Supreme Court New South Wales Medium Neutral Citation: Mazzella v Al Muderis [2014] NSWSC 1087 Hearing dates: 28/07/2014 Decision date: 28 July 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Pursuant to r 12.7 of the Uniform Civil Procedure Rules, that the Amended Statement of Claim dated 13 October 2011 be, and hereby is, dismissed. (2) Order the plaintiff to pay the costs of the whole proceedings, including all reserved costs, and including the costs of this Notice of Motion. (3) Vacate the dates of 30 July 2014 and 1 August 2014 when the matter is listed for directions. (4) Vacate the hearing date of 18 August 2014. Catchwords: PROCEDURE - summary disposal - dismissal - Uniform Civil Procedure Rules 2005; r 12.7 - dismissal of proceedings for want of due despatch - proceedings commenced in the District Court of NSW - non-compliance by plaintiff with Court orders - current hearing date is the third set down - prejudice to defendant - significant costs incurred by defendant -whether dismissal would further the overriding purpose of Civil Procedure Act 2005 - interests of justice Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Gerardo Mazzella (P) Munjed Al Muderis (D) Representation: Counsel: No appearance (P) M Windsor SC (D) Solicitors: HWL Ebsworth Lawyers (D) File Number(s): 2011/00318504 ex tempore Judgment - application to dismiss 1On 16 March 2010, the plaintiff, Mr Gerardo Mazzella, who is also known as Gerard Duncan, underwent a hip arthroscopy. The defendant, an orthopaedic surgeon, performed that surgery. Pleadings 2On 6 October 2011, a Statement of Claim was filed in the District Court of New South Wales by Slater & Gordon Lawyers, who were then acting for the plaintiff. It alleged that the surgery was undertaken negligently and also that the defendant had provided incorrect advice to the plaintiff with respect to the conditions which preceded the surgery and the need to undertake the surgery. The plaintiff claimed that as a consequence of the defendant's negligence he had suffered nerve injury to the pudendal nerves. On 13 October 2011 an Amended Statement of Claim was filed. The amendments were largely formal. 3In a Defence filed on 20 September 2011, the defendant, Dr Al Muderis, admitted that he had consulted with the plaintiff and, in his capacity as a specialist orthopaedic surgeon, had provided advice and treatment to him. He admitted that he owed the plaintiff a duty to exercise reasonable care and skill in the provision of medical advice and treatment, and denied that he was in any way in breach of his duty. In addition he pleaded that his treatment of the plaintiff afforded him a defence under s 50 of the Civil Liability Act 2001. 4In addition, the defence made plain that there was a central factual issue to be determined about the conduct of the surgery with respect to the length of time that traction had been applied to the plaintiff's right hip. 5Paragraph 10 of the Amended Statement of Claim alleged that the whole of the surgery took approximately two hours and forty minutes. In paragraph 12 of the Amended Statement of Claim it is alleged that traction was applied to the plaintiff's right hip for in excess of two hours. 6Whilst Dr Al Muderis admitted that the surgery took about two hours and forty minutes, he denied that traction was applied to the plaintiff's right hip for in excess of two hours. As well, it is asserted in his Defence that, even if that fact were established, it would not constitute negligence. 7By Notice of Motion filed 21 July 2014, the defendant seeks the following orders: "1. The plaintiff's Amended Statement of Claim be dismissed for failing to prosecute the proceedings with due despatch pursuant to Rule 12.7 of the Uniform Civil Procedure Act 2005. 2. Such further or other orders that the Court sees fit. 3. Costs." 8Although an Amended Notice of Motion has since been filed seeking similar relief on the basis of other rules, senior counsel has informed the Court that he is content to rely upon r 12.7 as the basis for the relief which he seeks today. Procedural History 9As I have earlier said, when the proceedings were commenced, Slater & Gordon Lawyers were acting for the plaintiff. I have also noted that the proceedings were commenced in the District Court. After some interlocutory steps in the District Court, on 30 May 2012, the proceedings were listed for hearing with an estimate of four days, commencing on 8 October 2012. 10On 29 August 2012, Slater & Gordon Lawyers filed a Notice of Ceasing to Act for the plaintiff. That was about six weeks before the hearing date. 11On 12 September 2012, the plaintiff, who had attended court in person, informed the Court that he had asked Marsdens, a firm of solicitors, to act for him. The List Judge in the District Court, McLoughlin DCJ, upon the basis of that statement, confirmed the hearing date of 8 October 2012. 12On 19 September 2012, the plaintiff filed an application in the District Court seeking to have the hearing date vacated. 13On 28 September 2012, that application was heard by McLoughlin DCJ. The plaintiff appeared in person. Orders to the following effect were made: (a)The hearing date on 8 October 2012 was vacated. (b)The matter was stood over for further direction on 1 November 2012, and (c)The defendant's costs of and thrown away by the vacation of the hearing date were to be reserved to the trial judge. 14His Honour informed the parties that the matter should proceed to trial on the next occasion when it was fixed, regardless of whether the plaintiff did or did not have legal representation. He also said that if the plaintiff did not have legal representation, he would be required to appear for himself. 15The matter was listed for directions in the District Court on 1 November 2012, before the List Judge, Truss DCJ. 16The plaintiff attended in person and informed her Honour that he had a solicitor, Mr Shad Barends, to represent him. Her Honour made an order that a Notice of Appearance was to be filed by Mr Barends within seven days, and listed the matter for further directions on 13 December 2012. 17On 13 December 2012, although Mr Barends had apparently gone on the record, he did not appear. The plaintiff appeared in person. Her Honour Judge Truss fixed the matter for hearing to commence on 3 June 2013, with an estimate of four days. She then noted that the matter was listed for directions on 19 March 2013, and in particular noted that no further evidence was to be served without an order of the Court. 18On 26 February 2013, Mr Barends advised the solicitor for the defendant that he was no longer acting for the plaintiff. 19On 18 March 2013, another solicitor, Ms Lana Ventsov, filed a Notice of Motion seeking to vacate the hearing date, and seeking leave to obtain further liability evidence because one of the orthopaedic surgeons retained by the plaintiff, Professor Nade, had died. 20On 19 March 2013, the matter came before the District Court for directions. The effect of the orders made that day was that the hearing date was retained and the plaintiff was obliged to file and serve an amended motion and supporting affidavit to deal with the relief that was sought. 21On 4 April 2013, solicitors for the plaintiff filed a Further Amended Notice of Motion in the District Court of NSW seeking an order to transfer the proceedings to the Supreme Court. However, no affidavit was filed at that time. On 8 May 2013, an affidavit was ultimately filed. 22On 9 May 2013, Truss DCJ vacated the hearing date of 3 June 2013 and stood the balance of the Motion over to 12 June 2013. 23On 11 June 2013, solicitors for the plaintiff filed a Summons in the Supreme Court of NSW seeking an order for the transfer of the proceedings from the District Court to the Supreme Court. The consequence of that application was that the District Court proceedings were adjourned pending the outcome of the application to this Court. On 27 June 2013, the transfer application was granted by this Court. 24On 17 July 2013, the matter was listed for directions in the Supreme Court. The Court made orders on that day requiring the plaintiff to complete service of his expert evidence by 14 August 2013. 25On 21 August 2013, at a further directions hearing, the date for service of expert evidence was adjusted so that the plaintiff was required to serve all further expert reports by 18 September 2013. Consequent directions were made. 26There was no compliance with that order. The first expert report served purportedly in compliance with that order was one of Dr Peter Conrad, which was served on 28 October 2013. 27On 22 November 2013, the matter was again listed for directions before this Court. Counsel appeared for the plaintiff. The Court made orders requiring both the defendant and the plaintiff to serve lay witness statements on liability by 3 March 2014, and lay witness statements on quantum by 31 March 2014. 28The Court made orders for the joint conclave of liability and damages experts, with joint experts' reports to be available by the end of May with respect to liability, and about the end of June with respect to damages. 29The matter was listed for hearing on 18 August 2014 for five days. 30The plaintiff's lawyers, and the plaintiff himself, did not comply with the Court's orders. No lay witness statements were served either on liability or quantum. Attempts to make arrangements for a joint conclave of experts were wholly unsuccessful because the plaintiff's lawyers did not, in any way, let alone a timely way, provide sufficient information about the availability of their experts to participate in joint conclaves. 31Consequently, on 16 April 2014, at the request of the defendant, the matter was listed before the Court for further directions because of non-compliance by the plaintiff with the orders made on 28 November 2013. There was no appearance by the lawyers for the plaintiff on that day, but the solicitor for the defendant was asked to mention their appearance. 32The Court made orders which provided that the plaintiff had up until 29 April 2014 to serve all witness statements of oral evidence which the plaintiff was to lead as part of his case, and also that all experts were to conclude a joint report by 30 July 2014. 33Considerable attempts were made by the solicitors for the defendant to obtain available dates for expert conclaves, but little progress was made because, I am satisfied, the plaintiff's then solicitors did not fully, or adequately, comply with their obligations. 34On 20 June 2014, the solicitor for the defendant, Ms Carruthers, had a telephone conversation with Ms Ventsov, who was still the solicitor acting for the plaintiff. During the course of that conversation, Ms Ventsov said she was no longer acting for the plaintiff. 35On 24 June 2014 Ms Ventsov served a Notice of Ceasing to Act which, for reasons that are entirely inexplicable, was filed in the District Court on 10 June 2014. 36Between 3 July 2014 and 28 July 2014, the solicitor for the defendant made considerable effort to contact the plaintiff. She obtained a variety of addresses, residential, electronic and mobile telephone contact details, and has persistently attempted to contact the plaintiff since then. 37On 21 July 2014, the solicitor for the defendant, Ms Carruthers, spoke to the plaintiff's mother. The substance of that conversation was that the plaintiff's mother had collected mail addressed to the plaintiff and had scanned and emailed to him some of the letters which had been sent. It was apparent that, at that time, the plaintiff was not in Australia, and Ms Carruthers was told by the plaintiff's mother that he was in Thailand and would be coming back on some unknown date in about two weeks' time. The plaintiff's mother informed Ms Carruthers that she would ask the plaintiff to contact Ms Carruthers, and I have no doubt that she would have done so. 38The proceedings which are presently before the Court, namely, the Notice of Motion and, as well, the Amended Notice of Motion, have I am well satisfied, been served correctly by registered post on the plaintiff's home address. As well, I am satisfied that they have been sent to him at an email address which he currently uses, and I have no doubt that he has received notice of the proceedings. 39This long and sorry tale of non-compliance by the plaintiff with the Court's orders has caused significant prejudice to the defendant, and significant cost has been incurred by the defendant in defending these proceedings. 40Putting it simply, the hearing date that is presently allocated for 18 August 2014 is the third such date which has been allocated. The plaintiff has sought the vacation of two of the earlier hearing dates because he has not been ready for a hearing. Plainly he is still not ready for a hearing because he has not complied with the Court's orders to serve, at the very least, statements of lay evidence which it is proposed to lead at the hearing. 41Because there is a significant factual dispute that relates to liability, the failure to serve evidentiary statements, which support the factual basis of the plaintiff's claim, is of significant prejudice to the defendant. There is no factual basis, in the absence of such statements, for assumptions to be put to liability experts about the conduct of the operation; there is no easy path to a joint opinion of liability experts if clear assumptions of fact cannot be put to them for the expression of their opinion. 42It is perfectly obvious to me that as at today, 28 July 2014, there is no prospect of this case proceeding to a hearing on 18 August 2014 in a timely, efficient and cost-effective manner. 43Case management directions are given in this Court, and no doubt in the District Court, because of the overriding purpose that is recorded in s 56 of the Civil Procedure Act 2005. Section 56 provides that the overriding purpose of the Act and the Rules of the Court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 56(2) obliges this Court to give effect to the overriding purpose when it exercises any power given to it by the Act or Rules of the Court. Section 56(3) provides that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and "to that effect to participate in the processes of the court and to comply with directions and orders of the court". 44I am well satisfied that the history of this matter has demonstrated the following: (1)the matter has been listed for hearing on three occasions, two of which have been vacated. (2)the plaintiff has engaged and terminated the engagement of three firms of lawyers, and apparently sought the assistance of a fourth firm, and does not presently have a lawyer to conduct his proceedings. (3)the proceedings, by reason of their nature, would require conduct in court by a person informed of all of the relevant issues. 45The costs of the vacation of the previous hearing dates remain outstanding, and the failure to bring the matter to a hearing continues to deny the defendant the opportunity to seek an order for past costs thrown away to be made in his favour. The fault in ensuring the readiness for trial of this matter falls entirely at the feet of the plaintiff who has, quite simply, ignored the Court's orders, made on many occasions, to ensure first, that he has provided statements of evidence and, second, that he has done all things necessary to enable expert conclaves to take place. 46There can be, and is, no basis to criticise the conduct of the defendant, who has at all times sought to maintain the hearing dates and to ensure that the matter has been brought on for hearing promptly. At no time has the plaintiff attempted in evidence to provide any credible or satisfactory explanation for the delay. 47As I have said, the plaintiff's conduct to date, which forms the basis for a justifiable fear in the future as to whether there will be any compliance at all, has demonstrated a complete failure to comply with the obligations in the Civil Procedure Act. 48I am satisfied that the defendant is suffering ongoing prejudice and injustice. I am satisfied that the continuing exposure of the defendant personally to this litigation would inevitably cause stress and interruption to his personal life and professional careers. I am satisfied that the interests of justice are such that the only proper order is that the plaintiff's Amended Statement of Claim be dismissed, as sought in the Notice of Motion. 49Accordingly, I make the following orders: (1)Order, pursuant to r 12.7 of the Uniform Civil Procedure Rules, that the Amended Statement of Claim dated 13 October 2011 be, and hereby is, dismissed. (2)Order the plaintiff to pay the costs of the whole proceedings, including all reserved costs, and including the costs of this Notice of Motion. (3)Vacate the dates of 30 July 2014 and 1 August 2014 when the matter is listed for directions. (4)Vacate the hearing date of 18 August 2014. ********** 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: 12 August 2014