Dickens v State of New South Wales

Supreme Court of NSW|2018-04-18|Before: Adamson J, Bryson J, Fagan J

Solicitors: Makinson d'Apice Lawyers (First Defendant) File Number(s): 2017/0069511

Introduction

By amended notice of motion filed on 19 March 2018, the State of New South Wales (the defendant) sought orders that the proceedings be dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Further, and in the alternative, the defendant sought that the proceedings be dismissed pursuant to UCPR r 13.4; or, in the alternative, that the further amended statement of claim filed on 20 November 2017 be struck out pursuant to UCPR r 14.28.
The references to paragraphs in these reasons by numbers in square brackets are references to paragraphs in the various iterations of the pleadings.

The proposed amended statement of claim

On 26 June 2017 the plaintiff served on the defendants a proposed amended statement of claim. On 14 July 2017 the plaintiff filed a notice of motion in which he sought orders, including an order that leave be granted to file the proposed amended statement of claim. The plaintiff's and the defendants' applications were heard on 9 August 2017. The first defendant did not press its claim for summary dismissal as the plaintiff, in the course of oral argument on 9 August 2017, articulated further bases for his claim against the State which were not apparent from the statement of claim.
On 5 September 2017 Fagan J made orders refusing leave to the plaintiff to file the proposed amended statement of claim; summarily dismissing the claims against the second and third defendants; and granting leave to the plaintiff to file an amended statement of claim against the first defendant within specified limits: Dickens v State of New South Wales [2017] NSWSC 1173 (Dickens No 1). The Court also made directions as to the further conduct of the proceedings, which included liberty to the defendant to press its application that the proceedings be dismissed, following service of the further pleading.

The amended statement of claim

On 18 September 2017 the plaintiff filed an amended statement of claim against the State. In addition to his claim based on Wilkinson v Downton, the plaintiff also alleged that he had been falsely imprisoned on 17 March 2014 ([29]-[35]).
On 23 October 2017 the State filed a notice of motion seeking an order that the amended statement of claim by struck out pursuant to UCPR r 14.28 on the basis that the pleading was embarrassing and did not permit the State to understand the case brought against it. The application was heard and determined on 3 November 2017: Dickens v State of New South Wales (No 2) (Unreported, Supreme Court of New South Wales, Fagan J, 3 November 2017) (Dickens No 2). Justice Fagan ordered that the amended statement of claim be struck out and granted leave to the plaintiff to replead.

The further amended statement of claim

On 20 November 2017 the plaintiff filed a further amended statement of claim (the current pleading). He continued to allege a claim based on Wilkinson v Downton and a claim for damages for false imprisonment said to have occurred on 17 March 2014.
By notice of motion filed on 15 December 2017, which was amended on 19 March 2018 (for which leave to amend was granted on 18 April 2018), the State moved for dismissal of the proceedings or for orders that the pleading be struck out.

The structure and content of the pleading

The current pleading identifies the relief claimed: ordinary, aggravated and exemplary damages for "intentional indirect infliction of personal injury and false imprisonment", together with pre-judgment interest and costs. It is not possible 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. In the following paragraphs I set out some of the more obvious deficiencies in the pleading.

Introductory section ([1]-[7])

In [2] of the current pleading, five individual police officers are named and their alleged ranks and locations are identified. It is alleged that the State is vicariously liable for their acts. However, there is no apparent correspondence between the balance of the pleading and at least three of the officers mentioned: Detective Constable McCashin, Inspector Greene and Sergeant Pratt. It is not clear how the acts of these three police officers could amount to the torts alleged, for which the State would be vicariously liable.
In [3] the plaintiff identifies his affidavit dated 13 June 2017 and foreshadows reference to documents exhibited to that affidavit in ED-1. This is a departure from the rules and pleading principles in that material facts are to be alleged in pleadings, not the evidence on the basis of which those allegations are made (UCPR r 14.7).
In [6] the plaintiff sets out what he alleges are the elements of the tort of indirect intentional infliction of personal injury and the tort of false imprisonment.

Section A: Background ([8]-[42])

Section A of the current pleading, entitled "Background", comprises [8]-[42]. This section contains several allegations relating to the plaintiff's matrimonial circumstances and to a relationship between the plaintiff's former wife and her new partner. According to [8], these matters "document a pre-existing relationship between the Plaintiff and the Defendant prior to the 14 March 2014 assault which is a relevant factor to the Defendant's liability in tort". The allegations made in Section A include the following: 1. an allegation that an identified police officer (who is not named in [2]) failed to conduct a proper investigation of an incident said to have occurred in January 2011 ([14]); 2. an allegation that unnamed police officers, at an unspecified time, conducted baseless child welfare checks which were said to interfere with and damage the relationship between the plaintiff and his children ([20]); and 3. an allegation that the plaintiff's insistence that an assault on his son alleged to have been perpetrated on 5 February 2012 be investigated "was met with Police resentment and malice". The police officers the subject of the allegation were not identified; nor were their acts or statements pleaded or particularised ([21]).
Section A also includes allegations relating to events which were the subject of proceedings brought by the plaintiff against the State in November 2012 ([29]) for the period from 2 May 2012 to 17 August 2012 ([26] and [27]), during which it was alleged that they maliciously prosecuted him. However, in [38], it is alleged that the proceedings were settled in the plaintiff's favour. Plainly, any damage which was suffered by the plaintiff as a consequence of those matters would have merged in the consent judgment, permitting the defendant to plead a defence of res judicata to prevent the plaintiff from claiming damages in new proceedings for those matters.
In [32] the plaintiff alleges "that the NSW Police acted "ultra vires" by interfering with federal parenting court orders". No connection is pleaded between this allegation and the causes of action relied upon by the plaintiff. Further allegations to the same effect are made in [34]; two additional police officers are named, who are not identified in [2] as persons for whom the State is vicariously liable.
In [41]-[42] the plaintiff alleged as follows: "41. The incidents listed in the above paragraphs document the nature of the interactions between the Plaintiff and the Police and indicate that Police ignored the abuse of his children by the mother's partner, actively and maliciously targeted the Plaintiff based on fabricated false information and in 2012 caused him a "nervous shock" mental injury. 42. The Plaintiff alleges that the events particularised in the paragraphs that follow reveal the continuing ill-will and vengeful attitude towards him by the Police who continued to ignore the evidence of his son's abuse and the Police intent to again maliciously prosecute him and to cause him harm."
There is no indication in the pleading which would permit the State to understand what portion of the allegations were covered by the earlier proceedings; which police officers were responsible for which acts and when; and how such acts relate to the two causes of action in respect of which damages are claimed against the State.

Section B: Police conduct towards the plaintiff and his son Nicholas ([43]-[120])

Section B, entitled "Police conduct towards the plaintiff and his son Nicholas", has a number of sub-headings, which are either dates or reference to "COPS" (Computerised Operational Policing System) events, which are internal records made by the police when reports are made of alleged criminal conduct. Allegations are made against particular police officers for their acts and omissions. However, there is no apparent connection between the particular conduct alleged and the torts identified as the basis for the relief claimed. Further, the relevant "intent" (either intent or reckless indifference) is neither clearly alleged nor particularised. Given the gravity of the allegations which underpin the tort based on Wilkinson v Downton it is not sufficient for the plaintiff to allege that particular conduct had a particular effect, without any allegation of the defendant's intention (being that of its police officer) or particulars of such intention.
After a narration of the conduct of various officers, there is a general allegation in [56] that: "The Plaintiff says that Detective O'Donnell ['s] conduct, particularised in [44]-[54] above, caused him to suffer anxiety, stress, insult and humiliation."
None of these matters alleged amount to a recognised psychiatric injury.
Section B also contains allegations, including in [71], regarding the execution by police of orders made by the Family Court. In Dickens No 1 at [12], Fagan J found that a cause of action founded on the execution of valid orders which were not set aside was not maintainable. In these circumstances, these paragraphs ought not have been included in the current pleading.
Section B, as referred to above, refers to particular COPS events. The plaintiff alleges that he suffered emotional harm by becoming aware of the COPS events. It is apparent from the current pleading that the plaintiff was not aware of the content of the COPS events until these documents were subpoenaed by his former partner in Family Court proceedings and he, as a party to those proceedings, was permitted to inspect them when orders for access to such documents were made. This section also contains allegations about the way in which the police conducted interviews of the plaintiff's former wife and her new partner.
The claim for damages for false imprisonment is also made within Section B and is contained in [57]-[63]. In substance the narrative contained in those paragraphs alleges that, on 17 March 2014, the plaintiff went to Balmain Police Station in order to bring further information to the attention of police with respect to alleged assaults on his son. The plaintiff alleges that Detective O'Donnell was absent ([57]) but Detective Franklin, who was present, "strongly directed the Plaintiff to return his son to his mother and told him he is in breach of the family law orders" ([58]). The current pleading alleges that the plaintiff informed Detective Franklin that he did not have authority to compel him to return his son to his mother or to enforce federal orders. In [59], the plaintiff alleges that Detective Franklin warned him that he could be charged with abducting his son. The current pleading continued: "59. . . . Immediately thereafter Detective Franklin told the Plaintiff to wait in the room, without arresting him, then he exited the meeting room. 60. The Plaintiff felt extremely anxious, totally deprived of his liberty of movement, with no reasonable alternative means of movement and feared that if he tried to leave the Police Station with his son prior to Detective Franklin's return he would be arrested and charged. The Plaintiff formed a reasonable and honest belief that he was falsely imprisoned, that Detective Franklin departed the meeting room to seek legal advice, and that upon his return he will be arrested and/or charged with abduction. 61. Upon his return to the meeting room some 10 -15 minutes later, Detective Franklin did not arrest or charge the Plaintiff however, he said words to the effect of "I feel sorry for what's about to happen to you". 62. The Plaintiff alleges that, in the circumstances, Detective Franklin's coercive warning that he could be charged with abduction, directing him to remain in the meeting room without arresting him and the 10 -15 minute wait amounted to unlawful assertion of authority and false imprisonment by psychological means."

Section C Particulars of indirect intentional infliction of personal injury and false imprisonment ([121]-[155])

Section C, entitled "Particulars of indirect intentional infliction of personal injury and false imprisonment", contains a number of rolled-up allegations. There are several paragraphs which connote negligence rather than the intentional infliction of harm. For example, [124d] alleges: "Defendant knew, or ought to have known, from the 2012/2013 events particularised at [12]-[38] above, that their conduct will result in the Plaintiff's contact with his son being cut off and that the Defendant's said conduct was likely to cause the Plaintiff mental harm and injuries."

Section D: PARTICULARS OF INJURIES, LOSS AND DAMAGE ([156]-[176])

In Section D, entitled "PARTICULARS OF INJURIES, LOSS AND DAMAGE", the plaintiff alleges that he has suffered psychiatric injuries (Dysthymic Disorder and Generalised Anxiety Disorder) ([156]). The plaintiff alleges that "a reasonable person in the position of the Defendant" would have done certain things ([157]). This is the language of negligence, not intentional tort.

UCPR 12.7: dismissal for want of due despatch

Mr Anderson of counsel, who appeared on behalf of the State, submitted that over the past 13 months the plaintiff has been given several opportunities to re-plead his case against the defendant and has had the benefit of two separate adjudications on his pleading (leading to Dickens No 1 and Dickens No 2). Mr Anderson contended that there were no reasonable grounds to believe that, if given leave to re-plead, the further iteration would not be as deficient as the previous versions. Mr Anderson submitted that the only reasonably available inferences were the plaintiff was either unwilling or unable to comply with the rules for pleadings. He contended that the result was the same whichever inference was drawn. He submitted that, in these circumstances, the Court should dismiss the proceedings for want of due despatch.
Mr Anderson relied on Udowenko v Chief Executive Officer and Board of Directors of St George Bank - a Division of Westpac Banking Corporation (No 2) [2011] NSWSC 1122 (Udowenko) at [115]-[124] (Johnson J); and Knorr v CSIRO (No 3) [2012] VSC 529 (Knorr) (Beach J).
Mr Anderson contended that the merits of the cause of action were relevant to the exercise of the discretion whether to dismiss the proceedings for want of due despatch. He submitted that it was far from clear that there was any viable cause of action within the discursive and inconsistent allegations made in the current pleading. He submitted that the allegations which imply negligence are inconsistent with the causes of action pleaded.
Mr Anderson submitted that, in so far as there might be a claim for damages for false imprisonment contained within Section B (which is addressed more fully above), it amounted to an allegation that a police officer, without arresting the plaintiff, had asked him to wait in a room ([59]) followed by an allegation ([60]) that the plaintiff subjectively believed that he was going to be arrested and charged with abduction. He contended that it was difficult to see how this could, as pleaded, amount to a "total deprivation of liberty" as required to prove the tort. Mr Anderson referred to State of New South Wales v Le [2017] NSWCA 290 at [5] and [7] where the Court of Appeal (Basten, Leeming and Payne JJA) said: "[5] A person is not detained in the relevant sense if his or her departure from a planned course is voluntary or, if at the request or direction of another person, consensual. . . . [7] . . . The test, however, is objective in the sense that the court must assess what a reasonable person in the particular circumstances of the complainant would have inferred from the conduct of the officer. The subjective state of mind of the complainant will not be determinative. . . ."
The plaintiff submitted that he had done his best as a self-represented litigant to redraft his pleading after each adjudication. He relied on authorities to the effect that allowance should be made for litigants in person and referred to cases in which such litigants had been given many more opportunities to re-plead than he had been given in the present case, including Griffiths v State of New South Wales (No 2) [2015] NSWSC 1932 where proceedings brought by a litigant in person had been dismissed after seven years during which no properly pleaded statement of claim had been filed.
The plaintiff relied on a document, entitled "Summary of the Further Amended Statement of Claim" (MFI 2), which was provided at the hearing of the notice of motion on 18 April 2018. In this document, the paragraphs of the current pleading are related to the causes of action pleaded: indirect intentional infliction of personal injury; and trespass to person - false imprisonment. The first defendant's "deliberate or intentional acts or statements" to support the first cause of action are further divided into the following categories: false statements and unqualified false opinions; omissions; withholding of evidence subpoenaed; alteration of state records; dishonest acts; and ignoring evidence inculpatory of the mother's partner. He submitted that his evidence, in the affidavit and exhibit referred to above, showed the evidentiary basis for his allegations and that, in these circumstances, there was no reason why the State could not file a defence to his current pleading and no reason why the matter ought not proceed to trial.

UCPR 13.4: dismissal on the ground that the proceedings are an abuse of the process of the court

The defendant contended that the plaintiff's persistent failure to file a proper pleading, coupled with the circumstance that it was far from clear from the iterations of the pleadings which he had filed (including the current pleading) that he had a reasonable cause of action, meant that the proceedings had become an abuse of process. Mr Anderson argued that, on this basis, the proceedings ought be struck out as an abuse of the court's process pursuant to UCPR r 13.4(1)(c).
The plaintiff relied on the oft-cited passage from General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129 (Barwick CJ); [1964] HCA 69 (General Steels) to the effect that summary dismissal ought be "sparingly employed and is not to be used except in a clear case" and that the test was that "under no possibility can there be a good cause of action". The plaintiff further relied on what Barrett JA said in Shaw v State of New South Wales [2012] NSWCA 102 (Shaw) at [134] that (in that case) "[I]t is not shown that the Civil Procedure Act provisions warrant any result different from that indicated by the General Steel test."

Consideration

The importance of pleadings ought not be underestimated. A statement of claim serves a number of functions. It indicates, to the Court and to the defendant or defendants, the basis of the plaintiff's claim for relief. The statement of claim must set out, in numbered paragraphs, the material facts on which the plaintiff relies (UCPR rr 14.6 and 14.7). Where the rules require that certain matters be particularised (such as allegations of fraud or states of mind), the statement of claim must contain those particulars. It is an aspect of natural justice that the defendant be apprised of the case it has to meet by a properly pleaded statement of claim: Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [25] (French CJ, Gummow, Hayne and Kiefel JJ). Where unparticularised allegations of fraud and intention are made, there can be a tendency for the deficient pleading to amount to an abuse of process. Pleadings must be consistent, except where allegations are expressed to be in the alternative: UCPR 14.18. A pleading must not be "embarrassing" in any of the senses set out by Tamberlin J in Shelton v NRMA Ltd [2004] FCA 1393; 51 ACSR 278 at [18]: "'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."
A defendant is required to file a defence to the statement of claim. Admissions made by the defendant obviate the need for proof of matters admitted. The pleadings identify and confine the disputes between the parties so that the hearing can be conducted efficiently. Questions of relevance (the first requirement for admissibility of evidence) are, generally speaking, determined by reference to the pleadings.
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. Although there are occasions where a defendant, for forensic reasons, might not take objection to a deficient pleading and prefer to conduct the proceedings on that basis, a defendant who approaches the Court to enforce its rules regarding a pleading is entitled to have the Court require compliance: Northam v Favelle Favco Holdings Pty Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 7 March 1995).
The matters to be taken into account in determining which order to make are set out in Part 6 of the Civil Procedure Act 2005 (NSW), the overriding purpose of which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56. A properly pleaded statement of claim is, in my view, a prerequisite for the just, quick and cheap resolution of the real issues in the proceedings.
It is not in the interests of justice to permit the current pleading to stand. For the reasons submitted by Mr Anderson, the current pleading is deficient in several respects. It is "embarrassing" in each of the senses outlined by Tamberlin J in Shelton v NRMA Ltd at [18].
The current pleading is so opaque as to preclude any conclusion as to whether the plaintiff has a viable cause of action against the State. Although there is an apparent kernel of a cause of action for false imprisonment, there is no allegation that a reasonable person in the plaintiff's position would have inferred from the conduct of Detective Franklin that he had totally been deprived of his liberty. Nor is it apparent that this would be so, having regard to the facts alleged.
The defendant ought not be required to file a defence. I am satisfied that, at least, the further amended statement of claim should be struck out pursuant to UCPR r 14.28. The real issue is what ought flow from this. The two options are, in substance, first, to strike out the defective pleading and provide the plaintiff with another opportunity to re-plead his case; or, second, to dismiss the proceedings for want of due despatch or because they amount to an abuse of process.
I do not envisage any real prospect that, with more time and another opportunity, the plaintiff will be able to produce a better version than the current pleading. I accept that the plaintiff has dedicated much time and energy to the various iterations of the pleading. However, the drafting of a pleading which complies with the rules is not a question of application, energy and motivation. It is a question of skill. If there is no real prospect of the plaintiff being able to improve the current pleading, there is no utility in permitting or requiring an unknown number of further iterations before the proceedings are inevitably dismissed. Every time the defendant moves the Court to strike out the pleading or dismiss the proceedings, cost and time are spent which could be used otherwise in the administration of justice. That the State might be able, subject to other calls on its resources, to afford to bring such applications and argue them in a manner consistent with its obligations as model litigant, does not mean that the Court should require it to do so repeatedly without prospect of a better outcome in a revised pleading. What Beach J said in Knorr in [27]-[29] is apposite to the present case: "[27] . . . If I permitted this proceeding to remain on foot, and gave the plaintiff a further opportunity to plead a case in compliance with basic and fundamental rules of pleading, or more particularly with law, I am comfortably satisfied that the plaintiff would continue to deliver lengthy and impenetrable documents, upon which no trial could reasonably or fairly be conducted. [28] Again, as was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & anor "[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices". Consistently with the principles enunciated in the Civil Procedure Act, Mr Knorr cannot be permitted to continue to subject the parties to this proceeding to significant cost and inconvenience and to add pointlessly to the load on the Court's already limited resources. [29] The fundamental problem with this proceeding is that, if it is left on foot, there will be no progress. What will occur will be contrary to the requirements of the Civil Procedure Act. Further, it will be contrary to law. I am satisfied, in the unusual circumstances of this case, that the plaintiff's proceeding must be dismissed." [Footnotes omitted.]
The passage referred to by Beach J from Karam v Palmone Shoes Pty Ltd [2012] VSCA 97 at [36] is worth setting out in full: "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."
Udowenko provides a useful example of circumstances where dismissal for want of due despatch is appropriate in light of the opportunities given to a litigant and the litigant's incapacity or unwillingness to make proper use of those opportunities. I am satisfied that these proceedings ought be dismissed for want of due despatch pursuant to UCPR r 12.7.
The second, and alternative, basis on which the State sought to have the proceedings dismissed, is UCPR r 13.4, on the grounds that they constitute an abuse of process. This ground is, in my view, also enlivened in the present case. 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.
I note for completeness that the State did not seek summary dismissal of the proceedings on the ground that they disclosed no reasonable cause of action: UCPR r 13.4(1)(b). Thus, the General Steels test, even were it otherwise relevant, is not germane to the first defendant's application. The State's submission, which I have accepted, is that the pleading is so deficient that it is not possible to discern whether there is any reasonable cause of action
Although the defendant's application for dismissal on the ground that the proceedings are an abuse of the process of the court (UCPR r 13.4(1)(c)) was put as an alternative to dismissal for want of due despatch (UCPR r 12.7), I consider it to be appropriate to make the order for dismissal on the basis of both grounds. I regard this as necessary to register the abuse of process in which the plaintiff has engaged by repeatedly filing pleadings which are manifestly non-compliant with the UCPR.

Costs

In the ordinary course, costs follow the event: UCPR r 42.1. It would appear to me that the plaintiff ought pay the State's costs of the proceedings since the State has succeeded in obtaining the order it seeks. However, I indicated at the conclusion of the hearing of the motion that I would entertain a different application, if it were sought to be made. Accordingly, provision will be made for such an application in the orders.

Orders

For the reasons given above, I make the following orders: 1. Order that the proceedings be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) rr 12.7 and 13.4(1)(c). 2. Subject to an application for a different order being made in writing to my Associate within seven days hereof, together with any evidence and submissions in support, order the plaintiff to pay the first defendant's costs of the proceedings.

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: 13 October 2020

Uniform Civil Procedure Rules 2005(NSW)rr 12.7, 13.4, 14.6, 14.7, 14.18, 14.28, 42.1, rr 12.7

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