Supreme Court New South Wales Medium Neutral Citation: Mahony v Branley [2013] NSWSC 1835 Hearing dates: 6 December 2013 Decision date: 11 December 2013 Before: Harrison J Decision: Parties to bring in short minutes of order Catchwords: PROCEDURE - pleadings - medical negligence - strike out - whether statement of claim discloses a reasonable cause of action - where statement of claim not accompanied by an expert opinion - whether proceedings should be dismissed Legislation Cited: Uniform Civil Procedure Rules 2005 12.7(1), 14.28, 15.12 and 31.36 Category: Procedural and other rulings Parties: Denis Mahony (Plaintiff) Dr Michael Branley (First Defendant) Dr Ron Woodey (Second Defendant) Dr John Downie (Third Defendant) Herglen Pty Limited t/as Hunters Hill Private Hospital (Fourth Defendant) Norther Sydney Local Health District (Fifth Defendant) Representation: L Kearney (First, Second and Third Defendants) HWL Ebsworth (Fourth Defendant) Curwoods Legal Services Pty Ltd (Fifth Defendant) File Number(s): 2012/223077 Publication restriction: Nil Judgment 1HIS HONOUR: These proceedings were originally commenced by statement of claim filed on 18 July 2012. A later document also described as a statement of claim was filed on 17 September 2012. Mr Mahony has at all times been and still remains legally unrepresented. This is so notwithstanding several unsuccessful attempts by him, by notice of motion seeking pro bono legal assistance and otherwise, to obtain the assistance of a lawyer. 2The statements of claim name five defendants. Mr Mahony seeks damages for injuries allegedly sustained by him as the result of failed medical and surgical treatment and procedures. The precise nature of that treatment is not outlined in the pleadings but is well known to the defendants. In circumstances to which I will shortly refer, none of the defendants has so far filed a defence. Neither filed statement of claim was accompanied by an expert report complying with UCPR 31.36. That rule is in these relevant terms: "31.36 Service of experts' reports in professional negligence claims (1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting: (a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and (b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and (c) the causal relationship alleged between such breach of duty or obligation and the damage alleged. ... (3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate. (4) Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial." 3The matter has come before me for directions on a number of occasions. On 5 July 2013, in short reasons published by me on that day, I observed that "no competent legal advice, with the benefit of which Mr Mahony may so far have proceeded, seems to have been directed to the preparation of a pleading of his case in a proper form." I also expressed the opinion that "the statement of claim as originally filed and its successor filed some months later are on one view incomprehensible" and failed to plead "a cause of action that is either known to the law or capable of withstanding an application to strike out." It was also my view at the time that each of the statements of claim contained material that was scurrilous and potentially embarrassing. 4Despite the fact that I held and expressed those views, I declined to deal finally with the defendants' respective notices of motion, which in combination sought orders that the proceedings be dismissed for want of compliance with UCPR 31.36(1), 12.7(1) or 15.12 or that the pleadings be struck out pursuant to UCPR 14.28. Instead I directed Mr Mahony to serve by no later than 4 October 2013 any proposed amended statement of claim upon which he intended to rely. I took that approach in anticipation of Mr Mahony possibly securing legal assistance with that task. I declined his request to adjourn the proceedings for one or two years. I adjourned the proceedings for further directions before me on 11 October 2013. 5When the matter came back before me on that day, Mr Mahony had not taken advantage of my directions. I was provided with a document described as an amended statement of claim bearing the date 4 October 2013. However, Mr Mahony has not chosen to file or to rely upon that document, although a copy of it remains with the Court file. Its form is no better than its predecessors and would be subject to similar treatment if Mr Mahony were to promote it as his current pleading. Accordingly I ordered that the matter should be adjourned to 6 December 2013. I made it plain that on that occasion I proposed to deal with any current or subsequently filed application by any of the defendants to strike out the current statement of claim or, if necessary, to deal with any further proposed amended statement of claim that they may have been served with in the meantime. 6Mr Mahony appeared once again unrepresented on that day. The defendants all asked for the orders sought in their notices of motion. Mr Mahony once again sought an adjournment for a further two years, which the defendants unanimously opposed. 7Mr Mahony addressed me for some time. His submissions were transcribed. It is not possible easily to distil or extract a consistent theme from everything that he said. His health is poor. He feels he has been treated badly by the medical profession. As a Vietnam veteran and the recipient of a TPI pension he feels that he has not received a fair go. He was concerned that he should be treated justly. Clearly no one suggested that any course other than that was appropriate. 8I attempted once again to elicit from Mr Mahony a concise indication or description of the case he thought he had or wanted to make out against any of the defendants. He was unable to provide one. To my observation he is unlikely ever to be able to do so. The prospect that a properly pleaded statement of claim will ever materialise, which fairly informs the defendants of the case against them, remains correspondingly very unlikely. 9None of the defendants has sought an order pursuant to UCPR 13.4. There may be reasons for that about which it is unprofitable to speculate. 10UCPR 14.28 is in the following relevant terms: "14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2)..." 11It is a sad but unavoidable fact in my view that none of the statements of claim filed by Mr Mahony discloses any reasonable cause of action against any of the defendants. I am also of the view that each version of the statement of claim has a tendency to cause embarrassment and delay. 12It is fairly clear that Mr Mahony underwent surgery upon his right eye. He contends that as a result of that surgery he became "legally blind" in that eye. There is a hint that he was not warned about something before the operation, although the precise character or details of any failure to do so or its consequences are not made plain. It is apparent that Mr Mahony believes that the condition of his right eye is the result of somebody's fault but he does not specify who it is or what the nature of the fault may have been. His statement of claim dated 4 October 2013 contains the statement that "although there is always risk in surgery [my] life has been ruined due to total incompetence and [I find] the case management anything but satisfactory by the first defendant." It later continues to say that the "whole episode is in fact a cover up, with no apology just some regret for a bad outcome and no detailed explanation to [me] or [my] general practitioner." The one respect in which the statement of claim complies with the requirements of the rules is that it clearly describes and particularises Mr Mahony's injuries and disabilities. 13For all anyone knows, there may possibly be lurking somewhere in all of this a genuine claim of some sort or at least one that could be formulated in a comprehensible fashion. Unless and until that occurs, the defendants are left wondering what it is that Mr Mahony is saying and they remain as a result in a continuing and unsatisfactory state of uncertainty. 14UCPR 31.36(1) is no mere formality. It clearly is borne of a reasonable requirement that allegations of professional misconduct be supported by a qualified opinion. That requirement operates both to inform the prospective defendants of the case that is to be raised against them, as well as possibly to filter out claims that are not viable. Questions of breach of duty of care and the causal relationship alleged between such breach of duty or obligation and the damage suffered are very often, if not usually, technical and complicated matters. The rule anticipates that plaintiffs ought to be required to show, and defendants ought to be entitled to expect, that a reasonable cause of action has been identified before either side is exposed to the potentially expensive and uncertain vicissitudes of litigation. 15The defendants have urged me to dismiss the proceedings in accordance with this rule. 16The events of which Mr Mahony complains are said to have occurred in a period from about March to May 2010. I mention this only to indicate that Mr Mahony notionally commenced the proceedings within the limitation period applying to the cause of action. If the proceedings were dismissed, any future attempt to recommence them in a proper form would encounter the spectre, if not the reality, of a limitation defence being raised. As presently advised, I am minded to strike out the pleadings forthwith. Having regard to Mr Mahony's unrepresented status, however, I would only accede to the defendants' application to dismiss the proceedings in their entirety if the defendants were prepared to accept, as a condition of that result, that they would not rely on any otherwise available limitation defence in the event that Mr Mahony later chose to commence the proceedings afresh in a proper form. 17I will in the circumstances invite the parties to bring in short minutes that give effect to these reasons and to the orders that I have indicated I am prepared to make. I will also hear the parties at that time on the not uncomplicated question of costs if so required. ********** 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: 13 December 2013