Griffiths v State of New South Wales

The Proposed Amended Statement of Claim 16The draft Amended Statement of Claim is Exhibit A in the motion and should remain with the papers. A copy, at Tab KAS1.23, is exhibited to the affidavit Kerry Anne Stewart made on 22 April 2013. It is marked as Exhibit 2. I have extracted below a number of paragraphs of the draft sufficient to convey an understanding of the tenor of the document. It is long. It canvasses evidence and is argumentative. It is in places scandalous, accusing persons it names of criminal, dishonest and unprofessional conduct. It fails in the end to identify a clear cause or clear causes of action. It fails to plead clear breaches of duty in contract or otherwise that the defendant can respond to. For the most part the document is a rigmarole of narrative, accusation and argument. 17The draft begins with the heading Pleadings and Particulars and there follow these paragraphs- 1 At all times the defendant was the entity responsible for the administration of the New South Wales Police (hereafter referred to as the Police) pursuant to the Police Act 1990, capable of being sued under the Crown Proceedings Act 1988 (NSW). 2 At all material times the Plaintiff was an employee of the defendant and therefore owed a non-delegable duty of care. 3 At all material times and as part of that aforementioned non-delegable duty of care, as at paragraph 2 as above, the defendant owed to the plaintiff a duty of care to provide a safe working system which included a duty to take all reasonable steps to protect the plaintiff against risks of physical and or psychiatric harm. 4 About the 17 March 1975 the plaintiff entered into a contract of employment with the defendant pursuant to the terms and condition of the Crown Employees (non-Commissioned Officers) Award Agreement and on the 5 May 1975 became a contributor to the Police Superannuation Fund as established by s 5 of the Police Regulation (Superannuation) Act 1906 (NSW). 5 It was, inter alia, a term and condition of that subject contract of employment that the defendant would act in good faith and that all directions so afforded the plaintiff by the defendant would be both lawful and reasonable. 6 It was inter alia, a term and condition of the contract of employment that the defendant would comply the procedures laid down by Police Regulations 1990 (NSW). 7 It was inter alia a term and condition of that contract of employment that the defendant would comply with policies and guidelines that resulted from that contract of employment, the Police Act 1990 and Police Regulations 1990. 18Paragraphs [8] - [39] inclusive of the draft are gathered under the heading First count of breach of contract/negligence causing injury/duty of care/denial of natural justice/ procedural fairness. They deal with events said to have taken place between 1991 and 2001. I extract the following paragraphs. I have omitted the names and descriptions of the several persons referred to as well as certain other material. 15 During the course of early August / September 1994 the plaintiff complied with the then in place Police Regulations 1990, r 20, in carrying allegations from members of the general public of police involvement in drugs to ... (name) 16 About mid September 1994 the plaintiff was summoned to ... office, being (name), in regards to those allegation (refer to Item 15 as above) and in the presence of two then unidentified male officers ... afforded the plaintiff words of intimidation and advised the plaintiff he had no future in the police if he continued with his allegations, knowing that same such allegations came from members of the public and not the plaintiff himself. Same such said words by (name) being an act of intimidation contrary to Police Act 1990, Section 206 About the 2 December 1994 the Plaintiff was spoken to by (name) ... in regards to those subject allegations. 17 From about the end of the year of 1994 the plaintiff was ostracised by his work colleagues, both in the workplace and socially. The plaintiff at that same time became aware that (name) was soliciting adverse comments of the plaintiff from his work colleagues. 18 Sometime between the 14 August 1994 and November 1995 (name) provided and or caused to be provided adverse hearsay based complaint related material of the plaintiff to the Police Medical Section. The Medical Section then commenced to act upon that hearsay complaint material much to the detriment of the Plaintiff in the workplace. The Plaintiff was not made aware of the existence of and or contents of that acted on complaint contrary to the contractual provisions and the provisions of natural justice. 19 The defendant failed to record that complaint related hearsay based material on the Complaints Information System, as at Police Act 1990 Section 129, and denied the plaintiff the right of knowledge of and or response to same such acted upon adverse complaint related material. 20 At the direction of the defendant that plaintiff was again directed to attend the rooms of (name) on 16 November 1994 for psychiatric assessment. The defendant failed to notify the plaintiff of the reasons for that psychiatric assessment, thus denied the plaintiff the right to take with him any and or all favourable material to present to (name) to allow for a fair and just psychiatric assessment to take place. In (name) report of 5 December 1994 he offers the opinion that the Plaintiff may suffer from Borderline Personality Disorder (hereafter referred to as BPD) as at Diagnostic Statistical Manual of Mental Disorder Volume 4 (hereafter referred to as DSM-4). 21 The defendant also failed to provide (name) with the plaintiff's full and concise medical and personnel records, including but not limited to those reports of (name) as at *11 as above, to allow for a fair and just assessment to take place, providing (name) with that adverse hearsay based material from (name) only, (refer to Item 18 as above). 21A In direct reference to Items 18 to 21 inclusive as above the defendant denied the plaintiff the natural justice provisions in regards to "the right to be heard." 22 On the 12 January 1996 (name) compiled a report on the plaintiff to (name) stating that (name) only offers that the plaintiff may suffer from the BPD, further stating that there were other psychiatrists reports that deny any such BPD, further stating that he, (name), remained of the opinion that the plaintiff did not suffer from any illness that would prevent him from continuing with his then work and that "there is no medical evidence to support a medical discharge." (name) then reveals that acts of collusion (conspiracy) were then taking place between him and (name) in regards to the plaintiff's then employment, being the recommendation that due to the fact there was no medical evidence perhaps (name) place those matters alleging conduct and behaviour in the hands of Police Internal Affairs, being matters away from the medical field. Then further acknowledging that (name), agreed with his therein stated opinions. ... 36 About the 16 December 1997 (name) conducted a face to face review of the plaintiff in which (name) concluded that the plaintiff be medically discharged on a diagnosis of BPD alone, knowing that such a diagnosis did not and never has existed. This conclusion caused that plaintiff extreme anxiety. Refer to *ltem35 as above. 37 About mid-term July 1998 (name) made a further submission to PSAC based on the non-existent BPD alone to bring about the termination of the plaintiff's employment and contrary to the held multiple specialist psychiatrists reports and those of her (names) (1996) and (name) (1997). This false and fraudulent action by (name) caused the plaintiff an extreme degree of anxiety, loss of repute and dignity. 38 On the 24 August 1998 the defendant forced the plaintiff off duty on "permanent sick report pending termination" without just cause and or authority to do so, using the non-existent BPD alone as the medical condition. This state was allowed to continue from 24 August 1998 to 6 September 2001 all without just cause and authority and contrary to the terms and conditions of employment. This unauthorised, fake and unjust action by the defendant caused the plaintiff an extreme degree of anxiety, embarrassment, loss of repute and dignity. 39 All of the above matters were formally complained of to the defendant and the NSW Ombudsman and neither agency responded to those justified complaints in the prescribed manner as at Police Act 1990, Part 8A. All of the above matters caused the plaintiff a high degree of anxiety embarrassment, loss of dignity and a high degree of humiliation. 19Paragraphs [40] -[58] inclusive appear under the heading Second count of breach of contract, duty of care, negligence, denial of natural justice, procedural fairness. They comprise narrative punctuated with comment, accusation and a recitation of evidence. They contain scandalous material. I extract the following paragraphs. Names and other matter have been omitted. 48 On the 27 October 1999 in a formal Record of Interview (ROI) between (name) and (name), in response to a question so asked of (name) by (name) , (name) states that he had acted on the verbal advice of the (name) when so directing the plaintiff off on that permanent sick report pending termination of the 24 August 1998, this in complete contradiction to his words of the 24August 1998 to the plaintiff in that he was acting on the advice as contained in that alleged fax. In that same ROI at Q7 - A, (name) falsely states that the plaintiff was under "house arrest" an action only available via the disciplinary provisions of s 173 of the Police Act, with (name) knowing that the plaintiff was in fact on restricted duties based on medical grounds as so directed by (name). ... 53 In October 2000 ... (name), directed the plaintiff to attend ... in regards to giving a formal statement of [complaint] in regards to a criminal fraud matter involving some $250,000 of public money. In the course of the conversation the plaintiffs sick report situation was discussed at length. That formal statement was not taken by (name), nor was the plaintiff formally interviewed in regards to that same matter. When complained of to the then Police Minister ... the plaintiff was advised that (name) had falsely advised that Minister that the Plaintiff had been formally interviewed in regard to that matter. 54 As a result of that attendance by the plaintiff (see Item 53 as above) on the 30 November 2000 (name) wrote to the Police Medical Section asking as to how and why the plaintiff had been so placed on the extended sick leave. Due attention is drawn here to the fact that not only does the Police Commissioner have to maintain full, concise and accessible medical records of an officer, but, so does that Officer's Commander and LAC Manager, (refer to Item 51 as above). 55 Following the forced placement of the Plaintiff on to that permanent sick report pending termination of 24 August 1998 the plaintiff was psychiatrically examined and [assessed] by (name) on 18 March 1999 and 8 August 1999, (name) on 29 November 1999 and 7 December 1999 and 14 March 2006, (name) 1 December 1999, each and all denying the presence of the BPD and or any other psychiatric condition. The defendant, in an act of negligence, then chose to ignore that known to be held by the defendant, specialist medical evidence much to the detriment of the plaintiff in the workplace. 20Paragraphs [59] - [73] inclusive, together with an additional unnumbered paragraph, are gathered under the heading Third count of breach of contract/ negligence/ duty of care, denial of procedural fairness/ natural justice. I would describe them much as I have the previous paragraphs. I extract the following paragraphs. Names and other matter have been omitted. 62 On the 22 November 1999 the defendant as pertaining to (name) falsely reported that the Plaintiff was at that time undergoing ongoing medical treatment for a range of illnesses including psychiatric, when the medical records maintained by the defendant carried no such ongoing medical treatments for any psychiatric condition, as did the lifelong medical records as maintained by the Health Insurance Commission (HIC) as supplied the defendant and the Plaintiff's treating doctors records and reports, being (name) and (name), as so supplied to the defendant. 63 On the 12 October 1999 the defendant, as pertaining to (name) acknowledged that the Plaintiff had been the subject of false representation, lies and innuendo as a result of the plaintiff carrying those allegations of police involvement in drugs. 64 Between the 9 April 2001 and 3 June 2001 the defendant as pertaining to (name) fraudulently removed the plaintiff from the payroll for that 8 week period contrary to the provisions of the award Agreement and the Police Act 1990. When challenged by the plaintiff he was placed back on the payroll and all back wages paid in full. (Name) also made the demand that the plaintiff provide a doctor's certificate to cover the ongoing permanent sick report pending termination. 21Paragraphs [74]-[110] inclusive, together with a further unnumbered paragraph, appear under the heading Fourth Count of negligence breach of contract and Police Act 1990, duty of care, natural justice regarding matters arising from and or during that course of employment. They are not materially different from the other paragraphs I have dealt with. I extract the following paragraphs. Names and other matter have been omitted. 74 The Defendant, via (name), allowed for false and misleading material to be placed on the Plaintiff's medical and personnel records, including but not limited to a report by a (name) to lawyers (names) of 2 April 1999 where a Michael Griffiths is named, ... knowing that same such false material did not in any way relate to the Plaintiff, plus an unknown to the Plaintiff, complaint in confidence as handed to and recorded by (name) as mentioned in (name) notes of 1997. 75 The defendant failed to provide the services of the Police in a just manner, to the Plaintiff when reporting crimes as a victim of such crimes, including, but not limited to, the plaintiff reporting two indictable assaults of 2001 and 2007, malicious damage to his motor vehicle, two separate incidents of finding two bullet holes in the walls of his home, finding acid filled small water bomb type balloons that had been thrown against the front of his home and other. 76 In 1999 the plaintiff complained to the defendant and the NSW Ombudsman of his late wife, a known cancer sufferer, being harassed by way of anonymous telephone calls being made to her at her work and at her home with reference to (name's) report of 2001. The Plaintiff had come home to find his wife on the floor in tears after one such call. The defendant failed to make an approach to the plaintiff's late wife and further failed to address those complaints in accordance with the provisions of Police Act 1990 Part 8A. 76A To back track as such, in that formal ROI between (name) and (name) of 1999, (name) states that the plaintiff had made up that the defendant's wife suffered from cancer, her death certificate states that she died from cancer. The same applies where (name) also states that the plaintiff did not have the surface cancers that he did, contrary to the factual evidence as proven by those 2 pathology reports of (name) and the provided to the defendant, plaintiff's HIC records and those hand written records of (name) of 16 December 1997. 76B In that same ROI of 1999 (name) admits to having disclosed confidential information relative to the plaintiff's employ, to members of the general public. 77 On the 18 September 1999 the defendant, as pertaining to (name), defamed the Plaintiff in the workplace in a report of that date and allowed for defaming and false entries to be made of the Plaintiff by (name) that same date on the Crime Intel information System (CMS) and Central Names Index (CNI) where the plaintiff is named as Person of Interest (POI)and then allowed for same such defaming entries to remain active on those formal records much to the Plaintiffs detriment and disadvantage, not only in the then workplace but also in his ongoing everyday living. 78 On the 17,19 and 24 July 2002 the defendant, as pertaining to (name) advised the Plaintiff that there was no record of the plaintiff's complaints on the Complaints Information System, (CIS), not even a CIS reference number, this contrary to the provisions of the Police Act 1990, s 129 and contrary to the written advice of the defendant and the NSW Ombudsman to the plaintiff in 2006, 2008 and 2011, in that all the plaintiff's complaints had been properly attended to, had been properly recorded and that the Plaintiff had been repeatedly advise of this, the defendant knowing such claims are false. 79 On the 23 July 2002 the plaintiff had contact with Sydney Radio Station 2GB and was advised they were not interested in his story this after they had spoken with the Police Media Unit that date. 80 On the 24 July 2002 the plaintiff had contact with the Police Media Unit ... where he was defamed by same such media Unit with the admission that they had also spoken in like manner of the Plaintiff with Radio Station 2GB the previous day. (*refer to item 79 as above) 81 The plaintiff complained of the Police Media Unit to the defendant via (name) on the 26 July 2002 and also complained to the NSW Ombudsman via (name) 24 July 2002 and (name) 27 July 2002 of those matters as at items 79 and 80 as above. No responses were forthcoming from the defendant or the Ombudsman. Reference is here drawn to Police Act 1990 Part 8A in that the Ombudsman must supply the defendant with copy of all police related complaints and complaint related information and that the defendant is required to bring same such complaint related material to the attention of the Ombudsman and the fact that both are required to respond to such complaints in accordance with Police Act 1990, Part 8A. (*refer to Item 78 as above). 82 On the 27 July 2002 the defendant as pertaining to (name), made a report in which it is stated that the Plaintiff's medical file "has been 'missing' for some time." The word "missing" highlighted by inverted commas. This at a time when the defendant was then making crucial past work related medical related decisions of the Plaintiff. 83 That same 27 July 2002 report of (name) (*refer to Item 82 as above) also reveals that (name) had been making repeated telephone calls to various other Sections of the Police seeking information on the Plaintiff (*refer to Items 79 and 81 as above). 22Of the Uniform Civil Procedure Rules 2005, the following are pertinent. By Rule 14.7 facts, not evidence, are to be pleaded. In many places the draft defies any attempt to distinguish facts from evidence. Rule 14.8 requires a pleading to be as brief as the nature of the case allows. The draft runs for 20 pages, excluding the formal parts, and contains well over 110 paragraphs. The framer has made no attempt to be brief. 23Rule 14.28 empowers the Court to strike out a pleading that discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay or is otherwise an abuse of the process of the Court. In my opinion the draft is embarrassing because it is unintelligible in parts, ambiguous and imprecise. It is in parts confusing. It contains a mass of assertions but lacks particulars. The relevance of the several allegations it makes is not always apparent. As well as can be ascertained, it seems to plead events that happened after the accrual of the plaintiff's cause of action. It contains serious statements of misconduct on the part of people it names. 24If the plaintiff were allowed to file an amended statement of claim in the form of the draft offered, the defendant would in my opinion be unable properly to understand it and respond to it in the manner required by the Rules. I will not therefore permit the plaintiff to file the draft. 25During the hearing I enquired of the plaintiff whether there were any prospect that he might obtain the services of a legal practitioner to prepare a draft Amended Statement of Claim. The plaintiff's response gave no cause for optimism. He said that he had had three solicitors and implied that they were untrustworthy. There appeared to be no prospect of his engaging a fourth. 26It is unfortunate that the plaintiff, who appears to have an insoluble difficulty in understanding what is required of a party pleading a claim in this Court, seems unlikely to be able to produce on his own account a draft that would be permitted to be filed or that would survive a strike-out motion. He appears to be unable or unwilling to accept the advice already given to him. Nevertheless, it is not for the Court to draft the plaintiff's document. 27The motion is dismissed. I order the plaintiff to pay the defendant's costs.

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. Decision last updated: 24 June 2013