Zhang v Hardas

1. [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. [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. [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. [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.

Background

1. [5]

   Mr Hardas is a chiropractor. Ms Zhang attended his practice in 2007 seeking treatment for what is described as muscle tension in her neck and shoulders. It seems to be entirely uncontroversial that Mr Hardas treated Ms Zhang on 19 occasions that year and that his treatment consisted solely of the use of a mechanical aid known as an activator. Ms Zhang had apparently been referred to Mr Hardas for assistance with right-sided neck pain and mild associated right arm tingling. Treatments using the activator lasted between five and ten minutes. Ms Zhang complains that during the course of this treatment her condition deteriorated and that new symptoms developed. She alleges that she complained to Mr Hardas and that she was not improving and that her symptoms were actually worsening, but that he continued with this treatment unchanged notwithstanding. No alternative treatment was considered, or at least none was employed, by Mr Hardas over this period despite Ms Zhang’s complaints.

2. [6]

   Mr Hardas has filed a defence that denies that he was negligent or that his treatment fell short of any proper or appropriate standard of care with which he was required to comply. He relies upon several provisions of the Civil Liability Act 2002 which, if applicable, would exculpate him. As already mentioned, Mr Hardas also relies upon the fact that the proceedings were commenced almost six years after the last or latest event upon which Ms Zhang’s cause of action could depend.

3. [7]

   The proceedings have had a fairly protracted and unfortunate history. Ms Zhang has retained no less than six separate firms of solicitors. The evidence does not adequately explain whether that circumstance has contributed to or has resulted from the delay.

4. [8]

   Be that as it may, the precise history of the proceedings is set forth in Ms Odell’s 23 December 2016 affidavit to which is annexed a chronology of some 17 pages. It is neither convenient nor necessary to include all of the details of that document in these reasons. However, some of the more significant events require consideration.

5. [9]

   Ms Zhang was ordered on 4 April 2014, by consent, to “complete service of any medical and expert evidence by 30 May 2014”. That did not occur and Mr Hardas’ then solicitors wrote a letter dated 28 July 2014 complaining about it. Mr Hardas’ solicitors then wrote again on 3 September 2014 advising that they had not received a response to their 28 July 2014 letter and that Ms Zhang had taken no substantive steps to progress the matter which had by then been on foot for 12 months. The solicitors foreshadowed that if Ms Zhang sought a further extension to complete her evidence, Mr Hardas would seek a guillotine order that required such evidence to be given to Mr Hardas within 28 days.

6. [10]

   That letter prompted a response from Ms Zhang’s then solicitors indicating that they had a further report to be served but that they were awaiting instructions from Ms Zhang to serve it. The report is not identified.

7. [11]

   At the next directions hearing on 5 September 2014, Ms Zhang consented to a direction that she serve her evidence by 6 October 2014. (That date was subsequently extended by agreement to 10 October 2014.) The parties were also directed to attend an informal settlement conference or mediation by 5 December 2014. The matter was listed for further directions on 12 December 2014.

8. [12]

   On 3 October 2014, Ms Zhang served reports from Dr K Sesel dated 2 July 2010, Dr John Evans dated 19 January 2011, Dr Sanjay Dhupelia dated 16 September 2013 and a thermographic report from Gail Bowen dated 6 March 2013. A report dated 16 July 2014 from Dr Jonathan Phillips was served on 9 October 2014.

9. [13]

   At the directions hearing on 12 December 2014, Mr Hardas was directed to serve his evidence by 17 February 2015. Ms Zhang agreed to serve her evidence in reply by 31 March 2015. A mediation was scheduled to take place by 21 April 2015 and the matter was listed for directions three days after that.

10. [14]

    The parties’ solicitors corresponded in the interim trying to organise a suitable time for Ms Zhang to be examined by medical experts for Mr Hardas. Regrettably, Ms Zhang’s then solicitor did not provide a response until 19 February 2015, which was two days after Mr Hardas was supposed to have finalised his evidence.

11. [15]

    On 13 March 2015, Ms Zhang’s solicitor filed a notice of ceasing to act. Her second solicitor commenced acting on 17 March 2015. However, the second solicitor ceased acting on 27 March 2015.

12. [16]

    Ms Zhang herself sent an email to Mr Hardas’ then solicitor on 21 April 2015 advising that she no longer had legal representation and that she did not feel well enough to represent herself. She sought Mr Hardas’ consent to an adjournment until a date “after the winter season” as she planned to go overseas on 2 May 2015. Mr Hardas did not agree to that request.

13. [17]

    At a directions hearing on 24 April 2015, the matter was adjourned for further directions on 1 May 2015. Ms Zhang’s third solicitor wrote to Mr Hardas on 30 April 2015 requesting some time to get instructions until Ms Zhang returned to Australia in June 2015.

14. [18]

    There were further directions hearings on 15 May 2015 and 22 May 2015. On the later of those dates Mr Hardas was directed to serve his evidence by no later than 29 June 2015. Ms Zhang was directed to file and serve any evidence in reply by 14 August 2015. The matter was listed for further directions on 28 August 2015 in order to allocate a hearing date and to enter an order for mediation.

15. [19]

    Ms Zhang’s third solicitor filed a notice of intention to file a notice of ceasing to act on 26 August 2015.

16. [20]

    At a directions hearing on 28 August 2015, Ms Zhang’s third solicitor filed a notice of ceasing to act. The matter was set down for hearing on 18 April 2016 with a five day estimate and was listed for directions in the professional negligence list before me on 11 September 2015. When that occurred, Ms Zhang’s fourth solicitor appeared.

17. [21]

    On 22 October 2015, Ms Zhang’s fourth solicitor advised Mr Hardas’ solicitor that Ms Zhang’s evidence was then complete.

18. [22]

    The matter failed to settle at a mediation that took place on 16 December 2015.

19. [23]

    At a directions hearing on 5 February 2016, Ms Zhang was directed to file and serve an affidavit setting out from her point of view the state of readiness of the matter, bearing in mind the hearing date allocated in April of that year. On 12 February 2016, Ms Zhang’s fifth solicitor filed a notice of change of solicitor. At a directions hearing on that day, I directed that the barrister briefed to appear for Ms Zhang appear at the next directions hearing on 26 February 2016.

20. [24]

    Mr Morahan of counsel appeared on that day. The hearing date was vacated. Ms Zhang was directed to file an amended statement of claim by 18 March 2016 and to serve any further reports by 22 July 2016. In the events that occurred, that did not finally happen until 24 June 2016.

21. [25]

    On 2 September 2016, Ms Zhang was directed to serve any further evidence upon which she proposed to rely by no later than 16 October 2016. On 21 September 2016, Ms Zhang’s fifth solicitor sent a notice of ceasing to act to Mr Hardas’ solicitor.

22. [26]

    Mr Hardas’ current solicitor assumed conduct of the matter for him on 27 September 2016.

23. [27]

    Thereafter Ms Zhang had no solicitor on the record and was difficult to contact until 3 November 2016 when Mr Morahan contacted Ms Odell to explain that he would be appearing at the directions hearing scheduled for 4 November 2016 instructed by Mr Sebesta.

24. [28]

    The chronology also reveals that previously, on 24 October 2016, Mr Morahan had spoken to Ms Odell on the telephone and informed her that he would be appearing at the directions hearing before me the following day. Mr Morahan also told Ms Odell that Ms Zhang had five expert reports ready to serve.

25. [29]

    When the matter later came before me on 4 November 2016, Mr Morahan appeared for Ms Zhang, instructed by Mr Sebesta. Mr Sebesta had by then become the sixth solicitor retained by Ms Zhang in these proceedings. I directed Ms Zhang to file and serve all evidence upon which she proposed to rely of either a lay or expert nature by no later than 4 pm on 15 December 2016. The matter was listed for further directions on 16 December 2016.

26. [30]

    Before that occurred, Mr Sebesta filed an affidavit sworn by him on 15 December 2016. It is relevantly in the following terms:

27. [31]

    When the matter came before me again on 16 December 2016, Mr Hardas complained about the lack of progress with the matter from Ms Zhang's perspective. I directed, in effect, that if Mr Hardas wanted to file a notice of motion seeking to have the proceedings dismissed for want of due despatch, he should do so by no later than 23 December 2016. I also directed that any such motion should be listed for 23 March 2017. I further directed that Ms Zhang should file and serve such evidence as she wished to rely on by no later than 10 March 2017.

28. [32]

    Mr Hardas filed the anticipated notice of motion on 23 December 2016.

29. [33]

    Clearly in the light of the last direction, Mr Sebesta swore a further affidavit on 10 March 2017. It was in the following terms:

30. [34]

    Mr Hardas' notice of motion could not proceed on 17 March 2017 and was ultimately listed for hearing before me on 27 June 2017. The delay between those two dates is not important for present purposes.

31. [35]

    Mr Sebesta swore a final affidavit on 26 June 2017. It was as follows:

32. [36]

    Mr Morahan's 24 October 2016 advice that Ms Zhang had five expert reports ready to serve appears to have been premature or ill-founded. Mr Sebesta's 15 December 2016 affidavit clearly confirms that the reports referred to by Mr Morahan had failed to materialise. Mr Sebesta's expectation, referred to in his 10 March 2017 affidavit, that further medico-legal evidence on a refresher basis could be obtained from Dr Jonathan Phillips, Dr Granot and Mr Bruce Watts when the previous solicitors' files were provided, also appears not to have been met. The report from Dr Watts annexed to Mr Sebesta's 26 June 2017 affidavit is dated 9 August 2016 and the report from Dr Cooke, which is also annexed, is marked "DRAFT" and is undated. The Furzer Crestani report referred to by Mr Sebesta has also not yet materialised.

33. [37]

    Paragraph 15 of Mr Sebesta's 10 March 2017 affidavit must be compared with paragraphs 9 to 12 inclusive of his 26 June 2017 affidavit. Clearly Mr Sebesta anticipates even now that the evidence in Ms Zhang's case will not be complete before 28 September 2017.

34. [38]

    It is interesting to note that Dr Cooke's draft report includes a list of the materials with which he was provided under cover of what he describes as a letter from Walker Law Group dated 9 June 2017. For any number of obvious reasons, that reference appears to be wrong. Walker Law Group did not act for Ms Zhang in June this year. However, the list includes the following reports from medical experts:

    1. (1)

       Bruce Watts, osteopath and chiropractor, dated 30 June 2011, 7 April 2014 and 9 August 2016.

    2. (2)

       Dr Jonathan Phillips, psychiatrist, dated 16 July 2014.

    3. (3)

       Dr Susan Rutkowski, rehabilitation physician, dated 16 April 2015 and 8 May 2015.

    4. (4)

       Dr Craig Anderson, neurologist, dated19 June 2015.

    5. (5)

       Dr Michael Robertson, psychiatrist, dated 31 October 2013, 3 February 2015 and 19 June 2015.

    6. (6)

       Peter Tuchin, chiropractor, dated 26 November 2013.

    7. (7)

       Tim Wade, chiropractor, dated 10 July 2015.

35. [39]

    With the exception of Bruce Watts' reports dated 30 June 2011 and 9 August 2016, none of these has been put into evidence by Ms Zhang in this application.

Consideration

1. [40]

   The following things are worthy of note in the context of the present application. First, Ms Zhang has not herself given any evidence in response to an application to strike out her claim. I accept immediately that Mr Hardas bears the onus of satisfying me that the proceedings should be dismissed, and that Ms Zhang can choose, if she wishes, to do nothing at all. However, Ms Zhang has proffered evidence, in the form of Mr Sebesta’s three affidavits, and in that sense has mounted active opposition to the application. It strikes me as at least very unusual and at most very unsatisfactory that the person with the greatest interest in opposing Mr Hardas’ attempt to dismiss the proceedings should not have contributed to the evidence that will decide the outcome.

2. [41]

   Secondly, Mr Sebesta did not give an explanation of why Ms Zhang did not give evidence herself. Once again I hasten to add that the absence of an explanation is not determinative of any issue that I am required to consider, but I would have taken some comfort from a proper understanding of her apparent lack of practical interest in what is occurring. Mr Barry of Queen’s Counsel, who appeared for Ms Zhang, suggested from the bar table that he had serious doubts about Ms Zhang’s ability to give instructions, having regard to his assessment of her mental state. While I accept and understand his concerns in that regard, I have not been provided with evidence that might substantiate them, or upon which I could reliably proceed.

3. [42]

   Thirdly, with the greatest of respect to Mr Sebesta, I have not, in my opinion, been provided with an explanation of why Ms Zhang’s case continues even now to limp along in a constant state of somnambulant desuetude. It will be recalled that in his 10 March 2017 affidavit Mr Sebesta said this:

4. [43]

   Despite what I am prepared to accept are Mr Sebesta’s best efforts, those paragraphs are utterly devoid of instructive comment. Mr Sebesta does not complain or assert that his ability to progress the case has been impaired or impeded by an inability to obtain the file from any one or more of his five predecessors, nor does he offer any real explanation at all concerning the need to obtain further medical reports when at least one of those predecessors indicated that Ms Zhang’s evidence was complete. If Ms Zhang is refusing to give instructions that Mr Sebesta needs, or if she is impecunious or otherwise disinclined to put Mr Sebesta in funds to pay for medical reports and the like, Mr Sebesta does not say so.

5. [44]

   Fourthly, there is no evidence that Ms Zhang has signed off on her evidentiary statement for the purposes of the final hearing. In the same vein, Mr Sebesta was not able in evidence to say that Ms Zhang’s evidence in response to the limitation issue raised by Mr Hardas in his defence has been assembled or even considered. I rather feel that no attention at all has been directed to the need for Ms Zhang to explain why the proceedings were commenced several years out of time, or to the question of precisely when she first became aware that she might have had a cause of action against Mr Hardas. Even a passing reference to these matters might have given some insight into the real state of preparedness of this case for trial.

6. [45]

   Mr Hardas has submitted that despite Mr Sebesta’s three affidavits, there is still no explanation for the delay. No explanation has been provided concerning any difficulties that Ms Zhang is or may be experiencing with respect to the retention of experts or the provision of reports. In the most extreme case, the evidence says only that Dr Phillips’ report cannot be finalised until 28 September 2017. No explanation is provided.

7. [46]

   There are no rigid rules in respect of applications of this nature. In particular, there is no rule that Ms Zhang’s default must be intentional or contumelious or amount to inordinate and inexcusable delay: Micallef v ICI Australia Operations Pty Ltd [2011] NSWCA 274 per Heydon JA at [51].

8. [47]

   The interests of justice are the primary consideration: Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412.

9. [48]

   In considering prejudice to the party responsible for the impugned delay, the Court will have regard to:

10. [49]

    In exercising the discretion the Court is informed by sections 56, 59 and 61 of the Civil Procedure Act 2005: Building Insurers Guarantee Corporation at [31].

11. [50]

    Here those principles are engaged as follows:

12. [51]

    In this last respect, Ms Odell has given evidence that Mr Hardas is suffering both personally and professionally as the result of the delays. Ms Odell understands that Mr Hardas is suffering from a degree of depression and is experiencing difficulty sleeping. He also suffers from hypertension for which he takes medication. Mr Hardas has become withdrawn from friends as these proceedings have continued to play upon him. Mr Hardas has also withdrawn to a considerable extent from his professional community.

13. [52]

    Mr Hardas has so far incurred legal costs in the order of $300,000.

Disposition

1. [53]

   There is no satisfactory explanation for the delay in the proceedings so far. Ms Zhang has shown a level of contemptuous disregard for the orders of this Court and the need to prosecute her case in accordance with the rules. Her solicitors have previously indicated that her evidence is “complete”. There cannot be any need for further evidence to be gathered in the circumstances. Indeed, the matter has been to mediation on two occasions, rather suggesting that Ms Zhang and her then current legal advisers were sufficiently well armed with expert support to understand and promote her case at its highest.

2. [54]

   I am not prepared to dismiss the proceedings. In my experience, an order doing so would not be the end of this matter.

3. [55]

   In my opinion, the proceedings should be brought to an end at a hearing allocated for that purpose without further avoidable delay. The parties should be directed forthwith to approach the list manager for the appointment of a hearing. Ms Zhang should not be permitted to serve any further evidence of any type later than 56 days before the date that is obtained. Any application by either party for additional orders or directions should be made to me by arrangement with my Associate. Ms Zhang should pay the costs of this application.