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Naidoo v State of Queensland[2016] QDC 169

Naidoo v State of Queensland[2016] QDC 169

DISTRICT COURT OF QUEENSLAND

CITATION:

Naidoo v State of Queensland & Anor [2016] QDC 169

PARTIES:

DR NAVIN NAIDOO

(plaintiff)

(respondent/applicant)

v

STATE OF QUEENSLAND

(first defendant)

(applicant/respondent)

and

DR PREETY GEORGE

(second defendant)

(applicant/respondent)

FILE NO:

D 4 of 2013

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

1 July 2016 (determination of application and cross-application); 14 July 2016 (further order as to costs and delivery of reasons)

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

1 July 2016 (Maroochydore)

JUDGE:

Long SC DCJ

ORDER:

  1. The Application filed by the plaintiff on 30 June 2016, is dismissed.
  1. The Application filed by the Defendants on 21 June 2016, is allowing in that:
  1. (a)
    the need for filing a request for trial date be dispensed with; and
  1. (b)
    the trial of the proceedings is to be heard in the District Court at Maroochydore and is to be set down by the Deputy Registrar for 4 days and on the first available dates, as determined with the parties as suitable dates, in 2017.
  1. Direct that the Amended Claim filed on 27 August 2013, be amended by the Registrar so that:
  1. (a)
    the first defendant is  “State of Queensland”; and
  1. (b)
    the words “on the basis of tort law and reprisal” are struck out.
  1. The plaintiff pay the defendants’ costs of the applications, fixed in the amount of $3,000.

CATCHWORDS:

APPLICATION – REQUEST FOR TRIAL DATE – DISPENSE WITH SIGNATURE – Where the defendants delivered to the plaintiff, a request for trial date – Where the plaintiff did not respond to such a request within the time allowed under UCPR 469 – Where the defendants make an application to dispense with the signature of the plaintiff on their request for trial date – Where the defendants seek a trial listing in Gympie before the or alternatively, a trial listing in Maroochydore, during November 2016 – Where both parties ultimately agree that this matter is ready to proceed to trial

CROSS-APPLICATION – AMENDMENT TO CLAIM AND STATEMENT OF CLAIM – Where the plaintiff files a cross-application seeking to amend the Claim and Statement of Claim in the proceedings and to introduce causes of action based in reprisal, an injunction against the defendant for continued reprisals and a referral to alternative dispute resolution – Where this matter has already been the subject of mediation – Where the plaintiff’s cross-claim in respect of reprisals is premised on ongoing and more recent conduct – Where such alleged conduct has the potential to introduce additional issues into the proceedings as well as additional defendants – Where the plaintiff did not present any proposed amendment to his pleadings at the hearing – Where the plaintiff’s cross-application for an injunction in respect of continued reprisals, had insurmountable obstacles – Where it is inappropriate to allow the plaintiff to attempt to introduce causes of action in reprisal into the principal proceeding

COSTS – Where the defendants request the fixing of an amount for costs pursuant to UCPR 367 – Where the plaintiff contends that the parties should bear their own costs or that the costs of these applications be costs in the cause – Where the defendants were substantially successful in respect of the application

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), rr 60, 65, 367 and 469

Public Interest Disclosure Act 2010, ss s 40, 42, 48, 48(4) and 49

District Court of Queensland Act 1967, s 69

COUNSEL:

AJ Newell (solicitor) for the defendants/applicants

No legal representation for the plaintiff/respondent

SOLICITORS:

Corrs Chambers Westgarth for the defendants/applicants

No legal representation for the plaintiff/respondent

  1. [1]
    These are the reasons for the orders made on 1 July 2016 and in respect of the cross-applications made in the principal proceeding before the Court, as initiated by the claim filed by the plaintiff at Gympie on 18 January 2013, and the further order made on publication of these reasons and as to the costs of those applications.
  1. [2]
    By an application filed on 21 June 2016, the defendants in the principal proceeding, sought the following orders:

“(a)Pursuant to r 469 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the signature of the plaintiff on the request for trial date be dispensed with.

  1. (b)
    The trial of the proceeding be set down on a date that the Court considers appropriate.
  1. (c)
    The plaintiff pay the defendants’ costs of and incidental to the application
  1. (d)
    Such further and other orders as the court may consider appropriate.”
  1. [3]
    That application was made on the basis that on 16 May 2016, the defendants prepared and signed a request for trial date and that despite that request being delivered to the plaintiff, it had not been met with a response within the time allowed pursuant to UCPR469 or at all, other than by email on 27 June 2016 indicating that the plaintiff would be opposing “your client’s application on the day” and would be self-represented. By then, the defendants’ application had been set down for hearing on 1 July 2016.
  1. [4]
    The proceeding which is the subject of the application for setting of trial dates has a substantial history before this Court. Since commencement on 18January 2013, there have been a number of prior applications in respect of the claim and the pleadings and the orders made in respect of the costs of those applications (including a review of the assessment of those costs).
  1. [5]
    Despite some issues in respect of the form in which the Amended Claim, filed on 27August 2013, remains, there is effectively no dispute that after orders made on 1November 2013, the plaintiff’s attempts to plead any cause of action, other than in defamation and in respect of a notification made by the second defendant on or about 11 December 2012 and purportedly pursuant to the Health Practitioner Regulation National Law Act2009,[1]were struck out of the Statement of Claim. Thereafter and upon the plaintiff’s Amended Statement of Claim, filed on 29 January 2014,[2]this matter has proceeded upon the basis that the only cause of action being pursued was for defamation. And in addition, that has remained the position through to the conclusion of the pleadings, which are now constituted by the plaintiff’s reply to the defendants’ Amended Defence, which were, respectively, filed on 27 and 7 February 2014, and the subsequently filed Third Amended Defence, on 5 March 2015 and to which there has been no further reply.
  1. [6]
    Subject to the observations that follow in respect of the cross-claim made by the plaintiff, it was appropriately conceded by him, on the hearing of these applications, that as far as the only cause of action which is before this Court and with this long history, is concerned, it is ready for trial. There was no cavil with the contention of the defendants that all of the necessary steps in that proceeding have been completed and although the plaintiff sought to raise some criticisms as to what then transpired, it is also common ground that an unsuccessful attempt at mediation occurred on 27 July 2015.
  1. [7]
    It may be noted that the defendants sought that the matters be allocated trial dates before the end of this year and particularly sought, on the basis that the matter would remain to be heard in the District Court at Gympie, that the matter be allocated four days commencing on 8 November 2016, having regard to the remaining scheduled sittings of the District Court at Gympie for this year, or alternatively sometime in November at Maroochydore. However, as it transpired, a difficulty for the plaintiff is his intended travel to South Africa, in order to fulfil some family commitments there, during that period and the reality is that there was no reasonable prospect of suitable dates being allocated for trial at Gympie or Maroochydore, before the end of this year.
  1. [8]
    Turning then to the plaintiff’s cross-application, on 28 June 2016 he filed a lengthy affidavit (including attachments) and on 30 June 2016, filed an application seeking the following orders:

“1.Orders 1 to 3 of the first and second defendants’ application set down for 01 July 2016 at the Maroochydore District Court be dismissed.

  1. That the plaintiff be given leave to amend his Claim and Statement of Claim.
  1. That the plaintiff be given leave to bring an application for an injunction against the defendant for continued reprisals to this court.
  1. That the damages aspect of this matter be referred to alternative dispute resolution.
  1. For each party to pay their own costs.”
  1. [9]
    Despite the assertion that he had only been served with the application on the morning of 1 July 2016, the solicitor for the defendants did not oppose the hearing of the plaintiff’s application, on that date.
  1. [10]
    As is apparent from the materials filed by the plaintiff for the purpose of his application, what he effectively seeks to do is to amend the Claim and Statement of Claim in the proceedings before this Court, to introduce causes of action based in reprisal, pursuant to s 42 of the Public Interest Disclosure Act2010. In the affidavit filed on 28 June 2016, he expressly states:

“I submit that the defendants have deliberately avoided settling this matter and that there have been several developments since February of this year that warrant an amendment to my Claim and Statement of Claim. The matter is not ready for trial.”[3]

Later in that affidavit and in respect of a reference to a need to appreciate the full background of the matter, it is asserted that:

“The matter revolves around numerous reprisals that have been made against me after I disclosed safety concerns at Gympie Hospital while working there as a Senior Medical Officer.”[4]

And after referring to the fact that he still works for Queensland Health at the Bundaberg Hospital, he further asserts that he finds himself “subjected to what can only amount to be ongoing reprisals”.[5]  In the same affidavit he makes reference to having referred aspects of his concern to both the Anti-Discrimination Commission of Queensland and the Queensland Industrial Relations Commission.

  1. [11]
    As was indicated to the plaintiff in the course of the hearing on 1 July 2016, the first problem confronting his approach, is that the existing proceeding before the Court and which, as has been noted, is effectively ready for trial, relates to a discrete allegation of defamation. That allegation is based on a notification made by the second defendant,[6]purportedly pursuant to s 141 of the Schedule to the Health Practitioner Regulation National Law Act 2009 and itwould appear to be of little consequence as to whether or not that conduct could also be characterised as a reprisal, within the meaning of s 40 of the Public Interest Disclosure Act 2010. This is primarily because any such proof of reprisal would appear to turn on proof of detriment in terms of damage to the plaintiff’s reputation[7]and involve the similar issues as arise in respect of the cause of action in defamation and particularly under s 237 of the Scheduleto the Health Practitioner Regulation National Law Act 2009 and which protects the plaintiff from any civil liability for any such notification that was made “in good faith”.
  1. [12]
    Moreover, the earlier attempts by the plaintiff to introduce causes of action based in reprisal, were not successful and more importantly, this was not pursued in the pleadings, after the orders made on 1 November 2013. Further and whether or not the continuing concern in respect of reprisals includes any issues which were sought to be raised prior to 1 November 2013, it is apparent that the plaintiff’s concern now extends to what he describes as ongoing and clearly more recent conduct, including conduct that he alleges has occurred in this year and which has the potential not just to introduce additional issues into the proceedings but also additional defendants. The plaintiff had not presented any proposed amendment to his pleading and it remained at least unclear as to whether the amendments he had in contemplation, could satisfy the requirements of UCPR60 and 65.
  1. [13]
    In respect of any injunction for continued reprisals, there appeared to be insurmountable obstacles, in that:
  1. (a)
    as matters stand and having regard to s 69 of the District Court of Queensland Act 1967, this Court has no power to make such an order;[8]
  1. (b)
    as the plaintiff has apparently done, s 48 of the Public Interest Disclosure Act 2010 allows for an application for an injunction about a reprisal to be made to the Industrial Commission and it can be noted that pursuant to s 48(4), that tribunal is granted jurisdiction to deal with such an application that “is exclusive of the jurisdiction of any other court or tribunal other than the Industrial Court”; and
  1. (c)
    otherwise and if the plaintiff is not a person who can apply under s 48 to the Industrial Commission for such an injunction, s 49 of the same Act expressly allows for such an application to be made to the Supreme Court.
  1. [14]
    In these circumstances, it was determined to be inappropriate to allow the plaintiff to attempt to introduce or reintroduce causes of action in reprisal into the principal proceeding. It was also determined to be appropriate to regularise the Amended Claim, which has been filed on 27 August 2013. This was because:
  1. (a)
    as was correctly pointed out for the defendants, by amendment made to that claim and for which no leave had been obtained,[9]the plaintiff had added the words “on the basis of tort law and reprisal” to the Claim. To allow that assertion to remain would be inconsistent with the determination just mentioned and the state of the pleadings; and
  1. (b)
    to further amend or correctly state the identity of the first defendant as the “State of Queensland”, as that position had been resolved by amendment in the Second Amended Defence, filed on 6 May 2014, and was now common ground.
  1. [15]
    Further, this matter has already been the subject of mediation and obviously, the question of damages only arises, if at all, once the disputed issues as to liability are determined at a trial, which is now effectively ready to occur, at an appropriate availability.
  1. [16]
    Accordingly, it was determined that the plaintiff’s application should be dismissed and the defendant’s application allowed, to a substantial extent. In the circumstances and where having regard to the reasonable availability of the plaintiff (and where available dates for next year are not yet known), it was not feasible to grant the form of relief sought by the defendants and it was more appropriate to make orders to effect court management of the listing of this matter, on the understanding that the pleadings are now closed and the matter is ready to be allocated trial dates at the first suitable availability in 2017 and upon agreement of the parties that the trial should occur at Maroochydore rather than Gympie.[10]Therefore, the following orders were made on 1 July 2016:
  1. The Application filed by the plaintiff on 30 June 2016, is dismissed.
  1. The Application filed by the Defendants on 21 June 2016, is allowing in that:
  1. (a)
    the need for filing a request for trial date be dispensed with; and
  1. (b)
    the trial of the proceedings is to be heard in the District Court at Maroochydore and is to be set down by the Deputy Registrar for 4 days and on the first available dates, as determined with the parties as suitable dates, in 2017.
  1. Direct that the Amended Claim filed on 27 August 2013, be amended by the Registrar so that:
  1. (a)
    the first defendant is the “State of Queensland”; and
  1. (b)
    the words “on the basis of tort law and reprisal” are struck out.
  1. The costs of the applications are reserved until the publication of reasons.
  1. [17]
    As to the question of costs, it is clear that the defendants have been substantially successful in respect of their application and they seek an order for costs in their favour. However and being cognisant of past issues that have arisen in respect of costs in this matter,[11]the defendants offered an itemised estimate of their reasonable costs, on the standard basis and requested the fixing of an amount for costs, pursuant to UCPR367. That estimate totalled $4,158.95.
  1. [18]
    Although the plaintiff contended that the parties should bear their own costs or that the costs of these applications be costs in the cause, the substantial success of the defendants, in the circumstances, warrants an award in their favour. However, the defendants’ success was not complete, in the sense of achieving the precise outcome of a listing in Gympie or alternatively a listing a Maroochydore, in November 2016. Further, these things can be noted in that regard:
  1. (a)
    the defendants’ estimate of costs is based mainly upon the work undertaken in respect of their application and the plaintiff’s application was effectively heard and determined without any additional costs being incurred, except for the amount of $397.80 for perusal of the plaintiff’s affidavit;[12]
  1. (b)
    the defendants’ application was brought upon the basis of an absence of the required response by the plaintiff to the defendants’ first request for trial date and this was not like other instances that may be encountered, of repeated refusal or reluctance to appropriately respond to such a request. And further and  once the plaintiff’s cross-application was put aside, there was effectively no issue as to the matter being given a trial listing and that it was inappropriate to do that until next year; and
  1. (c)
    in these circumstances, perusal of the itemised estimate would appear to disclose some items which may not be properly allowable, particularly if an assessment were to occur and including the last item claiming general care and conduct at 10% or $365.00.
  1. [19]
    The exercise of fixing costs pursuant to UCPR367 is properly informed by the estimate provided by the defendants but does not require what would effectively be an assessment and in the event that there was to be an order for costs of these applications, the parties were content to allow the Court to fix an appropriate amount.
  1. [20]
    Having regard to all of the circumstances, the further order is that the plaintiff pay the defendants’ costs of the application, fixed in the amount of $3,000.

Footnotes

[1]Including in respect of reprisal (as any such cause of action may be allowed pursuant to s 42 of the Public Interest Disclosure Act 2010).

[2]Which was filed by the plaintiff’s legal representatives, at the time.

[3]Affidavit of Dr N Naidoo, filed 28/06/16, at [2].

[4]Ibid, at [5].

[5]Ibid, at [6].

[6]With the liability of the first defendant being alleged only upon the basis of vicarious liability for the act of the second defendant, in the course of and within the scope of her employment by the first defendant.

[7]See the definition of “detriment” in Schedule 4 of the Public Interest Disclosure Act 2010.

[8]Of course the position might be different if the plaintiff is able to add a claim for a cause of action in reprisal and may well be different in respect of any established claim for defamation.

[9]As is required by UCPR 377.

[10]Cf: UCPR 40 and 41.

[11]See: Naidoo v State of Queensland & Anor and Naidoo v The Sunshine Coast Hospital and Health Services & Anor [2015] QDC 68 and Naidoo v State of Queensland & Anor and Naidoo v The Sunshine Coast Hospital and Health Services & Anor (No.2) [2015] QDC 86.

[12]No reference or contention as to this was made in the written outline of submissions and the plaintiff’s application involved only little engagement by the defendants’ legal representative at the hearing.

Close

Editorial Notes

  • Published Case Name:

    Naidoo v State of Queensland & Anor

  • Shortened Case Name:

    Naidoo v State of Queensland

  • MNC:

    [2016] QDC 169

  • Court:

    QDC

  • Judge(s):

    Long DCJ

  • Date:

    14 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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