Mr Griffiths commenced these proceedings in December 2008, claiming damages for alleged negligence in his former employment as a police officer having been terminated by way of medical discharge in September 2001, after he was diagnosed to be suffering a borderline personality disorder. Since then the proceedings have had a considerable procedural history. The State of New South Wales now presses orders dismissing Mr Griffiths' latest statement of claim, filed in April 2015.
Mr Griffiths was legally represented at the time of his discharge from the police force. He was also initially legally represented in these proceedings, but is now self-represented. There is a question as to whether or not certain of his claims give rise to any cause of action, given that they postdate the termination of his employment, in 2001. Further, given that the proceedings were not commenced until 2008, whether they are statute barred, is also in issue.
Since December 2008 he has amended his statement of claim on a number of occasions. There have now been 10 versions of his statement of claim served and/or filed. Still, the current pleading does not comply with the Rules.
Mr Griffiths explained at the hearing that his initial statement of claim was inaccurate. It was common ground between the parties that he was medically discharged in 2001 on account of injury to his shoulders. It appears that subsequently, before these proceedings were commenced in 2008, Mr Griffiths successfully brought other proceedings in the District Court, in relation to certain psychiatric injuries which he suffered during his employment.
In September 2010, Hall J dealt with the question of production of certain documents (see Michael Richard Griffiths v State of New South Wales (Supreme Court (NSW), 14 September 2010, unrep)). In February 2012, Harrison AsJ dealt with a motion by which Mr Griffiths sought a wide variety of orders, including orders requiring the Ombudsman and the State to produce certain documents (see Michael Richard Griffiths v State of New South Wales (Supreme Court (NSW), 21 February 2012, unrep)). Her Honour dismissed the motion and placed the matter into the inactive list for 6 months.
At the hearing earlier this week, Mr Griffiths contended that neither the transcript of the proceedings before Harrison AsJ nor her Honour's judgment, record all that was dealt with at the hearing. Nevertheless he has not challenged her Honour's decision, or that of Hall J, despite the State contending that he has been supplied with all documents he is entitled to and he complaining at its failure to produce documents which he claims that he requires.
In June 2013, Barr AJ dealt with a proposed amended statement of claim, which Mr Griffiths then sought leave to file (see Griffiths v State of New South Wales [2013] NSWSC 818). That leave was refused, his Honour concluding that the document failed to comply with various requirements of the Uniform Civil Procedure Rules 2005 (NSW). His Honour analysed that document in some detail and observed at [23] that it:
"… 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."
His Honour also observed at [24] - [26]:
"24 If 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.
25 During 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.
26 It 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."
The Registrar referred the matter to Bellew J in March 2015. His Honour noted that, in December 2014, Mr Griffiths had served another version of his statement of claim, which was said to be "partly completed or proposed". That was disputed, but nevertheless, his Honour observed, the proceedings had then been on foot for some 7 years with little or no progress.
Mr Griffith's position then was, his Honour recorded that he wished "basically", to rely on a statement of claim of 27 November 2008, but that required further amendment. He also said that he needed 4 weeks to produce a final version. Directions were then given for service of the document and the filing of a motion.
On 17 April, Mr Griffiths served another amended statement of claim. It suffers from many of the problems discussed by Barr AJ in 2013.
In his 22 May affidavit, by a mix of evidence and submissions, Mr Griffiths explained his views as to the denial of procedural fairness and natural justice in relation to decision-making as to the termination of his employment, which he seeks to pursue in these proceedings. He contends that it is necessary in his statement of claim to include a chronology of events and documents which he wishes to obtain, such as identified reports of the State's then instructed counsel, Mr Perrignon. The basis on which Mr Griffiths claims to be entitled to be provided with such documents, ordinarily the subject of legal professional privilege, was not explained.
Mr Griffiths also there developed, in detail, submissions as to the actions taken during the course of his former employment, from as early as 1996, in relation to his health; how his hurt on duty claim was pursued in the District Court proceedings after the termination of his employment, before they were finalised in 2005; his concern as to matters recorded in a COPS Event and in a Police Crime Intel Information System event; his views as to the operation of the Limitation Act 1969 (NSW), given the depression and anxiety he has been diagnosed to be suffering; alleged fraud, deceit and concealment of relevant material, including by the Police Minister in 2011; complaints about responses he had received to Freedom of Information requests; complaints that Barr AJ and Harrison AsJ had not required the State to comply with various binding statutory obligations; claimed admissions made in 2010 and 2013 that "medical provisions" had not been complied with; various claimed false statements; advice from the Ombudsman in 2006 that relevant files had been lost; numerous alleged failures by the State and the Ombudsman to comply with the provisions by of the Police Act 1990 (NSW), when dealing with his complaints; as well as explanations of advice which he had sought as to the State's case.
Mr Griffiths also there explained what various of the paragraphs in the amended statement of claim were directed to, by reference to various legislation and documents, such as orders made in the District Court in 2005. This revealed, amongst other things, that part of the claim which Mr Griffiths seeks to advance is that by January 1996, the State should have ceased pursuing attempts to have him medically discharged on the grounds of mental illness and ought to have allowed him to pursue his career unhindered. His position was that to deny him the opportunity to advance his pleaded case, was to deny him the opportunity to be heard on matters of fact, on which the defendant in 2005 admitted that he had suffered a work related injury of depression and anxiety and that it had no basis in 1996 and 1998, to pursue his discharge on a diagnosis of borderline personality disorder.
These submissions were further developed in Mr Griffith's detailed written submissions, where he submitted that his active police service had come to an end when he was directed off duty on permanent sick report in 1998. Mr Griffiths also submitted that if the amended statement of claim was found to be defective, he ought to be given the opportunity to amend the statement of claim which he first filed in 2008 (at [35]).
Mr Griffiths also developed his various complaints, including as to having been denied access to relevant documents and his explanation of what it was that he sought to pursue, by the various paragraphs of his amended statement of claim. He also relied on State of New South Wales v Seedsman [2000] NSWCA 119, where it was found that the Police Service had failed to provide a safe system of work to protect employees such as Ms Seedsman, from mental injuries. His case was that he, too, had been put at risk of psychiatric injury during his employment and that he had not been provided with a safe work environment, with the result that he was eventually found to have suffered a total and permanent work related disability.
In his 2013 judgment, Barr AJ explained, in detail, the way in which the pleading which his Honour had to consider had been structured and why it was that this document did not comply with the Rules.
For example, his Honour noted at [18] that "Paragraphs [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. He then extracted certain of the following paragraphs:
"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."
The April 2015 statement of claim now has as its first "count": "NEGLIGENCE, DUTY OF CARE FAIL TO PROVIDE SAFE WORKING ENVIRONMENT FAIL TO COMPLY WITH AWARD AGREEMENT, POLICE ACT 1990 AND POLICE REGULATIONS 1990, DENIED PROCEDURAL FAIRNESS." A chronology of certain events which are claimed to have occurred from 1991 follow at [6] - [36]. They expand considerably on the events dealt with in the particulars quoted above. After [36], particulars of "NEGLIGENCE, BREACH AWARD, AGREEMENT, POLICE ACT 1990 AND POLICE REGULATIONS 1990 AND 2000, DENIED PROCEDURAL FAIRNESS" are given in paragraphs (a) to (x):
"(a) Failing to ensure that the recommended by Dr Strum 12 month review took place.
(b) Failing to pay due consideration to the reports of Dr Phillips of 1993, 1995 and 1999.
(c) Failing to pay due consideration to the supplied medical records of treating GPs Dr Watts and Dr Enright.
(d) Failing to accept and or pay due consideration to the recorded advice of his Senior Medical advisors, Dr R Gray and Dr L Crowle of 1994, 1996, 1997 and 1998, along with the May 1998 advice by junior PMO Seletto of no diagnosis of the BPD.
(e) Failing to ensure that a psychiatric assessment was obtained from a third independent psychiatrist as recommended by Senior PMO DR L Crowle.
(f) Accumulating false and misleading information and or complaints based on hearsay, including, but not limited to, reports of, and or, records as created by Chief Inspector D Rayner and Superintendent R Holland.
(g) Allowing for the Health Services Section to be seen to so act on complaints knowing that same Section does not have the authority to so formally act.
(h) Relying on the second report of Dr Strum of 1995 to support a claim of a diagnosis of the BPD in circumstances where the deft was aware that the reports of Acting Senior PMO Dr Crowle 1994, of Senior PMO Dr R Gray of 1996, the reports of Dr Phillips of 1993, 1995 and 1999 and Dr Dyball of 1996 and 1997, all found that there was no evidence of any such mental illness.
(i) Relying on the second report of Dr Dyball 18/11/97 to claim support of a diagnosis of the BPD in circumstances where the defendant was aware that Dr Dyball did not conduct a face to face assessment of the plaintiff, in fact, the plaintiff was not event aware of the seeking of same assessment, and that Dr Dyball based his offered non-medical opinion of the plaintiff on the adverse hearsay material as supplied by the defendant alone.
(j) Allowing for junior PMO Dr Seletto to ignore that factual medical evidence as knowingly held and ignoring the recorded advice of her two Senior PMOs being Dr R Gray and Dr L Crowle when so making those two medical discharge applications of 1996 and 1998.
(k) Allowing for junior PMO Dr J Seletto to make and or, place false and or, misleading statements of the plaintiff on his formal medical records.
(l) Attempting to medically discharge the plaintiff without obtaining any independent specialist opinion that supported the suggested opinion of Dr Strum of 1995.
(m) Attempting to medically discharge the plaintiff on the false grounds of a diagnosis of the BPD while knowingly holding no medical evidence to support same applications.
(n) Attempting to medically discharge the plaintiff without a medical certificate that certified a medical condition that would prevent the plaintiff from continuing his then police duties.
(o) Did fail to provide a duty of care.
(p) Did fail to provide support and assistance to the plaintiff including and by admission, the services of Police Welfare and Rehabilitation Sections.
(q) Did fail to provide a safe working environ with due reference to the acted on opinion in that the plaintiff was a person, at risk, as of 1992 when seeking that assessment from Dr Strum and at all later relevant times.
(r) Did fail to maintain the required full, concise and accessible medical and personnel records of the plaintiff in the required manner, this denying not only the plaintiff and his treating doctors the right of access, but, also those others in the employ of the defendant who had direct control over and or, were active in the management of the plaintiff in the course of his employment. (Police Regulations 2000 Div 3, r 19[)]
(s) Did fail to provide to all those assessing psychiatrists the multiple items of high praise of the plaintiff in his work, as so knowingly held by the defendant.
(t) Did allow for acts of defamation (general terms), intimidation and reprisal to be afforded the plaintiff throughout. (Police Regulations 2000, r 21)
(u) Did fail to include all the known medical conditions suffered by the plaintiff in those two medical discharge applications as so made by the deft alone, this contrary to the requirements in that the applicant is required to so include all.
(v) Did deny the plaintiff procedural fairness, procedural fairness as available to all other sworn NSW Police Officers, not only at Statute but also Common law.
(x) Did without just cause remove from the plaintiff the right of continuing in this chosen career, of seeking promotion to higher ranks and receiving overtime payments and or specialist allowances this over the extended period of 1994 to 6/9/2001 inclusive, plus that as expected as to 14/3/2007 being the date of mandatory age retirement."
In a second paragraph [36] it is then claimed:
"In the above circumstances the defendant, by way of acts of its servants, agents and or employees, was negligent in directing the plaintiff off on that permanent sick report without authority and due cause. In twice attempting to terminate the plaintiff's employment by way of medical discharge applications based on the known to be false claim of a diagnosis of the BPD alone. In allowing for ongoing acts of defamation, intimidation, reprisal and retribution to take place against the plaintiff. Further, in failing to comply with the agreed upon terms and conditions of employment as at Items 1 to 5 as above, did cause the plaintiff injury, loss and damage."
The statement then turns to "SECOND COUNT, AS PERTAINING TO EVIDENCE FIRST TO PLAINTIFF'S POSSESSION AS OF 24 SEPTEMBER 2010". What this is intended to mean is not apparent. From [37] to [53], there is a further chronology of alleged events, commencing in 1999, before particulars of negligence are provided:
"(a) Did fail to provide a duty of care.
(b) Did fail to provide a safe working environment.
(c Did fail to provide support and assistance to the plaintiff.
(d) Did allow for continuing acts of negligence.
(e) Did allow for ongoing and extreme acts of intimidation, reprisal and retribution.
(f) Did fail to comply with the Award Agreement, Division 8, titled Sick Leave.
(g) Did fail to comply with the stated provision of Police Regulations 1990, Division 8, r 92 and r 93, Sick Leave.
(h) Did fail to comply with the provisions of the then in place Sick Leave Policy as at Commissioner's Notices 12 of 1997.
(i) Did fail to comply with the requirements of Police Act 1990 Part 8A general terms
(j) Did allow for false statements and or entries to be so made on the plaintiff's employment related records.
(k) Did allow for defamatory formal Events to be so made of the plaintiff which remain active on the NSWPF Crime Intel Information System.
(l) Did deny the plaintiff procedural fairness throughout."
Then, a heading "THIRD COUNT NEGLIGENCE IN MATTERS ARISING FROM AND OR DURING THAT PAST EMPLOYMENT" appears, with particulars of events commencing in 2005 then being provided from [55] to [68]. The particulars then provided are:
"(a) Did fail to provide a duty of care.
(b) By the actions and or/inactions did cause aggravation to the pre-existing work related injury of depression and anxiety.
(c) Did allow for the continuance of acts of defaming the plaintiff which remain active on the defendant's formal records of the plaintiff, such as, but not limited to entries on the Crime Intel Information System (CIIS), Complaints information System (CIS) and on the Central Names Index (CNI) records.
(d) Did deny plaintiff his rights as at Police Act 1990, Pat 8A
(e) Did deny the plaintiff access to justice.
(f) Did deny the plaintiff procedural fairness."
The damages claimed total $2,989,015.
As Barr AJ explained, Rule 14.7 requires that a summary of the material facts relied on, not the evidence by which those facts are to be proven, are to be pleaded. Rule 14.8 also requires pleadings to be as brief as the nature of the case allows. Rule 14.9 requires that the effect of a document or words spoken must be pleaded. A mere reference to the existence of a document is not sufficient. His Honour observed at [22] that "[i]n many places the draft defies any attempt to distinguish facts from evidence."
The current pleadings contain similar difficulties. This amended pleading has attempted to address the deficiencies Barr AJ identified, but still it does not distinguish sufficiently between material facts and evidence. It also contains many statements as to opinions which Mr Griffiths holds about alleged conduct, as well as conclusions and opinions which he holds about various documents and events. These are not matters for pleadings.
As presently framed, the April amended statement of claim is a difficult document to understand and to respond to and will also make identification of the real issues in these proceedings difficult.
Generally, an order dismissing a statement of claim should not be made under Rule 13.4, where the document is merely ill expressed. That Rule provides:
"13.4 Frivolous and vexatious proceedings
(cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
The problems which Barr AJ identified in 2013 have, however, not been addressed. On the history of these proceedings, Barr AJ's assessment that Mr Griffiths is incapable of producing a document, without legal assistance, which will adhere to the requirements of the Rules, was accurate. He has plainly not obtained such assistance in the drafting of the April 2015 pleadings.
In exercising its discretions the Court is obliged to have regard to the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), namely the just, quick and cheap resolution of the real issues in the proceedings. The dictates of justice must also be taken into account, as s 58 requires, it providing that the Court:
"(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case."
Considerations of elimination of delay and proportionality of costs must also be taken into account (see s 59 and s 60). Section 57 requires the proceedings to be managed having regard to the following objects:
"(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties."
The real question is now whether Mr Griffiths should be given any further opportunity to amend his pleadings. Nothing in the procedural history of the matter, or the written or oral submissions which Mr Griffiths has advanced, provides any basis on which it could be concluded that he has either the capacity, or desire to take the necessary steps to produce a pleading that complies with the requirements of the Rules which bind all litigants.
To the contrary, given Mr Griffiths submission that he could amend the statement of claim "… back down to about two pages the moment they provide me with the evidence and/or acknowledge that it does not exist …", it is apparent that any prospect of his statement of claim being pleaded in accordance with the requirements of the Rules is illusory, given that his challenge to the adequacy of the production of documents he has pursued, have failed.
While orders under Rule 13.4 will not lightly be made, in this case, I am satisfied that it is not consistent with the dictates of justice to provide Mr Griffiths with any further opportunities to amend his pleadings. He has had more than a just opportunity to adhere to the requirements of the Rules and has not availed himself of that repeated opportunity.
Justice must have regard to the position of both parties. These proceedings have not, in 7 years, produced a properly pleaded statement of claim to which the State can respond and the matter can proceed to trial. Justice does not permit further time or costs to be wasted in the pursuit of its production. That Mr Griffiths has a reasonable cause of action is not apparent. Giving Mr Griffiths further opportunities to amend his pleadings, would, in all of these circumstances, involve an abuse of the processes of the Court.
[2]
Orders
In the circumstances I have concluded that the amended statement of claim filed in April 2015 should be dismissed in accordance with Rule 13.4. I order accordingly.
The usual order as to costs is that they follow the event. That would be an order in this case, that Mr Griffiths bear the State's costs, as agreed or assessed. Unless the parties approach to be heard within 21 days, that will be the Court's order.
[3]
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Decision last updated: 17 December 2015