(8) The relevant judgments under impeachment due to fraud (including, as pleaded in the above paragraph (4)) have caused the Plaintiff injury (including distress, anxiety, humiliation, harm to reputation, inconvenience, vexation, financial loss, harm in relation to tertiary studies and assessments, and harm to proposed employment)."
23 The first to third defendants submitted that these three remaining portions of the amended statement of claim are not properly pleaded and should be struck out.
24 While it is trite law, I remind myself of what is the purpose of a pleading and what it should contain. A pleading is to contain, and contain only, a statement in a summary form of the material facts on which the applicant relies. The material facts are all those facts necessary for the purpose of formulating a complete cause of action - see Bruce v Odhams Press Ltd (1936) 1 KB 697 at p 712; Pinson v Lloyds and National Provincial Foreign Bank Ltd (1941) 2 KB 72 at 75; and Bega Co-operative Society Limited v The Milk Authority of the Australian Capital Territory (unreported 12 May 1992, Federal Court; 325 FC 39). Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject-matter, to convey to the opposite party the case that party has to meet - see Ratcliffe v Evans (1892) 2 QB 524 at 532; Charlie Carter Pty Ltd v Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 417. A pleading must state the facts, that if not specifically pleaded might take the opposing party by surprise. In short, the purpose of a pleading is to inform the other party of the case it has to meet.
25 I turn now to consider the plaintiff's remaining pleadings. In relation to "trespass: search and seizure", the plaintiff claims that he was subjected to duress by the second and third defendants when at the police station on 6 March 1997. The second and third defendants do not appear to have any direct involvement in the "trespass: search and seizure", which arose after the police effected an arrest. This paragraph under the heading "trespass: search and seizure" should be struck out as against the first to third defendant.
26 So far as breach of statutory duty is concerned it is said to arise under s 319 of the Crimes Act 1900. Section 319 reads:
"General offence of perverting the course of justice
A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years."
27 The plaintiff seems to be pleading that the defendants alleged breach of s 319 of the Crimes Act gives him a right to an action in damages for personal injury.
28 The question whether a breach of a duty arises under Statute was the subject of consideration in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, where Kitto J said, at 404 to 406:
"In the case of an enactment … prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention: see Whittaker v Rozelle Wood Products Pty Ltd (1936) 36 SR (NSW) 204; 53 WN 71. At least this is so where the evil provided against is one of personal injury and the relationship existing between the person enjoined and the person protected is one which is recognised by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter: O'Connor v S.P. Bray Ltd (1937) 56 CLR 464 at 478. But at the outset of every inquiry in this field it is important, in my opinion, to recognise … that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then 'imputed' to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation: see Martin v Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (1934) 34 SR (NSW) 593 at 596, and cases there cited. It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances. …
A particular difficulty arises where the enactment which prescribes the conduct is accompanied by the express provision of a criminal sanction for the enforcement of its requirements. On the prima facie principle that expressio unius est exclusio alterius there is ground for a countervailing inference of an intention that in the event of a contravention the specifically provided remedy shall be the only remedy; cf Cutler v Wandsworth Stadium Ltd (1949) AC 398."
29 Section 319 of the Crimes Act includes a criminal sanction, namely imprisonment of up to 14 years for the enforcement of its requirements. It is my view that the argument that s 319 gives rise to a statutory duty is hopeless and should be struck out.
30 That leaves the pleading of "Action in Equity". The plaintiff is alleging that the evidence given by witnesses and the defendants at the hearings in the Local Court Blacktown and the District Court were a litany of lies or relevant omissions or distorted comments such that a different picture was portrayed. This, the plaintiff asserts, is fraud. The court decisions complained about have been the subject of scrutiny in the Court of Appeal. Ultimately, in relation to the decision of Nield DCJ, leave was not granted to appeal. There is no proper basis for the plaintiff to allege fraud, this portion of the amended statement of claim is struck out.