//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] NSWSC 58
defendant. Statement of claim struck out; plaintiff ordered to pay the defendants' costs of the motion (para 21).
The self-represented plaintiff filed a lengthy, rambling statement of claim and annexures alleging various corporate mismanagements and claiming large sums, but failed to identify any legal cause of action, did not plead material facts to support statutory remedies, and appeared to be using litigation to pursue a personal objective of obtaining paid consultancy. The Court struck out the statement of claim under the UCPR as disclosing no reasonable cause of action and being an abuse of process, and ordered the plaintiff to pay the defendants' costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,713 words · generated 28/07/2026
A self-represented litigant, Ms Felicity Agsten, filed an originating statement of claim against Macquarie Infrastructure Group and its then Chief Executive Officer, Mr John Hughes, supported by two annexed documents described by the Court as "the details document" and "Annexure A" [2]. The documents were lengthy, rambling and asserted a variety of criticisms of the first defendant's accounting practices, asset valuations, dividend distributions and broader financial management. The details document included a schedule claiming amounts that totalled $79,200,000 [3]. Annexure A read as an essay rather than a pleaded case and contained assertions about prior shareholdings, hypothetical profits, a claim quantified as "2% of loss in market capitalization" and time spent by the plaintiff at an hourly rate of $650 for her investigative work [5-7].
No linked legislation citations have been extracted yet.
The defendants, through solicitors, identified multiple pleading deficiencies in a letter of 25 November 2008 and invited the plaintiff to discontinue; she declined [13-14]. The defendants then brought a strike-out application under the Uniform Civil Procedure Rules (UCPR) r 13.4 or r 14.28. His Honour Grove J heard argument and, after reviewing the pleading and annexures, struck out the statement of claim and ordered the plaintiff to pay the defendants' costs of the motion [1, 19, 21].
The Court's decision rests on three inter-related findings.
Pleading insufficiency: The statement of claim and annexures were "prolix" and "obscure to the point of being unidentifiable" [2]. Grove J could not extract from the documents how the amounts claimed represented tortious or contractual breaches or any other legal cause of action. The pleading failed to identify material facts necessary to establish any legal wrong or to support damages or other relief [4, 14(2)]. As a consequence, no reasonable cause of action could be discerned and the pleading was regarded as embarrassing such that defendants should not be required to plead to it [19].
Failure to particularise statutory remedies: Defendants specifically pointed out that the pleading did not identify material facts to support claims under s 233 of the Corporations Act (oppression remedies) or provisions in Part 2H.5 to which the plaintiff referred. The Court accepted that the statement of claim did not properly identify the orders sought or the factual foundation for such orders, or otherwise explain how statutory contraventions were established by the pleaded material [14(2)(b)-(d), 15].
Abuse of process: The Court found relevant the plaintiff's repeated correspondence offering her services as a paid consultant and suggesting she intended to use court proceedings to further those objectives. Her own letters and oral submissions showed she sought a paid consultancy and regarded court proceedings as appropriate means to pursue that objective [9-13]. Grove J concluded that using the court's processes as an adjunct to obtain a personal, non-judicial benefit constituted an abuse of process and was an additional basis for striking out [20].
Given these converging deficiencies, lack of any coherent legal basis, absence of pleaded material facts for statutory claims, and the collateral, improper objective of the litigation, the statement of claim failed the tests for a permissible pleading and was struck out [19-21].
Before this decision, the established procedural principles (reflected in the UCPR) required that pleadings be sufficiently clear and precise so that defendants have notice of the case to be met, and that courts may strike out pleadings that disclose no reasonable cause of action, are frivolous or vexatious, or amount to an abuse of process. Grove J applied those principles to the material before the Court: the UCPR strike-out rules (r 13.4 and r 14.28) were the procedural vehicles for relief [1].
After this decision, the immediate effect is the enforcement of those procedural requirements in the New South Wales Supreme Court context: pleadings that are prolix and fail to identify cause(s) of action, do not plead necessary material facts to obtain statutory relief, or are pursued to advance collateral personal objectives (such as seeking employment) are vulnerable to a strike-out application. The judgment illustrates the Court's readiness to order costs against a litigant who persists in maintaining an unparticularised and improperly motivated claim [13, 21]. The decision does not change substantive law, but it reinforces and exemplifies procedural thresholds for litigated pleadings.
"The document is prolix and the nature of any cause or causes of action relied upon are obscure to the point of being unidentifiable." [2]
Plain-English: The claim and its attachments are overly long and disorganised, so much so that the judge could not work out what legal claim, if any, the plaintiff was making.
"Nothing in the document enables an extraction of how any of the ingredient amounts... represent tortious or contractual breaches..." [4]
Plain-English: The claimed monetary sums are not linked to any pleaded legal wrong. The pleading does not explain how the defendants are legally liable for those sums.
"No reasonable cause of action is detectable in the document and its form is such that the defendants should not be required to plead to it and it is embarrassing in that sense." [19]
Plain-English: The statement of claim does not show a plausible legal claim. It is so unclear that the defendants should not have to waste time answering it; the pleading embarrasses the defendants by failing to give proper notice.
"The processes of the Court do not exist as an adjunct to an attempt to obtain benefit of the sort contemplated by the plaintiff and to bring an action for that cause constitutes an abuse of the process of the Court." [20]
Plain-English: You cannot use the court as a means to pursue unrelated personal goals, such as trying to get paid work from a defendant. Doing so misuses the court and is unacceptable.
"The statement of claim is struck out. The plaintiff is ordered to pay the defendants' costs of the motion." [21]
Plain-English: The judge dismissed the plaintiff's claim and ordered her to pay the legal costs the defendants incurred in bringing the strike-out application.
This judgment will be most directly persuasive where:
A plaintiff files a prolix, essay-like statement of claim with annexures that contain allegations and figures but do not identify the legal basis (tort, contract, statutory) for claimed losses, and where the pleading lacks factual particulars that show how a legal wrong occurred [2-8, 14];
A pleading quantifies loss (for example large monetary figures or speculative future profits) but does not connect those figures to pleaded breaches or causation, or relies on hypothetical profits without particularity [3, 5-7];
A litigant appears to be using litigation as a vehicle for a collateral personal aim (for instance, seeking to obtain paid work or a consultancy from the defendant), supported by pre-litigation correspondence or in-pleading statements that indicate such an objective [9-13, 20];
A plaintiff seeks statutory remedies but fails to plead the specific factual foundation for those remedies, or to identify the precise orders sought under the relevant statutory provisions [14(2)(b)-(d)].
In any of these scenarios the reasoning in Grove J's decision supports a strike-out application and the award of costs against the instituting plaintiff.
This judgment itself does not report subsequent appellate consideration or later treatment. Grove J's reasoning applies established procedural principles to the facts before him and therefore functions as an example of those principles in operation. To determine how later courts have treated or cited Macquarie Infrastructure Group & anor v Agsten [2009] NSWSC 58 would require searching subsequent case law databases and citators; the present judgment contains no subsequent-treatment material or references [whole judgment]. Practitioners should undertake targeted research (for example in AustLII, LawCite or commercial citators) to find whether later decisions have followed or discussed this judgment.
Scope of "abuse of process" in analogous fact patterns: Although the Court found abuse where the plaintiff expressly pursued litigation partly to obtain paid consultancy, it leaves open fine-grained questions about borderline scenarios. For example, where a litigant has a genuine claim but also aims to gain publicity or indirect commercial advantage, how will the Court distinguish permissible motives from an abusive collateral objective? The judgment identifies abuse in the present facts [10-13, 20] but does not articulate a comprehensive test applicable to every mixed-motive case.
Remedial path for self-represented litigants with unclear grievances: Grove J was firm in striking out and ordering costs, while noting the plaintiff's lack of appreciation of litigation processes [16-17]. The judgment does not explore intermediate procedural remedies short of striking out, such as ordering further and better particulars, or directions hearings aimed at focussing the pleading, where the deficiencies may be remediable. The facts here showed pervasive defects and collateral motivations that made repleading inappropriate, but the Court does not set out criteria for when leave to replead should be given rather than striking out altogether.
Interaction with access-to-justice considerations: The judgment emphasises the need for orderly, properly pleaded litigation and protection of defendants from being required to plead to disorganised claims [19]. It does not engage in depth with proportionality or access-to-justice concerns as between encouraging litigants to make genuine complaints and protecting defendants and court resources from unparticularised or abusive proceedings. That balance remains an open, context-sensitive question.
Treatment of claims grounded in accounting standards and corporate governance: The plaintiff's criticisms implicated accounting standards and corporate management decisions, yet the Court treated those matters as inadequately pleaded statutory or contractual claims [4, 14]. The decision does not address how detailed allegations about complex accounting treatment should be pleaded to survive a strike-out; practitioners alleging breaches linked to accounting standards should ensure careful factual linkage, but precise pleading standards in such technical contexts remain to be further elaborated in later case law.
Practical takeaways for practitioners and compliance professionals: ensure pleadings identify the cause of action, plead material facts to establish each element of relief sought (particularly statutory remedies), avoid litigating where the primary purpose is a collateral commercial objective, and where representing clients dealing with self-represented litigants be prepared to press for particularity or to seek strike out where pleadings are unidentifiable or embarrassing [2, 4, 14, 19-21].
CITATION : Macquarie Infrastructure Group & anor v Agsten [2009] NSWSC 58
CATCHWORDS : PLEADING - Statement of Claim - Multiple deficiencies - Insufficient identification of justiciable claim to order repleading
PARTIES : Macquarie Infrastructure Group and John Hughes - Applicants Felicity Agsten - Respondent
COUNSEL : A S Bell SC - Applicants In person - Respondent
SOLICITORS : Mallesons - Applicants In person - Respondent
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
2008/20487 MACQUARIE INFRASTRUCTURE GROUP & JOHN HUGHES v FELICITY AGSTEN
JUDGMENT 1 HIS HONOUR: Before the Court is a motion to strike out the plaintiff's statement of claim pursuant to either UCPR 13.4 or UCPR 14.28. The defendant applicants were represented by Mr Bell SC and the plaintiff respondent appeared in person. The initiating statement of claim seeking to originate proceedings was also filed by herself. 2 The document is prolix and the nature of any cause or causes of action relied upon are obscure to the point of being unidentifiable. The gravamen of the respondent's complaints need to be gleaned from two documents annexed to the purported pleading, the first of which has an initial heading "Details of Application" and the second of which is on a letterhead of the respondent and marked "Annexure A". I shall refer to these respectively as "the details document" and "annexure A". 3 The details document ends with a schedule of claimed amounts of money the total of which is $79,200,000. 4 Nothing in the document enables an extraction of how any of the ingredient amounts constituting that significant total represent tortious or contractual breaches for which the defendants would be liable to compensate the plaintiff. Neither am I able to identify any claim outside the law of tort or contract which would found a cause of action. The details document recounts a variety of criticisms which the plaintiff makes of the conduct of the first defendant corporation in its accounting, asset valuation, dividend distribution and aspects of financial management. 5 Annexure A does not attempt to formulate a pleading. It is in the form of a lengthy essay with topics addressed under various headings. It commences with a statement that the plaintiff "owned and traded the company's stapled securities" but was disappointed as a result of policies adopted of which she disapproved. One statement was that "I initially invested $154,000 in MIG securities which I later sold because of the company's policy concerning the reporting of asset revaluations". I could not detect mention of what was obtained on sale but part of the claim seems to be based upon hypothetical profits which the plaintiff expected to earn. 6 Another claim, which again does not identify what cause of action is vested in the plaintiff personally, is for "2% of loss in market capitalization which has occurred between 2007 and 2008 as a result of continuing with the classification in spite of advice to the contrary." The advice is apparently that which the plaintiff herself tendered to the company in a constant stream of correspondence which she directed to it. The claim states "This amounts to 2% of $1.40 for an average of $2,390,254,000 securities. $66,927,000 plus gst." 7 Another claim is for time spent (by the plaintiff) "working out the cause of the discrepancy" in certain accounts. The plaintiff calculates her time at $650 per hour. 8 These observations suffice to indicate the tenor of the document and its deficiencies as a pleading are self evident. 9 It might be noted that it appears in a letter dated 9 November 2007 from the plaintiff to the Chief Executive Officer of the first defendant that she stated: "I am a shareholder of MIG - I own twenty shares. Prior to that I held some warrants which is (sic) sold when the company's security price started to decline." 10 A repeated theme of correspondence emanating from the plaintiff to officers of the defendant company and to the second defendant, who had become Chief Executive Officer of the first defendant was an offer by the plaintiff to provide services as a consultant to the first defendant exercising her claimed capacities in corporate strategy and management. Her letterhead refers to some tertiary qualifications. It is confirmatory of apparent misconceptions which lie behind the commencement of this litigation that in response to correspondence from the solicitor for the defendants which stated that it was plainly an inappropriate use of court proceedings to seek to promote an objective of being engaged as a paid consultant, the plaintiff responded: "To use court proceedings in the pursuit of my objectives for a paid consultancy is not inappropriate, considering that the company published in its Annual Report 2007 a statement such as 'the use of fair value accounting sometimes produces large positive results in the income statement because the increases in asset value are recorded as profits'." 11 The plaintiff went on to comment that: "Surely court proceedings are available to all members of a society when they think that they have a legitimate claim." 12 In the course of oral submissions the plaintiff suggested that it would be desirable to have something like "a round table conference" which again indicated a lack of appreciation of the nature of embarking upon litigation. 13 The exchange which I have mentioned concerning the use of proceedings as a vehicle for obtaining paid consultancy was raised in a letter by the defendant's solicitors to the plaintiff dated 25 November 2008. That letter indicated the inadequacy of the statement of claim (and associated documents) and forecast an application such as is now made to have the pleadings struck out. An open offer was made inviting the plaintiff to discontinue without penalty as to costs. The plaintiff declined the offer. 14 The multiple deficiencies in the pleading which purports to originate this action were summarized in that letter with considerable clarity. Noting that it was not intended to be exhaustive the solicitors drew the plaintiff's attention to the following: "1. Generally, the Statement of Claim is so unclear and imprecise in its identification of the material factual allegations which you advance as to deprive our clients of proper notice of the substance of your claims. 2. The Statement of Claim does not identify the facts necessary to establish any legal wrong on the part of our clients, or necessary to establish any claim for damages or other relief on your part. In particular: (a) The Statement of Claim is filled with rhetorical questions and the expression of your personal views as to the wisdom or otherwise of the Accounting Standards and business decisions made by our clients, which are not properly included in it. (b) The Statement of Claim does not identify any material facts which might support a conclusion that the affairs of any relevant entity are being conducted contrary to the interests of the members as a whole or in any oppressive manner, so as to support an order under s 233 of the Corporations Act. (c) The Statement of Claim does not identify, in any clear manner, the orders which you seek so as to regulate the conduct of any company's affairs in the future, or to restrain a person from engaging in any particular conduct or requiring a person to do any particular act, for the purposes of s 233 of the Corporations Act. (d) The Statement of Claim also does not identify any material facts which would establish a contravention of the provisions in Part 2H.5 of the Corporations Act to which you refer. (e) The Statement of Claim also articulates no proper basis for the suggested claim for personal trading losses; for damages as a result of the asset revaluation policy in the amount of $66.9 million; for loss of future profits in the amount of $4.337 million; for your claim for the amount of $540,000 said to be referrable to your inquiries into these matters, or for any other relief sought. The other actions identified in the Statement of Claim, including your requests that our clients undertake particular steps, or that the Court ask our clients to take particular steps, are not in a form in which relief which could properly be granted by the Court. (f) The Statement of Claim names John Hughes, the Chief Executive Officer of the Macquarie Infrastructure Group, as a defendant, but discloses no cause of action against him. 3. It is plainly also not an appropriate use of Court proceedings to seek to promote your objectives of being engaged as a paid consultant or website provider in relation to these matters, to which you refer in your letters dated 9 October 2007, 8 January 2008, 21 January 2008, 26 May 2008 and the attached outline of discussion and your further letter dated 13 October 2008. Our client invites you, by 5pm on 3 December 2008, to provide your written consent to a dismissal of the proceedings on the basis that each party pay its own costs of the proceedings. We respectfully suggest that you take independent advice in respect of this invitation. If you are not prepared to consent to a dismissal of the proceedings by that date, our clients will have no alternative other than to take steps to strike out the Statement of Claim and associated documents under Rules 13.4 and 14.28 of the Uniform Civil Procedure Rules, and will hold you liable for their costs incurred in doing so."
15 All of the statements in paragraphs 2 (a) and 2(f) of the letter are plainly accurate. 16 The content of the reply by the plaintiff dated 26 November 2008 is confirmatory of the lack of understanding on her part of the processes of litigation. The oral submissions made by the plaintiff suffered from the same deficiency. The plaintiff referred to enquiry as to how the company could afford a share buy-back; she asserted that there were discrepancies in classification of assets; she criticized the company's revaluation processes, she alleged a variety of alleged breaches of Corporations Law and Australian Accountancy Standards; she queried the location of reserves, decisions to sell assets or interests in them and spoke at length in criticism of the conduct of the first defendant company. 17 I record that, in the absence of focus upon the issue with which I have to deal, namely the continuation of proceedings upon her originating statement of claim and the irrelevance of her submissions, I placed a limit upon the time allowed for address. 18 It requires only a reading of the content of the purported pleading upon which the plaintiff relies (including the annexed documents) to reveal the correctness of the assertions by the defendants' solicitors and no point would be served by my seeking to summarize the various assertions through which the documents ramble. 19 No reasonable cause of action is detectable in the document and its form is such that the defendants should not be required to plead to it and it is embarrassing in that sense. 20 The plaintiff, as the above extracted comment shows, is pursuing this litigation, at least in part to assist her objective of achieving a paid consultancy with the first defendant. The processes of the Court are available to provide redress where a plaintiff can demonstrate an entitlement to relief at law or in equity. The processes of the Court do not exist as an adjunct to an attempt to obtain benefit of the sort contemplated by the plaintiff and to bring an action for that cause constitutes an abuse of the process of the Court. 21 The statement of claim is struck out. The plaintiff is ordered to pay the defendants' costs of the motion. **********
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.
Macquarie Infrastructure Group & anor
Agsten
Statement of claim struck out; plaintiff ordered to pay the defendants' costs of the motion (para 21).