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[2010] QSC 254
Supreme Court of Queensland
2010-07-20
Atkinson J
Original judgment source is linked above.
The applicant/cross-respondent appeared for herself
The applicant/cross-respondent appeared on her own behalf
[1] In order to understand the matters before the court it is necessary to recite something of the history of this proceeding. The litigation arises out of events that occurred at the plaintiff's Russell Island home on 16 March 2003. On that date three police officers attended at her home and took her two grandchildren (B, then aged six years old, and A, then aged two years old) temporarily into the care of the Department of Communities (Child Safety) which was then known as the Department of Family Services.
[2] On 10 June 2005 Mrs Collier served the defendant with an originating application for leave to issue a claim and statement of claim. It was set down for hearing on 8 July 2005. On 8 July 2005 Wilson J ordered:
"1. That the proceeding should be continued as if started by claim;
5. Any costs that have been incurred today will be reserved."
Her Honour gave ex tempore reasons for her decision.
[3] Mrs Collier filed a statement of claim on 5 August 2005. It made various allegations about certain police officers, child safety officers and members of Parliament. The relief sought was in the following terms:
"1. A declaration from the Court that the findings as made by the Department of Child Safety (formerly Department of Families), that ('The Claimant') was "Neglected grandparent (Parent)' is without basis and not true;
[4] The statement of claim was filed by the date ordered but did not comply with Chapter 6 of the UCPR. Mrs Collier had filed a request for a subpoena to be issued by the court to the Director-General of Child Safety on 1 August 2005. She also filed an application seeking orders that the sealed affidavit on the court file be unsealed and that she be appointed litigation guardian for her grandchildren, A and B.
[5] On 11 August 2005, White J ordered that the affidavit filed by Mrs Collier on 10 June 2005 no longer be placed in a sealed envelope, set aside the subpoena for production directed to the Director-General of Child Safety issued on 1 August 2005, gave leave to Mrs Collier to amend the statement of claim, to be filed and served within 28 days, and ordered that the matter be listed for further directions no earlier than 14 days after Mrs Collier had filed and served her further amended statement of claim.
[6] A further amended statement of claim was filed on 8 September 2005. It again made allegations against members of the Queensland Police Service, officers of the Department of Child Safety and various politicians. It sought the following relief:
"1. An Order that ('The Respondent') is liable in damages for non-pecuniary economic loss caused to ('The Claimant');
[7] On 21 September 2005, the defendant filed an application to strike out the further amended statement of claim. On 30 September 2005, Mullins J ordered that the statement of claim filed on 8 September 2005 be struck out, that the plaintiff file and serve any fresh statement of claim by 4.00pm on 28 October 2005 and that the plaintiff pay the defendant's costs of the application to be assessed.
[8] On 28 October 2005, Mrs Collier filed another statement of claim. This statement of claim named 14 further defendants. The claim for relief was in the following terms:
"1. An Order of the Court that finds the Fifth, Sixth and Seventh Defendant's liable for nominal damages for their actions of 'Trespass to Land' of the 'Plaintiff' and orders that a monetary amount be paid to the 'Plaintiff';
[9] The plaintiff filed an application on 31 October 2005 requesting leave to file an amended claim, the addition of 14 more defendants and costs. The defendant filed an application to strike out the plaintiff's statement of claim on 2 November 2005.
[10] On 9 November 2005 Douglas J dismissed the plaintiff's application and ordered that the statement of claim filed on 28 October 2005 be struck out, that the plaintiff be required to file and serve a statement of claim which complied with the UCPR by 30 November 2005 and that the plaintiff pay the defendant's costs of each application to be assessed.
[11] On 30 November 2005 Philippides J ordered that the plaintiff have until 7 December 2005 to file another statement of claim. The plaintiff filed another statement of claim on 7 December 2005. The defendant filed an application to have the claim and statement of claim struck out and that the plaintiff be required to seek leave before filing further proceedings. The plaintiff then filed an application to have the defendant's application struck out and requested the issue of a subpoena.
"1. The Plaintiff's Statement of Claim filed 7 December 2005 be struck out.
In his reasons for judgment given ex tempore, His Honour observed:[2]
"... it is abundantly plain that the pleading is vexatious. The respondent could not conceivably know the case it has to meet. It should be struck out."
[13] With reference to his orders that no further statement of claim in the proceedings be delivered without leave of the Court, his Honour said:[3]
"The consequence of the order I have made is that Mrs Collier will be obliged, if she wishes to deliver a further pleading, to produce the document to a Judge in applications and obtain the approval of that Judge for the filing and serving of the pleading."
[14] By then, Mrs Collier had been refused leave to file the statement of claim she sought leave to file on 10 June 2005 and each of the four statements of claim subsequently filed by her had been struck out. There was then no valid statement of claim before the court.
[15] The Children's Court made child protection orders on 11 November 2008 granting the Chief Executive, Department of Child Safety, guardianship over Mrs Collier's grandchildren, A and B. She unsuccessfully appealed that order to the District Court: Collier v Department of Child Safety and Others.[4] Rafter DCJ found that there were significant child protection concerns including allegations by the older child that both children had been beaten by the plaintiff, suicidal thoughts expressed by the older child, a failure by the plaintiff to consider the expression of suicidal thoughts by the child or that he suffered from anxiety and the derogatory comments made by the plaintiff about the children's parents. A case plan had been in place to reunite the children with their parents.
[16] The plaintiff filed an application in the Court of Appeal for leave to appeal. She had been granted an extension of time to file material by the Deputy Registrar (Appeals) on 3 February 2009, by the President of the Court of Appeal on 13 February 2009 and on 20 March 2009. On 30 March 2009, the plaintiff filed a further application for an extension of time to prepare, file, lodge and serve material on which she would rely on her application for leave to appeal and that the child's independent representative be removed. She made an unsuccessful attempt to cross-vest the application for leave to appeal to the Supreme Court of New South Wales. The application filed on 30 March 2009 was refused by the President and hence an earlier guillotine order striking out her appeal if she did not file, lodge and serve her material by 4.00pm on 3 April 2009 took effect: CAO v Department of Child Safety and Others.[5]
[17] The plaintiff unsuccessfully appealed to review the President's order. In a decision handed down on 19 June 2009, CAO v Department of Child Safety and Others,[6] the Court of Appeal held that no appeal lay from the Children's Court to the Court of Appeal.
[18] An application for special leave to appeal to the High Court was refused on 9 December 2009: CAO v Department of Child Safety and Others.[7]
[19] No further steps were taken in this litigation by the plaintiff in the Supreme Court after 22 December 2005 until she filed an application dated 26 October 2009 on 3 November 2009, almost four years after the orders made by Muir J. She did not seek leave to proceed under r 389(2) of the UCPR which was necessary because no step had been taken in the proceeding for more than two years from the time the last step was taken.
[20] In the meantime, the Crown Solicitor, acting on behalf of the defendant, had issued a costs statement in respect of one of the three costs orders in its favour which was served on 2 October 2009. Unlike the application for assessment filed in Robinson v Laws & Anor,[8] this was not filed and cannot be said to represent a step in the proceedings.[9] In order to constitute a step in the proceedings something must have been done which carries the matter forward to its conclusion. As McPherson SPJ said of this rule's predecessor in Citicorp Australia Limited v Metropolitan Public Abattoir Board:[10]
"the act or activity must have the characteristic of carrying the cause or action forward".[11]
The serving of a costs statement on a party liable to pay costs because of an earlier order made by the court does not serve to carry the cause or action forward.
[21] Mrs Collier filed an application on 3 November 2009 to be heard on 20 November 2009. It was not served until 16 November 2009. The plaintiff's application sought the following orders:
"1. An Order of the Court, that the proceedings numbered BS4740/2005 be re-instated by this Honourable Court.
3. Any further Orders that the Court deems fit to make;
[22] The plaintiff's application was adjourned to 3 December 2009.
[23] On 24 November 2009, the defendant filed an application to strike out the plaintiff's claim in the following terms:
"1. That pursuant to section 85 of the Supreme Court of Queensland Act 1991 and Rule 280 of the Uniform Civil Procedure Rules 1999, the Plaintiff's claim against the Defendant be dismissed for want of prosecution; and
[24] On 3 December 2009, Byrne SJA made the following orders:
"In respect of the plaintiff's application filed on 3/11/09 (court doc 43):
(2) Direct that any proposed statement of claim which the applicant would seek to be the subject of a grant of leave of the Court pursuant to the order of the Honourable Justice Muir made on 22 December 2005 be delivered to the solicitor for the respondent on or before 3 January 2010.
(3) Further order that if no such proposed statement of claim is delivered as aforesaid, the applicant's claim filed on 10 June 2005 be dismissed.
(4) In the event that a proposed statement of claim is delivered as aforesaid, the defendant is to file and serve on or before 25 January 2010 any written material to be relied on in opposition to the application.
(5) The costs thrown away by the adjournment are reserved.
In respect of the defendant's application filed on 24/11/09 (court doc 46):
(2) Direct that any written material to be relied on in support of the application (other than written material already served) be filed and served on the respondent no later than 15 January 2010
(3) Direct that any written material to be relied on in opposition to the application be filed and served no later than 8 February 2010
(4) The costs thrown away by the adjournment are reserved."
[25] On 3 January 2010, the plaintiff delivered a proposed statement of claim.
[26] The applications were further adjourned on 10 February, 5 March and 13 April 2010. On 13 April 2010, Fryberg J ordered:
"1. The applications are adjourned to 10 June 2010 at 10:00am;
[27] On 11 February 2010, the plaintiff filed another application. This application sought the following order:
"The Orders of Justice Byrne of 3rd December 2009 be upheld so far as the Plaintiff was granted permission in court to file a Statement of Claim in accordance with the Orders of Muir JA on 22nd December 2005."
[28] Each of the applications filed by the plaintiff on 3 November 2009 and 11 February 2010 and by the defendant on 24 November 2009 were heard on 10 June 2010 by the court sitting an hour earlier than its usual time to suit Mrs Collier's convenience. She did not appear in person but the court accommodated her wish to appear by telephone. She failed to serve any further material on which she wished to rely by 3 June 2010 in accordance with the order made by Fryberg J on 13 April 2010. She sent a copy of what appeared to be an affidavit sworn by herself by facsimile transmission to the court on 9 June 2010 which was made an exhibit as it had not been filed in accordance with r 431 and r 432 of the UCPR and the orders made by Fryberg J. Most of the material in that document was, in any event, argumentative.
[29] The applications by the plaintiff and the defendant before the court therefore sought the following orders.
(1) That the orders of Byrne SJA made on 3 December 2009 be "upheld" so far as the plaintiff was granted permission to file a statement of claim in accordance with the orders of Muir J on 22 December 2005;
(3) That the "costs application" by Crown Law (referred to in the application as a non-defendant) be struck out for want of prosecution and extortion.
(1) That the plaintiff's claim be dismissed for want of prosecution.
(2) That the plaintiff pay the defendant's costs of and incidental to the application and the proceeding to be assessed.
[30] I shall now deal with each of the orders sought.
[31] The first order sought by the plaintiff, that the orders of Byrne SJA made on 3 December 2009 be "upheld" so far as the plaintiff was granted permission to file a statement of claim in accordance with the orders of Muir J on 22 December 2005, displays a misunderstanding of those orders. Muir J, after striking out the plaintiff's fourth statement of claim, ordered on 22 December 2005 that she could not deliver a further statement of claim without first obtaining leave of the court. The order made by Byrne SJA on 3 December 2009 further ordered that any such proposed statement of claim be delivered to the solicitor for the respondent on or before 3 January 2010. That occurred; but the plaintiff still cannot file that statement of claim until and unless she first be given the leave of the court, which she has not in terms, sought.
[32] There are at present no proceedings to be "reinstated". The proceedings are extant except that the plaintiff requires leave to file a statement of claim and leave under r 389(2) of the UCPR to take another step in the proceeding. Such leave has not in terms been sought. In case it is thought possible that this application could be interpreted as an application for leave to proceed under r 389(2) of the UPCR, I will consider this question with the defendant's application to have the proceeding dismissed for want of prosecution.
[33] The plaintiff has sought the "costs application by Crown Law' be struck out for want of prosecution and extortion. She asserts in her application that Crown Law is a "non-defendant". The Crown Solicitor is in fact the solicitor on the record for the defendant. Section 19(1) of the Crown Proceedings Act 1980 requires service of documents on the Crown for the purposes of or in connection with proceedings by or against the Crown be served on the Crown Solicitor. The costs statement is under the hand of the Crown Solicitor. It is nonsensical to refer to the solicitor in those circumstances as a "non-defendant" as the solicitor is acting on behalf of the defendant.
[34] Three costs orders have been made against the plaintiff and the defendant is entitled to commence enforcement of those costs orders. On no sensible grounds could that be regarded as extortionate. The costs statement in respect of one of those costs orders was served on 2 October 2009. Since then there has been a flurry of applications made by Mrs Collier which have been adjourned mostly at her instance. There has not been any want of prosecution with regard to the costs statement. There is no duty on the defendant to serve a costs statement within any particular time after a costs order.
Defendant's application to have the plaintiff's claim dismissed for want of prosecution
[35] The defendant's application refers to s 85 of the Supreme Court of Queensland Act 1991 and r 280 of the UCPR. Section 85 of the Supreme Court of Queensland Act 1991 provides as follows:
"85 Dismissal of proceedings for want of prosecution
(1) This section applies to the District Court and Magistrates Courts.6
(2) If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.
(3) For this section, an application on which no order was made is taken not to be a step.
6The Supreme Court has inherent power to dismiss proceedings for want of prosecution."
(a) the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and
(b) the plaintiff or applicant does not do what is required within the time stated for doing the act;
a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want to prosecution."
[37] The Supreme Court has inherent power to dismiss a proceeding for want of prosecution and power under r 280 of the UCPR to dismiss a proceeding for want of prosecution if the plaintiff does not do what it is required to do by the UCPR or court order within the time stated for doing the act.
[38] When the court is considering whether or not to grant leave to proceed under r 389 of the UCPR[12] or to strike out a proceeding for want of prosecution, the following passage from Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at [2]- [5] is apposite:[13]
"[2] When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules ('UCPR') r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed.[14] These include:
(1) how long ago the events alleged in the statement of claim occurred[15] and what delay there was before the litigation was commenced;
(2) how long ago the litigation was commenced or causes of action were added;[16]
(3) what prospects the plaintiff has of success in the action;[17]
(4) whether or not there has been disobedience of Court orders or directions;[18]
(5) whether or not the litigation has been characterised by periods of delay;[19]
(6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;[20]
(7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;[21]
(8) whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
(9) how far the litigation has progressed;[22]
(10) whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be.[23] Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;[24]
(11) whether there is a satisfactory explanation for the delay;[25] and
(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.[26]
The court's discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case[27] including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.[28]
[3] Unnecessary delay in proceedings has a tendency to bring the legal system into disrepute and to decrease the chance of there being a fair and just result. The futility and self-perpetuating nature of some litigation was viciously satirised by Charles Dickens in Bleak House. In referring to a case (fortunately fictional)[29] in the Chancery Division of the Courts in London called Jarndyce v Jarndyce, Dickens wrote:[30]
'Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
[4] When proceedings have been prosecuted by a plaintiff in a dilatory way, the Court may dismiss a proceeding for want of prosecution or impose a sanction as to costs.
[5] The onus is on the applicant for striking out the plaintiff's action for want of prosecution to show that the matter should be struck out.[31] On an application for leave to proceed, the applicant for leave must "show that there is good reason for excepting the particular proceedings from the general prohibition" in a case in which three years have elapsed from the time when the last proceeding was taken.[32] The rationale of the rule requiring leave to proceed after a long delay is to prevent abuse of process.[33] The Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay.[34]"
[39] I shall first address each of the criteria set out in para [2] of Tyler v Custom Credit.
Delay since the events occurred and before litigation commenced
[40] The events in question occurred on 16 March 2003, more than seven years ago. It was more than two years after those events that the plaintiff filed originating process in this court.
How long ago the litigation commenced or new cause of action added
[41] The litigation commenced five years ago. The plaintiff has not yet been able to articulate a cause of action. Each statement of claim, including the relief sought, has been struck out. In each new version of the pleading, the plaintiff unsuccessfully attempted to add new causes of action.
[42] The plaintiff's failure to articulate a case in a claim and statement of claim does not suggest that she has any prospects of success in the action.
[43] The claim and statement of claim filed by the plaintiff on 12 January 2010 in purported compliance with the order made by Byrne SJA on 3 December 2009 "that any proposed statement of claim which the applicant would seek to be subject of a grant of leave of the court pursuant to the order of Muir J made on 22 December 2005 be delivered to the solicitor for the respondent on or before 3 January 2010" has not been filed with leave. To be effectively filed, it must comply with the order made by Muir J on 22 December 2005, that is she must first obtain the leave of this court. No leave has been sought nor granted. If leave were sought, it would not be granted. I shall deal with that question in case it could be construed that the applications before the court are effectively an application for leave to file a statement of claim. It further serves to demonstrate her lack of prospects of success in the action.
[44] The proposed statement of claim is defective both formally and substantively. It does not conform to the requirements of the UCPR. The formal requirements of a statement of claim commence in r 146 of the UCPR. Rule 146(1)(f) provides that a pleading must be divided into consecutively numbered paragraphs and, if necessary, subparagraphs, each containing, as far as practicable, a separate allegation. Whilst the plaintiff has divided her proposed statement of claim into consecutively numbered paragraphs, each does not contain a separate allegation. Rather each paragraph contains a number of allegations, assertions of fact and conclusions of law. The statement of claim therefore does not conform with the requirements of r 146(1)(f) of the UCPR.
[45] Rule 149(1) of the UCPR deals with statements in pleadings. Subrule (1)(b) provides that each pleading must "contain a statement of the material facts on which the party relies but not the evidence by which the facts are to be proved". Rule 149(1)(c) requires that each pleading must "state specifically any matter that if not stated specifically may take another party by surprise". Rule 149(1)(e) provides that if a claim or defence under an Act is relied upon, the statement of claim must identify the specific provision under the Act. The plaintiff has failed to comply with r 149(1) of the UCPR in ways which are set out in detail later in these reasons for judgment.
[46] Rule 150(1) of the UCPR provides that, without limiting r 149, certain matters must be specifically pleaded. Rule 150(2) provides that any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded. The relevant paragraphs of r 150(1) to the proposed statement of claim in this action are:
(b) every type of damage claimed including, but not limited to, special and exemplary damages;
(k) motive, intention or other condition of mind, including knowledge or notice;
The plaintiff has failed to comply with r 150(1) in numerous ways set out in detail in these reasons for judgment.
[47] Rule 155 of the UCPR deals specifically with damages. It provides:
"(1) if damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.
(2) without limiting r 150(1)(b), a party claiming general damages must include the following particulars in the party's pleading -
(b) the exact circumstances in which the loss or damage was suffered;
(c) the basis on which the amount claimed has been worked out or estimated;
(3) if practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.
(4) in addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise."
[48] In breach of r 155(2) the plaintiff has pleaded damages without particularising the nature of the loss or damage suffered, the exact circumstances in which the loss or damage was suffered, or the basis on which the amount claimed has been worked out or estimated.
[49] Rule 157 provides for particulars in a pleading. It provides that:
"A party must include in a pleading particulars necessary to -
(a) define the issues for, and prevent surprise at, the trial; and
(c) support a matter specifically pleaded under rule 150."
[50] I shall now consider each paragraph of the proposed statement of claim in detail:
[51] In breach of r 146(1)(f), the plaintiff pleads a number of allegations. She alleges that the assessment of the "safety and needs of the children" was not the real purpose of the entry by police officers on to her premises but rather that the real purpose was to have her "removed from her rented premises" and as a favour to the owner of the premises and the next door neighbour. In breach of r 149(1)(b), she does not plead the material facts upon which she relies to support these assertions. In breach of r 149(1)(e) the plaintiff pleads breaches of the Police Powers and Responsibilities Act 2000 ("PPRA") and of the Criminal Code ("the Code") without identifying the specific provisions under the Acts. In breach of r 150(1)(i) and (2) and r 157(c), she does not specifically plead the facts from which the malice or ill will is claimed to be an inference or which support that inference. In addition to failing to identify the specific provisions of the statutes she said were breached, she does not plead the facts from which such illegality is said to be inferred.
[52] Further, paragraph 1 of the proposed statement of claim purports to plead a claim in trespass to land. The plaintiff alleges that the premises were "exclusively occupied" by her and that the premises were "rented". She does not plead by whom the premises were rented and the terms of any rental agreement. She does not allege whether the entry by police officers was with or without her consent and whether her consent, if given, was withdrawn and whether the trespass occurred upon entry by the police or during the period after they had entered the premises or how, with reference to the statutory rights and duties of the police officers, they breached their statutory authority to be present on the premises.[35] The pleading of trespass to land is therefore defective.
[53] The plaintiff pleads that the police officers entered the premises to "fabricate evidence" against the plaintiff but does not plead the facts upon which that is said to be an inference or which support that inference. She pleads that the police officers' actions were done as a favour for the owner of the property and/or for the next door neighbour but does not plead the identity of the owner or the neighbour or the facts or circumstances by which it could be inferred that the actions of the police officers conferred a benefit on those persons.
[54] The plaintiff does not plead how the actions of the police officers caused her monetary loss.
[55] In breach of r 146(1)(f), the plaintiff pleads a number of allegations. In breach of r 149(1)(e) the plaintiff pleads breaches of the PPRA and of the Code without identifying the specific provisions under the Acts. In breach of r 150(1)(g) and (2) and r 157(c), she does not specifically plead the facts from which illegality is claimed to be an inference or which support that inference. She pleads a conspiracy by police officers without pleading with whom they conspired.
[56] Further she claims damages for "distress and humiliation". Distress and humiliation are psychological injuries[36] and therefore included in the definition of personal injury found in the schedule to the Personal Injuries Proceedings Act 2002 ("PIPA") which contains a dictionary of terms used in that Act. "Claim" is defined in the schedule to PIPA to mean "a claim, however described, for damages based on a liability for personal injury, whether the liability is based in tort or contract or in or on another form of action including breach of statutory duty ...". A "claimant" is defined to mean "a person by whom, or on whose behalf a claim is made."
[57] Section 9(1) of PIPA relevantly provides:
"Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started."
"In so far as the applicant might wish to bring personal injury proceedings on her own behalf ... such proceedings cannot be brought until the procedural requirements of the Personal Injuries Proceeding Act have been met."
[59] At that time the plaintiff had ample time to comply with those requirements. That time has passed without any attempt by the plaintiff to comply with its requirements.
[60] The effect of a claimant's failure to give a complying notice of claim is to prevent the claimant under s 18 of PIPA from proceeding further with the claim unless the matters set out in that section are satisfied. None of them has application to this case. The plaintiff is therefore prevented from proceeding further with any claim for personal injury. As that is the injury claimed in paragraph 2 of the proposed statement of claim that paragraph should for that reason alone be struck out.
[61] Further the plaintiff makes a claim for "punitive damages". Section 52(1) of the Civil Liability Act 2003 ("CLA") provides that:
"A court cannot award exemplary, punitive or aggravated damages in relation to a claim for personal injuries damages."
She has not pleaded factual circumstances which would establish that her claim falls within the exception set out in s 52(2)(a) of the CLA.
[62] In any event it is highly questionable that the defendant was under a legal duty in the circumstances to take reasonable care to avoid distress and humiliation to the plaintiff.[38]
[63] As with each of the other paragraphs the plaintiff has pleaded a number of allegations in breach of r 146(1)(f). She asserts that there was no justification for the removal of her grandchildren from the premises without pleading the factual basis of that assertion, contrary to the requirements of r 150(2). She pleads malice and ill will without pleading the facts from which that is claimed to be an inference contrary to r 150. She pleads contraventions of the PPRA, the Child Protection Act 1991 ("CPA") and the Code without identifying which provisions of those Acts she alleges were contravened, pleading the facts by which the alleged contraventions occurred or pleading the facts and circumstances by which she alleges that the legislation or breach of it conferred upon her a civil cause of action. She pleads that she has suffered "distress and humiliation" which, for the reasons previously set out, is a personal injury which she is precluded by the terms of PIPA from claiming in this action. Further she claims punitive damages which she is precluded from claiming in these circumstances by operation of s 52 of the CLA.
[64] Once again the pleading contains a number of allegations rather than a discrete allegation. Again the plaintiff pleads illegality, malice and ill will without pleading the factual basis for those assertions. She pleads contraventions of the CPA the Family Law Act 1975 ("FLA") and the Crimes Act 1899[39] without identifying which provisions of the statute she alleges were contravened, pleading the facts by which she alleges the contraventions occurred or pleading the facts and circumstances by which she alleges that the legislation or breach of it confers a civil cause of action upon her. She pleads that her grandchildren were unlawfully kidnapped or removed from her care by their mother on 12 February 2008 and that the defendant was a "willing accessory to that act of kidnap, knowing it to be unlawful at that time." She does not allege on what basis the defendant was an accessory to a criminal act by another person.
[65] Once again she claims that her loss has caused her "distress and humiliation" which is a personal injury which she is precluded from pursuing for the reasons given above. Again she has claimed punitive damages which cannot be awarded for personal injury unless one of the exceptions applies and no exception has been pleaded.
[66] This paragraph contains similar defects to those already mentioned. In addition the plaintiff asserts that the defendant "fabricated" information and provided false and negligently misleading allegations and negligent misstatement of facts in assessments and reports written by various officers of the Department of Communities. She does not plead the factual basis for those assertions. Her damages claims for "distress, considerable expense and humiliation". The personal injury claim for distress and humiliation is not maintainable for the reasons already given. Further the plaintiff claims punitive damages for personal injury contrary to the provisions of s 52(1) of the CLA.
[67] So far as the claim for "considerable expense" is concerned she has not pleaded the nature of those expenses, the exact circumstances in which the loss or damage was incurred and how it is alleged that the defendant caused the loss.
[68] So far as the paragraph pleads material dealing with the matter before the Children's Court, the plaintiff's avenues of appeal in respect of that matter had been completed when she unsuccessfully sought leave to appeal to the High Court. Any such allegations are not able to be re-agitated in new proceedings except in the most unusual circumstances: See D'Orta-Ekenaike v Victorian Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1 at [34].
[69] This court has no jurisdiction to re-agitate issues dealt with in the Family Court; nor does the plaintiff plead any basis for it to do so.
[70] Paragraph 6, like the other paragraphs, contains many allegations rather than a discrete allegation. The majority of the paragraph deals with claims of wrongdoing against her grandchildren. Such a claim is not maintainable by the plaintiff as the injury, if any, was caused to the children and not to her. Wilson J said in her reasons for judgment in this case on 8 July 2005 at p3:
"In so far as she wishes to bring claims on behalf of her grandchildren, it would be necessary for her first to be appointed as their litigation guardian."
[71] Her application to be appointed their litigation guardian was refused by White J and so she may not plead an allegation of injury alleged to have occurred to the children.
[72] The only claim by the plaintiff about her interests appears to be an allegation that the defendant had a duty "not to interfere with the guardianship rights of the plaintiff". The allegation appears to be that various officers from various departments of the defendant covered up circumstances relating to the children when they were under the care of their parents and not in the care of the plaintiff. The allegation appears to be that had the officers of the defendant not acted negligently and criminally then there may have been a different outcome in various court cases. That is again an attempt by the plaintiff to wrongly re-agitate matters already dealt with by courts and so not maintainable in this action.
[73] Further she claims personal injury which is not maintainable in this action for the reasons already given. She claims punitive damages when such damages are not available in the pleaded circumstances for personal injury. She makes a claim for "considerable expense" without pleading the nature of those expenses, the exact circumstances in which the loss or damage was incurred and how it is alleged that the defendant cause such loss.
[74] Apart from the faults it shares of a kind already referred to with regard to the other paragraphs, paragraph 7 deals with litigation in the Children's Court which should have been dealt with in those proceedings. Further she claims that the defendant through various officers presented misleading evidence without pleading the factual basis for such assertion. The personal injury claim in that paragraph is not maintainable.
[75] Further, the plaintiff makes a claim that her character and reputation have been "tainted and tarnished". The damage to her reputation is said to have been caused by false and misleading evidence given in the Children's Court. As well as the obvious problems with that alleging a criminal offence, it is in effect a claim for damages for defamation. It was not part of the original claim. The plaintiff would be required to seek leave to plead a cause of action which would be statute barred under s 10AA of the Limitation of Actions Act 1974 ("LAA"), which provides that an action on a cause of action for defamation must not be brought after the end of one year from the date of the publication of the matter of which complaint is made. In paragraph 7 the plaintiff complains of evidence given on 26 and 27 August 2008, which is more than one year ago.
[76] A person who claims to have a cause of an action for defamation may apply to the court pursuant to s 32A(1) of the LAA for an order extending the limitation period for the cause of action. Section 32A sets out the circumstances in which the court may extend the time. The plaintiff in this case has not made any such application and it would appear that the circumstance referred to in that section which would allow an extension of time does not apply to her case in any event.
[77] Further the plaintiff has not adequately pleaded details of the publication she alleges to be defamatory. She has not said by whom the statements were made, and how it is that they impugn her reputation. She does not specify clearly if the statements complained of were made inside or outside of court, which is relevant to any defence which the defendant might wish to file under s 27 and s 30 of the Defamation Act 2005.
[78] In so far as the matters pleaded deal with matters that have already been dealt with in the Children's Court they are not able to be relitigated. If the plaintiff alleges that offences of fabricating or falsifying evidence or perjury give rise to a civil claim then she should have pleaded what causes of action arise, the factual circumstances giving rise to those causes of action and how she alleges she has suffered loss as a result. She has claimed punitive damages in spite of the fact that s 37 of the Defamation Act 2005 provides that a plaintiff cannot be awarded punitive damages for defamation.
[79] The allegations dealt with in paragraph 8 about what is said to have occurred in the Children's Court have already been the subject of litigation on appeal to the District Court and are not able to be relitigated in these proceedings. Even if that were not the case, the paragraph suffers from the errors and failings identified with regard to other paragraphs.
[80] Apart from its many failings, this paragraph makes an allegation about material that has been dealt with in the Family Court of Australia and it is not pleaded how that could give rise to a civil claim in this court.
[81] Contrary to r 146 paragraph 10 contains a number of what appear to be unrelated allegations. Insofar as they attempt to plead conduct amounting to malice or ill will in breach of r 150 they do not identify the facts from which such malice or ill will is claimed to be an inference or which support such an inference. The plaintiff alleges that the defendant sent "intimidating and threatening documentation" from 16 March 2003 to the present time without particularising what documents, when they were sent, or pleading the factual circumstances by which they were alleged to be intimidating or threatening.
[82] The paragraph also pleads personal injury consisting of distress and humiliation when such a claim is not maintainable for the reasons already expressed. She claims that she has been caused "great expense" without any particularisation of the nature of the loss or damage suffered, the exact circumstances in which the loss or damage was suffered and the basis on which the amount claimed has been worked out or estimated or how it is alleged that the defendant caused that loss. She alleges that Crown Law officers sent documents to her which appeared to be covered in what she has described as a "blood like substance". She does not identify any facts from which the inference that the substance was "blood like" could be drawn.[40]
[83] Paragraphs 11 and 12 deal with matters that could and should have been dealt with by the Children's Court or on appeal from the Children's Court if they had any validity. Further they seek damages for personal injury in circumstances where such a claim cannot be maintained and punitive damages when such damages are not available in these circumstances for personal injury.
[84] Paragraph 13 deals with her complaints about Registry officers in the Court of Appeal which are without substance and could and should have been dealt, with if there were any legitimate complaint, in the Court of Appeal. To the extent that the plaintiff alleges that the staff of the Court of Appeal Registry breached a duty of care owed to her in the manner in which they dealt with the preparation of the appeal books, there is no relevant duty owed by the Registry staff to the plaintiff. Further she seeks damages for personal injury when such a claim is not maintainable and a claim for punitive damages for personal injury which is not, for the reasons already given, maintainable in these circumstances. There is a hint of a pleading in defamation but it is inadequately pleaded and should not be allowed to stand in its present form.
[85] Paragraph 14 of the statement of claim contains, contrary to the rules of pleading, many allegations. Insofar as it contains allegations of injury to the children, such a claim is not maintainable by the plaintiff. Insofar as it claims humiliation and distress it is a personal injury claim not maintainable by the plaintiff in these circumstances. Insofar as it claims injury to her reputation and good character it is a claim for defamation which is not maintainable. There are many other flaws in the paragraph but in view of what I have just referred to it is unnecessary to go through each and every one of them as the paragraph in its present form cannot stand.
[86] This paragraph, like the others, has numerous flaws. It alleges that the defendant through officers of the Department of Communities provided or assisted in providing false and misleading information to various persons or courts. It does not specify what the false and misleading information was. She asserts that various comments were made to the grandchildren without specifying by whom or when those comments were said to have been made. Insofar as it pleads a breach of duty of care towards the children, an action is not maintainable by the plaintiff. Insofar as it pleads a complaint of personal injury, it is not maintainable in these proceedings. Insofar as it is a claim for "financial distress" that is not sufficiently particularised to amount to an adequate pleading. Further the matters alleged relate to proceedings in other courts which could and should have been dealt with in those courts.
[87] In this paragraph the plaintiff alleges that an officer of the Department of Communities encouraged her to breach provisions of the Domestic and Family Violence Protection Act 1989. She does not allege that this caused her to breach the provisions of that Act. The plaintiff purports to seek punitive and/or compensatory and/or general damages as result of "the unlawful actions of the defendant's officer" but does not make any allegation as to what injury she suffered and how it is that the defendant caused any such injury.
[88] In this paragraph the plaintiff makes allegations about what she alleges is a fabricated CD which purports to be an enhanced copy of a cassette tape allegedly made by a police officer on 16 March 2003. She alleges fabrication without alleging what material in the CD copy of the original cassette is fabricated and is not an accurate tape recording of what occurred on 16 March 2003. She does not allege a date on which this material was fabricated. She claims damages for humiliation which is a personal injury not maintainable in this action because of the effect of PIPA. She claims defamation. She does not allege how it damages her good character or reputation. If it is to be taken to be a claim for defamation then it is on its face statute barred pursuant to s 10AA of the LAA but it is in any event an inadequate pleading of a cause of action in defamation. So far as it deals with matters that occurred in other courts such as the Family Court that is properly a subject for determination in that court and not in this.
[89] The prayer for relief which, contrary to the rules, does not show how the damages claims are calculated is based on a statement of claim which is incapable of withstanding proper scrutiny. The plaintiff, were she inclined to ask for leave, would not be granted leave to file the proposed claim or statement of claim. As she has filed it without leave it should be struck out. Importantly for the question of want of prosecution it does not disclose that the plaintiff has any prospects of success in this action.
[90] The proposed claim and statement of claim fail to define the issues for trial and because of their incoherence fails to give the defendant a clear understanding of the factual matters upon which evidence would be presented at trial. It does not enable the defendant to plead to it by a defence.
[91] The plaintiff's compliance with orders has been set out in detail above. The main problem for the plaintiff is that after the further amended statement of claim was struck out by Muir J she did not comply with her implied undertaking under r 5(3) of the UCPR to proceed in an expeditious way with her action.
Whether or not the litigation has been characterised by periods of delay
[92] The length of time between the striking out of the statement of claim by Muir J on 22 December 2005 and the plaintiff's filing of the latest application on 11 February 2010 in particular was inordinate.
Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant
[93] The delay in this case and the many applications for adjournment have been solely attributable to the plaintiff. On 13 April 2010, the application for an adjournment was formally made by the defendants in circumstances where the defendant consented to the plaintiff's request for an adjournment and the plaintiff did not appear.
[94] The defendant is not responsible for the plaintiff's impecuniosity nor is there any evidence that the plaintiff's impecuniosity has been responsible for the pace of the litigation.
Whether the litigation between the parties will be concluded by the striking out of the plaintiff's claim
[95] This litigation between the parties would be concluded by the striking out of the plaintiff's claim.
[96] In spite of the fact that this litigation commenced in 2005 there is still no viable claim or statement of claim by the plaintiff.
[97] The delay has been caused by the plaintiff rather than any lawyers acting on her behalf. She has been acting in person.
Whether there is a satisfactory explanation for the delay
[98] No explanation, let alone a satisfactory explanation, is offered by the plaintiff for her delay.
Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial
[99] The passage of time since the event in question occurred is such that inevitably there will be prejudice to the defendant and its many officers in attempting to defend the claim. This is a prime example of the sort of prejudice referred to by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551.
[100] The plaintiff made an allegation in the document sent by her by facsimile transmission to the court on 9 June 2010, which was made an exhibit in this application, about an agreement between herself, a solicitor from Crown Law and a barrister at the conclusion of the hearing before Muir J. That agreement was said by her to be "at the completion of the proceedings, the defendant's then counsel ..., a Solicitor of Crown Law and the plaintiff agreed to no costs with the necessary documentation for a discontinuance when provided by Crown Law, was forwarded by the plaintiff to the defendant by facsimile transmission, to be lodged with the court by the defendant." This statement (even if it be accepted as true for the purposes of this application) does not evidence any enforceable agreement and is irrelevant to the matters before me on this application. The plaintiff also made oral submissions about this so called "agreement" which are again irrelevant to the disposition of the applications before me.
Conclusion on application to dismiss for want of prosecution
[101] Taking all the many factors into account to which the court may have regard in determining whether or not the interests of justice require a case to be dismissed, particularly delay, the lack of merit in the plaintiff's case and prejudice to the defendant, this is a clear example of a case in which the action should be dismissed for want of prosecution.
[102] The defendant has sought its costs of the applications and the proceeding. Crown Law has been assiduous in its efforts to explain to the plaintiff the deficiencies in her applications from 2005. I note in particular that Mrs Collier was referred to the relevant law on all of the matters referred to in this judgment by letter from Crown Law on 23 November 2009 and yet failed to address the matters referred to in that correspondence. She was also provided with copies of relevant rules and a copy of Tyler v Custom Credit Corp Ltd. She has been entirely unsuccessful in her applications; the defendant has been successful in its application.
[103] The usual rule as to the award of costs is found in r 681 of the UCPR:
"(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise;
(2) Subrule (1) applies unless these rules provide otherwise."
[104] There is no reason for the court to order otherwise. It follows that the plaintiff should be ordered to pay the defendant's costs of and incidental to the applications and the proceeding which, by operation of r 698 of the UCPR, include reserved costs to be assessed.
1. The plaintiff's application filed 3 November 2009 be dismissed.
2. The plaintiff's application filed 11 February 2010 be dismissed.
3. The plaintiff's claim against the defendant be dismissed for want of prosecution.
4. The plaintiff pay the defendant's costs of and incidental to the applications and the proceeding to be assessed.
[1] The original and subsequent quotations from the plaintiff's documents are reproduced with the errors found in the original.
[2] Collier v State of Queensland unreported 22 December 2005 at p5.
[9] cf Robinson v Laws & Anor at [7]-[9].
[10] [1992] 1 Qd R 592 at 594.
[11] Quoted with approval by Holmes J in Raabe v Brisbane North Regional Health Authority & Ors [2000] QSC 257 at [9].
[12] See Hsu & Ors v Wang & Ors [2004] QSC 324 at [6].
[13] See Basha v Basha [2010] QCA 123 at [25].
[14] Cooper v Hopgood & Ganim [1998] QCA 114; [1999] 2 Qd R 113 at 119.
[15] Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at 1207-1208 per Lord Griffiths; Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells, Supreme Court of Victoria, Appeal Div, No 4901 of 1989, 9 September 1994 at 22, 23; Hoy v Honan CA No 4058 of 1996, 19 August 1997 at 4; Cooper v Hopgood & Ganim (supra) at 120, 121.
[16] Cooper v Hopgood & Ganim (supra) at 120 per Pincus JA.
[17] Keioskie v Workers' Compensation Board of Queensland CA No 46 of 1992, 15 September 1992 at 2-3 per McPherson J; Cooper v Hopgood & Ganim (supra) at 124.
[18] Cooper v Hopgood & Ganim (supra) at 121;
[19] Birkett v James [1978] AC 297 at 322-323; Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells (supra) at 27; Cooper v Hopgood & Ganim (supra) at 119, 120, 124.
[20] Holmes v Civil & Civic Pty Ltd CA No 15 of 1992, 14 September 1992; Lewandowski v Lovell (1994) 11 WAR 124; Hoy v Honan (supra) at 5.
[21] Hoy v Honan (supra) at 3 per Derrington J; at 7 per Fitzgerald P.
[22] Keioskie v Workers' Compensation Board of Queensland (supra) at 10 per Thomas J.
[23] Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 473, 475; Kaats v Caelers [1966] Qd R 482 at 497; Tate v McLeod [1969] Qd R 217 at 224-225; Collingwood v Calvert CA No 3028 of 1996, 6 December 1996 at 5, 7, per Fitzgerald P; Cooper v Hopgood & Ganim (supra) at 124.
[24] Gleeson v Brick [1969] QdR 361 at 369_; Keioskie v Workers' Compensation Board of Queensland_ (supra) per Thomas J at 7.
[25] Campbell v United Pacific Transport Pty Ltd (supra) at 473-474; Witten v Lombard Australia Ltd (1968) 88 WN (Pt1) NSW 405 at 412; Dempsey v Dorber [1990] 1 QdR 418 at 420; Keioskie v Workers' Compensation Board of Queensland (supra) per Thomas J at 4; Cooper v Hopgood & Ganim (supra) at 124.
[26] Witten v Lombard Australia Ltd (supra) at 412; Dempsey v Dorber (supra_)_ at 420; Keioskie v Workers' Compensation Board of Queensland (supra); Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells (supra) at 24-25; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 554-555 per McHugh J; Cooper v Hopgood & Ganim (supra) at 118, 124.
[27] Witten v Lombard Australia Ltd (supra) at 412; Stollznow v Calvert [1980] 2 NSWLR 749; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 538; Cooper v Hopgood & Ganim (supra) at 118-119, 124.
[28] Cooper v Hopgood & Ganim (supra) at 124 per McPherson JA.
[29] The fictional case is reputed to be loosely based on Re Jennens, Willis v Earl of Howe (1880) 50 LJ Ch 4: see Hurst, G. (1949) Lincoln's Inn Essays, Constable & Co Ltd at p 116-118.
[31] Cooper v Hopgood & Ganim (supra) at 121.
[32] William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6; (1963) 109 CLR 490 at 496; Australian Broadcasting Commission v Industrial Court of South Australia [1985] HCA 71; (1985) 159 CLR 536; Dempsey v Dorber (supra_)_ at 420; Keioskie v Workers' Compensation Board of Queensland (supra) per Thomas J at 4.
[34] Walton v Gardiner (1993) 177 CLR 378; Brisbane South Regional Health Authority v Taylor (supra).
[35] Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26.
[36] See Conde v Burchill & Horsey Lawyers [2009] QSC 291 at [3], [6]-[7].
[37] Collier v State of Queensland unreported, 8 July 2005 at p3.
[38] Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317at [7].
[39] It is unclear which statute she is referring to by this name as there is no statute of that name in Queensland.
[40] The plaintiff exhibits to her document sent by facsimile transmission to the court on 9 June 2010, what appears to be a statement from a police officer at the Gulgong Police Station to the following effect:
"About 4pm I attended Marion COLLIER's address in Gulgong. Mrs COLLIER provided police with a document from the Crown Law, Queensland Government. Mrs COLLIER showed police some stains which were throughout the documents and believed at the time, it was blood. I observed the stains on the document and believed the stains may have been from coffee."
In addition, in an affidavit filed 20 November 2009, the solicitor for the defendant says that during a telephone conversation with the plaintiff on 5 October 2009 the plaintiff advised that she "might have put marmalade" on documents sent to her by the defendant.
Collier
State of Qld
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited
Conde v Burchill & Horsey Lawyers [2009] QSC 291, cited
D'Orta-Ekenaike v Victorian Legal Aid & Anor (2005) 223 CLR 1; [2005] HCA 12, cited
Hsu & Ors v Wang & Ors [2004] QSC 324, cited
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26, cited
Robinson v Laws & Anor [2007] QSC 152, cited
Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35, cited
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, applied
(1996) 186 CLR 541
(2005) 223 CLR 1
(2008) 236 CLR 1
(2002) 211 CLR 317
(1994) 11 WAR 124
(1986) 161 CLR 513
(1963) 109 CLR 490
(1985) 159 CLR 536
(1993) 177 CLR 378