Beckett v Le

Judgment 1Before the Court today are two notices of motion. The first is that filed by the defendants on 23 July 2012 in which the defendants seek an order that the amended statement of claim filed on 5 June 2012 be struck out and that the plaintiff pay the first and fifth defendants' costs of the application on an indemnity basis. 2The second motion which is before the Court today is that filed by the plaintiff on 6 August 2012 in which the plaintiff seeks the following orders: "1. The previous order of the Court granting the plaintiff leave to file and serve an amended statement of claim be abridged such that the plaintiff now be granted leave to file the amended statement of claim in the form annexed hereto and marked with the letter A. 2. Costs associated with this motion be costs in the cause." 3I must say I have taken the order sought in that motion to be that the plaintiff was seeking an extension of the time rather than an abridgement of the time previously fixed within which to file her amended statement of claim. 4Both of these motions relate to a document entitled "Amended Statement of Claim" which was filed on 5 June 2012.

Background Facts 5On 29 November 2011, the plaintiff was granted leave to file and serve an amended statement of claim by 13 December 2011. No such document was filed by that time. 6On 5 March 2012, Mr Bowen, the solicitor for the defendants, had a telephone conversation with Ms Ger, solicitor for the plaintiff, during the course of which Ms Ger informed Mr Bowen that the plaintiff would not be filing any amended statement of claim. 7Shortly after that conversation, on 15 March 2012, during a directions hearing the proceedings were listed for a hearing commencing 3 December 2012 with an estimate of ten days. No order was sought or made at that directions hearing relating to the filing of an amended statement of claim. On 5 June 2012, the amended statement of claim was filed. 8Clearly, the time permitted by the Uniform Civil Procedure Rules 2005 within which a plaintiff is entitled to amend their statement of claim without leave of the Court has long since elapsed. Additionally, the leave granted by the Court in November 2011 had also expired. There was thus no basis of right which would enable the plaintiff to file any amended statement of claim. Of itself, and in light of the opposition from the defendants to the filing of the statement of claim, that would be a sufficient basis for the striking out of the amended statement of claim, and would justify the orders sought by the defendants in their notice of motion. 9However, the plaintiffs seek leave to file the existing amended statement of claim. There are two discrete parts to the amendments which are sought. The first deals with some refinement of the facts relating to representations said to have been made by the first defendant to the plaintiff and the manner in which the defendants held themselves out as qualified and capable individuals. Those amendments are to be found in the proposed amended statement of claim in paragraphs 9, 10, 11, 12, 13 and 16. 10No issue is taken by the defendants with respect to those amendments and in due course an amended statement of claim, including those amendments, will be permitted. 11The second discrete group of amendments relate to allegations set out in paragraphs 98 to 101 of the amended statement of claim. 12Paragraph 98 and 99 contain pleadings under a heading "Sexual Assault". The pleadings do not, in their terms, suggest that the sexual assault is a separate and different cause of action to the assault and battery pleaded in paragraphs 74 to 84 of the current existing statement of claim. Rather, as it seems to me, the pleading suggests that the law would categorise the assault and battery which has occurred as a sexual assault or other sexual misconduct. These terms are of particular relevance having regard to the provisions of s 3B(1)(a) of the Civil Liability Act 2002 which provides that certain causes of action, including causes of action for sexual assault and sexual misconduct, are excluded from the provisions of that Act. 13Mr Hall-Johnson, the plaintiff's solicitor, has submitted that the intention of the pleader in paragraphs 98 and 99 is to provide particulars of the original pleading of assault, by describing the assault as being of a sexual kind. If that is the intention, then the pleading hopelessly fails to provide such particulars. As it is presently structured, it appears to be alleging a new cause of action but if that is so then a number of essential elements to that cause of action are not pleaded. In the result, these paragraphs neither plead a separate cause of action, nor particulars of a cause of action which is already pleaded. I would not be prepared to grant leave to plead the allegation of sexual assault in its present form. 14Paragraph 100 appears under the heading "The Administration of a Prohibited Drug". It pleads that in the factual circumstances specified elsewhere in the statement of claim, the acts of the defendants constituted the administration of a prohibited drug within the meaning of s 13 of Drug (Misuse and Trafficking) Act 1985. 15Mr Hall-Johnson, in his submissions, informs the Court that the intention of this pleading is to allege that the plaintiff has a private right in damages arising from a breach of the statute pleaded. If that is the intention of this pleading, then the pleading is inadequate to assert such a cause of action. 16For example, the pleading does not plead that the nature of the Act, its purpose and function, is such as to give rise to a private right in damages. It does not plead any of the essential elements of such a cause of action as those elements are to be derived from such authorities as Buckman (HC) & Son Pty Limited v Flanagan [1974] HCA 30; (1974) 133 CLR 422. I would not be prepared to grant leave to plead such a cause of action in the form presently pleaded. 17Paragraph 101 seems to allege some inchoate form of a conspiracy apparently actionable at law. It says the following: "The conduct of the defendants constituted a conspiracy between each of some of the first, second, third and fourth defendants to: (a) deceive the plaintiff into undergoing surgery (b) gain financial benefit from her undergoing that surgery, (c) gain the opportunity for advertising, publicity and promotion of their collective enterprise and the promotion of each of them". 18Again if it is alleged there was a conspiracy to injure the plaintiff of a kind that would give rise to a claim for damages, then the pleading in paragraph 101 is quite insufficient to articulate such a cause of action. I would not be prepared to grant leave to allow that pleading to stand. 19In all of those circumstances, I am not prepared to make the order sought by the plaintiff in her notice of motion of 6 August 2012. The consequence of that will be, in due course, I will strike out the amended statement of claim. However, as this matter is fixed for hearing in December 2012, and as it is at least possible that the plaintiff may wish to amend the existing statement of claim in some way to plead properly a cause of action arising out of what is contained in the present paragraphs 98 to 101, I will make case management directions which have the effect of ensuring that any such pleading is dealt with promptly. 20Mr Petty, for the defendants, submits that as he has succeeded on his motion and the plaintiff has failed on her motion he is entitled to costs on an indemnity basis. Mr Hall-Johnson accepts that the defendants are entitled to their costs on an ordinary basis but submits that the Court would not order costs on an indemnity basis. 21I do not accept Mr Hall-Johnson's submissions. The simple facts are these, the plaintiff has filed an amended statement of claim for which she had no leave. She was not entitled to do so and the fact the statement of claim has been filed does not of itself mean she has any entitlement to do so. 22Secondly, the pleading of the new causes of action is manifestly defective. Sufficient correspondence has travelled between the parties to have pointed that out to the plaintiff. The plaintiff has had over three weeks to consider whether or not the pleading is adequate and has sought to press the pleading today. 23The time has now passed in this Court for litigants who are under the duties set out in s 56 of the Civil Procedure Act 2002 and, for lawyers who represent them, to press issues which are without merit and thereby cause opposing parties unrecoverable costs and expenses. 24In all of the circumstances of these motions and in particular the conduct of the plaintiff in filing an amended statement of claim without leave and which was not in proper form, it is appropriate that the plaintiff pay the defendants' costs of and occasioned by the two motions on an indemnity basis. 25I will make the following orders: (1)The amended statement of claim filed on 5 June 2012 be struck out. (2)The notice of motion filed by the plaintiff on 6 August 2012 be dismissed. (3)The plaintiff is to pay the defendants' costs of the motions filed 23 July 2012 by the defendants and 6 August 2012 by the plaintiff, on an indemnity basis. (4)I grant leave to the plaintiff to file a motion, if advised, seeking any further amendment of the statement of claim provided such motion is filed on or before 4pm on 24 August 2012. (5)I order any such motion be returnable before me at 9.30am on 30 August 2012. (6)I order that the plaintiff file and serve on or before 4pm on 24 August 2012 an affidavit of the plaintiff setting out all facts, matters and circumstances to be relied upon in support of any newly added cause of action or other proposed amendment in the proposed amended statement of claim. (7)I order that any further affidavit in support of the application for amendment be filed on or before 4pm on 24 August 2012. (8)I order that the proceedings be listed before me at 9.30am on 30 August 2012 for hearing of any such motion and for direction. (9)I grant the parties liberty to apply on 24 hours notice.