Morgan v Banning (1999) 20 WAR 474

Noye & Anor v Gwilliam [2000] WASC 206

Smith v McCusker QC & Anor [2000] WASCA 320

Everett v Ribbands [1952] 2 QB 198

Ghani v Jones (1970) 1 QB 693

Gibbs v Rea [1998] 3 WLR 72

Wan v Sweetman (1998) 19 WAR 94

1 MASTER SANDERSON: This is effectively the plaintiff's application for leave to amend their statement of claim in terms of a minute of proposed substituted statement of claim filed 18 September 2000. This minute was the latest in a long line of amended statements of claim. I have traced the history of the strike-out applications and the attempts by the plaintiffs to produce an adequate pleading in earlier reasons: See Noye & Anor v Gwilliam [2000] WASC 206. I need not repeat what I said in those earlier reasons, however, it may be necessary to refer to the earlier decision to put this decision in context.

2 At the conclusion of the hearing I indicated to the parties that I would allow the plaintiffs to amend their statement of claim in terms of the minute. I indicated that I would publish my reasons at a later date. These are those reasons.

3 The plaintiffs in this action are litigants in person. The causes of action which they are seeking to plead are somewhat unusual and it is to be expected they would have difficulty framing a proper statement of claim. That reality must be recognised when the defendant's objections to the form of the statement of claim are considered. In Smith v McCusker QC & Anor [2000] WASCA 320 the Full Court was dealing with an appeal by litigants in person whose statement of claim had been struck out. Templeman J, after acknowledging a lengthy delay in the prosecution of the proceedings by the appellant, said (at [212]):

"... However, the delay is due in part to the respondents' persistent objection to the form of the Smiths' pleadings. That objection has been justified in the sense that a litigant is required to comply with the rules of pleading. However, the Court should, I think, approach matters involving litigants in person with a degree of flexibility. The power to dispense with pleadings illustrates that the rules of pleading are a means to an end, not an end in themselves."

4 It is against that background that I turn to consider the particular objections of the defendant to this latest minute. Complaint is made in relation to par 7 to par 16. It is said that they are vague, irrelevant and disclose no reasonable cause of action. These paragraphs deal with action taken under a search warrant which is described in par 7 of the minute as "the first search warrant". It is said that pursuant to this search warrant certain goods belonging to the second plaintiff were seized. It is alleged that the seizure was beyond the defendant's power, to his knowledge. It is further pleaded that the goods have not been returned. As a consequence, the second plaintiff says (at par 16) he has suffered loss and damage.

5 As I understand the pleading, the second plaintiff is claiming damages for conversion of his goods. I think that emerges with reasonable clarity from the pleading. It is true that no particulars of loss and damage are provided - it is said that these particulars will be provided "prior to trial" At some stage particulars will need to be provided, perhaps after discovery but certainly well before trial. In my view the absence of particulars at this stage of the action is not such as to warrant the leave to amend in terms of the minute being refused.

6 Objection is taken to par 17 to par 26 of the minute. These relate to what the second plaintiff refers to as "the second search warrant". The defendant also objects to par 27 to par 38 ("the third search warrant") and to par 39 to par 45 ("the fourth search warrant"). In each of these cases the way in which the matter is pleaded is broadly similar, although there are slight differences between the pleading in relation to each of the four search warrants. Nonetheless, the comments I have made in relation to the first search warrant apply with equal force to the other three search warrants. While the pleading may not be entirely satisfactory it seems to me in the circumstances it should be allowed to stand.

7 Paragraph 46 to par 54 deal with a Porsche motor vehicle which it is alleged was seized when the defendant executed a search warrant issued under the Misuse of Drugs Act. It is alleged that the seizure of the Porsche was beyond power and in the alternative, that it has been converted by the defendant. Again the pleading is in similar terms to those dealing with the four search warrants. As with the earlier paragraphs, I am satisfied these paragraphs can stand.

8 Paragraph 55 to par 59 relate to what I understand to be a claim for malicious prosecution. The second plaintiff alleges that on 10 August 1993 he was arrested as he was on his way to give evidence in a trial in the Supreme Court in which he was plaintiff. As a consequence of this arrest it is said by the second plaintiff that he has suffered loss and damage - the Supreme Court action was lost, it is alleged, because the second plaintiff "was unable to properly prepare and present the plaintiff's case at trial". While the pleading of this claim is not without difficulty I am prepared to allow it to stand in its present form. In my view the pleading is such as to indicate to the defendant the case that he has to meet at trial.

9 There is a general complaint that par 1 through to par 60 raise matters which are beyond the ambit of matters raised in the writ. A statement of claim was endorsed on the original writ. While it is not easy to equate the original statement of claim with the minute I am satisfied that if any new causes of action are pleaded in the minute which were not to be found in the original statement of claim, they arise out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed: See O 21 r 5(5). Any limitation defence which arises in relation to any matter added by the minute will still be available to the defendant: See generally Morgan v Banning (1999) 20 WAR 474.

10 Complaint is made about par 60 to par 70. These paragraphs deal with three complaints sworn against the first plaintiff and one complaint sworn against the second plaintiff which, it is said, arose as a consequence of false representations made by the defendant to a senior officer. Reference is then made in these paragraphs to indictments brought against the plaintiffs by the Director of Public Prosecutions. The plaintiffs' claims appear to be based in malicious prosecution. The defendant says that the pleading does not show that the indictments flowed from the defendant's actions. Therefore, it is said, no claim can succeed. Clearly causation is an element of the plaintiffs' cause of action and must be proved if the claim is to succeed. In my view it is plain on the pleadings what case the defendant has to meet. While this question of causation is not carefully pleaded, I am satisfied that the minute in its present form allows the defendant to understand the case he has to meet.

11 Complaint is made as to par 71 to par 78. These paragraphs deal with disciplinary charges brought against the first plaintiff while he was still a member of the WA Police Service. It is said that the pleading does not disclose how these disciplinary charges were maintained against the first plaintiff by the defendant. At trial it will be for the plaintiffs to prove all elements of their case. The nature of the objections makes it clear that the defendant understands the case that is being put against him. Although it may well be said that the plaintiffs' claim is not pleaded with precision. I am satisfied that in all the circumstances the plea is adequate.

12 A general objection is taken to par 80 and par 82 through to par 85. In my view, none of these paragraphs adds anything to the action brought by the plaintiffs against the defendant. But each of the paragraphs at least sets out what it is said by the plaintiffs against the defendant. In these circumstances I am satisfied that the pleading ought to stand and the plaintiffs should be given the opportunity to put their case at trial.

13 For these reasons I granted leave to amend in terms of the minute of proposed substituted statement of claim.