Supreme Court New South Wales Medium Neutral Citation: Hoang v South Eastern Sydney Local Health District [2013] NSWSC 1844 Hearing dates: 6 December 2013 Decision date: 11 December 2013 Before: Harrison J Decision: Proceedings dismissed Catchwords: PROCEDURE - pleadings - medical negligence - strike out - whether statement of claim discloses reasonable cause of action - where statement of claim not accompanied by an expert opinion - whether proceedings should be dismissed -application for referral for pro bono legal assistance - whether such referral in the interests of the administration justice Legislation Cited: Uniform Civil Procedure Rules Category: Procedural and other rulings Parties: Regina Hoang (Plaintiff) Euroa Community Health Centre (First Defendant) Huan Tzin Goh (Second Defendant) Gordon Parker (Third Defendant) Office of the Protective Commissioner (NSW Trustee & Guardian) (Fourth Defendant) Representation: Counsel: E Chrysostomou (Fourth Defendant) Solicitors: Henry Davis York (First, Second and Third Defendant) Crown Solicitors (Fourth Defendant) File Number(s): 2012/397181 Publication restriction: Nil Judgment 1HIS HONOUR: These proceedings were originally commenced by statement of claim filed on 21 December 2012. Since then an amended statement of claim has been filed. That occurred on 2 December 2013. 2On 29 November 2013 the fourth defendant filed a notice of motion seeking orders that a statement of claim filed on 6 June 2013 be dismissed pursuant to UCPR 13.4 or struck out pursuant to UCPR 14.28. There does not appear to be any statement of claim filed on that date on the court file. By notice of motion also filed on 29 November 2013 the remaining defendants sought orders that the proceedings be dismissed pursuant to UCPR 13.4(1) or 12.7(1). That application is supported by an affidavit sworn by Jessica Mathias on 28 November 2013. That affidavit annexes an amended statement of claim that contains the stamp of a justice of the peace and the handwritten date 6 June 2013. I am unaware whether or not, but assume, that is the document to which the fourth defendant's notice of motion refers. None of the defendants has purported specifically to seek relief pursuant to UCPR 31.36 notwithstanding non-compliance with that rule and references in Ms Mathias' affidavit to that issue as well as the Registrar's directions concerning it from time to time. 3Ms Hoang filed a notice of motion on 2 December 2013 seeking referral for legal assistance in accordance with the Court's pro bono legal assistance scheme. She had earlier been refused a grant of legal aid by Legal Aid New South Wales on 9 September 2013 upon the basis that legal aid was no longer provided for medical negligence claims. 4Ms Hoang's various statements of claim and amended statements of claim can be considered simultaneously. It does appear that they purport to bring forward claims for damages alleging negligence on the part of medical practitioners and medical institutions. Beyond that general statement it is not possible concisely or accurately to characterise what claim or claims Ms Hoang has or intends to prosecute. The documents are discursive and unstructured. There is a reoccurring reference to electro convulsive treatments to which Ms Hoang would appear to have been subjected over a period of 14 weeks in 2007. There are allegations of breaches of the "Electroconvulsive Therapy Act 2007, the Civil Liability Act 2005 and the Crimes Act 1900 as well as the Guardianship Management and Protected Estates Act 1991, the Guardianship Act 2009 and the Powers of Attorney Act 2003". No content is given to these allegations. An unparticularised claim for damages in excess of $3.7M is also made. 5The statements of claim are wholly beyond comprehension, even taking a beneficial and forbearing approach. No identifiable legal claim of any sort is articulated or even remotely discernible. None of the defendants could be expected to understand Ms Hoang's apparent complaints against them or even begin to understand or formulate ways in which they might meaningfully respond. Ms Hoang's considerable dissatisfaction with the defendants and perhaps generally is patent but the impugned pleadings conspicuously fail to disclose anything vaguely approaching the formulation or expression of a reasonable cause of action. They have a distinct tendency to cause prejudice and are definitively embarrassing. It is preferable in Ms Hoang's unrepresented state to express no view about whether they are also frivolous or vexatious or amount to an abuse of the process of the Court. 6In my view Ms Hoang has neither filed nor referred to, or so far even foreshadowed, any pleading that can withstand the defendants' combined assaults. The current statement of claim should be struck out. To the extent that there may be some doubt about which of the several versions of her pleadings is the current version, I would expect the defendants to provide me with short minutes of order that give effect to my conclusions about them. 7The more difficult question concerns whether or not the proceedings should be dismissed. There is no evidence before me that they currently have any viability at all. It remains a matter of speculation whether there is any case residing somewhere in all of Ms Hoang's personally written material and other documentation that has been provided to the Court. 8The question of what should be done with the proceedings cannot be considered separately from the issue of Ms Hoang's application for referral for legal assistance. She has not provided the required expert opinion complying with UCPR 31.36. In the present circumstances, as is most often the case, this is no mere formality. It seems to me that any lawyer kind enough to volunteer to assist Ms Hoang with her legal situation could not and would not be expected to attempt to discover whether or not she had a case of some sort, or to assist with the drafting of proper pleadings or provide legal advice, without the benefit of the expert opinion for which the rule provides or its practical equivalent. At one point Ms Hoang sought an order that one of the defendants provide such a report, but the solicitor for that defendant accurately advised her in writing that that was inappropriate. Despite the extraordinary amount of documentation, including what appear to be Ms Hoang's entire hospital and clinical notes from the mental health rehabilitation unit at New South Wales Health in 2007, that has made its way into the court file, there is no opinion contained there which analyses the three issues of breach of some identified duty, associated loss and damage or the causal connection between them. 9There is also here present the spectre of limitation defences. I have insufficient material to express any concluded view about that issue and it is otherwise unnecessary that I do so. In the particular circumstances of this case, however, it may well be that there will be a foundation for Ms Hoang to avoid the consequences of a late claim to be discovered residing somewhere in the voluminous intricacies of her medical past. 10Ms Hoang relied upon an affidavit affirmed on 14 November 2013, which was read in her case and in response to the defendants' motions. It includes the following material: "1. I attended the direction hearing at the Supreme Court on 4 April 2013 before Registrar Bradford at 9.30am. In the court room Mrs Rebecca Whitte [sic, Whittle] required me to serve an expert medical report for the Court. I contacted to psychiatrist doctors in Eastern Suburbs, North Sydney, Medico-Legal Society in Sydney Business District and University of New South Wales. Now I have obtained: Expert Medical Evidence: Australian Medical Association's Position Ethical Guidelines for Doctors Acting as Medical Witnesses 2011 Law Society, Medico and Legal Relation - NSW According to this information, the defendants have to serve an expert medical report for my claims before the Supreme Court. 2. Mrs Rebecca's demanding was opposite the policy of the Australian Medical Association Policy. In the letter sent to me on 14 June 2013, she also informed me that if I do not serve this report for 11 September 2013, she will seek her client's instruction to file a notice of motion to strike out my statement of claim. 3. I contacted to independent lawyers in CBD, Maroubra, Marrickville and Cabramatta of NSW. The barristers refused to represent me in court by three reasons: It was a complicated case; Requiring paying in advance $50,000 for an expert medical report; Hold the case in six months only." 11Ms Hoang's affidavit thereafter referred to and annexed a series of documents. None is capable of assisting her in the present applications. A referral to a legal practitioner would be a hollow exercise and not something that should be ordered in the present case having regard to the complete absence of any evidence of anything remotely approaching a meritorious claim at law. 12There is to my mind no utility in preserving these frail proceedings in their current vulnerable state any longer. Notice of the defendants' attitude and intentions has long been in the air. The pleadings are deficient. There is not the slightest hint of a cause of action anywhere to be found. The pleadings should be struck out and the proceedings should be dismissed. I will require the defendants to bring in short minutes of order giving effect to my conclusions identifying the currently relevant pleading. I will also hear the defendants upon the question of costs if so required. 13I have described the present state of affairs as they apply to these proceedings. I am not satisfied that it is in the interests of the administration of justice to make an order pursuant to UCPR 7.36 for the referral of Ms Hoang to the Registrar for pro bono legal assistance and I decline to do so. ********** 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