Dickens (a pseudonym) v State of New South Wales

Court of Appeal (NSW)|2018-09-21|Before: Beazley P, Macfarlan JA, Adamson J, Fagan J

Solicitors: Self-represented Applicant Makinson & d'Apice Lawyers (Respondent) File Number(s): CA 2018/146881 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Civil Citation: [2018] NSWSC 485; [2018] NSWSC 666 Date of Decision: 19 April 2018 and 14 May 2018 Before: Adamson J File Number(s): 2017/0069511

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: This is an application for leave to appeal from three judgments of Adamson J. By the first judgment, dated 18 April 2018, her Honour gave the State of New South Wales ("the State") leave to file an Amended Notice of Motion seeking dismissal of proceedings brought by Mr Dickens (a pseudonym) against the State. The amendment enabled the State to rely upon r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), as well as rr 13.14 and 14.28.
In the second judgment, dated 19 April 2018, the primary judge ordered that Mr Dickens' proceedings be dismissed for want of "due despatch" on Mr Dickens' part, pursuant to r 12.7 of the UCPR, and also on the ground that they were an abuse of process under r 13.4. By the third judgment, dated 14 May 2018, the primary judge ordered Mr Dickens to pay the State's costs of the proceedings in the specified gross sum of $32,000 ([2018] NSWSC 666).
Mr Dickens had commenced the proceedings below by filing a Statement of Claim alleging that certain police officers intentionally caused him mental harm and that the State was vicariously liable for their torts.
By judgment of 5 September 2017, Fagan J found that the Statement of Claim was "embarrassing" and struck it out under UCPR r 14.28 ([2017] NSWSC 1173). His Honour granted leave to file an amended pleading.
By judgment of 3 November 2017, Fagan J struck out the Amended Statement of Claim that Mr Dickens had filed. Again, he granted leave to Mr Dickens to re-plead.
On 15 December 2017 the State moved for dismissal of the proceedings as an abuse of process, pursuant to r 13.4 of the UCPR, or alternatively for an order that the Further Amended Statement of Claim, filed pursuant to the leave granted by Fagan J on 3 November 2017, be struck out under r 14.28. This pleading included a claim for damages for false imprisonment. As earlier noted, on 18 April 2018 Adamson J granted the State leave to file an Amended Notice of Motion.
Following the hearing before her, Adamson J delivered the judgment referred to at [2] above.
In that judgment, her Honour stated that it was not possible for her to summarise the pleading "as it is discursive, unparticularised and makes several rolled-up allegations. It narrates events, the relevance of which to the causes of action alleged is not expressed" (at [11]). Her Honour then set out in some detail what she described as "some of the more obvious deficiencies in the pleading" (ibid).
Having emphasised the important role that pleadings play in the conduct of litigation, her Honour observed at [38]: "Where a statement of claim is deficient, in that it does not identify the connection between allegations of fact and causes of action alleged; contains a discursive narrative, the relevance of which can only be the subject of conjecture; and makes generalised allegations which could not sensibly be the subject of a response in the defence, it cannot be allowed to stand, if objection is taken … "
Her Honour concluded that the pleading was "embarrassing" in each of the respects identified by Tamberlin J in Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278 at [18] as follows: "'Embarrassment' in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense."
Her Honour did not consider that there was any significant prospect that Mr Dickens would be able to produce "a better version than the current pleading" if given the opportunity to do so (at [43]). In deciding that Mr Dickens should not be afforded that opportunity, her Honour referred, inter alia, to the following observations of Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd [2012] VSCA 97 at [36]: "[A] self-represented litigant cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the court's already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices …"
For these reasons, her Honour concluded that the proceedings should be dismissed on the ground of "want of due despatch pursuant to r 12.7. For the following reasons, her Honour also considered at [46] that they should be dismissed on the additional basis that they were an abuse of process under r 13.4: " … By repeatedly filing pleadings which do not comply with the UCPR, the plaintiff is abusing the processes of the Court. In effect, the plaintiff is demanding that the Court and the defendant work out his causes of action for him and endeavouring to cast an onus on the defendant to prove that there is nothing in the morass of inconsistent allegations that might ground a cause of action which might afford him no relief. It is no part of the Court's function to provide a litigant with legal advice. Nor is the Court to 'settle' a defective pleading so as to remove the dross to expose and craft the allegations which might amount to a reasonable cause of action. In effect, the plaintiff is seeking to have the Court require the first defendant to plead to a claim which, because of its form, is not susceptible of a proper response in a defence."
The decisions of Adamson J that Mr Dickens seeks to challenge in this Court were discretionary decisions. To succeed, he would therefore have to show some error of principle or material fact, or that the decisions were unreasonable or plainly unjust. Moreover, to obtain leave to appeal he would have to show that "there is an issue of principle involved, or a question of general importance, or an injustice which is reasonably clear in the sense of going beyond what is reasonably arguable" (Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [75]; see also Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [20]). In our view, Mr Dickens has not established that the present case falls into any of those categories. As a result, his applications for, first, an extension of time for leave to appeal and, secondly, leave to appeal should be dismissed.
Mr Dickens relies on 10 grounds identified in his Amended Draft Notice of Appeal. Inappropriately, the document is replete with argumentative material and is 24 pages in length. It is purportedly supported by 34 pages of written submissions in chief and 10 pages in reply.
It is neither feasible nor necessary for us to address each of the individual points raised by Mr Dickens as they are plainly without foundation. It is sufficient for us to make the following observations concerning Mr Dickens' 10 proposed grounds of appeal.

Ground 1: "Her Honour erred at law by causing the plaintiff disadvantage and prejudice"

Mr Dickens relies upon a number of matters in relation to this ground. The principal being, first, that the primary judge should not have granted the State leave to amend its Notice of Motion, secondly, that her Honour should not have referred to case authorities and statutory provisions not cited by the State and, thirdly, that her Honour should have referred to a case that Mr Dickens relied upon in which the decision in General Steel Industry Inc v Commissioner of Railways (1964) 112 CLR 125; [1964] HCA 69 was cited.
None of these matters demonstrate relevant error on her Honour's part. As to the last mentioned, the "General Steels test" requires a plaintiff's lack of a cause of action to be established very clearly before his or her proceedings are dismissed on the basis of its absence. Mr Dickens' proceedings were not however dismissed on that ground but instead on the primary ground of want of due despatch. Her Honour did not need to, and did not, assess the merits of Mr Dickens' claims. Nevertheless her Honour was required to exercise considerable caution before summarily disposing of Mr Dickens' claim. There is no basis for concluding that she did not do so.

Ground 2: "Her Honour erred at law by failing to exercise the jurisdiction invoked by the plaintiff"

The essence of this ground is a complaint that the primary judge did not deal with the authorities and principles relevant to the torts which Mr Dickens alleged in his Statement of Claim. There was however no need for her Honour to do so because, as we have noted, she was not required to, and did not, attempt to assess the merits of Mr Dickens' alleged causes of action.

Ground 3: "Her Honour erred at law and in fact finding by failing to familiarise herself with the plaintiff's material"

It is clear from her Honour's judgments that she properly familiarised herself with the relevant facts and law.

Ground 4: "Her Honour made errors of law and a mix of errors of law and fact"

The "particulars" that Mr Dickens relies upon in support of this ground comprise a multitude of detailed complaints, principally concerning her Honour's observations in relation to the form of the Further Amended Statement of Claim. None have any substance.

Ground 5: "Her Honour erred at law by delivering inadequate or insufficient reasons for judgment"

Contrary to Mr Dickens' submissions, her Honour's judgments constitute thorough, and more than adequate, examinations and determinations of the issues before her.

Ground 6: "Her Honour erred at law by delivering judgments that are not impartial"

There is nothing in the circumstances to which Mr Dickens refers in his Amended Draft Notice of Appeal and submissions that, even arguably, indicates that a fair-minded observer might reasonably apprehend that the primary judge might not have brought an impartial mind to the determination of the issues that were before her (see Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [50]).

Ground 7: "Her Honour erred at law by delivering a judgment that is against the interests of the general public"

Mr Dickens' particulars of this ground allege that her Honour's second judgment, referred to at [2] above, was "against the interests of the general public by condoning the dishonest, offensive and tortious conduct of the police officers" named in the Further Amended Statement of Claim. The judgment was however concerned with the adequacy of Mr Dickens' Further Amended Statement of Claim as a matter of pleading. It did not condone, or indeed express any comment upon, the alleged conduct of the police officers.

Ground 8: "Her Honour erred at law by delivering judgments and orders that infringed upon the plaintiff's and his son's human rights contained in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) included in the Australian Human Rights Commission Act 1986 (Cth)"

The particulars to this ground simply refer to various other of Mr Dickens' proposed grounds of appeal. They do not add anything of substance to those other grounds.

Ground 9: "As to the costs judgment delivered 14 May 2018, her Honour took the plaintiff by surprise and/or deprived him of due and proper process and/or, in effect, assisted the defendant with legal advice"

Contrary to Mr Dickens' submissions, he was given ample opportunity to deal with the State's application for a specified gross sum costs order and her Honour was entitled to determine the matter of costs without an oral hearing on that issue. Mr Dickens was aware this would occur as, by email from her Associate, the primary judge asked Mr Dickens if he wished to respond to the State's application. Mr Dickens indicated his attitude in response and her Honour's Associate stated in reply that her Honour would proceed to decide the question of costs when she returned from leave.

Ground 10: "Her Honour should have waited for the plaintiff's challenge to her judgment delivered 19 April 2018 to be decided before she decided the issue of costs: this is the usual practice"

This is not in fact the "usual practice". Unless the Court exercises its discretion to grant a stay, a party who is successful at first instance is entitled to enforce the judgment he or she has obtained, irrespective of the pendency of an appeal.

ORDERS

For these reasons, we do not consider that Mr Dickens' proposed appeal has any prospects of success. In those circumstances, his application for leave to appeal should be dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2018

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