Qasim v Bird & Ors (No 2)

On 8 September 2021 the plaintiff filed a summons seeking the following orders:

The summons described the “claim type” as “prerogative writ work, related”.

On 17 March 2022 I made orders removing the first, fourth, eleventh, twelfth, thirteenth and fifteenth defendants as parties to the proceedings. I made further orders summarily dismissing the proceedings against the second, fifth, sixth and seventh defendants: Qasim v Bird & Ors [2022] NSWSC 258.

On 1 April 2022 I made directions which included a direction that the third defendant was to file any notice of motion seeking to dismiss the proceedings against him by 8 April 2022. I directed that that notice of motion was to be returnable before me for hearing on 29 April 2022.

By reason of enquiries that I made of the plaintiff concerning the eighth, ninth, tenth and fourteenth defendants, it became clear that these defendants had never been served with the summons in accordance with the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff advised that she had emailed a copy of the summons to these defendants without any prior agreement having been reached with them to do so. The plaintiff advised that she had done this because of the 2021 lockdown as a result of the COVID 19 pandemic.

Since the summons was filed on 8 September 2021, it ceased to be good for service after 7 March 2022.

On 15 March 2022 the plaintiff filed a notice of motion seeking the following orders:

Although the plaintiff was advised that she would need to provide evidence to explain why the summons had not been properly served after the lockdown was lifted in October 2021, no evidence of any sort has been filed by the plaintiff concerning service of the proceedings. The affidavits relied upon in support of the motion reiterated a number of complaints that had been made previously about a number of the defendants who had been named in the summons. A number of these defendants were parties in whose favour I had made orders on 17 March 2022.

At the directions hearing on 1 April 2022, I advised the plaintiff that she had not sought relief in the summons against any of the named defendants with the exception of the tenth defendant, and the relief sought against the tenth defendant was inappropriate and unavailable. For that reason, I gave the plaintiff leave to provide to my Associate any amended summons that she wished to file in relation to the eighth, ninth, tenth and fourteenth defendants.

An amended summons was forwarded to my Associate, naming Michael Hall as the first defendant (Mr Hall was previously the eighth defendant), Kate Richardson as the second defendant (Ms Richardson was formerly the ninth defendant), Craig Bolger as the third defendant (Mr Bolger was formerly the fourteenth defendant), and Sharon Armstrong aka Sutherland as the fourth defendant (Ms Armstrong was formerly the tenth defendant).

The relief claimed was as follows:

In the affidavit in support sworn 29 March 2022, the plaintiff makes a number of allegations against Mr Hall SC who appeared for the plaintiff in her appeal to the Court of Appeal in 2015. She also makes allegations against Ms Richardson SC who appeared for the HCCC in the same appeal.

In relation to Mr Bolger, the plaintiff said that he was briefed “about the building defects and the vexatious certifications and was instructed to file them for the judges”. The plaintiff then makes assertions about Mr Bolger’s health.

In relation to Ms Armstrong, the plaintiff makes gratuitous and offensive personal remarks about Ms Armstrong and adds:

Rule 6.2(4) of the UCPR relevantly provides:

Rule 1.12 provides:

In Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 Ipp JA (Tobias and McColl JJA agreeing) said at [43]:

I directed my Associate to seek information from the eighth, ninth, tenth and fourteenth defendants of the circumstances in which each of them became aware of the existence of the proceedings. In the case of Mr Hall SC and Mr Bolger, each received a copy of the summons by email from the plaintiff. In the case of Ms Richardson SC, she first received any documents from the plaintiff on 10 March 2022. However, prior to that time another defendant to the summons had forwarded copies of the summons to Ms Richardson in September 2021. No reply was received from Ms Armstrong.

It may be accepted, therefore, in the case of Mr Hall SC, Ms Richardson SC and Mr Bolger, that they were aware of the existence of the proceedings in about September 2021. However, they were under no obligation to take any action in relation thereto when the proceedings had not been properly served in accordance with the UCPR.

The plaintiff submitted that an extension should be granted in respect of each of the defendants because fraud and misconduct was involved; the matter did not just amount to negligence. She also said that it was “Not lies, but fraud”. Yet, her affidavit of 29 March 2022 asserted that both Mr Hall and Ms Richardson lied to the Court of Appeal. The only mention of fraud in the affidavit is this:

Despite the plaintiff’s assertion that the complaint was not one of negligence, she asserted in her affidavit that Mr Hall owed her a duty of care which he breached.

I have had regard to the fact that the plaintiff appears for herself, and that the application for leave to extend time has been made relatively promptly after the expiry of the six-month period, albeit the application was only made because I pointed out to the plaintiff that the six-month period for service had expired.

I am not satisfied, however, that time should be extended for the service of the proceedings on the eighth, ninth, tenth and fourteenth defendants. Putting aside the fact that no adequate explanation has been given for the failure to serve the defendants properly, the important matter is that no reasonable cause of action is disclosed against those defendants. In the case of Mr Hall SC, Ms Richardson SC and Mr Bolger, advocates’ immunity applies to the claims that appear to be being made against them.

In the case of D'Orta-Ekenaike v Victoria Legal Aid [2005] 223 CLR 1; [2005] HCA 12, the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ said:

In the case of Ms Armstrong, the plaintiff submitted that she committed a “major fraud on making a false statement to Prince of Wales Hospital”. Nothing about that appears in the affidavits filed in support of the plaintiff’s motion. The plaintiff said that information was to be found in the six volume Court Book she filed in relation to the motions determined in Qasim v Bird [2022] NSWSC 258.

If her claim against Ms Armstrong is based on fraud, such a claim would need to be brought by a statement of claim with proper particulars pursuant to rr 6.3(c) and 15.3 UCPR. The proposed amended summons does not even seek damages for fraud, but even if it had, it is neither appropriate, nor in accordance with the UCPR, for a claim of fraud to be made in a summons along with unparticularised allegations in an affidavit.

It would not be consistent with s 56 of the Civil Procedure Act 2005 (NSW) to grant an extension of time for service of either the original summons filed or the proposed amended summons, because no reasonable cause of action is disclosed against those defendants.

Accordingly, I make the following orders: