By way of a notice of motion filed on 30 July 2021 the defendant, the State of New South Wales, seeks orders pursuant to rr 14.28 or 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the paragraphs of the plaintiff's second amended statement of claim filed 26 July 2021 set out in the schedule to the notice of motion be struck out and that the plaintiff pay the costs of the motion.
The paragraphs referred to in the schedule are paras 1 and 2 under the "Relief Claimed" and paras 99 to 110 under the heading "Malicious Prosecution". On the hearing of the application the plaintiff appears in person (through the AVL). He is unrepresented in the proceedings. The defendant is represented by Ms Carolyn Coventry of counsel.
The motion is the culmination of a dispute between the parties relating to the pleadings which has been ongoing since the plaintiff commenced these proceedings. The defendant filed a motion previously on 14 April 2021 seeking to strike out certain paragraphs of the original statement of claim. That motion was heard by Bellew J on 20 May 2021. At that time, his Honour:
1. Struck out paragraphs 1 and 2 of the relief claimed;
2. Struck out various parts of the particulars; and
3. Granted the plaintiff leave to re-plead the relief claimed and a cause of action based on the tort of malicious prosecution.
The result of his Honour's orders was the filing of what purports to be a second further amended statement of claim on 23 July 2021. The defendant, not being satisfied that the plaintiff has properly pleaded his cause of action or that the plaintiff has complied with his Honour's earlier orders, brings a further motion.
The defendant's position is that as the plaintiff has still not pleaded his cause of action properly, the paragraphs of the second amended statement of claim which purport to plead a cause of action in malicious prosecution should be struck out in their entirety, leaving the plaintiff only to pursue a claim for false imprisonment.
The plaintiff's position appears to be that he believes that he has done what he should have done and that, in any event, the defendant knows all about it. There are documents such as a Court Attendance Notice and his statement which provide the necessary information.
The defendant provided helpful written submissions. Ms Coventry clearly and candidly identified the problems which the defendant perceives with the second further amended statement of claim during oral submissions.
To summarise, the defendant identifies the following problems with the second amended statement of claim:
1. In the relief claimed the plaintiff seeks both a declaration and damages which the plaintiff specifies in the sum of $1,245,000. The defendant says this is not permissible;
2. The plaintiff does not plead or particularise the person or persons who are said to have had the malicious intent for the purposes of the cause of action;
3. There is no particularisation of the basis on which those persons (whoever they might be) did not have reasonable cause for the prosecution. In other words, it is not clear whether the plaintiff submits that the officer or officers knew that there was no reasonable basis to pursue the prosecution or that, on an objective basis, there was no reasonable basis for the prosecution;
4. The plaintiff makes allegations essentially against the State but the defendant submits that it is necessary in this type of matter for the plaintiff to plead the identity of the persons said to have been engaged in the conduct and then plead that the State is vicariously liable for their conduct. The plaintiff has not done so; and
5. Finally, the defendant says that there are no particulars of the state of mind, that is the malice of the officers, and it is necessary that the plaintiff gives such particulars.
[2]
Consideration
The defendant's submissions are well made in the sense that there is merit in what is said about the deficiencies in the pleadings. However, despite those deficiencies, the second amended statement of claim is in better form than many similar pleadings I have seen drafted by unrepresented litigants.
All persons are entitled to have access to the courts. Some leeway must be given to unrepresented litigants in terms of the way in which their causes of action are pleaded. Having said that, even though a person is unrepresented, it remains necessary for any plaintiff, unrepresented or represented, to properly plead the material facts.
In many cases, a pleading drafted by an unrepresented person might be inelegantly phrased or drafted; there may be some confusion in the use of terminology and the format of the statement of claim. That may be excused but the plaintiff must still properly identify matters that are fundamental to the cause of action and of which a defendant is entitled to know so that it can properly plead to the statement of claim and prepare its case.
In this matter, the defendant is probably aware of the identity of the Police officers against whom the plaintiff seeks to make allegations (having regard to documents such as the Court Attendance Notice) but it is still incumbent upon the plaintiff to properly identify them.
As is well-known, the function of a statement of claim is to inform the defendant of the material facts that the plaintiff asserts which ground the cause of action on which the plaintiff relies. A defendant is entitled to know the case which it has to meet. The object of pleadings is to define issues and diminish expense and delay: See Seidler v Caroll & O'Dea [2013] NSWSC 338 ("Seidler") per McCallum J (as her Honour then was) at [6].
As her Honour said in Seidler, the material facts must be pleaded with a sufficient degree of specificity having regard to the subject matter to convey to the opposite party the case it has to meet. The pleadings define the issues in the litigation thereby enabling the relevance of evidence to be determined at trial: See Seidler per McCallum J at [6].
These principles of course are embodied in r 14.7 of the UCPR. The pleadings must contain only a summary of the material facts on which the party relies and not the evidence by which those facts are to be proved.
I accept the defendant's submission that the second further amended statement of claim does not properly identify the material facts in the ways identified by the defendant such that the defendant would be able to know the case that it has to meet.
However, I am not satisfied that I should strike out paras 99 to 110 of the second further amended statement of claim in their entirety. I say this because, again, I must have due regard to the fact that the plaintiff is unrepresented. It seems to me that by his further pleading, the plaintiff has made an attempt to comply with the Court's earlier orders in terms of re-pleading his causes of action and that the ongoing deficiencies can be cured quite easily and quickly. A further amendment can cure them to include additional paragraphs providing proper particulars of the matters raised by the defendant on this application.
I will now deal with each of the matters raised by the defendant.
[3]
Relief Claimed
The defendant is correct in suggesting that the plaintiff should not be seeking a declaration and that there is inconsistency in the way he frames his claim for damages. The plaintiff said during this hearing that he wished to pursue a claim for unliquidated damages with damages to be assessed at the time of the hearing. It follows that the problem identified by the defendant can be easily solved by deletion of paragraph 1 under "Relief Claimed" and amendment of paragraph 2 to make it clear that the plaintiff is claiming damages to be assessed rather than the proposed sum of $1.245 million.
[4]
No particulars of the person who had malicious intent
In paras 105, 106 and 107 the plaintiff pleads that the defendant acted with malice in bringing the prosecution under the three sections of the Crimes Act 1900 (NSW) with which he was charged. The plaintiff does not identify the person who had the malicious intent. It is necessary for the plaintiff to do so. However, again that problem is easily solved by the addition of particulars to paras 105, 106 and 107 identifying the officers who are said to have had this malicious intent.
[5]
No particulars of the basis on which the officers did not have reasonable cause
In paras 108, 109 and 110 the plaintiff pleads that the defendant pursued prosecutions without reasonable and probable cause. Again, this is an attempt by the plaintiff to properly plead the cause of action which he pursues. As is well-known, the plaintiff is required to establish:
1. That the prosecution was initiated by the defendant;
2. The prosecution was terminated favourably to the plaintiff;
3. The defendant acted with malice in bringing or maintaining the prosecution; and
4. The prosecution was brought or maintained without reasonable or probable cause. [1]
The problem with the pleading is that the plaintiff does not identify the basis on which he suggests that the defendant, meaning the individuals, did not have reasonable cause. As submitted by Ms Coventry, the defendant does not know whether the plaintiff alleges that the officer of officers knew that there was no reasonable basis for him to be prosecuted or whether, on an objective basis, having regard to that which the plaintiff asserts as to the information available to the officers, there was no reasonable basis for the prosecution. The plaintiff must particularise these matters. Again, that can be easily attended to by the addition of particulars to paras 108, 109 and 110.
[6]
No pleading of vicarious liability
Although the plaintiff pleads that the State is liable, the defendant says that the plaintiff must identify against whom the allegations of malicious intent are made and then plead that the defendant is vicariously liable for their conduct. That can be easily fixed if the plaintiff wishes to plead it.
[7]
No particulars of malice
As set out in r 15.4 of the UCPR:
"A pleading that alleges any condition of mind must give particulars of the facts on which the party pleading the condition of mind relies."
Plainly, the plaintiff alleges that the officers had a state of mind at the time they engaged in certain conduct. Whilst the defendant has not yet filed a defence, I apprehend that the defendant will be asserting that there was a reasonable basis for the prosecution. Again, as required by r 15.4 of the UCPR, it is necessary for the plaintiff to give particulars of the state of mind of the officers which are asserted, although in a case such as this there may be difficulties in saying much more about the state of mind at this stage. In any event, it seems to me that an appropriate order can solve this problem.
[8]
Conclusion
In all these circumstances, I am not satisfied that paras 99 to 110 should be struck out but I am satisfied that there needs to be further particularisation of the matters raised by the plaintiff. In saying this, I am mindful that an order to strike out pleadings for a failure to particularise properly would not preclude a party from seeking to amend the existing statement of claim at some later stage. In other words, striking out all of paragraphs 99 to 110 is of little utility in the circumstances of the claim. What the defendant really requires is some additional particulars.
I thus make the following orders:
1. The plaintiff to file a further amended statement of claim by 10 June 2022 to:
1. Amend the relief claimed to properly plead the relief sought, that is, as I understand it, the claim for unliquidated damages;
2. Provide particulars to paras 105, 106 and 107 as to the persons who the plaintiff says acted with malicious intent;
3. Provide particulars to paras 108, 109 and 110 so as to identify whether the plaintiff alleges that the persons who are said to have had the malicious intent knew that there was no reasonable basis for the prosecution or whether, on an objective basis, the persons ought to have known;
4. To properly plead, if it is so alleged, that the defendant is vicariously liable for the conduct of the officers; and
5. To properly plead, by way of particulars to paras 105, 106 and 107, the state of mind of the officers, that is, what is the basis on which it is said that the officers acted with malice.
1. I order that the defendant file a defence to the further amended statement of claim by 8 July 2022.
2. I order that the plaintiff serve any evidentiary statements on which he relies by 2 August 2022.
The defendant seeks the costs of the motion. The defendant says it has succeeded on its motion in that the statement of claim needs to be amended again because it was not pleaded in accordance with the earlier orders of Bellew J.
The plaintiff says he has given it his best shot, bearing in mind that he is unrepresented and leaves it in the Court's hands.
In my view, the defendant has succeeded on its motion, albeit I have declined to strike out any paragraphs of the statement of claim. Again, as I have already said, the plaintiff is entitled to pursue his case but the pleading remained deficient.
I order that the plaintiff pay the defendant's costs of the motion but note that that order does not require the plaintiff to pay the costs prior to the conclusion of the proceedings.
[9]
Endnote
Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 at [4] (per French CJ, Hayne. Crennan, Kiefel and Bell JJ).
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Decision last updated: 16 May 2022