Zhang v Hardas [2017] NSWSC 876

Supreme Court New South Wales

Medium Neutral Citation: Zhang v Hardas [2017] NSWSC 876 Hearing dates: 27 June 2017 Date of orders: 30 June 2017 Decision date: 30 June 2017 Jurisdiction: Common Law Before: Harrison J Decision: See [55] Catchwords: PRACTICE AND PROCEDURE – application to dismiss proceedings for want of due despatch – UCPR 12.7 – where no satisfactory explanation for extreme delay and disregard for orders – where plaintiff has not given any evidence in response to application to strike out Legislation Cited: Civil Liability Act 2002 Civil Procedure Act 2005 Limitation Act 1969 Cases Cited: Building Insurers Guarantee Corporation v Touma [2010] NSWCA 4 Calvert v Stollznow (NSWSC, 1 April 1980, unrep) Micallef v ICI Australia Operations Pty Ltd [2011] NSWCA 274 Petronaitis v Rowles [2012] NSWCA 236 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 Category: Procedural and other rulings Parties: Yingjie Zhang (Plaintiff) George Hardas (Defendant) Representation: Counsel: C T Barry QC (Plaintiff) M Fordham SC with C P O'Neill (Defendant)

Solicitors: Walker Law Group (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2013/235239 Publication restriction: Nil

Judgment 1. HIS HONOUR: By her amended statement of claim filed on 24 June 2017, Yingjie Zhang claims damages for personal injuries allegedly sustained by her as the result of negligent chiropractic treatment provided by George Hardas. The events that give rise to these proceedings all took place at Mr Hardas' professional rooms between February 2007 and September 2007. The proceedings were not commenced until the filing of the original statement of claim on 2 August 2013. The defence filed for Mr Hardas pleads that the claim is statute barred. No application has ever been made by Ms Zhang to extend the time provided by the Limitation Act 1969 within which to bring the present proceedings. 2. By his notice of motion filed on 23 December 2016, Mr Hardas seeks an order that the proceedings be dismissed for want of due despatch pursuant to UCPR 12.7. The application is opposed. 3. That application is supported by two affidavits affirmed by Jodie Odell on 23 December 2016 and 26 June 2017. Ms Zhang relies on three affidavits sworn by her current solicitor Antonin Sebesta on 15 December 2016, 10 March 2017 and 26 June 2017. These affidavits were all read without objection. Mr Sebesta was briefly cross-examined. Ms Zhang's response to the application did not include an affidavit from her. 4. For the reasons that follow, I do not consider that the proceedings should be dismissed. However, the orders that I propose are based upon my ultimate conclusion that Ms Zhang's approach to, and conduct of, the proceedings has been recalcitrant and include an order that she should pay the costs.