Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors

Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors - [2005] NSWSC 926 - NSWSC 2005 case summary — Zoe

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McDowell v Fox [2003] NSWSC 324 In the Will of Sheppard (1972) 2 NSWLR 714 RT & YE Falls Investments Pty Limited v State of New South Wales (Santow J, 14 May 1998, BC9802115) Wentworth v Graham [2002] NSWCA 397 Application of Eubanks [2003] NSWSC 386 QBE Workers Compensation (NSW) Pty Ltd v The Sports Pit Pty Ltd (Young J, 12 October 1995, unreported, BC9501739) Johnstone v Deutsche Australia Ltd [2003] NSWSC 933 Fleet v RSPCA [2005] NSWSC 318 Warren v Coombes (1979) 142 CLR 531 Do Carmo v Ford Excavations Pty Limited [1981] 1 NSWLR 409 Morrison v Judd (CA(NSW), 10 October 1995, BC9507158) House v The King (1936) 55 CLR 499 Fleet v District Court of NSW and Ors [1999] NSWCA 363 Fleet v District Court of NSW and Ors [2002] NSWCA 25 General Steel Industries Inc v Commissioner of Railways (NSW) and Ors (1964) 112 CLR 125 Gallo v Dawson (1988) 63 ALJR 121 Rajski v Powell (1987) 11 NSWLR 522 Yeldham v Rajski (1989) 18 NSWLR 48 Bar-Mordecai v Bryson and Ors [2002] NSWSC 815 CASES CITED : Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Webster v Lampard (1993) 177 CLR 598 R v Mosely (1992) 28 NSWLR 735 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 Pelechowski v Registrar, Court of Appeal (NSW) [1999] 198 CLR 435 Wentworth v Wentworth (2001) 52 NSWLR 602 D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; [2005] HCA 12 Fingleton v The Queen (2005) 79 ALJR 1250; [2005] HCA 34 Sirros v Moore (1975) QB 118 In re McC (A Minor) (1985) AC 528 Cannon v Tahche (2002) 5 VR 317 Rajski v Bainton (1990) 22 NSWLR 125 Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 Gunns Ltd v Marr [2005] VSC 251 Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276) Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 Cashin v Cradock (1876) 3 ChD 376

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Nature of Review under Part 61 r 3 Supreme Court Rules 11 The Master was undertaking a review of the Registrar's orders under Part 61 r 3 Supreme Court Rules (which remains in force). In carrying out this function, the Registrar was exercising powers delegated by the Master. It was not suggested that there was an impediment to the Master reviewing the decision of the Registrar made under delegation from the Master: cf McDowell v Fox [2003] NSWSC 324 at paragraphs 25-28. 12 A review of an order made by a Registrar pursuant to Part 61 r 3 is not an appeal. It is not necessary for the applicant to demonstrate that the decision of the Registrar was affected by error: In the Will of Sheppard (1972) 2 NSWLR 714 at 716-7; RT & YE Falls Investments Pty Limited v State of New South Wales (Santow J, 14 May 1998, BC9802115 at page 2); Wentworth v Graham [2002] NSWCA 397 at paragraphs 8-9; Application of Eubanks [2003] NSWSC 386 at paragraph 8. It is customary on such a review for the parties to be restricted to the material before the Registrar, although extra evidence may be called: QBE Workers Compensation (NSW) Pty Ltd v The Sports Pit Pty Ltd (Young J, 12 October 1995, unreported, BC9501739 at page 2). The Court is not bound by the material before the Registrar at the time when the decision under review was made and evidence of subsequent events, where appropriate, is admissible: Johnstone v Deutsche Australia Ltd [2003] NSWSC 933 at paragraph 18. Where the Registrar's decision involves a matter of practice and procedure, the reviewing court should properly exhibit a natural inhibition against the unrestrained substitution of that court's views for those of the Registrar: Falls at page 2; Wentworth v Graham at paragraph 9. However, such inhibition is, in terms of degree, of a lesser order than that applying to a court in an appeal from a decision of the reviewing Master where matters of practice and procedure are concerned: Falls at page 2. The Court on review is entitled to make any order that is thought to be just in the circumstances of the case: QBE Workers Compensation (NSW) Pty Limited v The Sports Pit Pty Limited at page 2. 13 Following the review in this case, the Master gave short reasons confirming the Registrar's decision: Fleet v RSPCA [2005] NSWSC 318. The Master said at paragraphs 6-7: "6. In conducting the review the court perused, inter alia, the reasons for the decision of the Registrar, the material he had before him (including the plaintiff's pleading) and the submissions made by the parties during the conduct of the review.

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Dr Fleet's Claim 18 Dr Fleet has sought damages from the RSPCA, two of its officers, the State of New South Wales and the District Court of New South Wales. Following various amendments, Dr Fleet filed an Amended Statement of Claim on 13 April 2004 and it was that pleading which was the subject of the hearings before the Registrar and the Master. 19 By the Amended Statement of Claim, Dr Fleet sues for malicious prosecution, misfeasance in public office, trespass to goods, wrongful arrest, false imprisonment, illegal search and seizure and trespass to the person. 20 The events giving rise to these proceedings occurred in March 1997 when officers of the RSPCA and police officers took action and prosecutions were commenced against Dr Fleet under s.6(1) and s.27A Prevention of Cruelty to Animals Act 1979 ("PCA Act"). For present purposes, it is not necessary to recite the history of proceedings brought by and against Dr Fleet arising from these events. 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.

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Summary Dismissal of Claim Against the District Court 22 The Registrar determined that the claim for misfeasance in public office against the District Court of New South Wales should be summarily dismissed under Part 13 r 5 Supreme Court Rules. In ordering summary dismissal of this claim, the Registrar was well aware of the seriousness and significance of such a step and applied, correctly, the principles in General Steel Industries Inc v Commissioner of Railways (NSW) and Ors (1964) 112 CLR 125 at 129. The Master confirmed the decision of the Registrar. 23 Before the Registrar and the Master, Counsel for the District Court relied upon the doctrine of judicial immunity: Gallo v Dawson (1988) 63 ALJR 121; Rajski v Powell (1987) 11 NSWLR 522; Yeldham v Rajski (1989) 18 NSWLR 48; Bar-Mordecai v Bryson and Ors [2002] NSWSC 815 at paragraph 34. Reliance was also placed on s.44B Judicial Officers Act 1986, to which reference will be made shortly. 24 Dr Fleet pleaded his cause of action for misfeasance in public office against the District Court in the following terms in paragraph 78 of the Amended Statement of Claim: "The tort of 'Misfeasance in public office' was committed by the District Court of New South Wales (comprising His Honour Judge JR Nield) against the Plaintiff. (a) there was a misuse or abuse by the District Court of New South Wales of a relevant power which is an incident of the office. (b) This wrongful conduct by the District Court of New South Wales was actuated by malice in the sense that the power was used, not for the public benefit, but for an ulterior purpose with the intent that harm be caused to the Plaintiff (or in reckless disregard of such a likely consequence) or that there was a purported exercise of this power with knowledge that it did not exist (or in reckless disregard as to its existence). (c) The duty to exercise the above-mentioned relevant power properly by the District Court of New South Wales was owed to the Plaintiff as a member of the public." 25 The Registrar said at paragraphs 9 and 12 of his reasons: "Judicial immunity ensures that no action may be brought against a judge for acts done in the course of hearing or deciding cases. The reason for the existence of the immunity is to allow judges to decide litigation without pressure of the knowledge that a disappointed litigant may sue them personally for any damages which may flow from their decisions. It exists to preserve the integrity, independence and resolve of the judiciary to ensure that justice may be administered fairly, without fear or favour. … It is clear from a reading of paragraph 78 of the amended statement of claim that the plaintiff seeks damages arising from the actions of Judge Nield in respect of acts done by the judge while exercising his judicial capacity. Since judicial immunity is conferred on judges of all jurisdictions: Bar-Mordecai v Bryson [2002] NSWSC 815 at paragraph 34 then the proceedings against the fifth defendant become subject to Part 13, rule 5 because no cause of action [is] disclosed. It is inevitable the Court may comfortably conclude that this is a cause which cannot succeed because there is no cause. Accordingly, the proceedings against the fifth defendant will be dismissed." 26 The Master held that no basis had been disclosed for disturbing the orders made by the Registrar: Fleet v RSPCA and Ors at paragraph 7. 27 Before me, Dr Fleet stressed the exceptional nature of the summary dismissal power and relied upon the principles in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 and Webster v Lampard (1993) 177 CLR 598 at 602 in this regard. He submitted that there were real questions to be tried with respect to the claim for misfeasance in public office and that the claim should not be summarily dismissed by application of the doctrine of judicial immunity. 28 Nield DCJ was presiding as a District Court Judge hearing an appeal to that Court under the Justices Act 1902 with respect to Dr Fleet's conviction in the Local Court for an offence under s.6(1) PCA Act. The District Court is a statutory court of record: s.8(2) District Court Act 1973. The District Court is not a superior court and is a court of limited statutory jurisdiction: R v Mosely (1992) 28 NSWLR 735 at 739F. It is an inferior court of record: United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 332D-E; Pelechowski v Registrar, Court of Appeal (NSW) [1999] 198 CLR 435 at 445, 456. The criminal jurisdiction of the District Court includes jurisdiction conferred under other Acts, in this case, the Justices Act 1902: s.9(2), s.166 District Court Act 1973. 29 It is clear that Nield DCJ was performing judicial functions in hearing the appeal under the Justices Act 1902. 30 By operation of s.44B Judicial Officers Act 1986 which commenced on 7 July 2003, a District Court Judge has the same protection and immunity as a Judge of the Supreme Court in the performance of his or her duties as a Judge. Section 44B provides as follows: "44B Immunity of certain judicial officers (1) A judicial officer has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. (2) This section does not apply to a Judge of the Supreme Court or to a Judge having the same status as a Judge of the Supreme Court."

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"Judicial officer" is defined in s.3(1) Judicial Officers Act 1986 as including a Judge of the District Court. 31 The hearing took place before Nield DCJ in the District Court on days between June 2000 and June 2001. Section 44B Judicial Officers Act 1986 did not commence until 7 July 2003. On 5 August 2003, Dr Fleet commenced proceedings in this Court by filing a Statement of Claim. It was not until 20 February 2004 that Dr Fleet filed an Amended Statement of Claim which, for the first time, sued the District Court of New South Wales. Accordingly, s.44B was not in force at the time of the hearing before Nield DCJ in the District Court but was in force by the time that Dr Fleet commenced civil proceedings for damages in this Court. Dr Fleet submitted that s.44B could have no application to this case because the section was not in force at the time of the hearing in the District Court. Submissions before me did not touch upon the relevance of s.44B being in force at the time when civil proceedings were instituted or the possible application of s.30 Interpretation Act 1987 to the present case. I will assume, for the purpose of this case, that the question ought be determined by reference to common law principles surrounding the doctrine of judicial immunity with respect to judges of an inferior court of record. 32 The doctrine of judicial immunity is a fundamental doctrine which extends to acts done in the discharge of judicial office. In Wentworth v Wentworth (2001) 52 NSWLR 602, Fitzgerald JA said at 616 (paragraph 43): "In summary, it is conclusively established by authority that judicial immunity extends to whatever a judge who is a member of a court does in the exercise of 'the broad and general authority conferred upon a court to hear and determine a matter': Gallo v Dawson (1988) 63 ALJR 121 at 122; 82 ALR 401 at 402; cited in Yeldham (at 70)." 33 In D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; [2005] HCA 12, Gleeson CJ, Gummow, Hayne and Heydon JJ, at paragraph 40, described the historical development of judicial immunity including the distinction drawn between inferior and superior courts: "The development of judicial immunity … was bound up with the development of the law relating to excess of jurisdiction, and thus with the development of the principles governing when a judicial decision was open to collateral attack. Its history has been traced by Holdsworth: " Immunity for Judicial Acts ", (1924) Journal of the Society of Public Teachers of Law 17. It is not necessary to examine that history in any detail, beyond noticing that the decisions of courts of record were conclusive, but those of inferior courts were open to collateral attack alleging excess of jurisdiction. Hence, while action might lie at common law for acts done in an inferior court in excess of jurisdiction, the decisions of supreme courts were final. And there was an immunity from suit for any judicial act done within jurisdiction: Sirros v Moore [1975] QB 118; Rajski v Powell (1987) 11 NSWLR 522. What is important to notice for present purposes is not the history of development of this immunity, but that both judicial immunity and the immunity of witnesses were, and are, ultimately, although not solely, founded in considerations of the finality of judgments." 34 In Re East and Ors; Ex parte Nguyen [1998] 196 CLR 354, the doctrine of judicial immunity was applied with respect to proceedings brought against the Magistrate's Court and the County Court of Victoria, both inferior courts of record. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said at 365-6 (paragraphs 29-30): "However, apart from the particular facts of this case, there are more fundamental problems with the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s 9 of the [Racial Discrimination] Act.

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The Victorian Court of Appeal concluded (at paragraph 48) that, in light of the authorities referred to, it would seem that the operation of the tort of misfeasance in public office may extend to the wrongful exercise by a holder of a public office of a judicial power where that power is sought to be exercised without jurisdiction and in bad faith. Dr Fleet relies upon this statement in support of his claim against the District Court of New South Wales. 38 Cannon was not a case involving civil proceedings brought against a judicial officer. The relevant principles appear to have been considered in the context of civil proceedings brought against prosecutors who had appeared in Court. In any event, Cannon does not assist Dr Fleet as it is made clear that a judge of a court of record cannot be made liable in respect of something done by him or her within jurisdiction albeit maliciously and contrary to good faith (paragraph 44). 39 Dr Fleet emphasised that he was asserting here that Nield DCJ had acted without jurisdiction and in bad faith. It should be noted that the Amended Statement of Claim does not include such an assertion. Dr Fleet was asked, during submissions before me, to provide examples of Nield DCJ acting without jurisdiction in this case. The examples provided by him asserted forms of unfairness which, he asserted, had manifested themselves in the judge involving, for example, an issue about subpoenas to witnesses (transcript, 22 July 2005, pp.41-44). In my view, no matter was raised by Dr Fleet which can fall within the term "without jurisdiction" as it is understood in the context of the doctrine of judicial immunity. Dr Fleet's claim relates to what Nield DCJ did in the exercise of the broad and general authority conferred on the District Court to hear and determine appeals from the Local Court under the Justices Act 1902. The common law doctrine of judicial immunity applies to such a claim against a Judge of the District Court. 40 An argument was advanced by Dr Fleet based upon Part 13 r 1 Supreme Court Rules and s.88 Supreme Court Act 1970. Dr Fleet submitted that he wished to have a jury trial and that, although s.88 had been repealed in 2001, a reference to it remained in Part 13 r 1 of the Rules. In this way, he submitted that the availability of a jury trial was an impediment to summary dismissal under Part 13 of the Rules. Dr Fleet's argument is misconceived. It is s.85 of the Supreme Court Act 1970 which governs jury trials in civil matters. There is no right to a jury trial: s.85(1). Where the requirements of s.85(2)(a) are met (filing of a requisition for a jury and payment of the prescribed fee), then a plaintiff may apply to the court for trial by jury, which the court may order if it is "in the interests of justice" to do so. 41 In any event, even if reference to s.88 was somehow relevant, there was no mention in that section to proceedings upon a cause of action for misfeasance in public office as being a matter which attracted trial by jury before the repeal of s.88. 42 No basis has been demonstrated by Dr Fleet for interfering with the order of the Registrar, confirmed by the Master, dismissing the claim for misfeasance in public office under Part 13 r 5 Supreme Court Rules. 43 The appeal against the order dismissing the proceedings against the District Court of New South Wales ought be dismissed.

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The Strike-Out Order 44 The Registrar relied upon Part 15 r 26 Supreme Court Rules (see now Part 14.28 UCPR) in determining to strike out the balance of the Amended Statement of Claim. The Registrar determined that the pleading was defective in form and could not be allowed to continue (paragraph 14). Citing Part 15 r 7 Supreme Court Rules (see now Part 14.7 UCPR), the Registrar observed that it was incumbent on a pleader to plead facts and to do so with precision (paragraph 19). He concluded that the Amended Statement of Claim failed to meet this requirement, observing that the document contained an "abundance of extraneous material" and "can be confusing at times and lacks clarity". The Registrar noted that the pleading was "set in anecdotal form, rather than in legal, technical language" and that the pleading included "conversations quoted verbatim; some [paragraphs] cite legal cases and quote passages of reasoning therein, while in others, the plaintiff claims to have suffered a 'detriment'". He concluded that the pleading was an embarrassment. The Registrar provided illustrations to support this conclusion. 45 The Registrar observed that the Amended Statement of Claim alleged fraud. He cited Rajski v Bainton (1990) 22 NSWLR 125 at 135-6 where Mahoney JA said that a case based upon fraud is required to be pleaded precisely. The Registrar concluded that the Amended Statement of Claim failed in this respect. 46 The Master concluded that no basis had been disclosed for disturbing this order and confirmed the Registrar's decision (paragraphs 7-8). 47 The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and to define the issues for decision: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286, 296, 302-3. The issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance: Banque Commerciale at 296.

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48 For a statement of claim to comply with the rules of court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: Part 15 r 7 Supreme Court Rules (see now Part 14.7 UCPR). In doing so, the pleadings should be as brief as the nature of the case admits: Part 15 r 8 Supreme Court Rules (see now Part 14.8 UCPR). 49 Pleadings also provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 at paragraphs 100-103. 50 Fraud must be pleaded specifically and with particularity: Part 15 r 3 Supreme Court Rules (Pt 14.14 UCPR); Banque Commerciale at 285. 51 A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him: Gunns Ltd v Marr [2005] VSC 251 at paragraphs 14-15. 52 In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393, Tamberlin J explained the concept of "embarrassment" with respect to pleadings at paragraph 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. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434." 53 A pleading may be embarrassing even though it does contain allegations of material facts sufficient to constitute a cause of action if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at pages 5-6). 54 I agree with the conclusion of the Registrar, confirmed by the Master, that the balance of the Amended Statement of Claim was embarrassing and ought be struck out. 55 In my view, the Amended Statement of Claim failed to comply, in a variety of ways, with the functions of pleadings and with rules as to substance and form of pleadings. It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. Objectionable matter is so mingled with other matter that the pleading as a whole would tend to embarrass the fair trial of the action and ought be struck out: Turner v Bulletin Newspapers Co Pty Ltd (1974) 131 CLR 69 at 72, 87-88, 97-98; Gunns Limited v Marr at paragraphs 57-58. 56 The Registrar was correct to strike out the balance of the Amended Statement of Claim. No error has been demonstrated on the part of the Master in confirming this decision.

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Conditional Leave to Replead 57 The Registrar ordered that Dr Fleet pay the costs of the First, Second, Third and Fourth Defendants of the proceedings (Order 4) and granted leave to Dr Fleet to file and serve a Further Amended Statement of Claim after the costs of the First, Second, Third and Fourth Defendants of the proceedings and the applications had been paid by Dr Fleet (Order 6). 58 The Registrar said at paragraph 26: "As stated earlier, the document the subject of these applications is the fourth version of the statement of claim and, no doubt, the defendants have incurred costs which have been thrown away by reason of those amendments. It is not apparent from a perusal of the court file that the plaintiff has been ordered to pay costs thrown away by reason of the amendments. Accordingly, it would be appropriate, in order to do justice between the parties, for the costs of the proceedings to date to be paid by the plaintiff, prior to any further statement of claim being filed. In this manner, the litigation will start afresh. The orders will therefore encompass terms concerning the payment of costs." 59 Counsel for the Defendants informed me that the Defendants' notices of motion before the Registrar had not sought that such a condition be imposed upon any grant of leave to replead extended to Dr Fleet. Nor was such an order sought by the Defendants at the hearing before the Registrar. The Registrar did not raise the possibility of such an order being made during the hearing. The conditional order manifested itself for the first time in the Judgment of the Registrar, delivered one week after the hearing. 60 It is apparent that Dr Fleet complained about this conditional grant of leave during the hearing before Master Malpass on 11 April 2005 (Transcript, page 15). His application for review to the Master challenged all orders made by the Registrar. He submitted that it was unfair to place such a condition upon him because it was tantamount to stopping him from bringing proceedings at all. He repeated that submission before me.

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(f) was not correct to have made such grant of leave conditional upon Dr Fleet first paying the costs of the proceedings and the applications of the First, Second, Third and Fourth Defendants. 65 At paragraph 24 of his Reasons, the Registrar observed that Dr Fleet was unrepresented and "has, perhaps unwisely, undertaken the difficult task of attempting to draft a complex legal document". In the course of confirming the orders of the Registrar, Master Malpass said at paragraph 9 of his judgment: "If the leave granted by the Registrar is to be exercised, it seems to me that it would be wise to do so with the benefit of legal advice and consideration should be given to the matter being transferred to the District Court." 66 As the Registrar, observed Dr Fleet may well have an arguable case and a cause of action against one or more of the First, Second, Third and Fourth Defendants. He has, up to this point in time, failed to plead his causes of action in accordance with the requirements for proper pleadings. 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." 68 I make the following orders:

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Cases Cited (32)