Elston v Commonwealth of Australia

REASONS FOR JUDGMENT 1 On 11 December 2001, Dr Guy Neville Elston, the applicant, secured the award of a research fellowship tenable at the University of Queensland (the University) and known as the "R D Wright Fellowship". That award was funded by the National Health and Medical Research Council (NHMRC), then a statutory corporation, under the National Health and Medical Research Council Act 1992 (Cth) (the Act). On 15 August 2006, the University suspended Dr Elston without pay from his employment. On 7 September 2006 and as a sequel to that suspension, the NHMRC advised the University that it had decided to suspend payments in respect of the fellowship pursuant to a term in its governing deed. By then, as a result of amendments made to the Act by the National Health and Medical Research Council Amendment Act 2006 (Cth) (the Amendment Act), the NHMRC had ceased to be a statutory corporation. It had become, instead, an administrative agency within the executive government of the Commonwealth without separate legal personality. The NHMRC requested the University to advise Dr Elston accordingly. 2 Some five years later, on 11 September 2011, Dr Elston commenced proceedings in the High Court of Australia arising out of these events. He named the Commonwealth of Australia and the NHMRC as first and second respondents respectively. The Commonwealth entered an appearance in those proceedings. The NHMRC, unsurprisingly given the effect of the Amendment Act (of which more shortly), did not. 3 On 22 March 2012, the High Court ordered that the proceeding be remitted to this Court. The Commonwealth has since then sought the following orders: (a) an order pursuant to r 16.21 of the Federal Court Rules 2011 (the Rules) that the statement of claim annexed to the writ by which the proceeding was commenced be struck out; (b) further or in the alternative, that judgment be given for the Commonwealth against Dr Elston pursuant to r 26.01 of the Rules; (c) in any event, an order that the NHMRC be dismissed as a respondent to the proceeding; (d) costs. 4 In respect of its claim for dismissal of the proceeding, the Commonwealth does not further or alternatively rely upon the power conferred on the Court by s 31A of the Federal Court of Australia Act 1976 (Cth). 5 It is convenient to deal with the question of respondency first. 6 Materially, the Amendment Act commenced on 1 July 2006. On and from that time, the NHMRC was, by s 5B of the Act, established as an agency of the Commonwealth government known by the name "the National Health and Medical Research Council". Comprising the NHMRC was the Chief Executive Officer, the Council of the NHMRC constituted under s 20 of the Act, committees as well as the staff of the NHMRC engaged under s 45 of the Act. 7 Prior to the commencement of the Amendment Act, the NHMRC was, by the then s 6(2) of the Act, constituted as a body corporate. Now, it is but an administrative agency of the Commonwealth having no legal personality separate from the Commonwealth. 8 Within Pt 4 of Sch 1 to the Amendment Act, the following transitional provisions are to be found: 125 Vesting of assets of old NHMRC (1) This item applies to the assets of the old NHMRC immediately before the commencement time. (2) At the commencement time, the assets to which this item applies cease to be assets of the old NHMRC and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these assets. 126 Vesting of liabilities of old NHMRC (1) This item applies to the liabilities of the old NHMRC immediately before the commencement time. (2) At the commencement time, the liabilities to which this item applies cease to be liabilities of the old NHMRC and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these liabilities. 9 The term "old NHMRC" is defined by the Amendment Act (item 124(1), Pt 4 of Sch 1) to mean that body as constituted prior to the commencement of that Act; in other words, to mean the former statutory corporation. Other terms there defined are "asset" and "liability", each in an expansive way: asset means: (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and (b) any right, power, privilege or immunity, whether actual, contingent or prospective. liability means any liability, duty or obligation, whether actual, contingent or prospective. 10 In his submissions as to why the NHMRC should remain as a respondent, Dr Elston emphasised that the grant in respect of the R D Wright Fellowship was made at a time when the body known by that name was a separate legal entity. This is true but that entity no longer exists. The effect of the provisions quoted from the Amendment Act is that the Commonwealth has succeeded to the obligations the "old NHMRC" had at the time of the initial grant. So comprehensive is the definition of liability and so explicit is the transitional provision in respect of the vesting of the liabilities of the "old NHMRC" there is no room for any residual liability on the part of the "old NHMRC" in the circumstances of this case. As it is now constituted, the NHMRC has no legal personality separate from the Commonwealth. It is not a body capable of being sued in its own right. Further, the events about which Dr Elston complains occurred at a time after the Amendment Act commenced. 11 In support of his submission that the NHMRC ought not to be dismissed as a respondent party, Dr Elston also made reference to the retention by that agency after the commencement of the Amendment Act of the Australian Business Number (ABN) (ABN 88 601 010 284) which had been allocated to the previous statutory corporation of that same name. It followed from this, so the submission went, that the NHMRC remained not only an entity having separate legal personality but the same such entity both before and after the commencement of the Amendment Act. That a layman to the law could reasonably make this submission is understandable but it is nonetheless erroneous. 12 The statutory authority for the allocation of an ABN is to be found in s 8 and s 10 of the A New Tax System (Australian Business Number) Act 1999 (Cth) (ABN Act). The ABN Act applies to a "government entity" as if it were an "entity", each as defined: s 5 of the ABN Act. The term "entity" is defined by the ABN Act by way of incorporating by reference the definition of that term in s 184-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). It is not necessary to set out that definition of "entity", but it is instructive to set out the note to it, which accurately states a feature of the definition: Note: The term entity is used in a number of different but related senses. It covers all kinds of legal persons. It also covers groups of legal persons, and other things, that in practice are treated as having a separate identity in the same way as a legal person does. In short, what is an "entity" for the purposes of the ABN Act may not be a separate legal entity for wider purposes. 13 For the purposes of the ABN Act, the term "government entity" is defined by s 41 of that Act in a way that includes organisations and agencies of the Executive Branch of government which do not have a legal personality separate from the body politic itself: "government entity" means: (a) a Department of State of the Commonwealth; or (b) a Department of the Parliament established under the Parliamentary Service Act 1999 ; or (c) an Executive Agency, or Statutory Agency, within the meaning of the Public Service Act 1999 ; or (d) a Department of State of a State or Territory; or (e) an organisation that: (i) is not an entity; and (ii) is either established by the Commonwealth, a State or a Territory (whether under a law or not) to carry on an * enterprise or established for a public purpose by an * Australian law; and (iii) can be separately identified by reference to the nature of the activities carried on through the organisation or the location of the organisation; whether or not the organisation is part of a Department or branch described in paragraph (a), (b), (c) or (d) or of another organisation of the kind described in this paragraph. 14 Before the commencement of the Amendment Act, the NHMRC was a body corporate. It was not only an "entity" as defined for the purposes of the ABN Act but also, by virtue of its incorporated status, a body having separate legal personality generally. After the commencement of that Act, it was a "government entity" for the purposes of the ABN Act, because it was a separately identifiable organisation established under Australian law for a public purpose. By virtue of s 5 of the ABN Act, previously mentioned, it was deemed to be an "entity" as defined for the purposes of that Act but not more generally. 15 The allocation under the ABN Act of an ABN to and registration of an "entity" or "government entity" as defined does not confer legal personality on the organisation registered. It is nothing to the point that the Commissioner of Taxation, in his capacity as "the Registrar" for the purposes of the ABN Act has, for his own reasons, chosen to retain the same ABN on the Australian Business Register for the NHMRC. Since the commencement of the Amendment Act, the NHMRC has been nothing more than a name given to an agency of government having no existence separate from the national body politic, the Commonwealth of Australia. However one approaches the matter, the NHMRC is not and never has been an appropriate respondent. If nothing else therefore, the Commonwealth is entitled to an order striking out the NHMRC as the second respondent. 16 Consideration of whether the Commonwealth is entitled to anything further of the relief it seeks requires some elaboration of the present state of Dr Elston's pleading and of the legal relationships which underpin the R D Wright Fellowship. 17 As the Act stood in December 2001: Section 49 provided for a reserve known as the Medical Research Endowment Reserve (termed "Reserve" in the Act) as a component of the Reserved Money Fund. That is a reference to a fund in the public accounts of the Commonwealth once known as the "Reserved Money Fund". A public accounts fund by that name was established by the former s 20(1) of the Financial Management and Accountability Act 1997 (Cth) (FMA Act). The former s 20(5) of the FMA Act provided that, "if another Act establishes a component of the Reserved Money Fund and identifies the purposes of the component, the component may be debited for those purposes". Section 49 of the Act satisfied the requirements of the former s 20(5) of the FMA Act. So far as the purposes of the Reserve were concerned, s 51 of the Act provided that (1) The purposes of the Reserve are: (a) to provide assistance: (i) to the Departments of the Commonwealth or of a State or Territory that are engaged in medical research; and (ii) to universities for the purpose of medical research; and (iii) to institutions and persons engaged in medical research; and (iv) in the training of persons in medical research; and (b) any other purpose that is prescribed for the purpose of this section. 18 The statement of claim makes reference to a Deed of Agreement in respect of an award numbered 210341. Given this, it is both permissible and necessary in considering the Commonwealth's application to have regard to that deed. On 12 December 2001, the Commonwealth, "as represented by the Office of the National Health and Medical Research Council (ABN 83 605 436 759)" entered into a deed with the University (termed, "the Institution" in that deed) for the provision of funding by the Commonwealth to the University, "provided the Institution executes this Deed and complies with the legal obligations on the Institution to use the Grant in support of the objectives of the NHMRC Researcher Support Schemes" (Recital E to the deed). Materially, under that deed: the University agreed to: ensure "that spending in relation to the Award occurs only within the Period of Grant" - cl 2.1; administer the Awards in accordance with the Award Purposes - cl 2.2(a); provide the Award Recipients with the necessary facilities and services for the efficient conduct of research - cl 2.2(b). the Commonwealth agreed to pay the Grant to the University in accordance with a payment schedule specified in item E - cl 3.1; the University agreed not to use the Grant for any purpose other than funding the award in respect of the Award Recipient in accordance with the Application and the Approved Budget - cl 4.1; power was reserved to the Commonwealth, in its absolute discretion, to suspend or reduce payment of the Grant "pending a review by the Commonwealth of the future performance of the Award" where, "the Commonwealth is not reasonably satisfied that the activities of … the Award Recipient remain compatible with the Award" - cl 14.1(f); the University and its servants or agents did not become an officer, employee, partner or agent of the Commonwealth or the NHMRC and undertook not to represent itself as such - cl 10. these terms were defined as follows: "Award" - the award type and description of award undertaken by the Award Recipient under the NHMRC Researcher Support Scheme as specified in Item A. "Award Recipient" - the person specified in Item B in respect of whom the grant is provided … . "Grant" - funds provided by the Commonwealth for the Award, as specified in Item E. "Item" - refers to an item specified in a schedule. 19 It is apparent from the executed copy of the deed in evidence that there were multiple schedules to the deed, not all of which are in evidence. Inferentially, each related to a particular "Award recipient". The schedule to the deed relating to Dr Elston is in evidence. It is numbered 210341. It is common ground that Award 210341 is known as the R D Wright Fellowship. 20 Dr Elston is named as the "Award Recipient" in the schedule. The "Award" is there described as a "Career Development Award" with a requirement that "[t]he Institution must ensure that the Award Recipient spends the equivalent of 100% of time on research conducted for the purposes of the Award". The period of the Award is specified as five years, running from 1 January 2002 to 31 December 2006. The amount of the "Grant" is expressed to be $400,000 to be paid in equal annual instalments of $80,000 with "some components" of each instalment to be adjusted for GST and CPI movements. 21 Dr Elston is not a party to the deed. 22 In the writ by which the proceedings were commenced in the High Court, Dr Elston claims the following relief: (a) "damages for Personnel Support"; (b) "damages for Research Support"; (c) damages for "dishonour, defamation and colouring Dr Guy N Elston"; (d) interest; (e) costs. 23 In the statement of claim indorsed on that writ, Dr Elston pleads that he has not received a salary since 2006. He then pleads that he has suffered "loss of salary, loss of superannuation contributions, loss of research support and defamation as a consequence of the suspension of payment of Award 210341". Dr Guy Elston alleges he has been "dishonoured and his professional name has been coloured as a consequence of the suspension of payment of Award 210341" [para 36 - sic]. 24 Dr Elston further alleges that the NHMRC "did not act properly" when it suspended payments for that award (at para 37). He alleges (at para 38) that, by so doing, the NHMRC "interfered with the performance of Dr Guy N Elston" and, further (at para 39), that it "dishonoured the spirit" of the deed in respect of that award. 25 At para 40 of the statement of claim, Dr Elston alleges that the NHMRC "failed in its Duty of Care to Dr Guy N Elston as the Award Recipient" and, at para 41, "failed to provide a reasonable Standard of Care" to him. 26 Dr Elston further pleads that: an independent certified forensic accountant reports that lost Personnel Support and lost Research Support amounts to Fifty-two million, Six Hundred and eighty-Seven Thousand, Two hundred and Sixty-Three dollars as at 18 February 2011. [sic] 27 The Commonwealth submitted that the causes of action purportedly pleaded and their related deficiencies might be summarised in the following way: (a) breach of contract constituted by a wrongful suspension of payments under Award 210341. The contract was between the Commonwealth and the University. The statement of claim neither specifies how Dr Elston, a non-party, is entitled to sue the Commonwealth for damages for any alleged breach, nor properly identifies the nature of the alleged breach, nor how that breach caused any loss or damage to Dr Elston. (b) defamation The statement of claim does not allege what the defamatory statement was, who published it, when and in what circumstances. No imputations are pleaded. How any published statement was causative of any loss or damage to Dr Elston is not pleaded. (c) breach of duty of care The nature of any duty of care on the part of the Commonwealth to Dr Elston is not pleaded. Also not pleaded are how that duty arose, when and how it was beached, whether that breach was causative of loss and damage and, if so, the nature and extent of that loss and damage. 28 There is merit in each of these submissions of the Commonwealth. 29 I mean no disrespect to Dr Elston in observing that it is evident from his written submissions concerning the Commonwealth's interlocutory application that he has consulted, but not understood, what is stated in Black's Law Dictionary, 8th Edition, p 235 (Black), as to what constitutes a cause of action: "a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person". Though Black is an American work, there is nothing uniquely American in the explanation offered in it as to what constitutes a cause of action. It is just such an understanding as to what constitutes a cause of action upon which are respectively predicated the requirements in r 16.02(1)(d) and r 16.02(e) of the Rules that a pleading must, "state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party" and must not "fail to disclose a reasonable cause of action". A statement of claim which fails to allege a cause of action giving rise to an entitlement to the relief sought makes no case at all against a defendant party. 30 The present r 16.02(2) of the Rules, by the express statement in r 16.02(2)(c) that a pleading must not be "evasive or ambiguous", makes explicit one of the propositions which I consider was implicit in the statement in O 11 r 16(b) of the Federal Court Rules 1979 (Former Rules) that a pleading may be struck out if - it has "a tendency to cause prejudice, embarrassment or delay in the proceeding". That is so, even though the language of O 11 r 16(b) of the Former Rules is repeated in r 16.21(1)(d) of the Rules as an alternative basis upon which a pleading might be struck out. I find it difficult to see how a pleading which is evasive or ambiguous would not have a tendency to cause one or the other or each of prejudice, embarrassment or delay in a proceeding. 31 Recently, in Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 at [89] (Polar Aviation), in the course of dismissing an appeal from orders by which a statement of claim which purported to plead a claim in negligence was struck out and, consequentially, by which the proceeding was dismissed, the Full Court observed that: The appellants were obliged adequately to plead the alleged duty, including the necessary material facts on which the duty and its ambit were based. If (assuming the pleaded facts to be true) the [pleading] failed to disclose a cause of action in negligence, the respondents were entitled to seek, as they did, to strike the pleading out. No less in this case did the Rules impose just such an obligation on Dr Elston or confer just such an entitlement on the Commonwealth. 32 To go further than striking out the statement of claim, and proceed to strike out the proceeding itself, would require a firm conclusion that "no reasonable amendment could cure the alleged defect and there was no reasonable question to be tried": Polar Aviation at [42] and see the summary of authority at [43]. That is not a conclusion lightly to be reached. The absence of any reasonable basis upon which the case should proceed to trial must be clearly demonstrated. 33 It is a feature of the evidence in relation to the R D Wright Fellowship that Dr Elston made an application to the NHMRC. Nonetheless, the form which that grant took, as is clear on the face of the deed, was of a grant not to him but to the University. It is likewise clear that the grant envisaged that the University would utilise the grant to engage Dr Elston for a period for specified purposes. Though Dr Elston is not a party to the deed, he did accept its terms and conditions. Dr Elston thereby neither become an employee of the NHMRC when that body was a statutory corporation nor, after the commencement of the Amendment Act, did the Commonwealth become his successor employer. His employer was at all times the University. 34 In the course of submissions, I drew attention to s 55 of the Property Law Act 1974 (Qld), which permits, in certain circumstances, a third party (termed a "beneficiary" in s 55) who is the beneficiary of promises in a contract, to enforce that contract even though not a party to it. Dr Elston's statement of claim does not plead material facts which would enable him to do this. 35 Putting aside Dr Elston's not being a party to the deed, Dr Elston alleges that the NHMRC had no power to suspend the grant because the clause called in aid, cl 14.2(e), does not appear in the deed. This is true but nothing to the point. The reference to cl 14.2(e) in the NHMRC suspension advice of 7 September 2006 to the University (suspension advice) is a mere misnomer. It is based on a reference by the author of the letter, in error, to a later version of what is evidently a standard form deed. In the later version, cl 14.2(e), a power to suspend the grant is conferred if the Commonwealth is not reasonably satisfied that, "the activities of the Award Recipient remain compatible with the Award". In the version used in the deed in question, a power of suspension on an identical ground to that found in cl 14.2(e) is conferred by cl 14.1(e). Even were he to have pleaded how it was that he could sue on the deed, Dr Elston has no prospect of succeeding in establishing that the Commonwealth had no power to suspend the grant on the ground of not being satisfied that his activities remained compatible with the Award. 36 To have a power to suspend is one thing; whether or not it was lawfully exercised may be another. As to that, all that Dr Elston relevantly alleges in his statement of claim (cl 37) is that the NHMRC did not act properly in suspending the grant. The grounds upon which the suspension should be regarded as improper are not specified. Neither is it pleaded whether or not the Commonwealth was "reasonably satisfied" and, even if so, what feature of any state of reasonable satisfaction constituted a breach of the Commonwealth's contractually conferred power of suspension. 37 All these matters acknowledged, the position is not on the evidence so clear that there could be no reasonable prospect of a successful damages claim for breach of contract on the footing that, though the Commonwealth had a power to suspend the grant, it had not lawfully exercised that power and thereby breached the deed for which breach Dr Elston was entitled as a "beneficiary" entitled to recover damages. It does on the evidence seem that the Commonwealth made its suspension decision without affording Dr Elston an opportunity to be heard but that fact and whether or on what factual basis it had any such contractual obligation is not pleaded. 38 As to Dr Elston's claim based on a breach of a duty of care, the pleading does not set out any facts, matters and circumstances upon the basis of which the Commonwealth, as a successor to the former statutory corporation known as the NHMRC, owed a duty of care to Dr Elston nor does the pleading set out how, by material allegations of fact, how that duty came to be breached. The statement of claim does not plead what have been described as "the crucial elements of reliance, assumption of responsibility and, most importantly, vulnerability": Precision Products (NSW) Pty Limited v Hawkesbury City Council (2008) 74 NSWLR 102 at [106]. 39 In Polar Aviation, the Full Court upheld the striking out both of the pleading and the proceeding itself on the basis that the Civil Aviation Safety Authority did not owe the applicant a duty of care of the general kind pleaded because the existence of such a duty was inconsistent with that body's governing statutory regime and the due exercise of its statutory powers. In Stuart v Kirkland-Veenstra (2009) 237 CLR 215 at [112] - [113], the following observations with respect to what was necessary to establish the existence of a duty of care on the part of a public official, or authority to an individual or class of persons, were made: [112] There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. Rather, as was pointed out in Graham Barclay Oysters Pty Ltd v Ryan, the existence or otherwise of a common law duty of care owed by a statutory authority (or in this case the holder of statutory power) "turns on a close examination of the terms, scope and purpose of the relevant statutory regime". Does that regime erect or facilitate "a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence"? [113] Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant. [Footnote references omitted] 40 This statement of claim does not plead how it was, having regard to the regime in the Act, the Commonwealth owed a duty of care to Dr Elston. 41 Sub-section 3(1) of the Act provides: (1) The object of this Act is to make provision for a national body to pursue activities designed: (a) to raise the standard of individual and public health throughout Australia; and (b) to foster the development of consistent health standards between the various States and Territories; and (c) to foster medical research and training and public health research and training throughout Australia; and (d) to foster consideration of ethical issues relating to health. [emphasis added] Having regard to objects 1(a) and, especially, 1(c), it is not impossible to see how, read in conjunction with a regime under which an individual made an application for a grant and, though provided to a University a grant expressly named that particular individual a duty of care might possibly arise. I express no concluded view on that subject. Even so, this statement of claim is utterly deficient in setting out a foundation for the existence of a duty of care on the part of the Commonwealth to Dr Elston. 42 I did not understand Dr Elston to put his claim in tort against the Commonwealth on the basis of an alleged misfeasance in public office. Such an allegation ought never to be made without a reasonable basis and must be distinctly alleged and proved. It would be necessary for Dr Elston to plead that he had suffered loss and damage by reason of an act done by a servant or agent of the Commonwealth, with the intention of causing him harm, or which that officer knew, or ought to have known, was beyond power and which involved a foreseeable risk of harm to him: Northern Territory v Mengel (1995) 185 CLR 307. Such allegations are not present in the statement of claim. 43 In Queensland, the common law with respect to defamation is affected by the Defamation Act 2005 (Qld). That does not detract from the equal applicability in this State of observations made by Beach J in Knorr v CSIRO & Ors (No 2) [2012] VSC 268 at [20] as to allegations which ought to be present in any sufficiently pleaded claim for damages for defamation or malicious or injurious falsehood: (a) a precise pleading identifying the publication in respect of which complaint is made; (b) a specific pleading as to the time of, and circumstances in which, publication of the impugned matter was made; (c) an allegation that the relevant matter was published of and concerned the plaintiff (together with concise and necessary particulars of identification); and (d) appropriate pleas as to the meanings said to be conveyed by the relevant matter (identifying the particular words relied upon if the matter in respect of which complaint is made is of any significant length). 44 Having regard to paragraphs 30 and 36 of the statement of claim, which refer to the suspension advice and to his having been "dishonoured" and his professional name "coloured" by the suspension, it may be inferred that it is the publication of this document by an officer of the Commonwealth within the NHMRC to the University which Dr Elston alleges has defamed him. Even so, the pleading exhibits none of the required features described in item (d) in the preceding paragraph. Further, that it is the publication of the suspension letter that grounds his claim in defamation should not be left to inference, as opposed to a pleading which distinctly alleges the maters referred to in items (a), (b) and (c) in the preceding paragraph. 45 On the evidence before me, Dr Elston had the benefit of earlier research grants prior to the suspension by the NHMRC of the R D Wright Fellowship grant. His career before then had been spent in health and medical research, initially in order to attain his doctorate. He states that, thereafter, he has not enjoyed success in securing research grants. If, indeed, the suspension letter were defamatory, it is not impossible to see how that might have an adverse effect on his reputation and hence his career. I make that observation only so as to indicate that I do not regard his prospective damages as so trivial as to tell against his being given leave to replead a claim for damages for defamation. 46 As to damages, I have already described the reference in the pleading to a forensic accountant's report. There is no attempt in the pleading to particularise damages by reference to distinct causes of action. Were there such an attempt, Dr Elston would necessarily have to confront, insofar as he might in any way be able to plead a cause of action based on a breach of contract, that the grant the subject of the deed was not of indefinite duration. The grant period was due to expire on 31 December 2006 in any event, ie at the time when the suspension occurred, less than 3 months remained of the grant period. The deed contained no option for its renewal or extension. 47 In its present form, the statement of claim indorsed on the writ fails to disclose any reasonable cause of action. Its absence of any adequate pleading as to damages is also likely to cause prejudice or delay in the proceeding. The statement of claim should therefore be struck out pursuant to r 16.21(1) of the Rules. 48 Having regard to the caution which ought to attend ending a proceeding summarily, I am not prepared, for the reasons given, to make a consequential order pursuant to r 26.01 of the Rules that the Commonwealth should have a judgment dismissing Dr Elston's application. I consider that he ought to be given an opportunity to file and serve an amended statement of claim. 49 Such is the degree of success by the Commonwealth in respect of its application it is entitled to an order for its costs. 50 There will be orders accordingly. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.