Hodges v New South Wales [1988] HCA 9;

Hodges v New South Wales [1988] HCA 9; - HCA 1988 case summary — Zoe

[17]

11. The final ground on which the striking out of the statement of claim is sought - and this ground invokes the Court's inherent jurisdiction - is that the commencement of the action was an abuse of the process of the Court. In part this ground rested on the defendants' understanding that the case raised by the statement of claim was that the first plaintiff was the subject of discrimination offensive to s.117 of the Constitution because she, desirous of Transcover benefits, was not qualified to receive them by reason of her Victorian place of residence. Whatever inducement may have been offered by the statement of claim to believe that that was the first plaintiff's complaint and whatever warrant there was for regarding such a complaint as misconceived, the true nature of the plaintiff's claim as a constitutional challenge to the validity of the Act quickly became manifest in argument. Although an unchallenged affidavit sworn by the plaintiffs' solicitor showed that each plaintiff intended, if successful in the action, to sue on the cause of action which s.40(1) of the Act purports to abolish and although the chief argument to invalidate s.40(1) was outlined in argument, the defendants persisted in this ground. The defendants pointed to another circumstance as a factor relevant to the characterization of the proceedings as an abuse of process. The defendants relied on a press statement made by the President of the Bar Association of New South Wales, a copy of which was exhibited to an affidavit, in order to show that the plaintiffs' predominant motive was to "lend the action" to a campaign by the Bar Association to have the Act repealed, a campaign in which, it was suggested, the plaintiffs were not professing a real interest. The press statement announced, inter alia, that the Association had "today moved to have the controversial Transcover legislation struck down". It was not disputed that the Council of the Bar Association had given assistance to the plaintiffs to prosecute this challenge to the validity of the Act, apparently by some indemnity as to costs. The President's staement set out the reasons for supporting the plaintiffs' challenge to the validity of the Act:

[20]

13. During the argument of counsel for the plaintiffs on the hearing of the summons, they sought leave to amend the statement of claim. The amendments would raise allegations, inter alia, that the Act prevents the plaintiffs from prosecuting an action for damages and that the place of residence of the first plaintiff's deceased husband was in the State of Victoria. It is intended that the latter allegation should relate to the time immediately before his death and these words can be inserted conveniently in par.5A. These amendments are designed to remove some of the grounds on which criticism was made of the statement of claim. Had the time for amendment not expired, leave would not have been necessary (O.29 r.2) but the making of the amendment without leave would have required payment by the plaintiff of the costs of the demurrer (O.26 r.11). As leave to amend is necessary and will be given, the amendment is to be "on such terms, as is just" (O.29 r.1). Prima facie, an amendment which is designed to meet the grounds of the demurrer should be on terms that the plaintiff meet the cost of the demurrer. It was and, I trust, it still is a practice of the Queensland Bar that counsel intending to demur to an opponent's pleading on a ground that an essential element in a cause of action or defence has not been pleaded first give the opponent notice of the intention so that the omission, if made inadvertently, might be remedied by amendment at minimal cost. That practice has much to commend it. If, for want of such a notice, the omission is discovered and the pleading amended only after the demurrer is delivered, the costs of the demurrer might properly be refused to the demurring party. In this case, however, although the amendments are designed to meet objections made to the statement of claim by the defendants, the amendments do not plead an omitted essential element in the plaintiffs' respective causes of action to seek a declaration of invalidity of the Act. There is no reason to make a special order with respect to the costs thrown away by the amendment. The amendments are designed to meet specific grounds set out in the defendants' demurrer and it will be necessary for the defendants to plead anew to the amended statement of claim and, if they wish to do so, to demur anew. Costs will be thrown away at least to the extent that amendment is required to the defence and demurrer. The plaintiffs must bear any costs thrown away by the amendment. As it is likely that the action will be determined on demurrer and as the steps in the arguments of the parties are likely to attain greater precision by reduction to writing, I propose to order that comprehensive written submissions be filed.

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Hodges v New South Wales [1988] HCA 9; (1988) 77 ALR 1; (1988) 62 ALJR 190 (9 March 1988)

Parties

Legislation Cited (2)

Cases Cited (4)