Solicitors:
Plaintiff in person
Minter Ellison - Defendant
File Number(s): 2015/287280
[2]
JUDGMENT
HIS HONOUR: The plaintiff, who is self-represented, seeks the leave of the Court by way of a Notice of Motion filed 4 January 2017, to file an Amended Statement of Claim (ASOC) in the form annexed to the plaintiff's affidavit of 23 March 2017.
The defendant opposes that application. The defendant submits that the proposed Amended Statement of Claim is pleaded in terms which are unintelligible, ambiguous, vague or too general so as to embarrass it. The defendant submits that it does not know the case which is alleged against it.
Factual background
In August 2010 the plaintiff, who is a resident of Uganda, was enrolled in a Doctor of Philosophy course in the Faculty of Medicine of the defendant for semester 2 (the PhD Program). In 2012 the plaintiff submitted an application to the Faculty of Medicine to suspend her PhD candidature for semester 2 in that year. The reason was that she was the primary carer of her mother in Uganda and that her mother was critically ill. The Faculty of Medicine refused the plaintiff's application and terminated her participation in the PhD Program.
On 5 November 2012 the plaintiff appealed to the Student Appeals Body (SAB). The plaintiff was successful in her appeal and was reinstated to the PhD Program.
On 10 November 2014 the Faculty of Medicine gave the plaintiff written notice requiring her to show cause why she should be permitted to continue her candidature in the PhD Program. The plaintiff responded to that notice on 8 December 2014. On 16 December 2014 the Faculty of Medicine terminated the plaintiff's candidature in the PhD Program.
On 29 January 2015 the plaintiff again appealed to the SAB against the termination of her candidature in the PhD Program. On 10 March 2015 the SAB heard the appeal and on 25 June 2015 dismissed the appeal. On 30 June 2015 the defendant sent the plaintiff a letter informing her of the SAB decision and the reasons for the decision.
On 1 October 2015 the plaintiff commenced proceedings in this Court by way of Summons, seeking unspecified orders in relation to the decision of the SAB to uphold the Faculty of Medicine's decision to terminate her candidature in the PhD Program. That Summons was stood over to 26 February 2016 to enable the plaintiff to seek legal assistance and to review Legal Aid's decision to refuse her application for assistance.
On 4 March 2016 Fagan J made orders that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the Registrar's Pro Bono Panel for legal assistance with respect to these proceedings. As a result of that order, Dr Richard Scheelings of counsel appeared for the plaintiff at the directions hearing on 15 April 2016.
On 17 August 2016 a Statement of Claim (SOC) was filed by Ms Kneebone from NSW Waterlaw on behalf of the plaintiff. That Statement of Claim was conventional in form and raised administrative law issues. Specifically, it sought to set aside the second SAB decision on the basis of apprehended bias, failure to identify the correct question, failure to follow the relevant PhD rules and failure to have regard to relevant material. The SOC also sought an order that the decision of the SAB was tainted by irrationality and unreasonableness.
By letter dated 16 December 2016 Messrs Minter Ellison, the solicitors for the defendant, requested further and better particulars of the SOC. On 26 October 2016 a Defence to the SOC was filed.
The proceedings came before the Common Law Registrar for directions on 4 November 2016. The plaintiff was ordered to provide further and better particulars in respect of paragraphs 24 and 25 of the SOC identifying the specific considerations which the SAB should have taken into account but failed to do so. At that hearing, the plaintiff foreshadowed an intention to rely on contractual claims, as well as those pleaded. The Registrar ordered that the plaintiff serve a draft Amended Statement of Claim (ASOC) by 18 November 2016. The defendant was to advise whether it consented to the filing of the ASOC by 2 December 2016.
On 21 November 2016 Messrs Minter Ellison was served with a Notice of Ceasing to Act by Ms Kneebone. Later that month, Dr Scheelings also withdrew from the matter. The plaintiff was not prepared to sign a Fees Agreement, prepared by Ms Kneebone. This was apparently because the Fees Agreement did not contain a "no win no pay" provision, which the plaintiff understood was the agreement which she had with Ms Kneebone. From that time, the plaintiff has represented herself in the proceedings.
On 8 December 2016 Ms Nandutu served a draft ASOC on Messrs Minter Ellison.
When the matter came before the Common Law Registrar on 9 December 2016 Ms Nandutu advised that she did not have legal representation. If the defendant did not consent to the Amended Statement of Claim being filed, the plaintiff was ordered to file and serve a Notice of Motion and supporting Affidavit, seeking leave to file the draft ASOC by 30 December 2016.
On 20 December 2016 Messrs Minter Ellison sent a letter advising that it did not consent to the filing of the draft ASOC. In that letter, Messrs Minter Ellison identified a number of shortcomings in the draft ASOC. On 2 January 2017 the plaintiff sent an email to Messrs Minter Ellison, a Notice of Motion and supporting Affidavit, seeking leave to file the ASOC.
On 5 January 2017 the plaintiff sent to Messrs Minter Ellison an Amended Notice of Motion and Affidavit, which annexed a further draft ASOC. This was in a form different, although not substantially so, to the document which had been previously provided to Messrs Minter Ellison.
On 7 February 2017 Messrs Minter Ellison sent a letter to the plaintiff outlining the defendant's objections to the draft ASOC. On 15 March 2017 the plaintiff sent a letter to Messrs Minter Ellison in response to their letter of 7 February 2017 and provided another ASOC. That document was different, although not substantially so, to those which had been previously served.
On 16 March 2017 the plaintiff sent Messrs Minter Ellison a fourth draft ASOC. That is the document which was before the Court and which was annexed to the Affidavit of Ms Nandutu, sworn 23 March 2017.
Applicable legal principles
It was accepted by the defendant that even though the plaintiff was making the application to file the ASOC it was the defendant which bore the onus of establishing that the ASOC was defective because the pleadings were embarrassing and that leave ought not be granted on that basis.
The defendant relied upon the following extract from McGuirk v The University of New South Wales [2009] NSWSC 1424 (Johnson J) where his Honour said:
"21 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 requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her: Banque Commerciale SA En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286, 296, 302-3. 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] 148 CLR 658 at 664; Banque Commerciale at 296.
22 In Perpetual Trustees Victoria Limited v Dunlop [2009] VSC 331, Forrest J observed at [24] that the rules of pleading are "the servants of the interests of justice", with those interests demanding that a party have every opportunity to plead out an arguable case against other parties, but that those other parties have, at an early point in the proceedings, the opportunity to be properly appraised of the case against them.
23 Pleadings provide the structure upon which interlocutory processes, such as discovery, are governed and they constitute the record of the matters which the Court has resolved and become relevant if, in any subsequent proceedings, any party claims issue estoppel or res judicata: Australian Competition and Consumer Commission v Fox Symes & Associates Pty Limited [2005] FCA 1071 at [100]-[103].
24 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.
25 Where application is made by a party for leave to amend pleadings, the Court should have regard to considerations of case management, cost and delay: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [111]-[112]; (2009) 83 ALJR 951. Of course, the present application is made by the Plaintiff at an early stage in the proceedings. A hearing is not imminent. Nevertheless, the orderly progress of litigation requires the Court to apply the letter and spirit of the Civil Procedure Act 2005, in accordance with contemporary principles identified in Aon, in determining an application such as this.
26 The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore flows most clearly from the statutory duty of a party and the duty in civil proceedings to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in dispute: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243 at 161. The need for clarity, precision and openness as part of this co-operation has been emphasised in the context of ambush or surprise: White v Overland [2001] FCA 1333 at [4].
27 For a Statement of Claim to comply with the rules of Court, a party should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: Rule 14.7 UCPR. In doing so, the pleadings should be as brief as the nature of the case admits: Rule 14.8 UCPR.
28 In Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) said at 142-143 [20]-[21], with respect to the requirement for a pleading to state material facts:
"It might appear that these rules [the Supreme Court Rules] do not require that causes of action be stated in pleadings; the requirement is to have a statement of material facts, and indeed to have only such a statement. However, in my opinion - 'Material' means material to the claim, that is, to the cause or causes of action which are relied on. (2) The requirement of a statement of material facts does not exclude the allegation of legal categories, such as duty of care, fiduciary duty, trust and contract. (3) The general requirement to avoid surprise means that material facts must be stated in such a way that the defendant can understand the materiality of the facts, that is, how they are material to a cause of action.
Accordingly, even on the basis of these rules which are common to the District Court and the Supreme Court, I do not take cases such as Konskier as establishing that there is a danger of surprise, which arises particularly where there is lack of precision and clarity in the pleading, it may well be appropriate to require a Plaintiff, either in a statement of claim or in particulars, to explicitly relate the facts it pleads to specific causes of action."
29 In Gunns Limited v Marr [2005] VSC 251, Bongiorno J observed at [57]:
"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."
Embarrassing Pleadings
30 A pleading is embarrassing where it is "unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him": Meckiff v Simpson [1968] VR 62 at 70; Gunns Limited v Marr at [14]-[15].
31 In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of "embarrassment" with respect to pleadings:
"Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434."
32 A pleading may be embarrassing even though it contains allegations of material facts sufficient to constitute a cause of action, if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Limited (Bryson J, 7 March 1995, BC9504276 at 5-6).
33 Although the pleading of a conclusion may, in some circumstances constitute a material fact, nevertheless, the pleading will be embarrassing if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417-418. In such a case, the appropriate remedy is to strike out the pleading rather than to order the provision of particulars, as it is not the function of particulars to take the place of the necessary averments in a pleading: Trade Practices Commission v David Jones (Australia) Pty Limited (1985) 7 FCR 109 at 112-114.
34 Rule 14.28 UCPR provides that pleadings that involve non-compliance are liable to be struck out as an embarrassment. However, generally the Courts recognise that a wide range of discretionary considerations arise where there is a failure to comply with the technical requirements of the pleading rules: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466. In many instances, the appropriate order may be to strike out the offending pleading, but grant leave to amend: Rubenstein v Truth & Sportsman Limited [1960] VR 473 at 476; H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181 at 186.
35 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. Objectionable matter that is so mingled with other matter may lead to the conclusion that the pleading as a whole would tend to embarrass the fair trial of the action ought be struck out: Turner v Bulletin Newspapers Co Pty Limited (1974) 131 CLR 69 at 72, 87-88, 97-98; Gunns Limited v Marr at [57]-[58]; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926 at [55]."
The defendant also relied upon the observations of Ipp JA (Giles and Hodgson JJA agreeing) in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206; 73 NSWLR 653 at [412]-[443]. There is no need to replicate the observations of Ipp JA. They were of similar effect to those of Johnson J.
Plaintiff's submissions
The plaintiff submitted that her case had always involved issues of breach of contract and breach of duty of care but that the advice she received was to commence proceedings initially seeking administrative law relief, after which the SOC could be expanded. She said that the reason why the proposed ASOC was so lengthy was that every time she served a document on the defendant's solicitors, they sought further information and further particulars. All she was doing with the further ASOCs was to provide the information which the defendant was seeking.
Consideration
The draft ASOC comprises 25 pages of tightly printed material. It is not necessary to comment on each of the many matters raised in the document. A sufficient flavour can be obtained by setting out some aspects of the "relief claimed" at p 2 of the draft. The first three orders are under the heading "Contract Law". They are:
"1 Orders for damages to compensate the plaintiff for losses caused by defendant's failure to deliver promised education services to the plaintiff as PhD student in SMS [Sydney Medical School] including:
1. Missed work opportunities promised to plaintiff on completion of her Ph D in SMS.
2. Costs incurred by plaintiff while pursuing PhD in SMS including travelling from Uganda to Sydney to progress her PhD in SMS in 2013 and three times in 2014. …"
Not only do these assertions set out conclusions, but they deal with concepts at a high level of generality, such as "promised education services" and "work opportunities" which require substantial elaboration via particulars which should have been set out in the ASOC but which were not.
Further relief is claimed under the heading "Failure in Duty of Care Misrepresentation, Fraud" as follows:
"8 Orders for damages to compensate the plaintiff for losses and costs caused to her whilst a PhD student in SMS and grave damage to her reputation, self-esteem, health, education and career opportunities, caused her isolation and impacted on her relationships due to:
(i) Defendant's failure in duty of care to the plaintiff whilst PhD student in SMS.
(ii) Misrepresentation, deception and fraudulent actions against the plaintiff - denying her legal rights.
(iii) Falsified information against the plaintiff disseminated by Christopher Jordens - Sydney University employee in SMS, including "print out" with false entries and wrong information lumped on the plaintiff's personal details, which he alleged to be the plaintiff's Sydney University Academic Record and he disseminated that falsified information.
(iv) Defendant's facilitation, endorsement and defence of what is noted in 8(ii), (iii)."
No proper particulars are provided anywhere in the ASOC in relation to those particular claims. Where there are what purport to be particulars, the word "including" is used strongly suggesting in that context that the plaintiff relied on other unstated matters as part of her claim.
Rather than setting out with clarity the particular case which the defendant has to meet, these claims are expressed in very general terms and comprise vague allegations of important matters which are nowhere properly particularised in the ASOC. Far from assisting in the just quick and cheap resolution of the real issues in the proceedings, to allow pleadings in this form to remain as part of the ASOC would make it difficult, if not impossible, for the defendant to properly plead to and answer such a case. It would also make interlocutory processes, such as discovery, and the administration of interrogatories (if appropriate), virtually impossible.
The above examples are sufficient to provide the flavour of the pleading generally. Much of the other material in the ASOC comprises disconnected factual assertions placed under quasi legal headings but having little relationship to that heading. Where policy documents or University rules are referred to, there is no particularisation, simply an identification of the rule without further elaboration. For example, paragraph 21(4) of the ASOC reads:
"Unjust processes in breach of applicable published Sydney University rules, policies.
21 SAB Hearing of the plaintiff's appeal against SMS termination of her PhD was unjust and breached applicable published University rules and policies and the SAB inserted and used false statements in the decision.
Specifically …
(4) In making the decision the SAB sanctioned SMS contravention of applicable published University of Sydney rules and policies in respect of the plaintiff's PhD in SMS including the section cited below breach by SMS in regard to plaintiff's PhD.
(a) University of Sydney (Higher Degree by Research) rule 2011 … 4.09(1); (2); (4) … 11;
(b) University of Sydney (Supervision Higher Degree by Research Student's Policy 2013 (accessed 18 June 2015 - no amendments): Section 7(b), (c)(i), (ii), (iii), (iv), 8(3), (4)(a), (b), (c); 9(1), (6)(a); 14(3), (4), 8(a), 10(b), (c); 12(a), (b), (c), (e), (f)(i), (ii); 13(a), (d)(i), (ii), (e)(i), (ii), (f), (g); 14(a), (b); 16(1), (2), (a), (f), (g), (j); 17(2)(e), (i); 18(2)(c), (e)."
When one looks at the actual sections and subsections to which reference has been made, it is impossible to identify the breach of rule or particular which is being relied upon. It is not clear in what way, if at all, any of the rules or sub-rules are said to have been breached by the defendant. In any event, significant particulars would be required of every breach of rule if the particular paragraph is to have any meaning.
Application of legal principle
When one applies the principles in McGuirk v The University of New South Wales and Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd to the ASOC, it is apparent that it is embarrassing in form and content and that the defendant has been successful in establishing that leave to file it should not be given.
The governing principle is that a court will not allow an amendment if it is so obviously futile that it would be liable to be struck out if it had appeared in the original pleading (McGuirk at [18] referring to Horton v Jones (No 2) (1939) 39 SR(NSW) 305 at 309-310).
The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. Pleadings thus serve to define the issues for decision and to ensure the basic requirement of procedural fairness that the opposing party should have the opportunity of meeting the case brought against it. It is the issues identified in the pleadings which provide the basis upon which evidence may be ruled admissible or inadmissible at trial.
Far from setting out the basis for the plaintiff's claim so as to allow the trial to be conducted fairly, the allegations in the ASOC are vague and expressed as generalisations, the relevance of which it is difficult to determine. The nature of the claims being brought against the defendant is simply not clear.
Proper pleadings are of fundamental importance in enabling the court to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings (s 56 of the Civil Procedure Act 2005 (NSW)). It has been made clear, by reference to the highest authority, that an application to amend pleadings must take into account "considerations of case management, cost and delay" (Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [111]-[112]).
The confusing and somewhat rambling and repetitive content of the proposed ASOC is the very antithesis of that objective.
It has been held that a pleading may be embarrassing even if material facts are alleged. That occurs if those material facts are expressed in terms which leave difficulties or doubts about recognising or piecing together what is referred to (Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), Bryson J, 7 March 1995, unrep). The same difficulty arises if allegations are made at such a level of generality that the defendant does not know the case it has to meet (Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees Association of Western Australia (1987) 13 FCR 413 at 417-418). In those situations the appropriate remedy is to strike out the pleading rather than order the provision of particulars, it not being the function of particulars to take the place of averments which are necessary for a pleading to be effective and clear.
The ASOC in this case is replete with examples of those kinds of generalisations and ambiguities. It is simply not possible to identify the specific causes of action relied upon and the averments which are said to establish that cause of action. Even where it is possible to identify a possible cause of action, the relevance of the factual assertions accompanying it is problematic in the extreme. In many cases the factual assertions are plainly irrelevant to any cause of action which could be said to arise from even a generous reading of the document.
Another problem with the proposed ASOC is that general allegations of fraud are made without any particularisation. Moreover, those allegations of fraud are made in parts of the ASOC where they appear to have no relevance to other assertions there set out. These defects are very similar to the pleadings considered by Johnson J in National Australia Bank Ltd v Skoczek and Ors [2016] NSWSC 1765. In that case, his Honour observed:
"40 … objectionable matter is so mingled with other matter that it may lead to the conclusion that the pleading as a whole would tend to embarrass a fair trial of the action and ought be struck out."
The above observations are sufficient to deal with the application. It is clearly quite inappropriate for leave to be given for the filing of the ASOC relied upon by the plaintiff.
That does not end the matter. The legal concepts which the plaintiff appears to be trying to articulate are complex and require the expertise of somebody who is legally qualified. In fairness to the plaintiff, some time should be allowed to her to enable her to seek such legal advice, if such is available, and to be in a position to file an Amended SOC if the advice she receives is to that effect. Accordingly, the orders which I make are as follows:
1. Leave to file the proposed Amended Statement of Claim annexed to the plaintiff's Affidavit of 23 March 2017 is refused.
2. The Notice of Motion filed 4 January 2017 is dismissed.
3. The plaintiff is not permitted to file an Amended Statement of Claim without the leave of the Court.
4. Should the plaintiff seek leave to file an Amended Statement of Claim, that application should be made on or before 31 August 2017.
5. The plaintiff is pay the costs of these proceedings, including the defendant's costs of opposing the Notice of Motion.
[3]
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Decision last updated: 03 May 2017