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

Supreme Court of NSW|2007-04-10|Before: Simpson J

CITATION : Fleet v Royal Society for the Prevention of Cruelty to Animals NSW & Ors [2007] NSWSC 334

DECISION : Matter to be relisted to delineate those parts of the pleading that are the subject of express applications by the defendants. Each remaining defendant to prepare, and serve on Dr Fleet, short minutes reflecting these conclusions and the orders that flow therefrom. Matter to be relisted thereafter for the making of final orders.

CATCHWORDS : PLEADING - notices of motion to strike out amended statement of claim - claims statute barred - claims in tort - no viable cause of action pleaded - prior order striking out proceedigns against fifth defendant - Amended Statement of Claim deficient

Civil Procedure Act 2005, s56 Defamation Act 1974 LEGISLATION CITED : Limitation Act 1969, s14(1)(b) Prevention of Cruelty to Animals Act 1979, s5, s27A Uniform Civil Procedure Rules 2005, r13.4, r14.28, r15.2

CASES CITED : Robert Fleet v RSPCA & Ors [2005] 318 Fleet v Royal Scoeity for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926

Robert Fleet - Plaintiff Royal Society for the Prevention of Cruelty to Animals NSW - 1st Defendant PARTIES : Louise Mary Parker - 2nd Defendant Graeme Dymond - 3rd Defendant State of New South Wales - 4th Defendant District Court of New South Wales - 5th Defendant

COUNSEL : Darryn Kelly - 1st, 2nd & 3rd Defendants Greg Bateman - 4th & 5th Defendants

Plaintiff in person SOLICITORS : Moray & Agnew Solicitors - 1st, 2nd & 3rd Defendants IV Knight - 4th & 5th Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST

20215/03 Robert Fleet v Royal Society for the Prevention of Cruelty to Animals and 4 Ors

JUDGMENT - NOTICES OF MOTION TO STRIKE OUT PARTS OF AMENDED STATEMENT OF CLAIM 1 HER HONOUR: These proceedings were originally commenced by statement of claim filed on 5 August 2003. The currently operative statement of claim is an Amended Statement of Claim filed on 28 February 2006. The plaintiff (who nominates himself as "Dr Robert Fleet") has identified the relief he claims as: "(a) Injunctions; (b) Damages (including (1) exemplary damages, (2) aggravated damages, (3) general/compensatory damages, (4) special damages/special injury damages); (c) Interest …; (d) An order for costs." 2 Dr Fleet names five defendants, as follows:

Royal Society for the Prevention of Cruelty to Animals New South Wales; 2. Louise Mary Parker; 3. Graeme Dymond; 4. State of New South Wales; 5. District Court of New South Wales. The second and third named defendants are said to be employees of the first. Thirty numbered paragraphs constitute preliminary averments.

3 The substantive parts of the Amended Statement of Claim extend over 11 pages of typescript, with paragraphs grouped under subject headings. After some introductory factual recitations, the sub-headings are pleaded as follows: "Trespass to land: Trespass into house (5 March 1997): Trespass: damage to house: Trespass to goods (5 March 1997): Trespass: taking of Jason: Trespass: killing of Jason: False imprisonment (by RSPCA NSW): Assault (by RSPCA NSW): False imprisonment (by NSW police): Battery (by NSW police): Trespass: search and seizure (6 August 1997): Malicious prosecution: Abuse of legal process: Breach of statutory duty: Defamation: Action in equity." 4 It may be taken that each subheading is intended to represent a separate cause of action. Under each heading appears a series of numbered factual assertions. In the case of all except two of these headings, the last is an assertion that as a consequence of the facts pleaded, injury was caused to the plaintiff. The injury is variously particularised, but generally includes distress, anxiety and humiliation. The two exceptions are the causes of action pleaded as "abusing legal process" and defamation. 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 6 Sixth Avenue, 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 s27A of the Prevention of Cruelty to Animals Act 1979 ("the Act") (of failing to provide his name and address to an officer); and, under s5(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 s6 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. The notices of motion 19 By notice of motion filed on 2 May 2006, the first, second and third defendants seek, pursuant to UCPR 14.28 orders that identified parts of the Amended Statement of Claim be struck out. They seek, alternatively, an order that the plaintiff, within 30 days, particularise his claims in accordance with UCPR 15.2, and ask that, if such an order is made, it be self-executing - i.e. that it contain provision for dismissal of the proceedings in the event of non-compliance. 20 By notice of motion also filed on 2 May 2006, the fourth and fifth defendants seek orders that certain identified parts of the Amended Statement of Claim be dismissed pursuant to UCPR 13.4; as an alternative, that those parts of the Amended Statement of Claim be struck out pursuant to UCPR 14.28; and an order, also pursuant to UCPR 14.28, that all references to the fifth defendant, that is, the District Court of NSW, be struck out. Counsel who appeared for the fourth and fifth defendants adopted the alternative claim, advanced on behalf of the first to third defendants, for a self-executing order that the plaintiff provide particulars of his claims. 21 Dr Fleet appeared unrepresented. It is apparent that he had prepared his own pleadings. They betray his lack of legal training. Counsel for the defendants very sensibly and properly forbore to take pleading points of insignificant detail, concentrating only upon those issues that they perceived to be of real substance. 22 Dr Fleet's position was difficult to gauge. On many, many occasions during the short hearing, including at the commencement of the proceedings, he objected (although to what he objected was never quite clear). When asked whether he had been served with the notices of motion, he declined to give a clear answer, reiterating repeatedly that he was: "… not aware at the present time of the defendants' documents." He said that he wished to claim privilege under s120 of the Evidence Act 1995 (a provision which is directed to preserving the confidentiality of certain communications by or on behalf of an unrepresented litigant). However, Dr Fleet was unable to identify what confidential communications were in danger of being disclosed, or the basis of his claims. He repeatedly referred to efforts he said he had made to contact "the Principal Registrar", and claimed to have been: "… effectively shut out of the case …" 23 I was satisfied that Dr Fleet had had adequate notice of the defendants' applications, and of the fixture for hearing, of the notices of motion. The hearing thus proceeded despite Dr Fleet's objections. He declined, effectively, to participate in the hearing, merely maintaining a general objection, and asserting some kind of "privacy and confidentiality" privilege. In reply to the oral submissions advanced on behalf of the defendants, he invoked s56(1) and (2) of the Civil Procedure Act 2005. 24 Those subsections provide: "(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule." 25 Dr Fleet claimed that the notices of motion are oppressive to him. 26 I reject this. The defendants are well within their rights to take objection to pleadings. There is nothing oppressive about the notices of motion. 27 As I have mentioned above, in respect of all except two of the subject headings, Dr Fleet appears to make a claim for personal injury. For example, under the heading: "Trespass: taking of Jason"

he asserts: "(5) The said seizing and removal of Jason caused the plaintiff injury (including distress and anxiety)." Although the terminology varies slightly from time to time, this is a repeated theme throughout the Amended Statement of Claim.

28 S14(1)(b) of the Limitation Act 1969 imposes, in respect of causes of action founded on tort (including causes of action for damages for breach of statutory duty) a limitation period of six years from the date on which the causes of action accrued. Except, possibly, in the case of the cause of action pleaded as "abuse of legal process", each cause of action pleaded falls into this category, i.e. of tort. Each is therefore subject to a six year limitation period. 29 Dr Fleet's pleadings identify 5 March 1997, 6 March 1997 and 6 August 1997 as the dates on which his causes of action first accrued. I have already mentioned that the original statement of claim was filed on 5 August 2003. This is five months outside the limitation period imposed by s14(1)(b). 30 Dr Fleet has made no application for an extension of time. In my opinion, it is apparent on the face of the pleading, that none of these causes of action is maintainable. 31 Accordingly, each cause of action founded on tort must be struck out. 32 On a separate basis, counsel who appeared for the first, second and third defendants, sought an order that the allegations contained in paragraph (15)(a) (extracted above) under the heading "Abuse of legal process" be struck out as embarrassing, and not pleading anything relevant to a viable cause of action. 33 I am satisfied that the contentions made on behalf of the first, second and third defendants are valid. What appears under the heading "Abuse of legal process" is insufficient to plead any justiciable cause of action. The whole of that section will be struck out.

The fifth defendant 34 The fifth defendant is named as "the District Court of NSW". On 26 October 2004 Registrar Howe ordered that the proceedings against the District Court be dismissed: see Robert Fleet v RSPCA & Ors [2005] NSWSC 318, per Master Malpass. 35 Dr Fleet sought review of that decision. This was undertaken by Master Malpass, in the proceedings to which I have just referred. The Master confirmed the orders of the Registrar. 36 Dr Fleet appealed against the decision of Master Malpass. That appeal was dismissed by Johnson J on 14 September 2005: see Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2005] NSWSC 926. 37 Accordingly, the claim made on behalf of the purported fifth defendant must succeed. All pleadings against the District Court of New South Wales must be struck out. 38 A further complaint made on behalf of the fourth defendant concerns three paragraphs in the preliminary averments, in which Dr Fleet refers to employees of the Crown Solicitor's office. In those paragraphs Dr Fleet purports to plead: "(26) Any person from the Crown Solicitor's Office mentioned hereinafter (whether or not by name or further description) was at all material times an employee of the Crown Solicitor's Office. (27) Any person, as mentioned in the above paragraph (26), was at all material times acting in the course of the said employment as mentioned in the above paragraph (26). The fourth and fifth defendants are the principals. (28) By reason of the matter pleaded in the above paragraph (27), the fourth and fifth defendants are vicariously liable for the hereinafter described actions of the person, as mentioned in the above paragraph (26)." 39 Employees of the Crown Solicitor's Office are mentioned in that part of the Amended Statement of Claim which appears to plead a cause of action in defamation. For example, in paragraph (3) of that part of the pleading, the following appears: "To the plaintiff's understanding and conscientious belief, a male person ('ST') from the Crown Solicitor's Office (at Sydney) used the resources of the Crown Solicitor's Office to access information in relation to the plaintiff." The pleading goes on to assert the publication of defamatory matter which is otherwise un-particularised.

40 I am satisfied that this pleading also must be struck out. The pleading does not identify any date on which the publication asserted is said to have been made, and so it is not possible to determine whether it, too, falls foul of the Limitation Act. Nor does it specify the publication said to be defamatory. 41 The Amended Statement of Claim is wholly deficient. In my opinion it is not remediable by giving the plaintiff the opportunity to replead. 42 The appropriate order is to strike out the whole of the Amended Statement of Claim. However, that goes somewhat beyond what was specified in the defendants' notices of motion. It will in any event be necessary to re-list the matter in order to delineate those parts of the pleading that are the subject of the express applications by the defendants. 43 I direct each remaining defendant to prepare, and serve on Dr Fleet, short minutes reflecting these conclusions, and the orders that flow therefrom. The matter will be re-listed thereafter for the making of final orders.

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.

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