Supreme Court of WA|2011-02-04|Before: Adam P, Heenan J

OPPERMAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 25 (4 February 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : OPPERMAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 25

Procedure - Pleading - Applications to strike out amended statement of claim - Applications to dismiss action - Pleadings - Whether arguable cause of action

First Defendant : State Solicitor for Western Australia

Australian Communications Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; (2003) 77 ALJR 1806

Balmain New Ferry Co v Robertson [1906] HCA 83; (1906) 4 CLR 379

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209

Coe v Commonwealth of Australia [1979] HCA 68; (1979) 24 ALR 118

Corporate Affairs Commission v Solomon (Unreported, NSWCA, 1 November 1989)

Fullarton v North Melbourne Electric Tramway & Lighting Co Ltd [1916] HCA 12; (1916) 21 CLR 181

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Goldie v Commonwealth [2004] FCA 156

Hall v Fonceca [1983] WAR 309

Karsales (Harrow) Ltd v Wallis [1956] EWCA Civ 4; [1956] 1 WLR 936

Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)

Lever Brothers Ltd v Bell [1931] 1 KB 557

Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129

Morton v Mitchell Products [1996] FCA 828

Neilson v City of Swan [2006] WASCA 94

Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457

Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, 16 June 1986)

Scott v Davis (2000) 204 CLR 333

Selangor United Rubber Estates Ltd v Cradock [1965] Ch 896

Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393

Tobin v Dodd & Ors [2004] WASCA 288

Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Williams v Miloton [1957] HCA 83; (1957) 97 CLR 465

1 EM HEENAN J: The three remaining defendants in this action have each brought applications to strike out the plaintiff's amended statement of claim and to dismiss the action on the grounds that no arguable cause of action is disclosed by, or is discernible in, the pleading and that the nature of the content of the amended statement of claim and the materials relied upon by the plaintiff demonstrate that there is no arguable prospect of the plaintiff being able to replead in such a way as might disclose an arguable cause of action against any of the defendants. Associated with these submissions are a series of subsidiary contentions that the pleadings, and the conduct of the action to date, amount to an abuse of process or are scandalous, frivolous and vexatious or are so prejudicial and embarrassing as to delay or prevent the fair trial of any action. Shortly stated, the position of the defendants is that a situation has been reached where this action should be peremptorily dismissed on the grounds that there is no viable cause of action which, even with further consideration or amendment, could be advanced in a tenable form.

2 Before embarking on a consideration of the allegations which the plaintiff desires to advance or the opposing submissions of the defendants it is necessary to outline briefly the history of the proceedings so far.

3 The action was commenced by a writ issued on 3 July 2009 which named four defendants. These were the present defendants, although the fourth defendant was then named as Joondalup Health Campus. Its name was amended to Joondalup Hospital Pty Ltd by consent on 15 February 2010. Also, when issued, the writ named Mr Peter Johnston as third defendant. By order made by Registrar Davies at a case management status conference on 12 April 2010, the plaintiff's action against the third defendant was, by consent, discontinued with no order as to costs.

4 The writ contains an extensive indorsement of claim advancing a number of discrete causes of action against each of the named defendants.

5 By that indorsement the plaintiff claims against the State of Western Australia damages for intentional infliction of emotional distress, and for negligence, breach of statutory duty, misfeasance in public office and injurious falsehood. These claims are alleged to arise out of the first defendant's bungled surveillance operation over the years 2006 to 2008 by undercover major crime fighting units of the Western Australia police force. The plaintiff also maintains those causes of action against the first defendant arising out of its alleged undercover and surveillance operations of him at a mine site of Minara Resources. Based upon those allegations, and more detailed expansions of them, the plaintiff claims against the State damages, equitable damages, aggravated damages, exemplary or punitive damages, interest pursuant to s 32 of the Supreme Court Act and such other relief as the court may consider just.

6 As against the second defendant, Minara Resources Ltd, the plaintiff's indorsement of claim advances claims for damages for negligence arising out of an alleged failure of the medical staff of Minara Resources correctly to diagnose and treat a psychotic episode of the plaintiff occurring at the mine site on and after 26 September 2006 and associated alleged tortious conduct in the treatment and management of the plaintiff in relation to the supply of prescription medication while under the care of the second defendant's medical staff. Based on that cause of action, the plaintiff claims against the second defendant damages, equitable damages, aggravated damages, exemplary or punitive damages, interest pursuant to s 32 of the Supreme Court Act and such other relief as the court may consider just.

7 By the indorsement of claim the plaintiff seeks damages for negligence against the fourth defendant and damages for alleged breach of statutory duty. He alleges that the fourth defendant failed to comply with s 36 of the Mental Health Act 1996 (WA) when the plaintiff was admitted as an involuntary patient on or about 16 June 2008 and again on or about 7 July 2008. He alleges that he remained in the fourth defendant's emergency ward for more than 24 hours without being assessed by a psychiatrist. Based on that cause of action, the plaintiff seeks against the fourth defendant damages, equitable damages, aggravated damages, exemplary or punitive damages, interest pursuant to s 32 of the Supreme Court Act and such other relief as the court may consider just in the circumstances.

8 There have been three statements of claim filed in the action by the plaintiff. The first is dated 10 February 2010 and includes a section giving particulars of the damages claimed. The claims then being advanced by the plaintiff against the first, second and third defendants were for:

Past loss of earnings $447,848

Loss of future earnings $16,500,000

Non-economic loss for aggravated damages for pain and suffering

Non-economic loss for exemplary or punitive damages

9 The claim then being advanced against the fourth defendant was for:

Loss of earnings $118,548

Aggravated damages for pain and suffering $50,000

Exemplary or punitive damages $50,000

10 As a result of objections by the defendants and directions hearings before a Registrar, the plaintiff was given leave to amend his statement of claim. He filed a second statement of claim (first amended statement of claim) on 6 April 2010 (this is occasionally referred to as being dated 7 April 2010).

11 In addition to adding content to the allegations contained in the earlier pleading, this pleading asserts a number of causes of action not specifically mentioned in the original indorsement of claim. These are claims for damages for battery against the first defendant (par 28, par 40, par 47); a claim for damages for assault against the first defendant (par 34); and a claim for damages for misrepresentation against the first defendant (par 44, par 48). In this amended pleading, the claims for damages against the first and second defendants for aggravated damages for pain and suffering are put at $5 million.

12 The first amended statement of claim also makes a claim for damages for assault and battery against the second defendant (par 82) and adds a claim for damages for false imprisonment against the first and second defendant (par 83). Furthermore, it advances a claim for damages for false imprisonment against the fourth defendant (par 93, par 95, par 98).

13 Although not so specifically named, the plaintiff has filed what amounts to be a minute of a proposed further amendment to the statement of claim, so far as it affects his claims against the fourth defendant, together with a large portion of irregular commentary annexed to a chambers summons which he himself has issued on 28 July 2010. This proposed third statement of claim is dated 28 July 2010.

14 By chambers summons dated 19 May 2010 the first defendant has applied for orders:

(i) granting the first defendant an extension of time within which to bring a strike-out application;

(ii) (as amended by leave on 5 October 2010) for an order that pars 1 - 57 and pars 82 and 83 of the amended statement of claim filed on 7 April 2010 be struck out pursuant to RSC O 20 r 19(1) on the grounds that it:

reveals no reasonable cause of action against the first defendant;
is scandalous, frivolous or vexatious; or
may prejudice, embarrass or delay the fair trial of the action

and for an order that the action against the first defendant be dismissed with costs. The chambers summons also sought an extension of time for the first defendant to file and serve its defence until the determination of that application.

15 In an accompanying memorandum filed pursuant to RSC O 59 r 9 the solicitors for the first defendant set out a lengthy narrative of the history of communications between the plaintiff and the first defendant between 3 March 2010 and 19 May 2010 which, among other things, records how, in these communications, the plaintiff had proposed making various amendments to the statement of claim and asked for agreement to an extension of time for him to do so which led to the amended statement of claim being filed 7 April 2010. This narrative also disclosed further communications in which the plaintiff was outlining his intentions to amend the statement of claim for 'a second time' but how, after further communications, the plaintiff indicated those proposed amendments would only affect the fourth defendant.

16 At this point, it is sufficient to say that I am satisfied that the first defendant has identified reasons which justify the grant of an extension of time to it to apply to strike out the amended statement of claim of 7 April 2010 as it is seeking to do.

17 By chambers summons dated 20 May 2010 the second defendant, Minara Resources Ltd, seeks orders:

giving leave to apply out of time to strike out the statement of claim;
to waive the requirements of RSC O 59 r 9 in relation to the issue of this application;
for an order pursuant to RSC O 20 r 19(1)(a) that pars 58 to 84 of the amended statement of claim dated 6 April 2010 be struck out and that the action against the second defendant be dismissed and judgment entered for the second defendant with costs on the grounds that those paragraphs fail to disclose a reasonable cause of action against the second defendant;
alternatively, that pars 58 to 84 of the amended statement of claim dated 6 April 2010 be struck out and that such orders as to repleading as the court considers appropriate be made on the grounds that:
- those paragraphs failed to disclose a reasonable cause of action pursuant to RSC O 20 r 19(1)(a)
- they are scandalous, frivolous or vexatious.

18 The second defendant relies on an affidavit of Mr B J F Mueller sworn and filed on 20 May in support of the application

19 By his affidavit, Mr Mueller explained how, as solicitor for the second defendant, he corresponded with the plaintiff by letter dated 26 February 2010, pointing out that, in his opinion, he considered that the statement of claim was deficient and unsustainable, that unless the asserted deficiencies were rectified a application would be made by Minara to strike out the pleading, and inviting the plaintiff to address the alleged deficiencies. This resulted in the plaintiff advising that he intended to serve an amended statement of claim by 19 March, and an extension for the filing of the amended pleading until 1 April was later agreed. The affidavit makes reference to a status conference in the action being listed for 12 April 2010 and to being served with an amended statement of claim dated 6 April 2010 before then. He then refers to the status conference which occurred on 12 April, at which the first defendant indicated an intention to apply to strike out the amended statement of claim and which resulted in the conference being adjourned to a date to be fixed. This was followed by further exchanges between the solicitors for the second defendant and the plaintiff and to notifications by the first defendant of intention to apply to strike out the amended statement of claim.

20 I am satisfied that sufficient cause has been established by the second defendant to grant an extension of time to apply to strike out the amended statement of claim of the plaintiff as it seeks to do. I am also satisfied that the combination of the matters referred to in the affidavit of Mr Mueller and the memorandum of conferral filed by the second defendant dated 20 May 2010 establish that the second defendant should be relieved from any further obligations under O 59 in relation to conferral with the plaintiff in connection with this present application.

21 By chambers summons issued 26 May 2010 the fourth defendant, Joondalup Hospital Pty Ltd, seeks orders that:

it be granted an extension of time to bring the application to dismiss the plaintiff's statement of claim;
pars 85 to 99 of the amended statement of claim filed on 7 April 2010 be struck out pursuant to RSC O 20 r 19(1)(a), (b) and (c);
the action against the fourth defendant be dismissed with costs.

22 As it is evident that the solicitors for the fourth defendant had been following the progress of the action, were aware of the proposals by the first and second defendants to seek to persuade the plaintiff to rectify alleged defects in the statement of claim and, at the directions hearing on 12 March, the first defendant had foreshadowed a strike-out application, I am also satisfied that sufficient reasons have been shown for the fourth defendant to be granted an extension of time within which to apply to strike out the specified passages of the statement of claim dated 7 April 2010 and to dismiss the action.

23 It is apparent, therefore, that each of the three defendants is seeking to strike out various portions of the second statement of claim, that is, the pleading filed at the court on 6 April 2010, although the first and fourth defendants have referred to that document as bearing the date 7 April 2010. That discrepancy is accounted for by the fact that it was dated 7 April 2010 by the plaintiff but the date was altered when it was filed in the registry on 6 April 2010. There can be no doubt that it is the second of the three versions of the statement of claim which is the target of the defendants' three applications.

24 This raises the question of the status of the proposed amended statement of claim dated 28 July 2010 filed, as part of other documents, by the plaintiff without leave only a week before the hearing of this application. No application has been made by the plaintiff for leave to re-amend yet again as proposed in this last document and the draft pleading, therefore, has no present status. Nevertheless, I consider that I should have some regard to it as an indication of the manner in which the plaintiff may yet seek leave to reamend the statement of claim should all or any part of the statement of claim of 6 April 2010 be struck out as a result of any of these applications. I shall, therefore, refer to that later document for this limited purpose.

25 By notice of motion filed 21 May 2010, in rather irregular and inappropriate format and terms, the plaintiff is seeking the leave of a judge of this court to:

(1) order that the WA Police Commissioner, Karl O'Callaghan, end any State and/or federal employees from harassing the plaintiff, perverting the course of justice, manipulating the environment of the Plaintiff and interfering in the business of Shane Opperman, the Plaintiff, in his civil case currently before the Supreme Court, and

(2) reamend the statement of claim once the above order is granted.

26 No affidavit has been filed by or on behalf of the plaintiff in support of this motion but the document, irregular in form as I have already described, contains additional content making reference to unsuccessful attempts by the plaintiff to operate a newly-acquired computer software programme and his subsequent visits to a computer service company. It is unnecessary and undesirable to set out all the detail of this material because it is sufficient to say that because of the difficulties which the plaintiff experienced in attempting to operate his computer he became convinced, and has asserted, that unauthorised police officers had hacked into his computer, disrupted the programme and then procured the computer service company operator to assist and conceal those endeavours.

27 Secondly, by a chambers summons dated 1 June 2010, returnable at the hearing of this application, the plaintiff sought an order for the examination of a proposed witness before trial before a master or examiner. The named witness is a pharmaceutical chemist operating a retail chemist shop at Whitfords City shopping centre. In a 'memorandum justifying order to examine the proposed witness before trial' the plaintiff repeated pars 36 and 37 of the statement of claim of 7 April 2010, which allege that undercover police officers had interfered with the stock at that chemist shop and had sought to substitute for certain prescription drugs required by the plaintiff other substances in order to tamper with the plaintiff's medication. No affidavit from the proposed witness nor any proof or précis of the evidence sought to be obtained by him was filed in support of that summons.

28 Thirdly, the plaintiff has issued two chambers summonses, each dated 28 July 2010. By these the plaintiff seeks orders against the first defendant and the second defendant to dismiss their respective strike-out applications and in doing so has sought to rely on RSC O 20 r 19(3)(a). Accompanying these unusual applications is an attachment entitled 'Special Conditions For An Amendment To Statement' which, according to its terms, 'is to stop undercover officers engaging in activities that are preventing and hampering the plaintiff's attempts to obtain legal counsel. Under these special circumstances, the plaintiff seeks leave to amend the statement of claim further 'once legal counsel has been obtained' and sets out further material of an irregular nature designed to support that contention.

29 The result of all this is that the listing clerk listed for hearing as a special appointment on 5 August 2010:

(a) the plaintiff's notice of motion dated 21 May 2010 (the application for the order to prevent the Commissioner of Police from harassing the plaintiff, perverting the course of justice, etcetera);

(b) the first defendant's chambers summons of 19 May 2010 (to strike out portions of the statement of claim and to dismiss the action);

(c) the second defendant's chambers summons dated 20 May 2010 (to strike out portions of the statement of claim and to dismiss the action); and

(c) the fourth defendant's chambers summons dated 26 May 2010 (to strike out portions of the statement of claim and to dismiss the action).

30 When the matters came on for hearing on 5 August there was some uncertainty as to whether or not the plaintiff's application for an order for an examination of a witness before the trial had also been, or should have been, listed for hearing. I resolved these procedural matters by ordering and directing that:

(a) the plaintiff's application for an order for an examination of a witness before trial be adjourned sine die; and

(b) the plaintiff's application for an order against the Commissioner of Police be adjourned sine die.

31 I then proceeded to hear submissions in relation to the strike-out applications and applications for dismissal of the action brought by the first, second and fourth defendants, and reserved my decision on those applications.

32 As already noted, the applicant defendants each seek to strike out different parts of the amended statement of claim (those material to cases alleged against that particular defendant), and on slightly different grounds. The application to strike out portions of the statement of claim by the first defendant relies on RSC O 20 r 19(1)(a), (b) and (c), namely, contending that the pleading:

(a) reveals no reasonable cause of action against the first defendant;

(b) is scandalous, frivolous or vexatious; or

(c) may prejudice, embarrass or delay the fair trial of the action.

33 A corresponding application by the second defendant attacks pars 58 to 84 of the amended statement of claim, again pursuant to RSC O 20 r 19(1)(a) and (b) on grounds that those passages:

(a) fail to disclose a reasonable cause of action; and

(b) are scandalous, frivolous or vexatious.

34 The fourth defendant seeks to strike out pars 85 to 99 in the amended statement of claim again in reliance upon RSC O 20 r 19(1)(a), (b) and (c) and, therefore, invokes the same grounds as the first defendant.

35 At the hearing an application was made by the second defendant to enlarge the grounds upon which it might rely to include RSC O 20 r 19(1)(c), that the pleading may prejudice, embarrass or delay the fair trial of the action, but because no adequate prior notice of that application had been given to the plaintiff, I declined to allow the second defendant to rely on that additional ground. However, in the result little turns upon this because, as explained later in these reasons, there are a combination of characteristics and requirements of the rules of pleading which mean, in practical terms, that in order properly to consider these applications and, simultaneously, to give recognition to the ever-present case management considerations which arise under RSC O 1 r 4B it is necessary to consider the overall potential impact of the present statement of claim on the further conduct of the litigation and any trial.

36 These considerations require the applications to be analysed on a wider basis than merely whether or not any reasonable cause of action, or any of the alleged causes of action, is revealed by the pleading even though perhaps only obscurely. The reason for this is that a theoretically sustainable cause of action may, in the context, be no more than frivolous or, having regard to the manner in which it is advanced or combined with other alleged causes or irrelevant material, the result may be to render the pleading vexatious. As will be seen, it is the potential effect of the pleading not merely in disclosing potential causes of action but in forming a framework of the material facts which the plaintiff is setting out to prove at trial. The pleading must be a guide, if and when issue is joined by defences or subsequent pleadings, to the relevance and admissibility of evidence at trial. Similarly, the issues of fact which will emerge after issue is joined by defences and subsequent pleadings will determine other issues of relevance and materiality which will have effect on the scope of discovery and the extent and need for proof of certain facts.

37 The need for a pleading to be as brief and succinct as the circumstances of the case will permit is important in advancing the utility of these associated purposes. Prolixity, obscurity, repetition and irrelevance will detract from the achievement of these purposes and, if present to a significant degree, may have the capacity to frustrate rather than to assist the identification of the essential issues of fact and the ancillary need to identify how these may be proved and, from the point of view of defendants, answered or refuted.

38 There are many instances of the role and function of pleadings being described or stated by courts. Very often these formulations have been framed with particular controversies in mind, so it is rare to find a comprehensive statement of all the purposes which are to be served by an adequate system of pleadings. It will very often be so that in the particular case some, but not all, of those purposes are more prominent or important than others. However, a selection of descriptions of the purposes can be found in Jacob & Goldrein, Pleadings: Principles and Practice (1990) 2 - 4, from which the following passages are taken concerning the object of pleadings:

(a) First, to define with clarity and precision the issues or questions which are in dispute between the parties and fall to be determined by the court. In Thurp v Holdsworth (1876) 3 Ch D 637 at 639 Jessel MR said:

'The whole object of pleadings is to bring the parties to an issue and the meaning of the rules of [sic RSC O 19] was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side of the hearing.'

(b) Secondly, to require each party to give fair and proper notice to his opponent of the case he has to meet to enable him to frame and prepare his own case for trial.

(c) Thirdly, to inform the court what are the precise matters in issue between the parties which alone the court may determine since they set the limits of the action which may not be extended without due amendment properly made.

(d) Fourthly, to provide a brief summary of the case of each party, which is readily available for reference, and from which the nature of the claim and defence may be easily apprehended, and constitute a permanent record of the issues and questions raised in the action and decided therein so as to prevent future litigation upon matters already adjudicated upon between the litigants or those privy to them.

39 These purposes are advanced by the specific rules which require a party to state only those facts which are material (O 20 r 8(1)) to state only the material facts upon which that party relies and not the evidence by which they are to be proved (O 20 r 8(1)), and not to state as facts or plead at all matters of law or inferences of law subject to certain exceptions, including the need to identify any special plea or any special defence (O 20 r 9) and to avoid taking an opponent by surprise (O 20 r 9(1)(b)) or where a specific point of law is pleaded (O 20 r 12).

40 With this system of pleading, widely known as the judicature or fact system of pleading, it is not necessary for the pleader to set out, or to limit himself to, the cause or causes of action which are asserted as the basis for relief claimed. Indeed, it is not necessary to specify any cause of action at all as it is sufficient that a pleading alleges the facts sought to be proved and the relief claimed. So it will not be fatal if the facts alleged, if proved, do not entitle the plaintiff to the particular relief claimed provided that the facts as proved do entitle a claimant to some relief within the jurisdiction of the court - Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, 472 (Barwick CJ). There is nothing unusual about a trial court, or an appellate court, adopting a view of the facts, or of the law, different from the views for which the parties to the litigation respectively contended: Australian Communications Exchange Ltd v Deputy Commissioner of Taxation [2003] HCA 55; (2003) 77 ALJR 1806, 1808 [7] (Gleeson CJ), 1815 [51] (Kirby J).

41 As I observed in Tobin v Dodd & Ors [2004] WASCA 288, once the facts have been established, or are ascertainable, it is for the court to apply the law to determine what, if any, relief the claimant is entitled to, or how, otherwise, the litigation should be determined. If the pleading asserts facts which support any cause of action, that will be sufficient for the court to give effect to the appropriate legal or equitable remedy - Karsales (Harrow) Ltd v Wallis [1956] EWCA Civ 4; [1956] 1 WLR 936, 941; Lever Brothers Ltd v Bell [1931] 1 KB 557, 582; and Selangor United Rubber Estates Ltd v Cradock [1965] Ch 896. These decisions illustrate the principle that if material facts are alleged in the pleading it is not necessary to plead the legal result or the existence of any particular liability or duty which arises from the facts explicitly alleged - see also Williams v Miloton [1957] HCA 83; (1957) 97 CLR 465, 474 and Fullarton v North Melbourne Electric Tramway & Lighting Co Ltd [1916] HCA 12; (1916) 21 CLR 181, 190.

42 The observations of Barwick CJ in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd were repeated and approved in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, 577 - 578 and the same point was again emphasised by Gummow J in Scott v Davis (2000) 204 CLR 333 (see Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51 [56] - [58]).

43 Some of the controversy arising from the present amended statement of claim is no doubt due to the fact that the plaintiff is conducting this litigation in person and does not have the benefit of legal training or experience, and that the inevitable absence of special legal skills means that the pleading which he has produced is, in many respects, unorthodox. However, being unorthodox will not render it susceptible to being struck out if, nevertheless, it achieves the purposes of a pleading and avoids serious and potentially disruptive breaches of the pleading rules. So it has been said in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 by Kirby P (as his Honour then was) that the court should approach applications for the peremptory termination of the litigation of litigants in person with a view to ensure that in a possibly ill-expressed and unstructured statement of claim there is no viable cause of action which, with appropriate amendment and a little assistance from the court, could be put into proper form. The needs to ensure that the striking out of a pleading only occurs in cases which are really not arguable, and that a plaintiff is not improperly deprived of his opportunity for a trial of his case by the appointed tribunal were emphasised in Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) and also in Neilson v City of Swan [2006] WASCA 94 [18] (Buss JA, Wheeler & Pullin JJA agreeing).

44 This then raises the question of the extent to which a court should go to ensure a fair trial when there is an unrepresented litigant. I adverted to these considerations in Tobin v Dodd at [14] where reference was made to the decision of the Full Court of the Federal Court of Australia in Minogue v Human Rights & Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129 [26] - [29]. Accordingly, it is not appropriate to repeat all those observations here as it is sufficient merely to repeat the observation of Mahoney JA in Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, 16 June 1986) [27]) as follows:

Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of a lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.

45 As will emerge from the fuller examination of the first defendant's submissions which is undertaken later in these reasons, counsel for the State of Western Australia adopts these approaches but, nevertheless, submits that the allegations in the statement of claim do not support any of the alleged causes of action against the first defendant. It will be necessary to consider whether or not that submission can clearly be made out or whether the overall effect of the submissions of the first defendant is that the first defendant has unimpeachable defences to each of the causes of action which the plaintiff is attempting to advance. In that latter case, that is, where there are unimpeachable defences, the correct approach would be to allow the statement of claim or permissible portions of it to stand and to require the first defendant to plead those defences. Once that is done, there would be an opportunity to consider whether or not the first defendant would wish to seek an application for summary judgment on the merits or the trial of certain questions of law which may vindicate its position that it has an unimpeachable defence to some or all of the plaintiff's claims. However, the existence of an unimpeachable defence is an answer to the plaintiff's claim on the merits and not a basis for striking out the statement of claim for want of an arguable cause of action. Similar observations apply in relation to the submissions of the second and fourth defendants.

46 The first and fourth defendants proceed to advance submissions as to why the plaintiff's claim is frivolous or vexatious or may prejudice, embarrass or delay the fair trial of the action. In this respect, there is a degree of common ground or perhaps overlap in the approaches of the several defendants.

47 Although only expressly advanced by the second defendant, the following propositions are implicit in the contentions of all the applicants.

48 The submissions by the second defendant with respect to the amended statement of claim as a whole assert that it has the following features:

(a) it is prolix, repetitive, often convoluted and difficult to follow, internally contradictory, in a number of places argumentative, frequently pleads opinion rather than fact, and often intermingles the two, contains content in the nature of commentary, and in a number of its paragraphs makes allegations that are plainly implausible or just irrational;

(b) apart from those characteristics, it also contains a number of serious assertions that the defendants, officers or employees of the defendants, and also various other non-parties have engaged in criminal, wrongful and/or unethical conduct. Those allegations are made, speaking in an objective sense, carelessly and extravagantly;

(c) as regards the matters advanced against the second defendant, it is significant, for reasons developed later, that the inter-dependent series of events that are pleaded are said to have their inception in alleged intrusive covert surveillance over the plaintiff by officers of the Western Australian police force and, particularly, in the surreptitious and unlawful administration to him of unspecified and/or illicit drugs by such officers;

(d) it contains an allegation of fact as to the plaintiff's own appreciation of the nature and quality of the allegations against the first defendant that would seem to fundamentally cut the ground from the preponderance, if not all, of the plaintiff's claim against the first defendant (ie par 72) such as to, in turn, fundamentally undermine the plaintiff's allegations against the second defendant also.

[Par 72 of the amended statement of claim begins with the allegation:

The plaintiff's current medical condition revolves around that flight back to Perth and is the point at which he created the belief that the WA Cop's are out to get him and to frame him...

The implication in the submission by the second defendant is that this is tantamount to an acknowledgement that his belief that WA police officers are engaged in a series of illegal and surreptitious actions against him is a product of his own disordered thought.]

(e) it is the product of extensive voluntary amendment by the plaintiff once already. The amendments made have enlarged the areas of objection rather than curing the existing deficiencies and problems. The process of further conferral since amendment has been predictably fruitless.

49 The second defendant proceeds to submit that, while at one level the pleading is intended to carry allegations that are directed at establishing legal causes of action against each defendant, at another more substantive level it is plain that the plaintiff is intending to advance a case that there have been a series of events that are temporally and causally connected and which are inter-dependent and that he is the victim of something akin to persecution by each of the defendants in different degrees and in conspiracy with each other. Each of the defendants submit, in various ways, that these are serious allegations and if they are to be advanced the defendants are entitled to know with as much precision as possible the factual basis upon which they are made.

50 Again the second defendant's submissions, which reflect submissions of the other defendants as well, proceed to advance the proposition that these characteristics of the pleading, including the 'interwoven' nature of the allegations and the circumstances that the plaintiff is an unrepresented litigant render the analysis and the principles applied by Sackville J in Morton v Mitchell Products [1996] FCA 828, especially at pages 21 - 22, particularly apt. In furtherance of this submission, the second defendant contends that the application of those principles led Sackville J at pages 27 - 28 to conclude that no part of the statement of claim in that case should stand. Unlike that case, the second defendant submits further that this plaintiff ought not be given leave to re-plead. The second defendant relies upon Coe v Commonwealth of Australia [1979] HCA 68; (1979) 24 ALR 118 and also refers to Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393.

51 Because of many of the features of the amended statement of claim, and particularly those which led the defendants to bring these applications, it is difficult to give a succinct or ordered summary of its content or apparent desired effect. What follows, therefore, is not a series of selected extracts of the pleading but, rather, a conspectus designed to give a synopsis in chronological form of the events which the plaintiff has included in the pleading and the significance which he asserts they bear.

52 The pleading begins with the assertion that the plaintiff has trade qualifications as a mechanical engineer and was 40 years of age at the time the action commenced. At material times he had been employed by Minara Resources, the second defendant, and, because of a condition which he developed at the second defendant's mine site in September 2006, he received medical attention for a sudden and extreme psychotic episode and panic attack on 28 September 2006.

53 The whole of the plaintiff's claims against the several defendants proceed on the footing that he is, and has been for many years, the target of an unlawful and intrusive undercover surveillance operation conducted by unknown members of the Western Australian police force which has resulted in him being subject to the intentional infliction of nervous shock. He contends that this alleged unlawful and continuous undercover police surveillance has, through a series of episodes which he later identifies, involved unlawful assaults, battery and negligence which has caused him mental and physical harm, resulting in economic loss. He also alleges that this unlawful undercover police surveillance amounts to misfeasance in public office by undisclosed officers of the State, false imprisonment as a result of the actions of third parties who are said to be involved in the undercover operations as part of a conspiracy to cause him harm, and assault, battery and false imprisonment. The case advanced for the existence of the alleged unlawful undercover surveillance operation is indirect and circumstantial, being based on inferences which the plaintiff submits should be drawn from specific episodes and experiences which he includes in the pleading. Whether any one or more of these episodes alone or collectively provides an arguable basis for the allegation that such an illegal undercover operation exists is a question which I will consider in the light of the submissions advanced on the application. Some of these episodes are alleged to constitute torts of assault, battery, intentional infliction of nervous shock and other causes of action.

54 So far as can be discerned from the pleading, this alleged unlawful undercover surveillance operation against the plaintiff pursued by unidentified police officers began before 2005 (S/C par 9) and has continued ever since. Particular episodes alleged to have occurred in the conduct of this unlawful undercover surveillance operation, and from which its existence is to be inferred and which, in certain instances, are said themselves to constitute tortious conduct are as follows:

(a) The ability of the plaintiff to identify a house in a northern suburb of Perth at Sunset Street rented by a Canadian lady and being part of an undercover sting in 2005 'allows the inference that the plaintiff has been under surveillance for a long time and subject to these tactics for a long time'. (Paragraph 9)

(b) The receipt by the plaintiff in mid-2006 of two anonymous phone calls inquiring if the plaintiff's name was 'Mark' - a pseudonym which the plaintiff had customarily used when booking messages in the classified advertisements. (Paragraph 11)

(c) An alleged interruption to the transmission in the plaintiff's car radio on or about 18 September 2007 when the plaintiff was parked next to a public phone booth which included the words 'Check out the classifieds ... hand relief included'. (Paragraph 12)

(d) An episode near the carpark at the Hamersley Golf Club on 20 September 2007 when the plaintiff walked past two men in civilian clothes waiting by their car. As the plaintiff made eye contact with one of these men he put on a policeman's hat and with two fingers pointed to his eyes and then to the plaintiff, an action which the plaintiff interpreted as 'undercover cops are after you, they have been watching you and will use illegal means to get you'. (Paragraph 13)

(e) An episode which occurred on 21 September 2006 on the plaintiff's way to the Joondalup golf course when he was followed by a silver Holden sedan which also drove into the golf course parking lot and then drove out. Later that day, when travelling to a doctor's appointment in West Perth, the plaintiff was followed very closely by a silver Holden and when he parked and went to confront the driver the car drove away. (Paragraph 14)

(f) An episode occurring in December 2007 when the plaintiff met relatives visiting Australia from South Africa and found at the airport that his friend's luggage was late and the last to come out on the luggage conveyor and had been opened and marked with a customs check sticker. (Paragraph 30)

(g) An episode in early 2008 when the plaintiff experienced another interception on his car radio which included words to the effect that a Russian astronaut had taken a gun with him to an international space station to protect top secret information followed by further discussion about the possession of a gun and ammunition. The plaintiff alleges that this is significant because he had previously had in his possession rounds of live ammunition which he had surrendered to the police during a period of amnesty. (Paragraph 31)

(h) A telephone call to the plaintiff's home in the beginning of 2008 by an unnamed and unidentified caller inquiring about the need for repairs to an airconditioning unit leaking water on to the plaintiff's bed. The plaintiff attaches significance to this unsolicited call on the basis that immediately beforehand he and his wife had been sitting on the bed in their home and had experienced water leaking from an airconditioner in the room on to the bed. (Paragraph 32)

(i) An episode occurring on 7 February 2008 when there was an interception to the plaintiff's car radio while he was driving which he interpreted as the unknown interceptor disclosing information about the plaintiff's sexual conduct which could only have been obtained from illicit observance or surveillance. (Paragraph 33)

(j) An episode in a pharmacy attended by the plaintiff on 20 February 2008 which revealed, so the plaintiff contended, that some unknown persons had been tampering with pharmaceutical medication which had been prescribed for the plaintiff and which he had been about to purchase but which he rejected on discovering the alleged tampering. This occurred on or about 20 or 21 February 2008. (Paragraph 36)

(k) A conversation which the plaintiff had with a pharmacist at the Whitford City shopping centre during the first half of 2008 in which it is alleged that the pharmacist confirmed the presence of WA and other officers posing as pharmacists within his pharmacy and suspected them of tampering with medication. (Paragraph 37)

(l) A continuation of the inferred surveillance preventing the plaintiff from sending his prescribed pharmaceutical medications for chemical analysis (paragraph 39) and preventing, inhibiting or delaying his access to the Supreme Court to initiate or pursue this litigation. (Paragraphs 42 and 43)

(m) Unjustified rejections for frivolous reasons of the writ in this action by staff of the Central Office of the Supreme Court and an alleged admission by a named employee that an undercover officer was posing as an employee every time the plaintiff arrived at the Supreme Court. (Paragraphs 42 and 43)

(n) The arrival of an undercover officer at the Clarkson police station on 27 February 2008 at a time when the plaintiff was lodging a claim against another police officer. (Paragraph 46)

(o) The refusal of three different lawyers in December 2009 and January 2010 to act for the plaintiff and their refusal to provide him with an affidavit that no third party had approached them to interfere. (Paragraph 49)

(p) The refusal of the police and the Crime and Corruption Commission to investigate complaints made by the plaintiff on six separate occasions ranging from 7 October 2006 to 16 March 2008 (paragraph 51) and also in January 2010. (Paragraph 53)

(q) An episode in Australind on 16 October 2009 when the plaintiff was eating breakfast at a coffee shop and an unnamed person walked past and said 'We will get you' or 'We will drug you'. (Paragraph 52)

55 Putting aside questions of alleged implausibility or irrationality of many of these allegations, notwithstanding that submissions to that effect have been raised by the defendants, I do not see any logical or rational basis upon which it could be concluded that these allegations, if proved, would establish that members of the Western Australian police force have been engaged in a continuous, long-term, undercover surveillance operation targeted at the plaintiff either alone or with a view to inflicting intentional nervous shock or any other harmful consequences upon him. Despite the fact that the plaintiff has concluded that this can be inferred from some or all of these episodes, I do not consider that that is a logical or probable inference which can or should be drawn from any of those matters. Put another way, if evidence proving the episodes alleged was adduced at a trial, in support of a case that unidentified police officers of the State of Western Australia had been engaged in a long-running, unlawful undercover surveillance operation of the plaintiff with a view to imposing harm upon him, I consider that such a case would be susceptible to being dismissed on a submission of no case to answer on the basis that the evidence could not support any such conclusion.

56 It follows that I consider that the case advanced against the first defendant for damages for the intentional infliction of nervous shock based on an unlawful and uncontrolled undercover police surveillance operation cannot stand and should be struck out.

57 This has a number of other consequences. The existence of this alleged unlawful undercover police surveillance operation, and the episodes relied upon in an attempt to establish it are also advanced by the plaintiff in support of a number of other claims.

58 First, the plaintiff seeks damages for assault from the first defendant (par 15) arising from 'the police hat eye trick' at the Hamersley Golf Club carpark; the alleged tailgating of the silver Holden; the radio interception messages; and the alleged obscene phone calls. By par 15 the plaintiff alleges that these constituted a direct threat of unlawful force and were intentional and, because of particulars contained in par 82, were the responsibility of the first defendant because they occurred in this State - see also par 35. As to these contentions, I am satisfied that none of the facts, if proved, would amount to an actionable assault, there being no basis to conclude that the alleged conduct created an apprehension of imminent harmful or offensive contact to the plaintiff's person: Hall v Fonceca [1983] WAR 309. Consequently, these claims for assault should be struck out.

59 Secondly, the plaintiff relies upon the alleged unlawful undercover surveillance police operation for the purposes of intentionally inflicting nervous shock upon the plaintiff as revealing misfeasance in public office by the first defendant (pars 16 and 35). However, I have already concluded there is no basis to infer that the alleged acts were done by a police officer or any other public officer. Similarly, there is no basis to conclude that any public officer owes a duty to the plaintiff with respect to the exercise of some public duty which has been illegally or improperly performed or done with intent to cause harm or with the knowledge that the repository of the power lacked power or authority to do the act in question: Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 345, 348, 356 - 357, 370.

60 In submissions on this issue, and in relation to other issues in which the plaintiff was claiming damages against the State of Western Australia because of alleged wrongful conduct by unidentified police officers, counsel for the first defendant submitted that an action cannot lie against the State in relation to a malicious act committed by a police officer because of s 137(5) of the Police Act 1892 (WA) and that in such a case the action would lie against the individual police officer in person. While accepting that proposition, I consider that what it demonstrates is that the first defendant would appear to have a good defence to any claims for damages against it based on allegations of malicious conduct of police officers, but that that would be a defence in point of law which can and should be pleaded. It is not a basis upon which I would contemplate striking out this cause of action if, otherwise, the allegations of fact in the pleading could arguably support the ingredients of the cause of action for misfeasance in public office. For the reasons given, however, they do not.

61 Thirdly, the plaintiff brings claims for damages for battery against the first defendant (par 28). Apart from three other episodes yet to be described, the allegations of battery are based again on the same episodes as relied upon for the allegations of assault, namely: the police 'hat eye trick'; following by the silver Holden; radio interception messages; and obscene phone calls (par 28). None of these episodes involves or alleges any striking or application of force to the person of the plaintiff and, accordingly, cannot sustain the alleged causes of action for battery which must, therefore, be struck out.

62 The first two exceptions are episodes of alleged drugging of the plaintiff on 26 September 2006 and again on 28 September 2006. These relate to the treatment of the plaintiff for a psychotic condition at the Minara mine site by medical staff of the second defendant who, so the plaintiff alleges, were involved in a conspiracy with the undercover police operatives. I shall defer examination of this episode and the associated claim for battery against the first defendant until later.

63 There is a further allegation of battery against the first defendant contained in par 40 which relies on the allegations that undercover police operatives tampered with the plaintiff's prescription medication, as set out in pars 36 to 39 of the statement of claim. However, pars 36 and 37 reveal that the plaintiff did not purchase any of the medications which he suspected of having been interfered with on 20 or 21 February 2008 or at any other time. In par 38 the plaintiff refers to taking one form of prescription medication for paranoia and another as an anti-depressant but that, as he himself increased the dosages of these prescription drugs, he experienced adverse symptoms. There is no allegation that the two named medications taken by the plaintiff as alleged in par 38 had themselves been tampered with, nor any basis upon which any such inference could be drawn. Accordingly, the claim for battery set out in par 40 is unsupported and must be struck out.

64 There are further allegations of misrepresentation, misfeasance in public office and intentional infliction of nervous shock contained in par 48. These rely upon the provision of coffees alleged to have been spiked with harmful drugs and the failure of a police officer to whom complaint was made by the plaintiff to investigate the complaint. The reference to 'coffee spiked with harmful drugs' in par 48 is a reference to par 45 which alleges no more than the plaintiff experiencing a sudden and unexplainable onset of depression after consuming a takeaway coffee obtained at an outlet in Mindarie. There is no direct allegation that that coffee was spiked by harmful drugs, or that the depression was caused as a result of the alleged spiking, or that the police officers or other agents of the State were responsible for that alleged action. Accordingly, the allegation is unsupported and, accordingly, this additional allegation of battery at par 47 is also unsupported and should be struck out. The same observations apply in relation to the allegation that this conduct amounted to misrepresentation, misfeasance in public office or intentional infliction of nervous shock.

65 Then there is a claim for misfeasance in public office against the first defendant arising from the alleged conduct of undercover police officers in deterring, through undue influence, three legal practitioners from acting for the plaintiff (par 50). In the first place, there is no basis for concluding that any officer of the State had a duty to ensure or encourage a private lawyer to act for or to advise the plaintiff. There is no allegation that there was any established contractual relationship between the plaintiff and any one of the three lawyers and there is, therefore, no basis to infer that the alleged interference involved a procurement of a breach of contract or any other form of interference with established economic relationships. There is no basis for this claim for alleged misfeasance in public office and it should also be struck out.

66 Finally, in relation to the State, there is a claim for damages for negligence on the basis of a failure to perform a duty to investigate complaints of violence and corruption (par 54). No basis in fact for this alleged duty of care is pleaded. While a member of the public may complain to the police or other authorities, the decision of whether or not to investigate the complaint and, if so, to what extent, is a matter which rests with the police or the particular authority in the absence of some special obligation or relationship creating a positive duty by the authority towards the complainant. There is no suggestion that there is any special duty of care by the police or the authorities to pursue investigations which the authorities may not consider warranted and there is certainly no special relationship of dependence or obligation by the authorities towards the plaintiff such as existed in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 to support the plaintiff's bland allegation that the State was under a duty to investigate these complaints and is liable in negligence for the alleged failure to do so.

67 The plaintiff's case against the second defendant arises from a course of events at the second defendant's mining operations in the interior of the State in September 2006. As earlier stated, the plaintiff was employed as a mining engineer by the second defendant and at the time was living in accommodation near the mine site and working at the second defendant's mining operations. At that time, and indeed since 2005, he had been taking prescribed medication containing stimulant amphetamines to improve his concentration. According to the statement of claim, his dose was six tablets of 5 mg dexamphetamine each morning at 6 o'clock and six tablets of 10 mg Ritalin at 1.00 pm in the afternoon. Because of the second defendant's standard policy which prohibited employees from taking narcotic, stimulant or other recreational drugs and which required disclosure by employees taking certain forms of prescribed medication, the plaintiff had much earlier disclosed to the second defendant his regime of amphetamine medication. This was done by reporting the matter to the second defendant's site nurse and by having that information recorded on file.

68 According to the plaintiff, a known potential side-effect of the use of stimulants and amphetamines, whether legal or illegal, is psychosis, paranoia and irrational behaviour and thoughts. On the morning of 28 September 2006, while at the mine site, the plaintiff experienced an extreme psychotic episode of paranoia and irrational behaviour and thoughts. According to him, this phenomenon is consistent with the known side-effects of the medication he was then taking and was thereupon reported to the second defendant's nurse at the site safety department. She checked his records on the company computer and asked him what medication he was taking. The nurse recorded his answers as being dexamphetamine, Ritalin and Stimlax as the stated medication. A drug screen test was then taken by the second defendant and analysed and it reported the presence of these three medications.

69 By par 67 the plaintiff alleges that he told the nurse that he had had a psychotic episode with hallucination effects and that somebody had drugged him. He also alleges that he told the nurse that, 'they have changed my prescription medication to illegal drugs'. He asked for urine samples to be taken. Three samples were taken, one was retained by the nurse, another given to the plaintiff and the third analysed on site before being sent on to a pathology laboratory. According to the plaintiff, the nurse told him, on completion of the on site drug screen test, that the sample was consistent with the stated medication and did not indicate that he had been drugged. According to the plaintiff, she asked him whether he knew who had drugged him and his answer was, 'I didn't see the exact person, but it was an undercover cop involving many people'. The nurse made no direct response to this but returned with another person and explained that the sample would be sent away for further analysis and that he was free to go back to work. The plaintiff alleges that this was a tortious failure to diagnose his condition and a failure to provide medical treatment. He alleges that the correct procedure would have been for him to be removed from the site and sent by aeroplane (presumably to Perth) to receive expert treatment. He alleges further that aeroplane transportation to Perth was then readily available and the failure to treat him or to send him to Perth resulted in him developing psychotic and paranoid beliefs that there was an imaginary terrorist plot.

70 The plaintiff then proceeds to allege that he was demonstrating other forms of paranoid behaviour while at the mine site on and after 26 September 2006 involving a failure to wear correct protective clothing, asking to use other employees' mobile phones when the landlines were in good working order and demonstrating an unusual level of anxiety and activity. When he eventually returned to Perth he attended Sir Charles Gairdner Hospital after reporting an imaginary terrorist plot to blow up the plane to the federal police. While waiting at the hospital, he conceived a further belief that a bomb was being planted under his car. The following day he was seen by his own medical practitioner and was commenced on anti-psychotic medication. Since then, he has been unable to work. He complains that had the nurse at the Minara mine site sent him to hospital on the morning of 28 September 2006 he would have avoided the subsequent psychotic episodes along with the ensuing pain and suffering and economic loss.

71 The statement of claim goes on to allege, with much detail, a series of events after 28 September 2006 associated with investigations into the results of the urine samples, inquiries of pathology laboratories and assertions about the identity of the person or persons who commissioned the tests. Based on these allegations, the plaintiff advances a claim against the second defendant for negligence in failing to diagnose his problem (presumably the nature and extent of his paranoia and the impending psychosis) and a negligent failure to treat him by failing to arrange for him to be transported by air immediately to Perth. Without any supporting allegations of fact, he alleges that his paranoia and/or psychosis was induced by being drugged by the undercover police at the mine site, but there are no specific allegations about how this was accomplished nor any facts or circumstances from which it might be inferred that police interfered with or substituted his medication.

72 The events alleged by the plaintiff involve him flying to Perth later on 28 September 2006 and developing a psychotic episode on or shortly after arrival. There are no facts supporting, or from which inferences may be drawn to the effect, that the nurse was obliged to do anything more than record the plaintiff's complaints, carry out a preliminary drug screening, as she did, arrange for urine samples to be analysed or to report that the initial tests were consistent with the medication which he had reported taking. Nor is there anything upon which it could be concluded that the episode of paranoia and the ensuing psychosis was due to the medication which the plaintiff had been taking. After all, he had been on that prescription medication then for more than a year. Accordingly, I conclude that the matters alleged by the plaintiff are not capable of supporting an arguable case that the medication that he was taking at the mine site was the cause of the episode of paranoia and the ensuing psychosis, at least in the absence of any plea that there had been a material change in his condition or in the dosage, frequency or nature of the medication.

73 Nor are any facts pleaded or inferences available to suggest that earlier transfer of the plaintiff from the mine site to Perth would have avoided or diminished the ensuing psychosis or its subsequent disabling effects.

74 From these allegations, the plaintiff then seeks to advance claims for damages for assault and/or battery against the second defendant. These are based on the allegation that the nurse was part of the undercover police operation and knew that the plaintiff was drugged and intentionally failed or refused to treat him. There are no facts or circumstances pleaded to establish, or to give rise to an inference, that the nurse was part of any undercover operation or, indeed, that there was such an operation at the mine site. Nor is there any basis for concluding that the nurse intentionally failed or refused to treat the plaintiff. Indeed, she did examine him, took a history, administered an initial blood screen test and obtained urine samples for initial and more detailed subsequent analysis. The preliminary investigations revealed nothing abnormal and there are no other facts or circumstances alleged which suggest, or from which an inference could be drawn, that the nurse was under any obligation to conduct further inquiries or administer further treatment. Consequently, the allegations against the second defendant that the nurse was a party to a conspiracy and an ensuing assault and/or battery are entirely baseless and must be struck out.

75 Insofar as these allegations arising from the episode at the Minara mine site in September 2006 advance claims that the first defendant was liable for the actions of the unidentified police officers participating in the undercover operation who interfered with the medication being taken by the plaintiff, there are simply no facts to support those contentions nor any arguable basis upon which an inference could be drawn to the civil standard of proof that this occurred. Consequently, the associated causes of action against the first defendant for conspiracy, assault and/or battery must also be struck out.

76 Also arising out of the episode at the Minara mine site in September 2006, the plaintiff contends that the first and second defendants are liable for damages for false imprisonment because, by the inaction of the nurse (acting in furtherance of the conspiracy with the undercover police officers) he was restricted to the isolated area of the mine site and that an inference should be drawn that the nurse was part of an undercover operation to isolate and confine the plaintiff to the mine site.

77 This claim for damages for false imprisonment suffers from all the defects of the preceding claims for conspiracy, negligence, assault and battery advanced in respect of the same episode and the shortcomings of those allegations need not be repeated. There is a further major impediment and it is that for false imprisonment to be established there must be a total restraint on the liberty of the person, not merely a partial obstruction or a restriction on some but not all of the claimant's points of exit from the area: Goldie v Commonwealth [2004] FCA 156 [17]; Ruddock v Taylor [2005] HCA 48 (2005) 222 CLR 612; Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209 [89] - [93] (Beech J); and Balmain New Ferry Co v Robertson [1906] HCA 83; (1906) 4 CLR 379, 387 (Griffith CJ). It follows that I am satisfied that there is no arguable basis advanced for a claim for damages for false imprisonment against either the first or the second defendant and those claims should also be struck out.

78 By par 18 the plaintiff sets out evidence upon which he evidently intends to rely for his eventual allegation that during September 2006 WA police were on the mine site at Minara Resources. The basis for this is not any identification by the plaintiff but his alleged observation of an item in the security officer's log book referring to WA police. The pleading of this evidence is irregular and susceptible to being struck out but the essential allegation that members of the WA police force were at the mine site is one of fact which could stand. The plaintiff then alleges that on the afternoon of 26 September 2006 he began behaving strangely with the sudden onset of paranoia. He alleges that the first defendant, by implication through the police officers, drugged him. Again, apart from this assertion, the case for the alleged drugging is circumstantial and said to arise from the following:

(a) during the night of 26 September 2006 there were two vehicles parked outside the plaintiff's room in a place not part of the authorised parking area;

(b) in each of these two vehicles there was a person sitting in the driver's seat and each person remained in the vehicle at that unauthorised parking location for the entire night;

(c) in the early evening a company security vehicle of Minara parked outside the plaintiff's room and the security driver remained in the vehicle while the drivers of the other two cars left and returned about an hour later when the security driver then left;

(d) on the morning of 28 September, at about 6.00 am, the plaintiff experienced at sudden and extreme psychotic episode and panic attack, which began while he was drinking his morning coffee. He went to the medical station for help to report the psychotic episode;

(e) in the early afternoon of 28 September 2006 a bin outside the plaintiff's room was disposed of. The bins from nearby rooms were not touched at that time of day. All the bins are normally emptied in the morning and all the rooms are done at about the same time.

79 I do not consider that these particular facts or episodes are capable of giving rise to a reasonably arguable case, or to inferences leading to a conclusion, that there were undercover police at the mine site engaged in surveillance or investigation of the plaintiff; or that the plaintiff was drugged by any person. The specific matters pleaded do not lead naturally or logically towards any such conclusion and have no logical or apparent connection except that the events are somewhat unusual and are said to have occurred on the evening, the night and the morning before the plaintiff's sudden onset of paranoia. I do not consider that it is reasonably arguable that any of these facts, whether alone or in combination, is capable of supporting a finding that the plaintiff's paranoia was the result of him being unlawfully drugged by some unknown persons.

80 The claims which the plaintiff seeks to advance against the fourth defendant relate to admissions to the fourth defendant's hospital at Joondalup on two separate occasions. The first was from 16 to 19 June 2008, and the second was on 7 July 2008. By par 86 the plaintiff alleges that on the afternoon of 16 June he was admitted to Joondalup Hospital as an involuntary patient on a form 1 for a referral for examination by a psychiatrist.

81 This reference to 'form 1' is presumably intended as a reference to a referral for examination by a psychiatrist pursuant to s 29 or other provisions of pt 3 div 1 of the Mental Health Act 1996 (WA) and to a form contemplated by s 33. Such a detention for examination may not be for longer than 24 hours from the time of reception at an authorised hospital (s 36(4)) but if examined by a psychiatrist an order may be made for the involuntary detention of the patient under s 43(2) or that the patient be detained for further assessment for not longer than 72 hours after the person was first received into the hospital (s 37(2)).

82 By pars 86 to 89 of the statement of claim the plaintiff alleges that he was not seen by any psychiatrist within 24 hours of admission to Joondalup Hospital but that he was assessed by a psychiatrist on 18 June 2008. He further pleads that three days after being admitted as an involuntary patient, on 19 June 2008, he was assessed by a psychiatrist.

83 It is significant to note at this point that by virtue of s 36(3) of the Mental Health Act 1996 if a patient is received into an authorised hospital under that section for examination that is not an admission to the hospital for the purposes of the Act. Consequently, the allegation in par 89 that he was assessed by a psychiatrist three days after being admitted as an involuntary patient does not establish any breach of the obligations for examination within 24 hours of a person detained for examination under s 36(1) and (4), nor does it establish any unlawful detention or false imprisonment of a person who has been admitted as an involuntary patient. Such an admission could only be by a psychiatrist under s 43.

84 The plea of evidence in par 86 that within the plaintiff's medical records, obtained via freedom of information, there is no other report by any psychiatrist other than that by the doctor on 18 June 2008 does not constitute an acceptable plea as it is not an allegation of fact that there was no such examination within the 24-hour period contemplated by s 36(4).

85 By par 90 of the amended statement of claim the plaintiff makes a series of allegations concerning the anti-depressant and anti-psychotic medication which he had been taking and in relation to other medication prescribed when in hospital, leading to complaints about being deprived of his usual medication and being given different medication, but those allegations do not lead to the establishment or furtherance of any cause of action.

86 Further, by par 91, the plaintiff refers to being given, on 18 June 2008, a pamphlet explaining the rights of an involuntary patient. This is consistent with his assessment within 24 hours on a referral under form 1 and an admission for compulsory detention thereafter under s 39 and for the longer period contemplated by s 40.

87 As the admission on 16 June was as an involuntary patient (alleged in par 86) there is no basis to advance a claim for false imprisonment as set out in par 93 or 95.

88 There was a second admission of the plaintiff to the Joondalup Hospital on 7 July 2008, again via a form 1, but there is no allegation that he was detained for longer than 24 hours (par 96).

89 By par 97 the plaintiff alleges that he was taken into custody on the evening of 8 July 2008 under another form 1 and then taken to Graylands Hospital, where he was confined until 25 July 2008. As a form 1 could only lead to detention for assessment within 24 hours, the subsequent detention at Graylands Hospital, not the premises of the fourth defendant, can only be explained on the basis that it was a subsequent admission as an involuntary patient for treatment. The alleged fact that an employee of the fourth defendant was involved in the form 1 assessment on the evening of 8 July 2008 does not establish any false imprisonment or non-compliance with the terms of the Mental Health Act. This being the case, the claims for false imprisonment against the fourth defendant must be struck out.

90 The result of this analysis means that none of the claims which the plaintiff presently seeks to advance in the amended statement of claim of 6 April 2010 can stand and, consequently, the whole of the statement of claim should be struck out.

Should the plaintiff be allowed to replead?

91 Mr Opperman has already foreshadowed that if there is any defect in the existing statement of claim which may result in any portion of it being struck out that he desires to have leave to replead and so address any such defects in a subsequent statement of claim. I have already referred to his third version of the statement of claim which he has put forward indicating further changes which he would wish to make, if allowed to do so, and how that document might be regarded as some guide towards his future intentions. Of course, it has been prepared without any part of the existing pleading being struck out and without Mr Opperman having the opportunity to consider any reasons for decision given by the court on this strike-out application. One should approach the situation, therefore, on the basis that, if given the opportunity to do so, Mr Opperman may desire to make more extensive and fundamental changes to the existing pleading than suggested by his third version of the statement of claim.

92 Nevertheless, the first defendant submits that the statement of claim discloses that the plaintiff's case is completely untenable, to such an extent that there are no reasonable prospects of success. It submits that leave to replead should not be granted because of the inherent deficiencies in the claim and that, accordingly, the action should be dismissed as against the first defendant. Similarly, the second defendant by its summons of 20 May seeks, by par 3, an order that the action against the second defendant be dismissed and judgment be entered for the second defendant with costs. In its submissions the second defendant also contends that not only is the plaintiff's existing statement of claim untenable but that it is so baseless that no arguable causes of action could be established by the plaintiff against the second defendant on the grounds or materials advanced. The fourth defendant also seeks that the plaintiff's action against it be dismissed.

93 In Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation, after an extensive examination of a deficient statement of claim by a litigant in person Beech J struck out the pleading but gave the plaintiff liberty to replead. In dealing with a similar application in Shelton v National Roads & Motorists Association Ltd Tamberlin J struck out an application and a third amended statement of claim but granted the applicant leave to file and serve a further application and statement of claim rather than dismiss the proceedings under O 20 r 2 of the Federal Court Rules which confers a power on the Federal Court to order that the proceedings be dismissed where no reasonable cause of action is disclosed or the proceeding is frivolous or an abuse of the process of the court. His Honour at [19] observed that the power to strike out a proceeding is an extreme one and will only be exercised in rare circumstances where the court is satisfied that the case for the applicant clearly has no real prospect of success, citing General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 128 - 130 (Barwick CJ). Tamberlin J said in that case at [57] that the amended statement of claim was so deficient that it should be struck out entirely and that it was not practicable to segregate out particular parts for retention and strike out the remainder of the pleading having regard to both the integrated nature of the case sought to be made and the necessity to consider the conduct in question as a composite whole. His Honour remarked that the deficiencies were so extensive that he could see considerable force in the respondents' submission that even after a second attempt, following a previous hopeless pleading, the applicant's pleading was so opaque as to warrant dismissal of the proceeding entirely. However, his Honour said that on balance he had formed the view that the case indicated on the material before him had not been shown to be so deficient that the General Steel standard for dismissal had been satisfied and for that reason allowed the applicant a further opportunity to replead.

94 A similar approach was taken by Sackville J in Morton v Mitchell Products [1996] FCA 828 where a very deficient statement of claim was struck out entirely and the question was whether or not the applicant should be given leave to replead. Again, Sackville J dealt with the general principles relating to strike-out applications and the dismissal of claims generally, stressing the great caution which should be exercised before dismissing a claim entirely, especially in those cases involving a litigant in person such as Wentworth v Rogers (No 5) but acknowledging that on the other hand the court 'must ... have regard not merely to a litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources': Corporate Affairs Commission v Solomon (Unreported, NSWCA, 1 November 1989) (Mahoney AP). After considering these principles, Sackville J observed:

But it must be remembered that the test for denying a litigant the chance to have his or her day in court is a stringent one. A strike-out application based on the inadequacy of the pleadings is not to be determined by an assessment of the prospects that Mr Morton will be able to make out any case he is permitted to plead.

95 His Honour took the view that the applicant in that case should be permitted to replead but that he should not be left at large to replead his case and that any amended pleading should take account of the reasons given by the court on that application. His Honour said:

I think that the appropriate course is to permit Mr Morton and the other applicants to apply for leave to file an amended statement of claim within 42 days. However, in my view, any such application for leave should be accompanied by affidavits, in appropriate form, showing that there are facts which can probably be proved and which, if proved, would support the general statements made in the statement of claim.

A direction requiring such affidavits was made by Lockhart J in Trade Practices Commission v Australian Iron & Steel Pty Ltd [1990] FCA 23; (1990) 22 FCR 305. In that case, his Honour struck out a statement of claim which contained some of the defects of the present statement of claim. In view of the difficulty the applicant had experienced in formulating its case, his Honour considered (at 323) that the opportunity to replead should be conditional upon terms that the proposed amendments be verified by affidavit satisfying the court that there really were facts which could probably be proved and which, if proved, would support the general allegations in the statement of claim. A similar order was made by Lockhart J in A & S Oayda Investments Pty Ltd v Burns Philp Trustee Company Ltd (in liq), FCA, 25 November 1994, Unreported.

96 This is an option which, although not directly raised by the plaintiff in the present case, I have considered in deference to the importance of him being granted an opportunity to present any tenable case which, with more thought and guidance, and with the experience of the discovery of the shortcomings in the existing pleading which this application should afford, might lead the plaintiff to reformulating arguable causes of action. However, although I am conscious of the rarity of the occasion when not only is a statement of claim struck out but the application is dismissed entirely without leave to replead, I consider that this is one of those cases when no foreshadowed or reasonably foreseeable amendment or improvement to the plaintiff's existing pleading could lead to an arguable cause of action being shown.

97 To my mind, the action is based on such a generally confused approach to the essentials of causes of action and relies on such a pervasive concept of conspiracies by various defendants and their agents that the need to specify facts giving some arguable basis for the allegations of conspiracy and the other inferences of fact which are apparently sought to be drawn has been completely disregarded. The absence of any pleading of facts which could arguably give rise to the causes of action cannot be overcome by assuming their existence and, on that assumption, seeking that extreme inferences be drawn which have no support other than the unusual characterisation which the plaintiff seeks to give them.

98 I do not consider that there are any reasonable prospects that the plaintiff could, if leave were granted to him to do so, produce a pleading with any reasonably arguable cause of action against these three defendants. That being the case, the litigation should not be allowed to continue. Not only should the statement of claim be wholly struck out but the action should be dismissed against each of the remaining three defendants.

Agar v Hyde

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Judgment (171 paragraphs)

OPPERMAN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 25 (4 February 2011)

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Legislation Cited (1)

Cases Cited (15)