an attempt to allow Miss Seidler to prosecute her claim. The affidavit states that since the commencement of the proceedings the defendants have been required to attend court on some 30 separate occasions. The affidavit further states that since the commencement of the proceedings the defendants have received in excess of 300 separate communications from and approaches by the plaintiff, many of the communications being of significant length. 9There is before the Court today also an appearance on behalf of a barrister, Mr Robert Harrington, who is represented by Mr Purdy. Mr Harrington is not a defendant to the proceedings but is the respondent to a number of motions filed by the plaintiff. Part of the plaintiff's desire to amend the pleadings stems from a desire to join Mr Harrington as a defendant. Mr Harrington has been required to appear before the court on 15 occasions and has received approximately 250 emails from the plaintiff during the course of the proceedings, many of which again contained letters of considerable length. 10To that evidence I would add that my own staff have received very many email communications from Miss Seidler, notwithstanding my persistent reminders to her that it is not appropriate for her to communicate with the Court other than by filing a notice of motion in the Registry and serving it on her opponent. Miss Seidler has persistently ignored that obligation. 11I should say something about the causes of action sought to be prosecuted by Miss Seidler. Although the existing pleading is, as I have said, a difficult document, I have through my extensive experience of this case during my case management of it been able to discern that at the heart of the claim is a grievance which, whilst not necessarily actionable, and I say nothing one way or the other about that, may at least be understood as being the source of some unhappiness on the part of Miss Seidler. It is the contention that, whilst the defendants were acting for her during proceedings in the District Court, a solicitor or paralegal employed by the defendants, in breach of an obligation of confidentiality and Miss Seidler's express instructions, inspected a document which she claimed contained confidential medical information about her. PLAINTIFF: Your Honour, sorry, no. HER HONOUR: Miss Seidler, please. PLAINTIFF: Privileged. 12The statement of claim is sufficiently clear in seeking to articulate, among other allegations, a claim for damages based on the consequences of that disclosure and in particular its impact on Miss Seidler emotionally. PLAINTIFF: Sorry, your Honour. HER HONOUR: Miss Seidler, please, don't interrupt again or I will have you removed from the court. I am giving a judgment. PLAINTIFF: The report though HER HONOUR: Miss Seidler, please. I will just note that two of the Sheriff's Officers have come into court and I am going to ask them to stay. If you interrupt me again I am going to ask them to remove you from the court, do you understand? PLAINTIFF: Mmhmm. HER HONOUR: Would you please take a seat. Thank you, gentlemen. 13The proposed amended statement of claim the subject of my earlier judgment it seemed to me sought to articulate a different grievance, although one which is related to the one I have just identified. 14Miss Seidler appears to have formed the view that the content of the medical report the subject of the initial action ought to have put her lawyers on notice of medical negligence on the part of a doctor who treated her some many years ago. She appears to wish to prosecute an action based on the contention that the defendants, in having that material before them and using it, in some way fell under the obligation of an implied retainer to prosecute the medical negligence claim or something of that nature. 15When the proceedings were last before me I warned Miss Seidler in the clearest terms that if she did not comply with the orders then made I would call upon her to show cause today why the proceedings should not be dismissed under r 12.7 of the Uniform Civil Procedure Rules 2005: see transcript of 5 July 2013, particularly at pp 1014. 16When the proceedings came before me this morning I reminded Miss Seidler of those warnings and called upon her to show cause why the proceedings should not be dismissed. In short, her response was to explain that she had spent a great deal of time on a proposed amended pleading but distracting herself, if I may put it that way, with pleading a claim based on the second grievance I have identified above, which she has now come to recognise might better be put as a claim for the loss of opportunity to sue the doctor. She stated that she had recently come to the view that, before prosecuting an action on that basis, she would first have to sue the doctor and seek an extension of the limitation period. 17It appears that as at today Miss Seidler has formed the view on that basis that all of the work she did on the proposed amended pleading which was due to have been served on 2 August 2013 would have now to be pulled out of the proposed draft, leaving a short pithy pleading of the original grievance. Miss Seidler sought two further weeks for that purpose. 18Separately, Miss Seidler complained that the defendants delayed in giving her their file. I do not want to descend to the detail of the attempts I have made to provide access to Miss Seidler to the documents which she says or has said on various occasions she needs for the purpose of pleading her cause of action. It is enough for present purposes to say that I totally reject any allegation that the defendants have in any way contributed to the plaintiff's inability to plead her cause. On the contrary they have, at my urging, bent over backwards to provide all opportunities to facilitate the prosecution of the plaintiff's claim. 19In all the circumstances I am persuaded that this is an appropriate occasion for the exercise of the court's discretion to dismiss the proceedings under r 12.7 and that is the order I make. ARGUMENT ON COSTS 20I order that the plaintiff pay the defendant's costs of the proceedings. 21FURTHER ARGUMENT ON COSTS 22I order the plaintiff to pay Mr Harrington's costs of the motions filed by the plaintiff on 24 January 2012, 12 March 2013, 9 April 2013, 24 April 2013, and 28 April 2013, and of the hearing of the applications heard on 20 July 2012 and today. ********** Amendments 25 November 2013 - Judgment was incorrectly uploaded onto Caselaw Amended paragraphs: Whole judgment replublished DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 April 2014