Supreme Court New South Wales Medium Neutral Citation: Pi v State of New South Wales (No 7) [2018] NSWSC 319 Hearing dates: 12 March 2018 Date of orders: 12 March 2018 Decision date: 14 March 2018 Jurisdiction: Common Law Before: Lonergan J Decision: (1) I dismiss the Plaintiff's notice of motion. (2) I order that the Plaintiff pay the Defendant's costs. Catchwords: CIVIL PROCEDURE – notice of motion to set aside earlier decision – where Plaintiff/Applicant did not appear – affidavit in support almost entirely incomprehensible – notice of motion dismissed Category: Procedural and other rulings Parties: Guang Hua Pi (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: J Chapman (Defendant) File Number(s): 2014/3768 EX TEMPORE Judgment 1. Before me today as Duty Judge is a part-heard notice of motion filed by the plaintiff Guang Hua Pi on 12 July 2017. The notice of motion is supported by an affidavit of Guang Hua Pi dated 24 August 2017. 2. This notice of motion was initially listed for hearing before me on 7 December 2017. At that time Mr Pi appeared for himself. On that occasion I dealt with the issue of the inappropriate inclusion as the second plaintiff to the proceedings of Ms Holly Tan and I made a formal order that her name as second plaintiff be removed from the notice of motion. I gave a short judgment on that issue. The matter was adjourned as Mr Pi became unwell during the hearing. 3. The notice of motion seeks orders that I set aside the decision of Justice Wilson of 29 June 2017 where she dismissed the proceedings brought by the plaintiff and made an order in favour of the defendant for costs. 4. The notice of motion filed by the plaintiff has some other orders which, with respect, do not make sense, but are stated as follows: "Dismissed 19 April 2017 notice of motion pursuant to rule 13.4 or rule 14.28 UCPR 2005 and strike out 23 August 2016 defence no reasonable cause of action disclosed pursuant to rules 13.4, 14.28 or 22.5 UCPR." 1. The motion also seeks that the defendant pay the "case proceeding costs on an indemnity basis". 2. The affidavit in support of the notice of motion sworn by Mr Pi is almost entirely incomprehensible. It does not outline any basis at all for the orders sought nor does it point to any error or other consideration upon which I could validly entertain an application to set aside Justice Wilson's dismissal of the proceedings. On the contrary, it seems to me that the orders made by Justice Wilson were entirely appropriate. 3. The defendant, in response to my request, served upon the plaintiff a copy of its written submissions which set out the arguments and reasons why it would request this Court to dismiss the plaintiff's application. 4. I am satisfied that that material was served upon Mr Pi by way of email on 12 December 2017. 5. I have been informed by Ms Chapman, counsel for the defendant that her instructing solicitor has received no correspondence from Mr Pi since December. 6. I have carried out a survey of the court file and see no correspondence has been received by Mr Pi to date as to why he is unable to attend today. 7. His name has been called three times outside this court and the court officer has checked the court surrounds to ensure Mr Pi has had an opportunity to attend court and be heard. He has not appeared. 8. The Defendant has made an application that I dismiss the notice of motion. I am satisfied that it is appropriate to make orders in his absence. Those orders are as follows: 1. I dismiss the Plaintiff's notice of motion. 2. I order that the Plaintiff pay the Defendant's costs. Additional Matter 1. On my return to chambers at the end of the list – well after 4.00 pm – an original affidavit dated 12 March 2018 titled "Sick leave pleading notice to the Common Law Division Judicial Officer" had arrived on my desk. It appears to have been completed by Mr Pi on 12 March 2018, and JusticeLink indicates that it was filed at 12.49 pm (I had dealt with the matter at 10.30 am, it being listed at 10.00 am). There are a number of formal inadequacies in the affidavit. In particular, the person before whom the affidavit was sworn is not identified, nor that witness's capacity or address. 2. The affidavit annexed a medical certificate from a GP which referred to a letter dated 17 December 2017 which was not provided. The certificate addressed to "Dear Sir" explained that Mr Pi had a "pre-syncope" whilst in court on 7 December 2017 and that he suffers from a number of medical conditions. 3. The certificate does not directly address why Mr Pi did not attend Court on 12 March 2018. 4. There is nothing in this document that causes me to alter the decision and orders I have already made. ********** 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 April 2018