Borg v Scentre Shopping Centre Management Pty Ltd

1. [1]

   HIS HONOUR: By a notice of motion filed on 13 September 2023, the defendant seeks orders dismissing the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and that the plaintiff pay the defendant’s costs of the proceedings. At the hearing of the motion, the plaintiff appeared without the benefit of legal representation. The orders sought were made. These are my reasons for making those orders.

2. [2]

   The defendant sought to read an affidavit of Carolyn Nguyen, who is the assisting solicitor to the solicitor for the defendant, sworn on 12 September 2023, which provides a history of the matter and has annexed to it copies of the relevant filings and correspondence. The plaintiff’s absence of representation impeded his ability to indicate whether he objected to the affidavit being read. I read the affidavit with the exception of the final two paragraphs, which I will treat as submissions. The history in the affidavit is to the following effect.

3. [3]

   On 5 September 2022, the plaintiff filed a statement of claim in this Court against the defendant as the first defendant and Australian Guardian Services Pty Ltd as the second defendant. The essence of the claim was an allegation that the plaintiff, while in the employment of the second defendant as a security guard, slipped and fell in the loading dock area of Hornsby Westfields, thereby suffering an injury. On 30 June 2016, he received a “suspension of employment letter”. On 4 July 2016, he filed an “injured register form” reporting that his “left ankle, back, lower back, back of the neck” were injured. Later the same day after filing the report he received a “dismissal letter”. Thereafter the plaintiff set out certain consultations he attended with medical specialists nominated by the second defendant’s insurer. A statement of particulars was not filed.

4. [4]

   By a letter dated 21 November 2022, the defendant’s solicitor wrote to the plaintiff, pointing out deficiencies and requesting that an amended statement of claim and a statement of particulars be filed. At a directions hearing on 5 December 2022, the defendant raised the shortcomings. The matter was stood over for a further directions hearing on 30 January 2023.

5. [5]

   On 5 April 2023, the Court dismissed the plaintiff’s action against the second defendant, on the basis that he had not complied with the provisions of the relevant legislation in respect of work injury damages: Troy Borg v Scentre Shopping Centre Management Pty Ltd [2023] NSWSC 338.

6. [6]

   At a directions hearing on 19 April 2023, the plaintiff was directed to file an amended statement of claim and a statement of particulars by 3 May 2023.

7. [7]

   Following a letter to the plaintiff from the defendant’s solicitor dated 4 May 2023, which informed him that he had not filed the documents as directed, on 19 May 2023 the plaintiff filed a document titled “amended statement of claim” which was essentially in the same terms as the statement of claim.

8. [8]

   In a letter dated 17 July 2023, the defendant’s solicitor wrote to the plaintiff informing him that the amended statement of claim “once again fails to comply with the rules”. It specified the shortcomings and warned that in the absence of a compliant further amended statement of claim and a statement of particulars, it would seek a strike-out with costs:

9. [9]

   At a directions hearing on 19 July 2023, the plaintiff was directed to file a further amended statement of claim and a statement of particulars by 18 August 2023.

10. [10]

    By letter to the defendant’s solicitor dated 18 August 2023, the plaintiff sought an extension to 21 August 2023; to which the defendant acquiesced. On 22 August 2023, the plaintiff served a further amended statement of claim on the defendant’s solicitor and filed it the following day.

11. [11]

    I note that the further amended statement of claim does not address the shortcomings that were identified in the defendant’s solicitor’s letter dated 17 July 2023, the only changes to the amended statement of claim being a name change in one paragraph from “Scentre Hornsby Shopping Centre” to “Westfield Shopping Centre” and the deletion of a paragraph that stated:

12. [12]

    At the hearing of the defendant’s motion to dismiss the proceedings, the plaintiff sought to tender what he described as evidence of his injury and what caused it: “clinical notes from the doctors, physios, chiropractors, worker's compensation documentation, private investigation documentation reports”.

13. [13]

    When it was pointed out to him that material of that nature was not relevant to the issue before the Court, he sought an adjournment to obtain legal representation. The defendant submitted, and the plaintiff agreed, that he had previously had representation by two different solicitors. He stated he no longer had funds for obtaining legal representation but nevertheless effectively sought an adjournment to enable him to obtain fresh legal representation and file a second further amended statement of claim and a statement of particulars. When asked what would be different this time, if the matter was stood over again, he said he would try to borrow funds from his parents: “I’m out of pocket 600,000 I might as well borrow the money and take it further”. [T6.48]

14. [14]

    I declined the application for an adjournment and made an order dismissing the proceedings. My reasons are as follows. As noted, the defendant sought that the proceedings be dismissed, pursuant to r 13.4 of the UCPR, which provides:

15. [15]

    In Lazarus v Keneally [2023] NSWSC 349, I referred to the relevant principles, for dismissal pursuant to r 13.4:

16. [16]

    The Court must have regard to the overriding purpose of civil litigation contained in s 56 of the Civil Procedure Act, which relevantly provides:

Consideration

1. [17]

   The plaintiff has repeatedly demonstrated no insight into his obligation to comply with the rules as to the nature and filing of a statement of claim and a notice of particulars, if he wishes to properly commence proceedings, which is somewhat perplexing in view of him having received clear directions to do so on two prior occasions. He did not offer any realistic hope that if the proceedings were not dismissed, he would comply with directions in similar terms to those he has previously failed to comply with. The tone and content of the defendant’s solicitor’s correspondence with the plaintiff has been helpful throughout, attaching a copy of the relevant rules, offering to review documentation before it is filed and agreeing to a further adjournment, but all to no avail.

2. [18]

   In those circumstances, in my view there was no alternative but to dismiss the proceedings.

3. [19]

   As noted, the plaintiff was advised by letter dated 17 July 2023 that if he did not comply with the Registrar’s directions, the defendant would seek to have the proceedings struck out and, as well, an order for costs. In my view, such an order was appropriate.