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[2012] NSWSC 85
Supreme Court of NSW
2012-02-15
Schmidt J
Original judgment source is linked above.
Judgment 1The proceedings were commenced by notice of motion filed in December 2011, by the plaintiff, Mr Murphy, who is unrepresented. Also before the Court is a notice of motion filed by the defendant, Strathfield Council ('Council') in January 2012.
Mr Murphy's motion 2By his motion Mr Murphy seeks various orders, including firstly that: "1. I move to have this matter restored to the list so that moneys referred to as "all moneys outstanding" per a Deed of Agreement of 18 th June 1990 be paid into the Court in replacement for that which was on 20 th June 1966 forwarded to the Court which was in the nature of recoverable credit, pending a breach of the Terms by myself, upon the following affidavit evidence and grounds which have generally all resolved in the requester's favour per part 17 Notices to Admit Facts served in time and in compliance with the Rules of the Court as befits a matter incomplete not being due to the plaintiff's fault:" 3Other orders are directed to the recovery of loan moneys and a claimed guarantee, which are said to be related to the settlement of the 1964 proceedings in 1966. A chronology document by which Mr Murphy supported his case, indicates that the 1964 proceedings were concerned with a claim brought against the Council after he suffered third degree burns when he fell into 'subterranean burning combustion' at Bressington Park, Homebush. 4Orders concerning various notices which Mr Murphy has served on the defendant and others are sought, including a Notice to Admit Facts, as well as findings based on affidavits which he has sworn. It appears that Mr Murphy wishes to advance a case that there has not been proper compliance with the terms of settlement and consent orders made by the Court in 1966, through no fault of his, or of anyone on his side. Mr Murphy advances many allegations, including in respect of abuse of process and contempt of court. It is alleged that the judgement was obtained by fraud and that there have later been various relevant proceedings brought in other courts and tribunals, involving other entities. Mr Murphy also apparently seeks orders for unspecified damages, amongst other things, in respect of 'documented counts of assault' . 5The motion concludes with: "19. I move that the Court make a clear statement and quantum determination as to the practice of substituting settlements with shadow loans with evidencing shadow rates of interest for set terms and later recovering them when there has been no breach of the Terms by the settlement creditor as otherwise all matters would have to go to hearing and not settle as settlements will all be festering loans for the profit of latent financiers who purchase a highly profitable potential contingent gain and who later approach the settlement creditor to recover what may be termed a "settlement loan". 20. I move that the Court provide an adverse disincentive finding and quantum verdict in full in respect of this long standing corrosive practice which has till now had an understandably vastly corrupting effect and which those who perpetuate it would be most loathed to surrender. 21. Other orders as the Court sees fit. Should the Court not grant me my application it would indicate that the Court would allow the recovery of settlements from upright settlement creditors who have not breached their Terms and have not even received a proper settlement, or any real settlement at all, and an undesirable precedent would be created as a partially open window of opportunity for future reliance in an undesirable practice which has, over its long past, undoubtedly brought so much in the way of retirement monies for those in the know." 6The motion is supported by a detailed affidavit in which Mr Murphy refers to a practice he claims was in operation in 1964-1997, which he describes as one in which: "... the defendant's insurer, GIO, and a financier, AGC, were in the business of substituting out of court settlements upon terms not to be disclosed to plaintiffs for shadow settlement loans with a view to recovery at the end of a 30 year term (in my case) upon interest of 9.5% p.a. (presumably the applicable precedent rate of interest) compounding as a profitable practice yielding a cumulative return of 1,665% contingent upon a secured and evidenced breach of the non disclosure term by the recipient in later years. " 7Mr Murphy explains in the affidavit that he sought to recover the settlement moneys paid into Court in 1966. He referred to an approach he received from a 'finance specialist agent' in 1990, and to a deed of agreement which he later entered, which disclosed that the confidentiality of the terms of settlement reached in 1966 had been breached. It is not suggested that the defendant was a party to this deed. Mr Murphy also referred to the defendant's breach of a 'guarantee' in August 2011. 8Mr Murphy gave a detailed account of his dealings with various persons and companies in relation to financial matters, as well as an outline of other proceedings in which he has apparently been involved with other parties in the District and Local Courts, as well as proceedings which he brought in this Court in 2005 against 'the guarantor' AGC. He recounted that in 1999, he had inspected this Court's 1964 file, an analysis of which had 'disclosed a variety of linkages, chronological, accountwise, identitywise and triggerwise' between the matters there dealt with and the approach he received in 1990. 9Mr Murphy also explained the extensive steps he has since taken to pursue various matters of concern to him, including the service of Notices to Admit Facts, interrogatories and Notices to Admit Authenticity of Documents, on various bodies including the Council, the Crown Solicitor, Centrelink and the GIO. It is not necessary to outline all of the other matters of concern, which Mr Murphy there explains in detail, which concern the matters I have already referred to, as well as other matters concerning various other individuals and entities, including for example Westpac. 10It is necessary to refer to advice which Mr Murphy claims to have received from Duty Registrars of this Court on at least two occasions, that in order to have the 1964 proceedings restored to the list, he should file a motion and ask to have the file retrieved from storage. Mr Murphy also gave an account of the Court's unsuccessful endeavours to locate that file; of his understanding at one time, that the defendant no longer had a copy of its file in the proceedings, but later that it did and of FOI applications which he made about this matter. 11Various documents were annexed to Mr Murphy's affidavit, including advice given him by the defendant in August 2011, reiterating that it denied any breach or liability to Mr Murphy in respect of claims which he had advanced about the 1966 settlement; that it did not admit the facts or authenticity of documents which he had pursued; and that in its view, the proceedings were finalised in 1966.
The Council's motion 12The Council's motion seeks orders under Rule 14.28 of the Uniform Civil Procedure Rules 2005 striking out Mr Murphy's motion and in the alternative, an order dismissing the motion under Rule 13.4, as well as an order for costs. The Rules provide: 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. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). " 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) The court may receive evidence on the hearing of an application for an order under subrule (1)." 13The motion is supported by an affidavit sworn by Ms Samantha Kelly, the defendant's solicitor. The terms of settlement of the 1964 proceedings were annexed to the affidavit. Ms Kelly explained that the 1964 proceedings were commenced by the plaintiff's next friend, Neville Murphy, in respect of personal injury which the plaintiff had allegedly suffered. The proceedings were settled in 1966, with a verdict entered for Mr Murphy in accordance with the terms of settlement, which included the payment into Court of the agreed sum, without admission of liability, after deduction of any sum repayable by the plaintiff in respect of workers compensation or social services. The terms of the settlement were not to be disclosed by the parties. 14It is not in dispute that the settlement monies were paid into Court by the defendant in June 1966. Mr Murphy's motion was supported by a chronology, which noted, amongst other things, that a payment was made into Court in June 1966 and that the money was remitted by the Court to the Public Trustee for investment on his behalf, in July 1966. The chronology does not refer to what later transpired to the money which the Public Trustee held. It and Mr Murphy's affidavit refer to 'approaches' in the 1980's by named persons and what he claims followed. To whom such approaches were made is not specified, but presumably, given the matters to which Mr Murphy deposed in his affidavit, they were approaches made to him. 15Ms Kelly referred to Mr Murphy's later communications with the Council, when he requested that the Council agree that he be released from the non-disclosure provision of the settlement. The Council agreed to this request in March 2005. In August 2010, Mr Murphy wrote to the Council to explain events which had occurred since 1990 and asking, amongst other things: "I seek from SMC a written acknowledgment of the multiple breaches of the Terms of Settlement and an acknowledgement of implicit constructive non-compliance with the 1966 Order and then we can jointly go back to Court for directions and update of amount and for an Order that the Crown Solicitor who acted for GIO under the original public liability policy PL5357 PLC 1883 collect the "all moneys outstanding" as per the Deed in the amount to which they have accrued as per the Deed off AGC/GE. Settlement of "all moneys outstanding" is long overdue and has accrued over the years per the Deed and is in line with the original order being one also for approval of settlement, investment on behalf of the infant and payment of settlement (not credit) into the Court and ... " 16In this correspondence Mr Murphy alleged that the breach of the terms of the settlement was from the Council's side, although not from the Council itself. He claimed that it was indemnified by its insurer in respect of this breach and advised that he sought to recover the settlement moneys, plus interest. 17Council advised Mr Murphy in September 2010, that it considered that the matter he had raised with it was 'a civil matter between various parties external to Council and does not intend to intervene'. That was reiterated in subsequent correspondence. Later Mr Murphy alleged that the Council had a close relationship to such parties, which he suggested it should deal with in order to arrange a settlement of his claims. The Council did not accede to this request, with the result, the service of various notices and interrogatories and finally, the bringing of the motion by which he commenced these proceedings.
The orders sought by the Council must be made 18The case which Mr Murphy seeks to advance by his motion is far from clear. What is not in issue, on the material, is that it is not in dispute that the 1966 proceedings were finalised between the parties, in accordance with the terms of settlement which were then reached and that the defendant then made the payment which it was required to make, in accordance with those terms. 19The claims which Mr Murphy wishes to advance, seem to hinge on a view which he holds, that the non-disclosure provision of the terms of settlement were later breached by someone associated in some way with the Council. As the Council submitted, that belief appears to rest on a suspicion which Mr Murphy has, that after 1990, someone connected with the Council in some way colluded with others in order to defraud Mr Murphy of the settlement moneys. It is seemingly on the basis of that belief, that Mr Murphy seeks to recover damages from the defendant, in respect of an alleged fraud. 20Like all other litigants, Mr Murphy is bound by the requirements of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules . The case which he wishes to advance may not be brought by way of the motion he has filed, by which he seeks the re-opening of the 1964 proceedings, in order to pursue various claims. The Council's criticisms of the way in which the motion is pleaded must be accepted. While Mr Murphy has outlined in detail the matters which concern him, the pleadings do not adhere to the requirements of the Rules; they are in large part quite unclear; they do not disclose the material facts which it is claimed support the allegations which he seeks to advance; and they do not disclose the relief which he seeks. 21The Rules require that claims of the kind which Mr Murphy seemingly wishes to advance, must be pursued by way of a properly pleaded statement of claim identifying the relief he seeks (see r 6.3). They may not be pursued by a motion which seeks the re-opening of the 1964 proceedings. Mr Murphy must adhere to other applicable requirements of the Rules, which include requirements such as that the pleadings ought to be brief (r 14.8.); that they must disclose that he has a reasonable cause or causes of action; that they must include the material facts on which reliance is placed (r 14.7); and that they must provide all necessary particulars of the claims which are pursued (r 15.1). The pleadings must also be sufficiently clear so as to enable the Council to put on a defence to each claim advanced. 22Unintelligible, imprecise, ambiguous pleadings, which do not give proper notice of the substance of any claim, may not be permitted. As discussed by Bongiorno J in Gunns Limited v Marr [2005] VSC 251 at [57]: "It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of 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. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r 23.02. Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form." 23In the circumstances, orders striking out the motion must be made, but I am also satisfied that Mr Murphy must be given an opportunity to put his pleadings into proper form. In pursuing that opportunity, it will be important for Mr Murphy to adhere to the applicable requirements of the Rules, if he is not to face a further strike out application. The requirements of the Civil Procedure Act , must be borne in mind, particularly the obligation imposed on the Court by s 56, to give effect to the overriding purpose of the Act, namely to 'facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings', and the obligations imposed upon litigants by s 56(3): "(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court." 24Mr Murphy referred in his submissions to having had legal advice, at one stage. Given the state of his pleadings, it would be of obvious assistance to Mr Murphy to obtain further advice. It must be borne in mind that parties, even unrepresented litigants like Mr Murphy, may not be given repeated opportunities to put their pleadings into proper order. 25In the circumstances it is appropriate to give Mr Murphy 28 days to file any amended pleading which he wishes to pursue. The usual order as to costs under the Rules is that costs should follow the event, with the result that the Court would make an order in the Council's favour, against Mr Murphy. If the parties wish to be heard on the question of costs, they should approach my Associate within 7 days.
Orders 26I make the following orders:
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: 17 February 2012
Murphy
Council of the Municipality of Strathfield
[2005] VSC 251