Fleet v Royal Society for the Prevention of Cruelty to Animals

Civil Procedure Act 2005 Crimes Act 1900 LEGISLATION CITED : Limitation Act 1969 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005

Bega Co-operative Society Limited v The Milk Authority of the Australian Capital Territory (unreported 12 May 1992, Frederal Court; 325 FC 39) Bruce v Odhams Press Ltd (1936) 1 KB 697 Charlie Carter Pty Ltd v Shop, Disctributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 CASES CITED : Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2007} NSWSC 334 Ratcliffe v Evans (1892) 2 QB 524 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397

Dr Robert Fleet (Plaintiff) Royal Society for the Prevention of Cruelty to Animals NSW (First Defendant) PARTIES : Louise Mary Parker (Second Defendant) Graeme Dymond (Third Defendant) State of New South Wales (Fourth Defendant)

COUNSEL : Mr D Kelly (First, Second & Third Defendants) Mr G Bateman (Fourth Defendant)

SOLICITORS : Moray & Agnew (First, Second & Third Defendants) Crown Solicitor (Fourth Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20215/2003 - DR ROBERT FLEET v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS NSW

JUDGMENT (Strike out remaining parts of statement of claim; due despatch) 1 HER HONOUR: This matter has had an unfortunate history. These proceedings involve a claim for damages by Dr Robert Fleet arising from events in March 1997 and August 1997 concerning his 14 year old German Shepherd dog "Jason". The plaintiff undoubtedly had a very strong bond with Jason. Prosecutions were brought against Dr Fleet by officers of the Royal Society for the Prevention of Cruelty to Animals NSW and members of the New South Wales Police (the original proceedings). These events occurred some 10 years ago. 2 The original proceedings have been helpfully summarised by Johnson J in Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926 at [20]-[21] which I respectfully reproduce. "20 …action and prosecutions were commenced against Dr Fleet under s 6(1) and s 27A Prevention of Cruelty to Animals Act 1979 ("PCA Act"). … The criminal proceedings have twice reached the Court of Appeal: Fleet v District Court of NSW and Ors [1999] NSWCA 363 and Fleet v District Court of NSW and Ors [2002] NSWCA 25.

21 It is sufficient to note, for present purposes, that the Court of Appeal in the 1999 proceedings quashed the findings of guilt of Dr Fleet made in the District Court for offences under s 6(1) and s 27A PCA Act and made orders remitting the proceedings relating to the s 6(1) charge to the District Court for hearing and staying further proceedings on the s 27A charge. Following those orders, the hearing of the s 6(1) charge commenced before Nield DCJ in the District Court and proceeded over several days between June 2000 and June 2001. Eventually, Dr Fleet did not appear and Nield DCJ dismissed the appeal and confirmed the finding of guilt and the recognisance under s 556A Crimes Act 1900 , and ordered Dr Fleet to pay the costs of the RSPCA amounting to $25,341.00. In the 2002 proceedings, the Court of Appeal dismissed a claim for prerogative relief arising from these orders of Nield DCJ." 3 There are two notices of motion before this court for determination. Firstly, by notice of motion dated 29 August 2007 the first to third defendants seek that the whole of the amended statement of claim be dismissed pursuant to Pt 13.4; or alternatively struck out pursuant to Pt 14.28 of the Uniform Civil Procedure Rules 2005 as disclosing no reasonable cause of action, and/or being an abuse of process, and/or as having a tendency to cause prejudice or embarrassment; and/or be dismissed pursuant to Part 12.7 of the Uniform Civil Procedure Rules. 4 Secondly, by notice of motion filed 11 September 2007 the fourth defendant seeks firstly, that the proceedings be dismissed for want of due dispatch pursuant to r 12.7 of the Uniform Civil Procedure Rules; secondly, in the alternative, that the following paragraphs be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules, or in the alternative, struck out pursuant to r 14.28: (a) Abuse of legal process commencing on page 7, paragraphs [1] to [18]; (b) Breach of statutory duty commencing on page 9, paragraphs [1] to [14]; and (c) Action in equity commencing on page 10, paragraphs [1] to [8]. 5 The plaintiff is Dr Robert Fleet. The first defendant is the Royal Society for the Prevention of Cruelty to Animals NSW (RSPCA). The second defendant is Louise Mary Parker. The third defendant is Graeme Dymond. The second and third defendants are officers of the RSPCA. The fourth defendant is the State of New South Wales (the State). 6 The first to third defendants relied upon the affidavit of Suzanne Wallace dated 28 August 2007. The State relied on the affidavit of Karen Susan Burke affirmed on 5 September 2007. 7 The plaintiff submitted that it was his "understanding and conscientious belief" that his fundamental human rights had been violated. He requested that this court state a case pursuant to s 101(1)(b) of the Supreme Court Act 1970. In case he has overlooked any rule he relies upon s 14 of the Civil Procedure Act 2005. Mr Fleet also referred to the double jeopardy rule in detail and suggested that it can be interpreted so as to include civil proceedings on the basis that the defendants numerous notices of motion have made him suffer harm. He also submitted that in accordance with s 56 of the Civil Procedure Act, a trial with a jury is an overriding purpose and that has been ignored today by this court and by Simpson J and that he has real issues to be tried. Dr Fleet was articulate when making his submissions.

History of these proceedings 8 On 5 August 2003, the plaintiff filed a statement of claim. On 20 February 2004, an amended statement of claim was filed. On 13 April 2004, the plaintiff filed a second amended statement of claim. 9 The general nature of the allegations in the amended statement of claim have been helpfully set out by Simpson J in Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2007] NSWSC 334 at [5]-[18]. I respectfully reproduce it: "5 I shall attempt to put, generally in narrative form, the allegations made by Dr Fleet. I do not pretend that the summary I set out below is a complete paraphrase of the contents of the statement of claim; it is included merely to give a sense of the nature of Dr Fleet's claims against each defendant.

6 As at 5 March 1997 Dr Fleet was the owner of a German Shepherd dog called Jason, and was the occupier of premises at … Seven Hills. On 5 March 1997 certain named police officers entered upon Dr Fleet's land, and entered his home. There, one or more of the police officers caused damage; one or more of them "ransacked" Dr Fleet's house, and removed some items such as tools. An officer or officers also removed the German Shepherd Jason. The following day, 6 March 1997, the first defendant, the RSPCA, killed Jason. On the same day the second and third defendants, both employees of the RSPCA, without lawful justification or excuse, arrested Dr Fleet and detained him for an unspecified period. Dr Fleet was taken to the Blacktown Police Station where the third defendant threatened to shoot him. Dr Fleet was received into the custody of NSW police officers. They handcuffed him; a police officer used the door of the police vehicle to strike Dr Fleet on the leg.

7 Dr Fleet asserts that, in contravention of the International Covenant on Civil and Political Rights, he was tortured, although the only specific allegation of torture is to be found at page six, in the paragraph numbered (11) (under the heading "Battery (by NSW police)"). That pleading reads: "… the plaintiff was tortured (including, in relation to the plaintiff's hand or hands, and the invasion of the plaintiff's body by foreign particles.)"

8 Dr Fleet claims to have been searched and a bag of groceries and a bag containing an assignment for his theological studies seized. Other items (including his money, keys and belt) were also taken.

9 On 6 August 1997 the second defendant instituted criminal proceedings against Dr Fleet, charging him with an offence against s 27A of the Prevention of Cruelty to Animals Act 1979 ("the Act") (of failing to provide his name and address to an officer); and, under s 5(3)(c) of the Act, with failing to provide an animal with necessary veterinary treatment. Both charges were brought maliciously, and were ultimately terminated in favour of Dr Fleet.

10 Dr Fleet asserts that these prosecutions caused him injury and amount to the tort of malicious prosecution. The second defendant also charged him with an offence of aggravated cruelty to an animal, an offence against s 6 of the Act.

11 Dr Fleet asserts that this prosecution was brought without reasonable or probable cause, and for a purpose other than the due, just and proper enforcement of the law, and was malicious.

12 He also asserts that, on 12 December 2005, an agent of the first, second and third defendants forced entry into his home in relation to the service of documents. This amounted to a trespass. Some damage was caused to his house. Dr Fleet suffered injury as a result.

13 Under the heading "Abuse of legal process" Dr Fleet repeats some of the factual matters previously pleaded in relation to his allegation of malicious prosecution. The factual matters purported to be pleaded under this head include the following: "(15)(a) The CHRONOLOGY (for the State of New South Wales and others) that was submitted to the Supreme Court of New South Wales Common Law Division by the fourth and fifth defendants (in relation to their notice of motion filed on the 3rd August 2004), and on behalf of the first, second and third defendants (in relation to their notice of motion filed on the 26th July 2004), is a litany of lies or relevant omissions or distorted comments, that either imply or portray a different picture to the true facts regarding the plaintiff's civil legal actions."

14 There follow some assertions that, contrary to something he alleges was said by counsel for the first, second and third defendants in that chronology, the plaintiff had not applied for special leave to apply to the High Court of Australia.

15 In the same series of factual assertions, Dr Fleet accuses the defendants of fraudulent misrepresentation to the court.

16 Under the heading "Breach of statutory duty" Dr Fleet appears to plead (against which defendant or defendants is not clear) an offence of perverting the course of justice.

17 Dr Fleet then pleads, under the heading "Defamation" a cause of action said to be under the Defamation Act 1974. The allegedly defamatory matter is nowhere particularised. Nor is any date assigned to the alleged defamatory publication.

18 Finally, under the heading "Action in equity", Dr Fleet asserts that judgments had been obtained: "by the NSW Police and/or the relevant defendants (including the second defendant and/or the first defendant)" by fraud, following fraudulent misrepresentation to the courts. He appears to make a claim that judgments thereby obtained be set aside." 10 On 26 July 2004, the first, second and third defendants filed a notice of motion seeking orders that the plaintiff's amended statement of claim be struck out or dismissed. The fourth and fifth defendants sought similar orders pursuant to a notice of motion filed on 3 August 2004. Assistant Registrar Howe ordered that the proceedings against the fifth defendant be dismissed and the proceedings against the fourth defendant be struck out. The plaintiff appealed this decision. 11 On 11 April 2005, Master Malpass (as he then was) dismissed the plaintiff's notice of motion and confirmed Assistant Registrar Howe's decision and orders. The plaintiff appealed this decision. 12 On 22 July 2005 the appeal was heard by Johnson J. He delivered judgment on 14 September 2005. The plaintiff was partially successful on appeal. Johnson J quashed Order 6 made by Assistant Registrar Howe and confirmed by Master Malpass and in lieu granted the plaintiff leave to file and serve a further amended statement of claim within 28 days. Johnson J otherwise, dismissed the appeal against the decision of Master Malpass. 13 The amended statement of claim was to be filed by 12 October 2005. The plaintiff did not file an amended statement of claim nor did he take any further action. On 6 December 2005, the matter was relisted by the court for directions. There was no appearance by the plaintiff on that date. On 7 December 2005, the fourth defendant filed a notice of motion seeking to dismiss the proceedings for want of prosecution. 14 On 1 February 2006, James J declined to dismiss the proceedings and order that the plaintiff file an amended statement of claim within 28 days and pay the defendant's costs. 15 On 28 February 2006, the plaintiff filed an amended statement of claim naming the fifth defendant as the District Court of New South Wales. 16 On 2 May 2006, the fourth and fifth defendants filed a notice of motion seeking an order that the proceeding against the fifth defendant be struck out together with certain paragraphs of the amended statement of claim. 17 On 10 April 2007, the motion was heard by Simpson J who delivered judgment on 16 April 2007. Simpson J ordered that the whole of the amended statement of claim was deficient and was not remediable by giving the plaintiff the opportunity to replead. Simpson J relisted the matter to delineate those parts of the pleading that were the subject of express applications by the defendants, and order that each remaining defendant prepare and serve on Dr Fleet, short minutes reflecting those conclusions and the order. 18 On 8 May 2007, the plaintiff filed a notice of motion seeking to set aside the judgment of Simpson J. On 28 May 2007, the matter was listed before Simpson J who ordered (so far as they related to the first to third defendants) that: "1. The whole of those parts of the Amended Statement of Claim filed on 28 February 2006 under the headings "Trespass: Killing of Jason", "False Imprisonment (by RSPCA NSW)", "Assault (by RSPCA NSW)" and "malicious Prosecution" be struck out as not having been commenced within the time prescribed by the Limitation Act 1969. 2. The whole of that part of the Amended Statement of Claim filed on 28 February 2006 under the heading "Abuse of Legal Process" be struck out as embarrassing and failing to plead any cause of action. 3. The Plaintiff pay the costs of the First, Second and Third Defendants." 19 On 28 May 2007, Simpson J also made the following orders (so far as they related to the fourth and fifth defendants): "1. All references in the Amended Statement of Claim filed on 28 February to the District Court of New South Wales as fifth defendant be struck out. 2. The whole of that part of the Amended Statement of Claim filed on 28 February 2006 under the heading "DEFAMATION" be struck out. 3. Clauses 26, 27 and 28 on page 2 of the said Amended Statement of Claim be struck out. 4. In respect of the remaining pleadings alleged the commission of torts, plaintiff to make application under the Limitation Act 1969 by 25 June 2007. 5. The plaintiff to pay the costs of the fourth and fifth defendants." 20 The plaintiff has not served the application pursuant to the Limitation Act 1969. The court was not provided with any reason as to why the Limitation Act application has not been filed. 21 On 16 August 2007, the court on its own motion listed the matter before the registrar for directions. The registrar ordered the defendants to file notices of motion returnable on 10 September 2007. They were subsequently listed for hearing and are the subject of this judgment.

The amended statement of claim so far as it concerns the first to third defendants 22 So far as the first to third defendants are concerned there are three "causes of action" left in the amended statement of claim, namely firstly, "trespass, search and seizure"; secondly, "breach of statutory duty"; and finally, "action in equity". These paragraphs of the amended statement of claim read: "TRESPASS: SEARCH AND SEIZURE (6 August 1997):

(1) On the 6th August 1997, during the course of the [reception or police arrest] and police detention, a police officer or police officers (being one or both of Van Dyke and Sprowles) seized (or took) the Plaintiffs food/groceries (including perishable food/groceries), the Plaintiffs receipt for the Plaintiffs food/groceries and the Plaintiffs bag (including an assignment for the Plaintiff's theological studies) ("the seizure no. 1").

(3) The seizure no. 1 was without lawful justification or excuse. The seizure no.1 was illegal because the arrest and [reception or police arrest] were all unlawful.

(5) To the Plaintiffs understanding and conscientious belief, the above-mentioned plaintiff's bag and assignment for the plaintiff's theological studies were damaged.

(6) The seizure no. 1 caused the Plaintiff injury (including distress and anxiety).

(7) On the 6th August 1997, during the course of the detention of the Plaintiff at Blacktown Police Station (including the police detention), the Plaintiff was searched by a police officer or police officers ("the search"), and a police officer or police officers seized (or took) some of the Plaintiffs possessions (including the Plaintiffs money and keys, and belt for his trousers) ("the seizure no.2").

(10) The search and seizure no.2 were both without lawful justification or excuse. The search and seizure no.2 were both illegal because the arrest and [reception or police arrest] were all unlawful.

(13) The search and seizure no.2 caused the Plaintiff injury (including distress, anxiety, discomfort, inconvenience, and humiliation).

(14) To the Plaintiffs understanding and conscientious belief, on the 6th August 1997, the Plaintiff was subjected to duress by the Second and Third Defendants and police officers (including Van Dyke and Sprowles) from Blacktown Police Station or Blacktown Patrol.

(15) To the Plaintiffs understanding and conscientious belief, the seizure no.1, and the search and the seizure no.2 were conducted in an abusive manner by the police.

(1) The statutory duty is claimed under Section 319 (General offence of perverting the course of justice) of the Crimes Act 1900 (N.S.W.) ("the statutory duty no. 1").

(2) The said statutory duty no.1 is imposed on the Defendants and NSW Police.

(3) The right to the performance of the said statutory duty no.1 is enforceable by an action for abuse of the legal process, or a collateral abuse of the legal process.

(4) The Plaintiff is a person protected by statutory duty no. 1.

(5) The Defendants and/or NSW Police have breached statutory duty no.1.

(6) To the Plaintiffs understanding and conscientious belief, the injury/harm suffered by the Plaintiff is within the class of risks at which the legislation is directed.

(7) The breach of statutory duty no.1 caused injury/harm to the Plaintiff (including distress, anxiety, humiliation, harm to reputation, inconvenience, vexation, financial loss, harm in relation to tertiary studies and assessments, and harm to proposed employment).

(8) The statutory duty is claimed under Section 9, together with Sections 4, 5, 6, and the Second and Fourth Schedules of the Oaths Act 1900 No. 20 (N.S.W.) ("the statutory duty no. 2").

(9) The said statutory duty no.2 and the said statutory duty no. 1 are imposed on the Fifth Defendant. (10) To the Plaintiff's understanding and conscientious belief, the right to the performance of the said statutory duty no. 2 and/or the said statutory duty no. 1 is enforceable by an action for abuse of the legal process, or a collateral abuse of the legal process.

(11) The Plaintiff is a person protected by statutory duty no.2 and statutory duty no.1.

(12) The Fifth Defendant has breached statutory duty no.2 and statutory duty no.1.

(13) To the Plaintiff's understanding and conscientious belief, the injury/harm suffered by the Plaintiff is within the class of risks at which the legislation is directed.

(14) The breach of statutory duty no.2 and statutory duty no. 1 caused injury/harm to the plaintiff (including distress, anxiety, humiliation, harm to reputation, inconvenience, vexation, financial loss, harm in relation to tertiary studies and assessments, and harm to proposed employment).

(1) In relation to proceedings no.1, proceedings no.2, and proceedings no.3, in the Local Court at Blacktown and in the District Court of New South Wales, judgments were obtained by fraud by the NSW Police and/or the relevant Defendants (including the Second Defendant and/or the First Defendant).

(2) The fraud, as pleaded in the above paragraph (1), includes the following: (a) Fraudulent Misrepresentations to the courts by the NSW Police and/or relevant Defendants included in relation to the Plaintiff's alleged breach of the Section 27A offence. (b) Written statements submitted to the court and evidence given in court under oath from the witness box by the NSW Police (including Easton, Bonic and Luscombe) and the relevant Defendants are a litany of lies or relevant omissions or distorted comments that either imply or portray a different picture to the true facts.

(3) The Plaintiff's name and address was given or affirmed by the Plaintiff to an officer as defined in the Prevention of Cruelty to Animals Act 1979 (N.S.W) on more than one occasion.

(4) As a consequence of the fraud (including fraudulent misrepresentations) committed against the Plaintiff in all relevant proceedings (including the proceedings pleaded in the above paragraph (1)), the Plaintiff has suffered oppression and miscarriages of justice.

(5) An action lies in equity to set aside the judgments wrongfully obtained on the grounds of the fraud (as pleaded in the above paragraph (4)).

(6) The fraud (as pleaded in the above paragraph (4)) has spread and infected the whole body of the judgments for all the relevant proceedings. The judgments that are tainted and affected by fraudulent conduct are tainted throughout, and the whole must fail.

(7) The action in equity (as pleaded above) is a separate proceeding from the proceedings leading to the judgments under impeachment.

(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.

The amended statement of claim as it concerns the fourth defendant 31 The plaintiff's remaining claims against the fourth defendant are trespass to land (5/3/1997), trespass into house (5/3/1997), trespass: damage to house (5/3/1997), trespass to goods (5/3/1997), trespass: taking of Jason (5/3/1997), trespass: killing of Jason (6/3/1997), false imprisonment (6/8/1997), battery, trespass: search and seizure (6/8/1997), breach of statutory duty and action in equity. The fourth defendant relied on the third defendant's submissions so far as the breach of statutory duty and action in equity are concerned. For reasons given earlier, the claim against the fourth defendant for breach of statutory duty and action in equity should be struck out. 32 The fourth defendant submitted that as the plaintiff has not filed an application under the Limitation Act he had not prosecuted these proceedings with due dispatch and that these claims should be struck out.

Due despatch 33 Rule 12.7 of the Uniform Civil Procedure Rules states: "(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit." 34 On 28 May 2007, Simpson J ordered the plaintiff to make an application under the Limitation Act by 25 June 2007 in respect of the pleadings alleging the commission of torts. The plaintiff, although asked, has not proffered an explanation as to why he has not complied with this order. 35 Sections 14 and 18A of the Limitation Act 1969 read: "14 General

(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims: (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed,

(b) a cause of action founded on tort, including a cause of action for damages for breach of statutory duty,

(d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture. 18A Personal injury

(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to: (a) a cause of action arising under the Compensation to Relatives Act 1897 , or

(b) a cause of action that accrued before 1 September 1990, or

(c) a cause of action to which Division 6 applies. (2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims." 36 The plaintiff's causes of action as against the fourth defendant arose on 5 and 6 March 1997 and 6 August 1997. 37 The statement of claim was filed on 5 August 2003. The causes of trespass to land, trespass to house (5/3/1997), trespass, damage to house (5/3/1997), trespass to goods (5/3/1997), trespass: taking of Jason (5/3/1997), trespass: killing of Jason (6/3/1997) are statute barred. The plaintiff has not complied with the court order and sought an extension of the limitation period, these paragraphs of the amended statement of claim are not maintainable and should be struck out. 38 The later claims of false imprisonment, assault, battery, trespass, search and seizure which occurred on and after 6 August 1997 were filed within the six year period. These claims do not appear to be statute barred. The fourth defendant's position is, as I understand it, that although these paragraphs are not properly pleaded it is prepared to meet those claims at trial. These paragraphs of the amended statement of claim are not struck out.

Should the plaintiff be given a further opportunity to replead the struck out portions of the amended statement of claim? 39 The plaintiff has been afforded five opportunities to file amended statements of claim in relation the causes of action that have been struck out. Some of the plaintiff's claims are hopeless and cannot be cured by repleading. 40 This court enquired as to whether the plaintiff would seek advice from a legal practitioner to assist him in preparing his case. "HER HONOUR: Yes, I think it has. Dr Fleet, you are not planning on getting any legal advice?

HER HONOUR: Are you going to get legal advice, or not?

FLEET: I am keeping your question in mind. I originally in the local court and in the District Court before Judge Karpin, I had legal representatives, and this is not meant in a boastful way, but when I went to the Court of Appeal I did it under my own volition and I had virtually to clean up after the two first rounds, the local court and District Court. If I was able to cross examine witnesses in an adequate and complete manner I believe I can present my case to the court." (t 9.27-42) 41 Attention should be draw to the earlier pertinent comments made by Johnson J at [67] where his Honour said: "67 I inquired of Dr Fleet during the hearing whether he had sought pro bono assistance from the New South Wales Bar Association and he indicated that different avenues had been tried including the Bar Association (transcript, 22 July 2005, pp.38-39). The interests of the administration of justice may be facilitated by the provision of legal assistance to Dr Fleet for the purpose of drawing a pleading in proper form. I am prepared to consider a court-appointed referral for legal assistance pursuant to Part 66A Supreme Court Rules (which remains in force). A referral may be made under those provisions for the purpose, inter alia, of drafting or settling documents to be filed or used in proceedings: Part 66A r 5(c). I propose to raise such a course with Dr Fleet when judgment is handed down in this matter. I will give Dr Fleet an opportunity to consider whether he desires such a referral. If Dr Fleet proceeds to file a further pleading which is beset by the pleading deficiencies of the Amended Statement of Claim, he faces the prospect that his ability to further litigate this matter may be restricted. In Turner , Jacobs J at 97-98 referred to a statement of Bacon VC in Cashin v Cradock (1876) 3 ChD 376 at 377, which has application to this case: "It is not for me to point out to the plaintiff how he might frame his statement of claim if he has any cause of complaint against the defendants. If he does not take advice, he must run the risk of acting upon his own judgment."" 42 It is unlikely that the plaintiff will engage the services of a legal practitioner to assist with the drafting of any new pleading. In striving to do justice between the plaintiff and defendant I would not, in the exercise of my discretion, grant the plaintiff another opportunity to replead the struck out portions of his amended statement of claim. The paragraphs, in the amended statement of claim filed on 28 February 2006, that are headed "false imprisonment", "battery", "trespass", "search and seizure" which occurred on 6 August 1997 as against the fourth defendant have not been struck out. The balance of the amended statement of claim is struck out. A status conference is to be allocated and the court is to notify the parties. 43 Costs are reserved.

(1) The paragraphs in the amended statement of claim filed on 28 February 2006 that are headed "false imprisonment", "battery", "trespass", "search and seizure" which occurred on 6 August 1997 as against the fourth defendant have not been struck out. The balance of the amended statement of claim is struck out.

(2) A status conference is to be allocated. Court to notify parties.

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.