Collier v State of New South Wales

ex tempore Judgment (REVISED) 1I have before me two notices of motion: one brought by the defendant, the State of New South Wales, seeking that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005; the second is a motion brought by the plaintiff which claims a number of different types of relief, but principally Mrs Collier today is pressing for a decision about whether the subpoena she issued to the Commissioner of Police must be complied with. 2Mrs Collier has issued proceedings in this Court which are complex and go back a long way. She initially commenced by summons supported by affidavit, but was ordered to plead in a statement of claim. She brought forward a statement of claim which was filed on 28 April 2014, but it was struck out by Harrison J on 12 June 2014, leave being granted to Mrs Collier to re-plead. 3The matter came before me on a notice of motion filed by Mrs Collier. That matter was heard by me on 27 August 2014, and on that occasion, I extended the time for Mrs Collier to re-plead to 24 September, reserved liberty to the defendant to restore its motion for dismissal if the plaintiff decided not to file amended statement of claim, and I extended the contentious subpoena for consideration today by the duty judge. 4Serendipitously, I am the duty judge again today, and I have heard argument throughout the course of the day essentially about the adequacy of Mrs Collier's pleading and about whether the subpoena should be required to be answered. 5In the original statement of claim, Mrs Collier provided what might be called a long and with respect difficult to follow narrative of fact which did not really relate the allegations of fact to any identifiable cause of action, although one might have faintly formed the impression that various allegations were advanced which might relate to the tort of misfeasance in public office. 6During the course of the hearing of 27 August, I made some comments which I thought might be constructive to enable Mrs Collier to put on a pleading which could be seen to be compliant with the rules of court. However, comments by judges and registrars of that type are not prescriptive, and the obligation to comply with the rules of court is that of the plaintiff. 7As Johnson J expressed it in McGuirk v University of New South Wales [2009] NSWSC 1424 at [35]: It is not the function of the court to draw or settle a party's pleading. The court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action and ought to be struck out. 8The fundamental function of pleadings was expressed by Mason CJ and Gaudron J in Banque Commerciale SA En Liquidation v Akhil Holdings (1990) 169 CLR 279 as follows: The function of pleadings is to state with sufficient clarity the case that must be met...in this way pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and incidentally to define the issue for decision. The rule that in general relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. 9I might add that that basic requirement of procedural fairness is due to all litigants, whether private individuals like Mrs Collier or powerful governments like the State of New South Wales. 10Dealing with the contents of the rules, which I will come to in a little more detail in a moment, one should bear in mind the observations of Hodgson J in Kirby v Sanderson Motors Proprietary Limited (2001) 54 NSWLR 135 at [20] to [21]. His Honour said this: It might appear that these rules do not require the causative action be stated in the pleadings: the requirement is to have a statement of material facts, and indeed, to have only such a statement. However, in my opinion - 1.Material means material to the claim, that is, to the cause or causes of action which are relied on. 2.The requirement of a statement of material facts does not exclude the allegation of legal categories such as the duty of care, fiduciary duty, trust and contract. 3.The general requirement to avoid surprise means that material facts must be stated in such a way that a defendant can understand the materiality of the facts, that is, how they are material to a cause of action. 11Accordingly, even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take the cases as establishing that there is never any requirement to do more than set out facts. Where there is a danger of surprise which arises particularly where there is a lack of precision and clarity in the pleading, it may well be appropriate to require a plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specified causes of action. 12Before dealing with the requirements of the rules, I should make some observations about the amended statement of claim filed on 17 September 2014. It is too lengthy to set it out in this ex tempore decision. 13It however brings forward allegations in four categories. The first category relates to allegations concerning New South Wales police officers, and they stretch from 1986 until February 2004. 14The second category of allegations relates to the Department of Attorney General and Justice. Those allegations stretch from 1990 to May of 2014. 15The third category relates to the New South Wales Department of Health, as it is put; Mudgee Hospital, Gulgong Hospital, Gulgong emergency department, and Wellington Hospital. The allegations in relation to those matters range from April 2011 to, again, January 2014. 16And the fourth category relates to, according to its heading, the New South Wales legislative Assembly and Legislative Council, and nominates allegations against a number of ministers of the Crown, members of parliament, and two premiers. 17The format adopted to attempt to comply with the rules, and I accept that Mrs Collier is bona fide in her attempt to comply with the rules, does not make for easy reading. For instance, the allegations against the New South Wales Police force which are the most extensive allegations made occupy some 20 pages including particulars. 18The way that Mrs Collier has structured it is in paragraphs which are numbered 1(a) to 1(z)(a). Allegations are made against a great number - I have not counted them - of police officers, and many alleged breaches of the Crimes Act are referred to by section number only, without any attempt to explain their relevance. Likewise, there is reference to the Crimes (Domestic and Personal Violence) Act 2007 and the Criminal Code of the Commonwealth. 19Those allegations are then followed by particulars which are set out at the end of all the allegations. Once again, the particulars are in paragraphs which are all numbered 1 and run from particulars relating to the averment 1(a) down to particulars relating to the averment 1(z)(a), and all paragraphs in between are touched upon, with some of them grouped together. 20One can see the structure: the claim against the police is the first group; the claim against the Attorney General's Department is the second group, et cetera, and that is why obviously Mrs Collier has adopted this method of numbering. That it is explicable makes it no less confusing and difficult to follow. 21But it must be said that, to the extent to which there are any material facts pleaded in any of those places or in respect of any of those averments, they are contained in the particulars and not in averments. Generally speaking, material facts in accordance with the rules must be pleaded and not merely appended as particulars of other matters. 22Basically the allegations against each of the other groups of government interests follow the same pattern, and for instance, the allegations against the Attorney General's Department complain about Directors of Public Prosecutions, court officials, one magistrate especially, lawyers who currently work in the office of the Crown Solicitor who have carriage of this matter, and so it goes on. 23In Gunns Limited v Alexander Marr and Ors (No 2) [2006] VSC 329, Bongiorno J said this at [23], which picks up the same ideas expressed in some of the other authorities I have already cited: It is fundamental to the proper conduct of civil litigation that a defendant be apprised of the case he, she or it has to meet with precision, and with such degree of specificity and clarity as will enable a case to be prepared on that defendant's behalf. 24His Honour went on, referring to various attempts made in that litigation to bring forward a proper pleading, and said this: The judgment of 18 July 2005 dealt with this very issue in some detail. Version two of the plaintiff's statement of claim was inadequate in that respect and was struck out. Version three is an improvement or version two, but it is still embarrassing as a statement of claim. This is at least partly because a fundamental problem of this litigation which has evident since proceedings commenced is that too much has been sought to be alleged against too many defendants in the one proceedings. This has led to a number of apparently insoluble problems, the first of which is that of embarrassment. At least, if these problems are soluble, the plaintiffs to this proceedings have not solved them. Although those matters were said in the context of that particular litigation, it seems to me that they are apposite to this particular case and express important principles. 25In his judgment of 12 June 2014, Harrison J said at [6]: It is clear that the statement of claim does not disclose a reasonable cause of action. As I have indicated, it does not in my opinion disclose anything vaguely capable of being so described. Whether or not there lies hidden or obscured somewhere in the mountain of facts collected in the statement of claim some arguably genuine and justiciable complaint is presently impossible to discern. Because that possibility exists, and particularly having regard to the fact that the proceedings were only commenced on 28 March 2014, it is not yet appropriate to dismiss the proceedings completely. I am not presently prepared to conclude that the proceedings are either frivolous or vexatious or an abuse of process. 26As I have alluded to already, the rules of court govern the form and content of pleadings. Rule 14.6 requires a pleading to be divided into paragraphs, each matter must be put in a separate paragraph, and the paragraphs must be numbered consecutively. From the broad overview I have given of the form of this pleading, it would seem, with respect to Mrs Collier, that that basic rule of organisation itself has not been complied with. 27Pivotal is the key rule r 14.7. The party's pleading 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. 28As I have said, a fact is material because it discernibly relates to an identified cause of action. It is impossible to see the pleadings as I have read them, and as I have tried to describe them, as complying with that rule. 29Rule 14.13 provides that a pleading must not claim a specified amount for unliquidated damages. Even that rule, with respect, is breached. 30Rule 14.14 requires the plaintiff to plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise. As I have already said, that rule is explained by Hodgson J in Kirby, and that general requirement, I repeat what his Honour said, "means that material facts must be stated in such a way that the defendant can understand the materiality of the facts, that is, how they are material to a cause of action." 31There are other difficulties with the amended statement of claim. Although it has not been possible, I accept, for the State of New South Wales to file a defence, it is manifestly clear that much of what is relied upon by Mrs Collier must be hopelessly out of time, and will be immediately defeasible upon a defence being filed which pleads the relevant statute of limitation. I appreciate that that does not of itself make the pleading invalid. Whether a statute of limitation is raised is a matter entirely for the defendant, and infrequently, but sometimes, a defendant may not choose to plead such a matter. 32However, the technical flaws, notwithstanding Mrs Collier's best efforts, are such that the proceeding cannot be allowed to proceed in the form of the amended statement of claim of 17 September 2014, and it is necessary for me to strike that document out in its entirety. 33The question which I must conjure with is whether the proceedings ought to be dismissed because the statement of claim discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay. 34As I have said one gets the faint impression, that there is a complaint here about misfeasance in public office, but it is difficult to know exactly what that is and how the plaintiff suffered damage. 35The elements of that tort, as explained by Deane J in Northern Territory v Mengel (1995) 185 CLR 307 at 370 are; One, an invalid or unauthorised act; two, done maliciously or recklessly; three, by a public officer; four, in the purported discharge of public duties; five, causing damage to the plaintiff. 36Looking, for instance, at averment 1(a), there is an allegation on 5 August 1986 a certain police officer exceeded his authority breaching the Crimes Act. There is a bullet point expanding this which says that another named police officer likewise exceeded his authority. 37If one goes to the particulars, bearing in mind that the material facts ought be separately pleaded and not buried in particulars, one then turns to p 16 and finds that the first named police officer disallowed an investigation of a serious indictable offence against the plaintiff by a solicitor friend. I must say, reading the averment as one example together with the particulars, one does not get even implicitly the idea that each of the ingredients of the only discernible tort has been pleaded. This makes it, I think, impossible for the defendant to plead to that cause of action. 38Harking back to what Bongiorno J said in Gunns, there is a real difficulty that there are too many allegations against too many individual public officers in the one proceeding. Again with respect to Mrs Collier, who is doing her best, I am sure, the problems that this presents have proved insoluble and possibly cannot be cured. It is what is sometimes referred to as a scatter gun, or blunderbuss approach to litigation, where too much is said about too many people in a spray of allegations in the hope that one might hit a target worth felling. 39I have no doubt that Mrs Collier genuinely believes she has suffered an injurious injustice over the decades at the hands of different public officials. I have no doubt that she genuinely believes that she is doing no more than striving for justice in terms of righting that perceived wrong. 40In that sense, the statement of claim is not frivolous, and perhaps it is not vexatious. Nor is it an abuse of process of the court in one sense because I accept that she is bringing the proceedings for the legitimate purpose of seeking redress for a perceived wrong. 41The fact that the statement of claim needs to be struck out because it has the tendency to cause prejudice, embarrassment or delay does not of itself lead to a decision that proceedings should be dismissed. However, it seems to me that, reading the statement of claim with an eye favourably attuned to the plaintiff's view of the case, I am driven to the conclusion that the statement of claim discloses no reasonable cause of action. 42Again, that does not mean that the statement of claim must be dismissed. The question is whether the proceedings generally disclose no reasonable cause of action in accordance with rule 13.14(b), and sometimes this is expressed as not whether a reasonable cause of action has been pleaded, but whether one is pleadable: see O'Brien v Bank of Western Australia [2013] NSWCA 71. 43When the powers of the court to summarily dismiss a matter are invoked, a judge must bear in mind the onerous task faced by a defendant. There are many statements to this effect in many cases of high authority. In State of New South Wales v Williams [2014] NSWCA 177 at [71] Emmett JA, with the agreement of Macfarlan JA and Simpson J, said: The requirement for establishing that there is no triable issue is a demanding one, and the power to strike out a pleading on the basis that it discloses no reasonable defence or is an abuse of process should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty, or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue either on the basis that no reasonable defence is disclosed or as an abuse of process. 44Although those statements were made in relation to a defence, the flavour and tenor of them is equally applicable to a statement of claim, and I have given this matter the most serious consideration. 45Having done so, having considered not only the statement of claim but also the affidavits read by Mrs Collier and her argument before me today, I am of the view that, if the facts upon which she relies give rise to a serious question to be tried, it is not in any way, shape or form obvious on the material that has been put before me or in the amended statement of claim. 46I am of the view that this is one of those plain and obvious cases, and in my judgment, the proceedings should be dismissed under the provisions of s 91(1) of the Civil Procedure Act 2005. That, of course, is not a dismissal after a hearing on the merits, and does not finally decide any issue between Mrs Collier and the State of New South Wales. 47Because I have come to this conclusion, it is unnecessary for me to decide whether Mrs Collier's subpoena should be answered or whether it can be saved by permissible judicial redrafting, and I express no view about that. 48For the reasons I have expressed, my decision is under that s 91(1) Civil Procedure Act 2005 and r 13.4 Uniform Civil Procedure Rules 2005, the proceedings are summarily dismissed.