Hoang v Kalas [2014] NSWSC 796

Supreme Court New South Wales

Medium Neutral Citation: Hoang v Kalas [2014] NSWSC 796 Hearing dates: 13 June 2014 Decision date: 17 June 2014 Before: Harrison J Decision: Proceedings dismissed with costs Catchwords: PROCEDURE - strike out - abuse of process Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Regina Hoang (Plaintiff) Michael Kalas (Defendant) Representation: Counsel: A J Bowen (Defendant) Solicitors: Plaintiff self represented Meridian Lawyers (Defendant) File Number(s): 2014/139098 Publication restriction: Nil

Judgment 1HIS HONOUR: These proceedings were commenced by summons filed on 8 May 2014. Ms Hoang claims $41,138.24 for what may conveniently be described as failed cosmetic dental procedures performed by Mr Kalas in November 2008. That is apparent from Ms Hoang's affidavit sworn 8 May 2014, which was read in response to the defendant's application to have the proceedings dismissed as an abuse of process. That application proceeded against the following factual background. 2Ms Hoang originally commenced proceedings against Mr Kalas in the NSW Consumer, Trader and Tenancy Tribunal in August 2009. Ms Hoang claimed $1,104 for what she described as overcharging, unprofessional services of cleaning and whitening her teeth and lack of care. The Tribunal decided the matter on 2 December 2009 and dismissed the application. The Tribunal's letter of the same date sent to Ms Hoang, setting out the reasons for its decision, is in evidence in the present application. 3In 2010 Ms Hoang lodged a complaint against Mr Kalas with the Dental Board of NSW. The complaint related to the same matters that had been considered by the Tribunal. The Dental Board dismissed Ms Hoang's complaint in July 2010. 4On 24 December 2010 Ms Hoang lodged an application for a rehearing with the Tribunal. The Tribunal decided the matter on 3 March 2011 and dismissed the application. The Tribunal's letter of the same date sent to Ms Hoang set out the reasons for its decision. The Tribunal advised that the dispute had previously been determined on 2 December 2009, and that Ms Hoang's application for a rehearing filed on 24 December 2009 had been refused. Ms Hoang's further application for a rehearing was not appropriate to re-open that dispute. The Tribunal's letter contained the following notation: "The appropriate course for the applicant was to exercise any rights of appeal she may have had to the District Court if she was dissatisfied with the outcome of the rehearing application. She advised me that she was aware of that right, but had not exercised it because she was concerned that if she won the respondent would have pay [sic] more and the expense which may be incurred by him. That does not give her a right to re-open her claim in the Tribunal." 5Ms Hoang next filed a statement of claim in the Local Court of NSW on 16 June 2011. Mr Kalas responded with a notice of motion filed in those proceedings seeking orders that the claim be dismissed pursuant to UCPR 13.4 upon the basis that it was frivolous, vexatious or an abuse of process. Magistrate Townsend made that order on 8 September 2011 and ordered Ms Hoang to pay Mr Kalas' costs. Those costs remain unpaid. 6Ms Hoang next commenced proceedings in the District Court of NSW on 13 October 2011. Mr Kalas again filed a notice of motion seeking to have the proceedings dismissed. That application was heard on 27 January 2012. Ms Hoang was referred to the Registrar for referral to a barrister or solicitor to assist her with the proceedings on a pro bono basis. However, the statement of claim was struck out, with leave granted to replead by 24 April 2012. 7On 20 April 2012 Ms Hoang filed a summons in the District Court that was listed for directions on 21 May 2012. On that date the Court determined that the summons was embarrassing, an abuse of process and dismissed the proceedings. 8On 16 February 2013 Ms Hoang filed a second statement of claim in the Local Court claiming $30,859.87 for loss and damage allegedly caused by Mr Kalas. Mr Kalas filed a notice of motion seeking to have the proceedings dismissed. Magistrate O'Brien heard that application on 9 May 2013 and dismissed Ms Hoang's proceedings with costs. 9All of these proceedings relate to the same factual circumstances. The present proceedings are no exception. The evidence indicates that Mr Kalas has incurred costs since 13 October 2010 up to and including 4 June 2014, in defence of Ms Hoang's proceedings and in applications by him to strike them out in the amount of approximately $36,250. That sum presumably does not include the costs of and incidental to the hearing before me. 10Ms Hoang once again appeared for herself. She did not oppose the matter proceeding as an application to dismiss the proceedings pursuant to UCPR 13.4(1) as an abuse of the process of the Court. She did not seek an adjournment or otherwise indicate that she required more time or formal notice of any matters before being in a position to respond. Indeed, Ms Hoang proceeded to make oral submissions in defence of her claim and of its authenticity in the circumstances. Having regard to the litigious history outlined above, there seemed to me to be little, if any, substantive or procedural utility in deferring consideration of Mr Kalas' application. In particular, Ms Hoang did not indicate that there was any further material upon which she proposed to rely that was not already in evidence or otherwise included in her folder of documents to which I was referred. A prompt consideration of the matter was also clearly appropriate having regard to the terms of s 56 of the Civil Procedure Act 2005 and the well known overriding purpose. 11Having considered all of the material to which Ms Hoang has referred me, I am satisfied notwithstanding that these proceedings are an abuse of process and should be dismissed. There must come a time, even in the most organised and orderly conduct of litigation, when a party's rights and remedies are exhausted. Ms Hoang has never to my observation, with the exception of her applications for rehearing in the Tribunal, sought to exercise or assert some arguably available right of appeal. I do not intend to suggest that Ms Hoang ever had such a right. It is apparent, however, that the several sets of proceedings commenced by her in the Local Court, the District Court, and now in this Court, were not formulated as appeals but as prayers for primary relief. 12There is no merit in Ms Hoang's asserted position that she should be entitled to continue to litigate her concerns here, upon the basis that she has been dealt a series of unremedied wrongs in the past that no previous court or tribunal has seen fit to correct. It may seem harsh or even brutal for Ms Hoang to hear it, but her case is over. It cannot be resurrected in this Court and certainly not as presently formulated. Mr Kalas has been summoned to respond on numerous occasions and always in the end with the same result. It is often easy to have considerable sympathy for an unrepresented litigant such as Ms Hoang who clearly harbours a long held sense of resentment and not a little frustration generated by a perception that a series of injustices have been perpetrated upon her. However, it is important not to lose sight of the fact that Mr Kalas is entitled to consideration in this context as well. He would no doubt be quick to observe that Ms Hoang has had a fairly free and wide ranging tilt at securing relief, so that her complaints of injustice or unfairness have to be considered with that firmly in mind. Ms Hoang has also conceded that she is impecunious, and the very real prospect, if not the certainty, is that Mr Kalas' costs will remain forever unpaid. It would be unjust to expose him to further irrecoverable expense in the present circumstances. 13The present proceedings are an abuse of process and should be dismissed. Ms Hoang should pay Mr Kalas' costs of and incidental to the proceedings in this Court.