Amended Statement of Claim dated 17 August 1993 be struck out AND IT IS

FURTHER ORDERED that this action be permanently stayed".

In lieu thereof, substitute the following:

"IT IS ORDERED that the amended statement of claim dated 17 August 1993

be struck out as against the first defendant, the Australian Government

Solicitor, and that the name of the Australian Government Solicitor as a

defendant be struck out".

The appellant to pay the costs of the Australian Government Solicitor, otherwise no order as to costs.

MASON CJ, BRENNAN AND TOOHEY JJ This is an appeal from a judgment

of Dawson J in which his Honour ordered that the endorsement to the

appellant's writ and the statement of claim as amended be struck out

and that the appellant's action be permanently stayed.

2. The appellant's writ named as defendants the Australian

Government Solicitor ("the AGS") and other persons who were involved

in proceedings in the Federal Court as counsel or solicitor for either

the appellant or for the members of a Disciplinary Appeal Board

("the Board") constituted pursuant to the [Telecommunications Act

](/cgi-bin/viewdoc/au/legis/cth/num_act/ta1975214/)1975 (Cth). The proceedings were brought by the appellant in the

Federal Court under the [Administrative Decisions (Judicial Review)

](/cgi-bin/viewdoc/au/legis/cth/consol_act/adra1977396/)Act 1977 (Cth), seeking a review of a decision of the Board to which

the appellant had unsuccessfully appealed against his dismissal from

his employment with the Australian Telecommunications Commission

("Telecom"). Everett J dismissed the appellant's application for

review ((1) Munnings v. Smith (1986) 20 IR 264.) and his Honour's

judgment was upheld on appeal to the Full Court of the Federal Court (

3. The appellant then brought an action in this Court, seeking

damages from the persons who are respondents to the present appeal.

In view of matters raised by the Court during the hearing of the

appeal, it is necessary to refer in some detail to what took place

on the hearing of the AGS summons which led to the making of the

orders by Dawson J And to understand what did take place, it is also

necessary to point out how the appellant's action is constituted.

4. The appellant sued the AGS, Dr Flick SC and Mr Cunningham who

were counsel for the AGS in the Federal Court proceedings, Mr Slicer

and Mr Docking who were his own counsel in those proceedings, and

Jennings Elliott, the law firm to which Mr Docking belonged and which

was the appellant's solicitor in those proceedings. It does not

appear that Dr Flick and Mr Cunningham were ever served with the writ;

certainly they have played no part in the relevant events.

5. Solicitors for Mr Slicer and solicitors for Mr Docking and

Jennings Elliott each took out a summons for an order that service of

the writ upon their respective clients be set aside. Those summonses

have not been dealt with. They were listed to be heard by Dawson J

but, at the request of those defendants, the summonses were adjourned.

The reason for the adjournment, it appears, was a proposal by the AGS

to make a strike-out application. That application was duly made

and its disposition has given rise to the present appeal. The

application, in its original form, claimed the following relief:

"1. An order striking out the name of the Australian

Government Solicitor as a Defendant herein on the

ground that the writ does not disclose a reasonable

cause of action against the said Australian Government

Solicitor.

2. An order that the Plaintiff not be given leave to renew

the Writ herein.

3. Such other orders as are appropriate.

4. An order for costs."

6. The AGS summons came on for hearing before Dawson J on

23 November 1993. The appellant was served with the summons. He did

not appear but filed written submissions in opposition to the orders

sought. The other defendants (excluding Dr Flick and Mr Cunningham)

were served by the AGS with the summons and appeared by counsel. At

the hearing the AGS obtained leave to amend the summons by adding to

7. In his judgment upholding the application, Dawson J said that he

thought it was possible to discern only three causes of action which

the appellant was, or could have been, attempting to invoke against

the AGS. The first was a cause of action of the kind envisaged in

Beaudesert Shire Council v. Smith ((3) [1966] HCA 49; (1966) 120 CLR 145.),

namely, for loss suffered as the inevitable consequence of the

unlawful, intentional and positive acts of another. The second was the

tort of conspiracy. The third cause of action was that of deceit. The

statement of claim gave no particulars which might have given substance

to any of these causes of action or which might have shown that there

was a "real and genuine" controversy ((4) cf. Dey v. Victorian

Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 92.). It was a pleading

that invited an application to strike it out. Nothing in the argument

which the appellant presented on appeal has detracted from the force of

Dawson J's reasons for upholding the application. In particular, the

appellant's reliance in his grounds of appeal upon a notice to admit

facts relating to the authority of a Telecom officer to give certain

directions that were under consideration in the judicial review

proceedings reveals Mr Munnings' misunderstanding of the case he had to

plead and prove. It is clear, as Dawson J pointed out, that no

admissions made by counsel for the appellant played any part in the

decision reached by Everett J who held that Mr Griggs, a chief manager

at Telecom, had implied authority to give the relevant direction

stemming from his position in Telecom with State-wide authority in

respect of personnel matters. This conclusion was reached

independently of any admission and of the notice to admit and what

8. Dawson J was right in acceding to the application. Moreover,

although a plaintiff is often granted leave to replead if a statement

of claim is struck out, there are some cases where the plaintiff so

misconceives the cause of action that the action ought to be brought

to an end ((5) For example, Robertson v. The Commonwealth of

Australia, unreported, High Court of Australia, 3 September 1985.).

Dawson J thought this was such a case and that view was confirmed by

9. However, there are two problems arising from the form of the

order made by his Honour. The relevant part of the order reads:

"IT IS ORDERED that the endorsement to the writ dated

24 August 1992 and the Amended Statement of Claim dated

17 August 1993 be struck out AND IT IS FURTHER ORDERED that

this action be permanently stayed".

The order strikes out the endorsement to the writ and the amended

statement of claim, not only against the AGS but generally. No doubt

this followed from the adoption of the argument of counsel for the

AGS by counsel appearing for the other defendants. But the other

defendants were not parties to the AGS application and there was no

independent application for relief by the other defendants. It is by

no means clear what they hoped to gain by their participation in the

10. Secondly, the order made by his Honour went beyond the relief

sought in the summons served on the plaintiff. The relief sought in

par.2 of the summons was not pursued on the hearing before Dawson J

Although the order made by Dawson J is supportable by his Honour's

reasoning, the order which could properly be made having regard to the

terms of the summons and the parties to the application then before

him was limited by the terms of par.1 of the summons. In particular,

the summons did not seek a permanent stay of the action. Nor, so it

11. It follows that the order of 21 January 1994 cited above should

"IT IS ORDERED that the amended statement of claim dated

17 August 1993 be struck out as against the first

defendant, the Australian Government Solicitor, and that

the name of the Australian Government Solicitor as a

defendant be struck out."

Otherwise the appeal should be dismissed. In all the circumstances

the appellant should pay the costs of the AGS; as to the other