Rogers v Northern NSW Local Health District

[2017] NSWSC 731

Supreme Court

New South Wales

Medium Neutral Citation:	Rogers v Northern NSW Local Health District [2017] NSWSC 731
Hearing dates:	7 June 2017
Date of orders:	07 June 2017
Decision date:	07 June 2017
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Defendant’s application for ex parte freezing order refused.
Catchwords:	INJUNCTIONS – ex parte applications – freezing orders – freezing order sought by defendant to personal injury case – cross-claim by defendant against third party seeking indemnity or contribution – freezing order sought against third party – no evidence of risk of dissipation of assets or frustration of any judgment – application dismissed
Cases Cited:	Malvina Park Pty Ltd t/as Firths The Superannuation Lawyers v Pollard [2015] NSWSC 578
Category:	Procedural and other rulings
Parties:	Alexandra Rogers (Plaintiff) Northern NSW Local Health District (Defendant)
Representation:	Counsel: K Kumar (Defendant) (ex parte)   Solicitors: Edwards Michael Powell Lawyers (Plaintiff) Hicksons (Defendant)
File Number(s):	2016/360456

Judgment

1. The Applicant for a freezing order is the Defendant in proceedings commenced on 1 December 2016. The Plaintiff claims in those proceedings, against the Applicant, who is the Northern New South Wales Local Health District, that she suffered personal injury including mental harm as a result of breaches of duty by the Defendant. Those breaches are said to have occurred chiefly by reason of the behaviour of an employee of the Defendant, one Andreas Kirbach.

2. The particulars of breach of duty assert that Mr Kirbach acted improperly towards the Plaintiff by forming a personal and sexual relationship with her whilst and after he was her social worker, she having been referred to him by a psychiatrist at the Defendant. The allegations, while principally concerning Mr Kirbach, also assert other breaches on the part of the Defendant in relation to her psychiatric assessment and care.

3. The Defendant has today filed a cross-claim against Mr Kirbach seeking an indemnity for or contribution towards any damages that are found payable to the Plaintiff by the Defendant.

4. The evidence discloses that Mr Kirbach was found guilty in Lismore Local Court of two offences in relation to the Plaintiff including an assault and a stalk and intimidate offence. On 22 June 2015 a prohibition order was made by the Health Care Complaints Commission against Mr Kirbach preventing him from providing any health services on any basis for a period of five years from that date.

5. As a result of the conviction and the prohibition order, the solicitor for the Defendant swears to the fact that she is not aware of any possible defence that Mr Kirbach might have to the claim made by the Defendant against him in the cross-claim. It is on that basis and said to be out of concern that Mr Kirbach will not be able to satisfy the verdict that the freezing order has been sought against a piece of real property that he owns.

6. The authorities make clear that the Court's power to grant a freezing order is based on its power to prevent the frustration of its process and to ensure that its judgments are not without value, but they say that a freezing order is a drastic remedy which should not be granted lightly and its purpose is to preserve the status quo, not to change it in favour of an Applicant. Further, a freezing order is not intended to provide a Plaintiff or a judgment debtor with security for its judgment in advance of execution. A claim that there is a risk that assets will be dissipated is not enough; there must be evidence suggesting that there is some danger or real threat that the judgment will not be able to be satisfied by reason of the Defendant dealing with their property. Many of these principles are to be found in Malvina Park Pty Ltd T/As Firths The Superannuation Lawyers v Pollard [2015] NSWSC 578.

7. I do not think that the evidence in the present case establishes any basis for providing a freezing order against the property of the Defendant. There is no evidence of any suggestion of a proposed dissipation of assets nor that any form of asset is to be removed from the jurisdiction which might frustrate the execution of any judgment obtained.

8. For that reason the application must be refused.

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