Lin v State of New South Wales

Short statement of facts

1. It is apparent, from the PASOC, that the plaintiff's complaints arise out of an interaction that she had with police when they were called to her home in the early hours of 28 April 2015.
2. The details of the interactions that the police had with the plaintiff on 28 April 2015 are contained within a COPS report E57928238. Relevantly, that report includes the following: About 2:50am on Tuesday the 28th of 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 the [plaintiff] suffers from Schizophrenia and depression.
3. The plaintiff, however, contests that she has ever been diagnosed with, or treated for, schizophrenia and she complains that, following this report, it is now recorded in the "police database" that the plaintiff suffers from schizophrenia: PASOC, p 1; par 24.
4. Following the plaintiff becoming aware that she had been "recorded as suffering from schizophrenia", a number of things allegedly occurred, including that she was "treated with bias by police officers" (PASOC, par 6) and she also had, subsequently, negative interactions with police by reason of the "bias caused by the negligently created mental health records" (PASOC, par 31). Those further interactions occurred on or around 6 February 2020, resulting in COPS report E73315111 (PASOC, par 30) and on 17 May 2020, resulting in COPS report E74992658 (PASOC, par 35).
5. Very briefly, report E73315111 concerned the plaintiff's attendance at Fairfield police station where she reported that she had been the subject of "an acid attack" involving "acid [being] sprayed all over her arms", following which the police expressed a measure of doubt about the allegations, including because the plaintiff was unable to identify the location of the alleged attack and police were apparently unable to identify "any injury whatsoever".
6. Report E74992658, again very briefly, concerned the police's attendance at the plaintiff's residence because she had reported a "possible break and enter" and "having acid poured on her". It appears, from that report, that the plaintiff alleged to police that "a person or persons have scaled a 10-storey building and accessed" the plaintiff's premises. It also appears, again from that report, that the plaintiff made a number of other allegations - for example, "that someone must have poured something onto her face because it looked different" and, by way of further example, "that her phone was behaving strange. She said she couldn't attach photos to emails" - following which the police expressed a measure of doubt about the plaintiff's allegations as well as suggesting that the plaintiff may have "signs of increasing mental health issues".

The procedural history

1. A short summary of the procedural history is as follows.
2. The plaintiff commenced proceedings in this Court by statement of claim filed on 24 February 2023.
3. The plaintiff filed amended statements of claim on 21 March 2023 and 14 April 2023. (It is convenient to here note the other versions that were filed: on 26 April 2023, 6 November 2023, 18 January 2024, 27 February 2024, 4 April 2024 and 9 May 2024).
4. On 31 May 2023, the plaintiff filed a "reply to notice of motion" that, relevantly, sought an order that leave be granted to the plaintiff to file a proposed amended statement of claim dated 26 April 2023. That notice of motion, and the defendant's notice of motion seeking summary relief in connection with the amended statement of claim filed on 14 April 2023, was returnable before me on 14 August 2023.
5. I refused the plaintiff leave to file the proposed further amended statement of claim dated 26 April 2023. I also made an order, pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), 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.
6. In order to progress the matter, I made two further orders: I directed any further application by the plaintiff for leave to file an amended statement of claim be filed and served by 11 September 2023, 5pm (order 4) and, in the event that no such notice of motion is filed by 11 September 2023, 5pm, ordered that the proceedings be dismissed under r 13.4(1) of the UCPR (order 6).
7. Subsequently, on 7 September 2023, upon the plaintiff's application, Campbell J amended orders 4 and 6 that I made, extending the time until 10 November 2023. His Honour did so in order to facilitate a pro bono referral under r 7.36 of the UCPR. In making that referral, Campbell J made it clear that the referral was a limited one (Lin v State of New South Wales [2023] NSWSC 1092 at [12]): Despite my misgivings and my concern not to over tax the limited resources available to the Court, I am prepared to refer the matter for pro bono assistance on the limited basis that if a barrister is prepared to accept the referral, that he or she consider Chen J's judgment, the new draft that the plaintiff wishes to propound and proffers advice about whether the claim has sufficient merit to justify the filing of a Proposed Amended Statement of Claim. It would be helpful if a barrister was able to proffer some advice about whether there is an administrative route by which the record could be corrected, if that is the right way of putting it.
8. It appears that, for whatever reason, the plaintiff did not obtain pro bono legal advice.
9. The plaintiff, however, propounded a new iteration of her pleading. She filed a notice of motion on 6 November 2023 (to be clear, within the time allowed by the order of Campbell J) seeking leave to file a further version of her pleading. That notice of motion was heard by Schmidt AJ on 30 January 2024. On 9 February 2024, Schmidt AJ refused the plaintiff leave to file the further pleading: Lin v State of New South Wales [2024] NSWSC 77. Her Honour relevantly also made two further orders: the plaintiff was granted leave to file a further notice of motion, seeking leave to file a further amended statement of claim, by 4pm on 1 March 2024 (order 2) and, in the event that the plaintiff did not file a notice of motion before that time, the proceedings would be dismissed under r 13.4(1) of the UCPR (order 3).
10. On 27 February 2024, the plaintiff filed a notice of motion seeking leave to file a further proposed amended statement of claim. That proposed amended pleading was the plaintiff's sixth iteration. The plaintiff served a further version of the proposed pleading dated 4 April 2024. That proposed amended pleading was the plaintiff's seventh iteration.
11. The matter came before Button J on 22 April 2024. The plaintiff's application did not proceed. It is unnecessary to explain all that occurred when the matter was before his Honour but it appears that, given the orders made, there was some acknowledgement not only by Button J, but by the plaintiff as well, that the pleading that was the subject of the application possibly required - to express it neutrally - some further attention. Button J made a number of orders but critically ordered that the plaintiff "must file and serve any further proposed pleading, along with brief written submissions in support of it" by 13 May 2024 (order 2).
12. The plaintiff served a proposed amended pleading on 9 May 2024. That was the eighth version. The plaintiff filed a further version - the PASOC - on 22 May 2024. This version is the plaintiff's ninth proposed version of the statement of claim.

An overview of the PASOC

1. The essence of the plaintiff's complaint is that, following on from the NSW Police entering into the police database that the plaintiff suffered from schizophrenia, she has suffered an actionable wrong, entitling her to commence proceedings apparently in negligence (and/or for breach of statutory duty).
2. The relief claimed by the plaintiff is twofold (PASOC, 'Relief Claimed'): 1. Defendant add a note to plaintiff's profile in police database stating that plaintiff does not have mental health problem. 2. Defendant reimburses plaintiff the court fees and the other incidental costs associated with the application
3. Thus, as is apparent, despite apparently seeking to advance a claim in negligence (and/or for breach of statutory duty) the remedies sought by the plaintiff do not include damages. Quite how the plaintiff proposes to secure the relief claimed was not addressed by the pleading.
4. The PASOC is divided into a number of parts.
5. Part one identifies the existence of a police database and alleges that it is "obvious" that an incorrect record will cause harm to an individual, with the consequence that "in creating the records diligence and care are required": par 2. There are references to statements made by the World Health Organisation in connection with schizophrenia: par 3. It is alleged that the risk of harm created by "incorrectly record[ing] a person as with schizophrenia is not insignificant" and that the defendant "owes a duty of care in creating the mental health records in its database": par 4.
6. It is alleged that the police officer who created report E57928238 "did not possess the knowledge and skills in determining schizophrenia" and that the record "is neither a compliance with legislation" - therefore "the creation of the record is negligent and is a breach of [the] defendant's duty of care": par 5.
7. Part two - which contains a heading "The mental health records on plaintiff are compiled with police officers' personal opinions only" - sets out the attempts that the plaintiff has apparently made to have the police "amend the mental health records on plaintiff": par 6. It is alleged that the police have declined to amend their records, notwithstanding the plaintiff submitted "2 medical certificates that prove [the] plaintiff had never suffered from schizophrenia": pars 6-8.
8. The focus of this part of the PASOC involves the plaintiff's substantive complaint that the provisions of the Mental Health Act 2007 (NSW) ('the MHA'), and in particular s 22, do not confer on police the capacity or power "to determine mental illness": par 12.
9. Part three - very broadly - contains a number of allegations arising out of police reports E73315111 and E74992658. The concluding paragraph of that part alleges that these "two police reports had proved that the police database is in use and the mental health records on plaintiff had caused bias in police officers. The bias has led the officers to deny claims of plaintiff and mistreat plaintiff": PASOC, par 41.
10. The final paragraph of the PASOC (par 42) relevantly provides: In this application plaintiff had proved that the police database is in use. Therefore, the harm of an incorrect record is foreseeable. The harm to a person with schizophrenia is recognised by World Health Organisation as "common" and is not insignificant. Therefore, defendant owes a duty of care in creating records in its database, especially, the records relating to mental health. However, defendant had breached its duty of care by recording plaintiff as suffering from schizophrenia without permission from [the MHA] and the police officer in creating the record does not possess the special knowledge and skills in mental health field…

Leave to amend and dismissing or striking out pleadings: the principles

1. The Court may, at any stage of the proceedings, grant a party leave to amend any document in the proceedings: s 64(1) of the Civil Procedure Act 2005 (NSW) ('the CPA'). Section 64(2) relevantly provides that "… all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings …". The power is to be exercised in accordance with the overriding purpose of the CPA, and the dictates of justice: ss 56-58 of the CPA.
2. The form of a proposed amended pleading is relevant to the exercise of the Court's power to grant an amendment. That is because, ordinarily, leave to amend pleadings will be refused unless the proposed amendment is in proper form - having regard to the general principles that inform the nature and function of pleadings and the pleading requirements in the UCPR - and thus not liable to be struck out: McGuirk v The University of New South Wales [2009] NSWSC 1424 at [18]; Colombini v De Berigny [2021] NSWSC 374 at [81].
3. In relation to the position adopted by the defendant, r 13.4(1) and r 14.28(1) of the UCPR are also relevant.
4. 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.
5. 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.

Discussion and consideration

1. The defendant opposed any grant of leave for the plaintiff to file the PASOC for two overlapping reasons: first, the defendant submitted that the pleading fails to conform to the pleading requirements contained within the UCPR, by a considerable margin; and, secondly, the defendant submitted that the proceedings have now reached the point where the Court should dismiss the claim because it should be accepted that, despite the opportunities to properly plead a claim, there is no basis to conclude that the plaintiff will be able to do so if given a further opportunity.

The form of the pleading

1. In Lin v State of New South Wales [2023] NSWSC 953 at [27]-[32], I summarised the relevant principles of pleadings in the following terms: The relevant legal principles that apply to pleadings are well-established. In an application under rr 14.28(1)(a)-(c) of the UCPR, it is generally appropriate to consider at least three of them. 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. A number of these principles are reflected in the UCPR: see rr 14.6-14.20. 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. 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 …
2. In my view, the pleading fails to conform with these rules and the minimum requirements for an acceptable pleading in this Court. I turn now to explain, briefly, why that is so.
3. The PASOC is not easy to follow. An introductory part contains reference to ss 6(2)(b) and 7 of the Police Act 1990 (NSW), ss 5 and 43 of the Civil Liability Act 2002 (NSW) and the MHA. There are also references to a number of cases (including, by way of example only, Donoghue v Stevenson), none of which have any immediate relevance to the plaintiff's claim. Thereafter, there is a heading 'Particulars of Injuries', but no injury or injuries (or harm) are particularised. From the later parts of the pleading, it appears that the harm alleged is that the plaintiff was treated, in her interactions with police following the initial report prepared after the police attended the plaintiff's premises on 28 April 2015, with "bias" that has led the police officers "to deny claims of plaintiff and mistreat plaintiff": par 41. It should, however, be emphasised that at the commencement of the hearing, the plaintiff specifically disavowed any claim for "compensation" said to be caused by the harm: the relief claimed was only to, in effect, alter the records in the police database so as to indicate that the "plaintiff does not have [a] mental health problem" (relief claimed, par 1) and to seek reimbursement of court fees associated with her claim (relief claimed, par 2).
4. After the introductory part, the claim is divided into four "parts". Each of them contains a considerable amount of extraneous and irrelevant detail. For example, the plaintiff sets out correspondence that she has had with the NSW Police in order to "amend the mental health records on plaintiff": par 6. The plaintiff then addresses, in some detail, s 22 of the MHA and provides a measure of commentary upon how that provision "does not confer on police [power] to determine mental illness": pars 10-12, 16 and 21. The plaintiff also sets out, and comments upon, various police reports that have been created: pars 14-15, 19-20 and 30-38.
5. Thus, the PASOC does not coherently and meaningfully plead the material facts relied upon, nor coherently and meaningfully set out the legal claims brought by the plaintiff. It fails to fulfil, by a significant measure, the fundamental function of a pleading, as explained by Garling J in Young v Hones [2013] NSWSC 580 at [79]-[80] and by Adamson J (as her Honour then was) in Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [36]-[39] ('Dickens'). In my view, it is proper to characterise the pleading as "unintelligible, ambiguous, vague or too general", and on that basis it would be within r 14.28(1)(b) of the UCPR, and liable to be struck out if it were contained in a pleading properly before the Court: Gunns Limited v Marr [2005] VSC 251 at [57].
6. In those circumstances, it would, in my view, be inconsistent with the overriding purpose of the CPA to grant leave to the plaintiff to rely upon the PASOC, and would work considerable unfairness, and injustice, upon the defendant if it were otherwise: ss 56(1) and (2), 58(1)(a)(i) and 58(2)(b)(vi) of the CPA.
7. Accordingly, I refuse the plaintiff leave to rely upon the PASOC, and the plaintiff's notice of motion filed 27 February 2024 will be dismissed.

The inutility of granting leave: the proceedings should be dismissed

1. As earlier noted, the defendant also argued that, given the history of the matter and the many opportunities that the plaintiff has had to formulate her claim, the point had now been reached where the Court should dismiss the claim: the defendant submitted that the Court should conclude that there was no real prospect the plaintiff would produce not simply a better version of the current pleading, but one that substantially complied with the rules and principles of pleading to which reference has been made. The defendant submitted that the justice of the case required that the proceedings be dismissed pursuant to r 13.4(1)(c) of the UCPR.
2. It may be accepted, as the defendant essentially argued, that a "claim" that is sought to be advanced - such as the present one - that has no realistic prospect of resulting in an adequate pleading that fulfils the fundamental functions of a pleading and involves unjustifiable expense or use of judicial resources may amount to an abuse of the processes of the Court: Dickens at [43].
3. There are a number of matters that inform my assessment of whether the plaintiff's claim should be so characterised, including the following.
4. First, the plaintiff was granted leave to replead on a number of occasions and has served multiple iterations of her claim. The pleading now sought to be relied upon is the ninth version. Notwithstanding the plaintiff's efforts to draft a claim that complies with the pleading requirements, the plaintiff has been unable to do so. The conclusion that I reached about the PASOC (see [42], above) was one that I had reached on a similar, but earlier, version of the pleading: Lin v State of New South Wales [2023] NSWSC 953 at [40]-[47]. It was a view reached by Schmidt AJ on a similarly expressed pleading: Lin v State of New South Wales [2024] NSWSC 77 at [30]-[49].
5. Secondly, the plaintiff can be in no doubt about the shortcomings of the pleadings filed by her. It has been the subject of detailed judgments, or detailed consideration, by four judges of the Court. Rather than address those shortcomings, the pleading has not appreciably altered in substance.
6. Thirdly, the plaintiff has not suggested that she had insufficient time to attend to the preparation of a revised pleading. In my view, the plaintiff has had more than sufficient time to properly plead any claim she might have: the plaintiff has had some 15 months (since the commencement of proceedings) to bring forward a pleading that clearly and coherently identifies the claims to be advanced (as well as identifying the material facts upon which those claims are based).
7. Fourthly, it is fair to say that, on each occasion when the matter was dealt with by a judge of the Court, considerable doubt was expressed as to whether a claim in fact arose and/or whether the plaintiff would be able to properly articulate one. That was, in essence, the view that I reached: Lin v State of New South Wales [2023] NSWSC 953 at [49]. It was the position that Campbell J reached: Lin v State of New South Wales [2023] NSWSC 1092 at [8] (his Honour remarking that he held "serious doubts about whether a claim in tort lies at all"). It was the position reached by Schmidt AJ: Lin v State of New South Wales [2024] NSWSC 77 at [30], [58]-[69]. And it was also essentially the position reached by Button J (unreported judgment, pp 2-3). However, it is important to emphasise that, despite the misgivings so expressed, the plaintiff has been availed opportunities to remedy the pleading on every occasion. The fact that the plaintiff appears without legal assistance no doubt uniformly informed that approach.
8. Fifthly, the plaintiff has more recently been, repeatedly, warned that the point was rapidly approaching where no further opportunities would be granted to her. Indeed, Schmidt AJ indicated that the plaintiff should be given a "final opportunity to replead", and that if a compliant pleading could not be produced then justice required "that the proceedings then be dismissed": at [69]. More recently, Button J expressed a not dissimilar view, remarking that a point was approaching "perhaps sooner rather than later" that things would be "brought to a negative conclusion from her perspective" (unreported judgment, p 3).
9. In my view, there is nothing that might instil any confidence that the position is likely to change. I am firmly satisfied, based upon the various matters that I have referred to above and what was argued by the plaintiff during the course of submissions, it will not. There is not, I consider, any real prospect of the plaintiff improving the pleading and, adopting what was said in Dickens at [43], "no utility in permitting or requiring an unknown number of further iterations before the proceedings are inevitably dismissed". In my view, it would be unfair and burdensome upon the defendant, and contrary to the dictates of justice, to allow that to occur.
10. For those reasons, I consider that the proceedings should be dismissed on the ground that they are an abuse of the process of the Court and thus within r 13.4(1)(c) of the UCPR: Dickens at [48].

Orders

1. For the above reasons, I make the following orders: 1. Order the plaintiff's notice of motion filed 27 February 2024 be dismissed. 2. Order the plaintiff pay the defendant's costs of the notice of motion filed 27 February 2024. 3. Order that, pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings be dismissed. 4. Order the plaintiff pay the defendant's costs of the proceedings.

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