Lin v State of New South Wales

A short summary

1. I will briefly sketch the matters of background, so far as they are relevant to the present applications. In doing so, I will also address the nature of the plaintiff's "claims".
2. On 28 April 2015 the plaintiff made a report to police. Having done so, the plaintiff described what happened, in these terms (SOC, par 1): Police officers came in for a few minutes and asked a few questions as whether the plaintiff had consumed drugs, drunk alcohol or have (sic) any mental health issues. Plaintiff denied all. However, when the police officer returned to the police station she recorded plaintiff as suffering from Schizophrenia without any medical evidences (sic) and without the knowledge of plaintiff (sic).
3. This interaction with the police is contained in the COPS event report: E57928238. Relevantly, that report includes the following: About 2:50 AM on Tuesday the 28th April 2015, the [plaintiff] contacted emergency services stating that radiation was coming through her roof and into her head and she was getting dizzy as well as her mother. A short time later police attended the above location and were met at the door. The [plaintiff] was only present in the apartment at the time of the encounter. She led police to her bedroom and stated that she could [hear] thumping noises on the roof and that radiation was coming through. The [plaintiff] sticky taped Aluminium foil to the roof to prevent the radiation from coming through. … The [plaintiff] stated that she did not suffer from any mental health issues and was not under the influence of alcohol and drugs. The [plaintiff] informed police her mother was at the Royal North Shore Hospital and could not explain her illness. … Further enquiries were made later after leaving the location in relation to the [plaintiff] it has been confirmed that the [plaintiff] suffers from Schizophrenia and depression.
4. The plaintiff, however, alleges that "the truth" is that she has "never suffered or had been diagnosed [with] schizophrenia" (SOC, par 3; ASOC, par 7).
5. The plaintiff goes on to allege that, in July 2017, in what appears to be summary criminal proceedings of some kind, she "declared before Magistrate Robinson that [the] plaintiff does not have schizophrenia/mental health problem (sic) and proved self in court by successfully self-represented in court proceedings" (SOC, par 3(4); ASOC, par 8(c)).
6. The plaintiff, inter alia, alleges that the plaintiff's involvement in those proceedings, as well as medical certificates from 2022, demonstrate the "plaintiff's competitive mental capacity", and that the plaintiff "never suffered from schizophrenia or any mental illness" (SOC, par 4; ASOC, par 8).
7. The plaintiff alleges that "the untrue police records seriously affect [her] rights", and that, since May 2020, the plaintiff commenced to correspond with the Commissioner of Police, as well as lodging complaints about, those records: the plaintiff alleges that her claims have been ignored (SOC, par 5).
8. The plaintiff attached to her submissions a number of COPS event reports that record interactions that the plaintiff had with the police on 28 April 2015 (see [10], above), 6 February 2020 and 17 May 2020.
9. The plaintiff has also annexed a number of communications that she has had with the police. In general terms, the plaintiff's communications with the police seek a resolution of what she described as the "mental health issue", and the request that she made "to amend my personal records".
10. The "causes of action" raised by the plaintiff are multiple. Rather than attempt the difficult task of summarising them, it is simpler to set out the thrust of what is alleged (SOC, par 4): The handling of this matter by police is extremely injustice and it is a breach of Mental Health Act 2007 and Freedom of Information Act 1989 and Defamation Act 2005. It had caused serious damages to the reputation of plaintiff and resulted in tremendous mental pressure and suffering for plaintiff. As a result, plaintiff requests Court based on the principles in Tort and Defamation Act 2005 order defendant remove all the reports under plaintiff's name in Mental Health category into general category and add a note stating that plaintiff does not have any mental issue an order defendant compensate plaintiff for plaintiff's long-term mental suffering and loss of the rights.
11. These causes of action are repeated in the ASOC, except the one in defamation.

The (proposed) amended statement of claim dated 26 April 2023

1. The plaintiff has, as I have indicated, filed amended statements of claim on 21 March and 14 April 2023.
2. A further proposed amended statement of claim, dated 26 April 2023, has been served by the plaintiff. By the "reply to notice of motion", the plaintiff seeks leave to file that amended statement of claim ('the PASOC'); the defendant opposes that leave. I will briefly refer to some parts of that proposed pleading.
3. There is no amendment proposed to the relief claimed: it is therefore in the terms described in [3], above.
4. The plaintiff specifically alleges (the paragraph in the PASOC is not numbered): In handling plaintiff's mental health matter NSW police had breached 1. Mental Health Act 2007 section 22 2. Freedom of Information 1989 No 5 section 45(2) 3. Committed malpractice in Negligent Torts
5. The plaintiff then proceeds to set out in a narrative style form various matters in support of these claims, which are by no means easy to follow. The plaintiff, in doing so, makes reference to a number of judicial decisions the relevance of which is unclear.
6. Ultimately, the plaintiff repeats the relief sought - essentially a correction of the police COPS event reports and "compensation" for the plaintiff's "suffering and losses" (ASOC, par 23).

Dismissing or striking out pleadings: the principles

1. The defendant seeks an order under r 13.4(1) of the UCPR - it is said that no reasonable cause of action is disclosed, and should be dismissed - and, in the alternative, pursuant to r 14.28(1) - it is also said that no reasonable cause of action is disclosed, that the proceedings otherwise have a tendency to cause prejudice, embarrassment and delay and should be struck out.
2. I will start with a short overview of the principles relating to pleadings.

Principles of pleading

1. The relevant legal principles that apply to pleadings are well-established.
2. In an application under rr 14.28(1)(a)-(c) of the UCPR, it is generally appropriate to consider at least three of them.
3. The first are the general principles that inform the nature and function of a pleading. In Young v Hones [2013] NSWSC 580 at [79]-[80], Garling J succinctly summarised the function of pleadings: [79] 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 define the issues for decision and ensure the basic requirements of procedural fairness, namely that a party should have the opportunity to meet a case against him or her: Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286, 296, 302-3. As well, the issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; (1982)148 CLR 658 at 664. [80] Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005; McGuirk v The University of NSW [2009] NSWSC 1424 at [24] per Johnson J.
4. A number of these principles are reflected in the UCPR: see rr 14.6-14.20.
5. The second are the more specific principles that apply to particular claims. For example, certain matters must be specifically pleaded "that, if not pleaded, may take the defendant by surprise": r 14.14 of the UCPR.
6. The third relates to the function of the Court. It is not the role of the Court to assist parties in drafting pleadings which comply with the UCPR: Gunns Ltd v Meagher [2005] VSC 251 at [57]; McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35]. Rather, as noted in Gunns at [57], the Court is concerned with ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent and intelligible statement of its case …

The rules and principles: an overview relating to summary relief

1. Rule 13.4(1) of the UCPR 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. A purpose of r 13.4 is to "save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings" and to protect "the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications": Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70].
3. The relevant principles that govern summary relief are well-established: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69 ('General Steel'). In General Steel, Barwick CJ put the matter thus (at 129): The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.
4. The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200]: [196] It is not in dispute that 'great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal': General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ). [197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]: 'Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.' [198] Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24]. [199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]: 'The question is … whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated.' [200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].
5. It is sufficient simply to note that an order of that kind is not appropriately made except in the clearest of case, and the power that is available is to be exercised sparingly and with restraint.
6. Rule 14.28(1) of the UCPR provides: 14.28 Circumstances in which court may strike out pleadings (cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3) (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading-- (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court.
7. When a pleading is "unintelligible, ambiguous, vague or too general", the rule typically employed in those circumstances is r 14.28(1)(b): Gunns Ltd v Meagher at [57]. The rule is also available when a pleading does not comply within the general or specific principles of pleading such as those set out in rr 14.6-14.20 of the UCPR: Clarke v State of New South Wales (No 4) [2015] NSWSC 1054 at [33]-[45].

The amended statement of claim filed 14 April 2023

1. In my view the ASOC does not properly or meaningfully plead the material facts relied upon, or properly or meaningfully set out the legal claims sought to be advanced by the plaintiff against the defendant. I will explain, briefly, why I make that finding in relation to each of the three "causes of action" relied upon by the plaintiff.
2. The plaintiff's first action is for breach of s 22 of the Mental Health Act 2007 (NSW) ('the MHA'). Put simply, that section empowers the police officer, who finds a person who appears to be mentally ill or mentally disturbed, to take that person to a declared mental health facility if police believe on reasonable grounds that certain preconditions exist: ss 22(1)(a) and (b) of the MHA.
3. The plaintiff then alleges as follows (ASOC, par 5): The conduct of police clearly had over stepped the scope defined by Mental Health Act 2007 section 22 for determining and recording plaintiff as suffering from schizophrenia. The conduct of police is a breach of section 22 of Mental Health Act 2007 and is a malpractice in the meaning of Negligent Tort.
4. On what has been pleaded by the plaintiff, s 22 of the MHA has nothing to do with what occurred on 28 April 2015, or at any time thereafter. To be clear, nor is there any pleading seeking to demonstrate the materiality of that section to what is alleged to have occurred on that day.
5. In relation to the claim alleging breach of the Freedom of Information Act 1989 (NSW) (ASOC, pars 10 and 11), the plaintiff's claim is made under s 45 of that Act. There are a number of difficulties with the pleading, such as it is, including the basis for this Court having jurisdiction to provide relief as sought. More fundamentally, however, is the fact that the Freedom of Information Act 1989 was repealed, and replaced by the Government Information (Public Access) Act 2009 (NSW) on 1 July 2010. It is unnecessary to consider that claim further as the plaintiff abandoned any reliance upon it: submissions dated 27 June 2023, par 7. The plaintiff, I add, confirmed that position during the course of her submissions at the hearing.
6. I turn now to the "tort" or "malpractice" claim. The plaintiff, in addition to what is alleged in ASOC, par 5, also alleges as follows in relation to that claim (pars 12 and 13): 12. The effect of maintain the untrue police record is to place plaintiff in a schizophrenia patient position and resulted in plaintiff being treated unfairly and suffering physically and psychologically. These facts provide a clear link between the malpractice of police and the suffering and loss of rights of plaintiff. 13. In Reeves v State of New South Wales … and Beckett v State of New South Wales … Tort had been successfully applied where victims of tortious act had been compensated for their losses and suffering. According to the above statement of law and facts police's tortious act had caused plaintiff loss of rights and resulted in enormous long term psychological and physical suffering to plaintiff. Therefore, police are liable to compensate plaintiff.
7. There is nothing in these paragraphs of the ASOC, nor any of the earlier ones, that provide any particulars of, or the legal basis for, the "tort" claim. Nor are the decisions in Reeves v State of New South Wales [2010] NSWSC 611 (essentially, a claim for damages for psychological injury brought by a former police officer against the State) or Beckett v State of New South Wales [2015] NSWSC 1017 (a claim for malicious prosecution) in any way relevant.
8. In my view, the defendant is entitled to an order that the ASOC filed 14 April 2023 be struck out: the pleading, at a minimum, "has a tendency to cause prejudice, embarrassment or delay in the proceedings": r 14.28(1)(b) of the UCPR.
9. Although the defendant, by its notice of motion, sought orders in connection with the ASOC filed 14 April 2023, an order confined to that pleading would leave on foot the ASOC filed on 21 March 2023. In my view all pleadings filed by the plaintiff have "a tendency to cause prejudice, embarrassment or delay in the proceedings" (r 14.28(1)(b) of the UCPR), and should be struck out.
10. The defendant sought an order, in the alternative, that the proceedings be dismissed. At the present time, I am not persuaded to make that order. That is for the following reasons. First, although I entertain some not inconsiderable doubt about this, I cannot exclude the possibility that there is a claim that is capable of being advanced by the plaintiff. The position is close to, but not quite at, the point where it may be open to conclude that there is, as the defendant submitted, no real prospect that the plaintiff would be placed to produce a better version than the current pleading such that it would be inutile to grant the plaintiff leave to file a further iteration: Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [43]ff. Secondly, even if that order were made, the plaintiff would, in the absence of an order to the contrary effect, be entitled to file a further pleading given s 91 of the Civil Procedure Act 2005 (NSW).

The plaintiff's application for leave to file the PASOC

1. The plaintiff, by her "reply to notice of motion", seeks leave to file a proposed further amended statement of claim dated 26 April 2023.
2. The defendant opposes a grant of leave, essentially on the basis that the proposed amended pleading is not materially different to the ASOC filed 14 April 2023. I agree.
3. In those circumstances, I refuse the plaintiff leave to file the PASOC.

Orders

1. For the above reasons I make the following orders: 1. Order that the statement of claim filed 24 February 2023, the amended statement of claim filed 21 March 2023 and the amended statement of claim filed 14 April 2023 be struck out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW). 2. Order that the plaintiff's "reply to notice of motion" filed 31 May 2023 be dismissed. 3. Order that the plaintiff pay the defendant's costs of, and incidental to, the notice of motion filed 25 May 2023 and the "reply to notice of motion" filed 31 May 2023. 4. Direct that any further application by the plaintiff for leave to file an amended statement of claim be filed and served by 11 September 2023, 5 pm. 5. Direct that any notice of motion filed in accordance with order 4 be listed for directions before the Common Law Registrar on 15 September 2023. 6. In the event that no notice of motion is filed by 11 September 2023, 5pm, order that the proceedings be dismissed under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW).

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: 14 August 2023