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[2011] NSWSC 1242
Supreme Court of NSW
2011-10-19
Original judgment source is linked above.
Judgment 1HER HONOUR: There are two notices of motion before the Court. By notice of motion filed 28 June 2011 the first defendant seeks, first, an order setting aside the originating process pursuant to the Uniform Civil Procedure Rules 2005 ("UCPR"), rule 12.11(1); secondly, alternatively, an order that the proceeding be dismissed because: a. it is frivolous or vexatious (UCPR 13.4(1)(a)); b. it does not disclose a reasonable cause of action (UCPR 13.4(1)(b)); and/or c. it is an abuse of process of the Court (UCPR 13.4.(1)(c)); and thirdly, alternatively, an order that the originating process be struck out because it: a. discloses no reasonable cause of action (UCPR 14.28(1)(a)); b. has a tendency to cause embarrassment (UCPR 14.28(1)(b)); and/or c. is otherwise an abuse of the process of the Court (UCPR 14.28(1)(c)). 2By notice of motion filed 5 July 2011 the second defendant seeks, first, an order that the plaintiff's statement of claim filed on 3 June 2011 be dismissed pursuant to UCPR 13.4 on grounds that the proceedings are frivolous or vexatious, disclose no cause of action and/or are an abuse of the process of the Court; and secondly, in the alternative, the plaintiff's statement of claim filed on 3 June 2011 be struck out pursuant to UCPR 14.28 on grounds that it discloses no reasonable cause of action, has a tendency to cause embarrassment, prejudice or delay in the proceedings and/or is an abuse of the process of the Court. 3The plaintiff is Peter (Pedro) Le, who has pleaded that his name "MUST NOT BE MADE PUBLIC FOR LEGAL REASON". When this court asked Mr Le about this, he agreed that he can be referred to as Peter (Pedro) Le. The first defendant is the Commonwealth of Australia ("the Commonwealth). The second defendant is the State of New South Wales ("the State"). 4The plaintiff represented himself at this hearing. Prior to the hearing of these motions, he had requested that a hearing loop and a self-standing long armed microphone (diagram provided by the plaintiff) be provided, as he is profoundly deaf. He also requested a translator for the hearing. All these were provided. The plaintiff can speak in the English language and he was articulate. He indicated that he understood what was being said in court. He stipulated that other communication with him be only in writing or by electronic means. The plaintiff said that he has a spinal cord injury (he was in a wheel chair). 5The documents to be relied upon by the defendants, namely affidavits and the second defendant's submissions, were read by the translator to the plaintiff in Spanish prior to the hearing taking place. I read all the parties' documents and listened carefully to the submissions made. 6The plaintiff, as best as I can discern, seeks damages for defamation and for beaches of duty of care owed to him by various Commonwealth and State bodies both in statute and in negligence.
The legislative framework 7UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the court. 8So far as whether or not the plaintiff's statement of claim should be dismissed on the basis that no reasonable cause of action is disclosed, t he test to be applied has been variously expressed as "so obviously untenable that it cannot possibly succeed", "manifestly groundless", "so manifestly faulty that it does not admit of argument", "discloses a case which the Court is satisfied cannot succeed", "under no possibility can there be a good cause of action" and "be manifest that to allow them" (the pleadings) "to stand would involve useless expense": see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. 9UCPR 14.28(1) provides that 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, first, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading or, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court. 10Before I examine the plaintiff's pleadings contained in his statement of claim, it is important to remind myself that the main purpose of a pleading is to state with sufficient clarity the case that must be met by the defendants. 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: see McGuirk v University of New South Wales [2009] NSWSC 1424 at [21] and Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286, 296 and 302-3. 11For 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: UCPR 14.7. In doing so, the pleadings should be as brief as the nature of the case admits: UCPR 14.8.
The statement of claim 12I do not propose to set out the whole of the statement of claim. At the outset, the plaintiff pleads that: "BECAUSE OF THE FOLLOWING REASONS: (1) ON OR ABOUT 2006 TO 2011 DEPRIVED OF LIBERTY; JUSTICES -- BY COURTS & TRIBUNALS, NSW ADB, H.R.E.O.C., PRO BONO LAWYERS, & OTHER GOVERNMENT FUNDED LEGAL SERVICES -- THIS LIST IS LONG -- REFER TO ADB 1 THIS IS THE REASON WHY I'M FORCED TO ACTED FOR MY SELF & TRY & DO MY OWN LEGAL WORK ALSO THE REASON WHY I HAVE NOT BEEN LEGAL SUCCESSFUL IS BECAUSE OF THE APARTHEID TERRORIST IGNORANT ATTITUDE BY COURTS STAFF, JUDGES, SO ON ..." 13ADB 1 (referred to above) sets out the meaning of the words as: 1 ADMINISTRATIVE DECISIONS TRIBUNAL 2 CONSUMER, TRADER & TENANCY TRIBUNAL 3 DISABILITY DISCRIMINATION LEGAL CENTRE 4 DISABILITY COUNCIL 5 HEALTH CARE COMPLAINT COMMISSION 6 HENRY DAVIS YORY (sic) LAWYER 7 PEOPLE WITH DISABILITY 8 PUBLIC INTEREST ADVOCACY CENTRE" 14The plaintiff further pleads that: "APARTHEID TERRORIST SUPREME COURT THIS STATEMENT OF CLAIM WAS WILLFULLY DELAY BECAUSE OF THE HATRED TO A PERSON MEDICAL MEDICAL CONDITION --(DISABILITY & AGED) & RACE BY THE SUPREME COURT CLERKS & REGISTRY THIS IS JUST FURTHER EVIDENCE OF INJUSTICES & WHEN YOU REFER TO DOCUMENT ADDED CALLED -- THE RIGHT TO A FAIR HEARING & ACCESS TO JUSTICE: AUSTRALIA'S OBLIGATIONS AUTHOR OF THIS DOCUMENTS IS: HUMAN RIGHTS LAW RESOURCE CENTRE LTD WWW.hrirc.org.au THERE IS HUNDREDS OF DOCUMENTS LIKE THIS & WHERE BY PEOPLE JUST SIT AROUND ON THEIR ASS & JUST TALK & TALK BUT DON'T PUT IT INTO ACTION -- WHY -- BECAUSE AUSTRALIANS ARE JUST PISS & WIND & SOME OF THE ETHNIC MINORITY THAT CAME TO AUSTRALIA TAKE ON THIS ATTITUDE TAKE NOTICES OF FOLLOWING I PETER LE DO GIVE YOU FAIR WARNING & DO TAKE BLOODY NOTICES THAT THEIRS NO LEGAL REASON TO REFUSE THIS APPLICATION OF STATEMENT OF CLAIM I DID MY BEST TO PUT THE TRUE FACTS DOWN IN WRITING & I HAD MORE THAN A GUTFUL OF TRIBUNALS & COURTS & THEIR STAFF IGNORANCE TO A PERSON LEGAL RIGHTS BECAUSE OF THEIR MEDICAL CONDITION OR THE WAY THE LEGAL DOCUMENTS ARE FROM SO IF I'M REFUSED MY LEGAL TO A HEARING TO RESOLVE THESE ISSUES THEN UNDER COMMONWEALTH & STATE LAW - REFER TO DOCUMENTS ADDED I HAVE A RIGHT OF SELF - DEFENCES --- WHICH ALSO INCLUDES KILLING TO FORCE PEOPLE TO UNDERSTANDING THAT --- ALL PERSONS ARE EQUAL UNDER LAWS NO IF NO BUTS REFER TO ADDED DOCUMENT PART OFF THE RIGHT TO A FAIR HEARING" 15There are other claims that various employees of New South Wales Housing, of the Consumer, Trader and Tenancy Tribunal, of the police forces and of the Prince of Wales Hospital, have defamed him and that: "THE AUSTRALIAN GOVERNMENT HAS NAMED ABOVE HAS WILLFULLY BREACH THE FOLLOWING: 1 INTERNATIONAL AGREEMENT ON; COVENANT ON CIVIL & POLITICAL RIGHTS, CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATIOM (sic), U.N. DECLARATION ON THE RIGHTS OF INDIGENOUS, U.N. CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES & ANY OTHER AGREEMENT HAVE NOT BEEN ABLE TO FIND 2 COMMONWEALTH & STATE LAWS STARTING FROM CRIMINAL & CIVIL LAWS WHICH ALSO INCLUDES THE HUMAN RIGHTS BY THIS SERIOUS BREACH HAS CREATED A EXTREMELY DANGEROUS AUSTRALIA -- MEANING CIVIL WAR -- THE RIGHT OF SELF-DEFENSE, THE LEGAL RIGHT TO KILL" 16While the matters canvassed in his statement of claim are wide-ranging and cover many jurisdictions including this Court, the gravamen of the plaintiff's complaint appears to be that he has and continues to be discriminated against due to his physical disabilities and race. For example, he explained that he has spinal cord impairment so he cannot properly regulate his body temperature, yet there is no means by which he can be provided with an air-conditioner in his New South Wales Housing accommodation. It is also possible that the plaintiff is seeking to bring a claim against New South Wales Housing on the basis that it has provided him with unsuitable housing that has led him to suffer falls and being injured. 17Both counsel for the defendants submitted that the contents of the statement of claim were unintelligible. In turn the plaintiff explained to the Court that counsel could not understand his pleadings because they did not see his claim through the prism of disability. The plaintiff provided a history to the Court where he outlined some of his prior proceedings and his efforts to gain legal representation for them. Unfortunately, those pro bono providers, for various reasons, proved unsatisfactory to him. 18Regrettably, I have come to the conclusion that the statement of claim does not disclose any reasonable cause of action. Nor would the defendants understand the case they have to meet. This Court does not have jurisdiction to deal with breaches of international treaties, conventions and covenants. 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 have been drafted and fulfil the functions for which they exist. The matters currently raised in the statement of claim are so intertwined with other matters that I am led to the conclusion that the statement of claim ought to be dismissed pursuant to UCPR 13.4(1)(b) and UCPR 14.28(1)(a). 19On 4 July 2011, the plaintiff was ordered to provide to the defendants any further amended statement of claim by 15 August 2011 setting out in detail the pleadings. He did not do so. The plaintiff, at the hearing of these motions, did not make a submission to this Court that he acknowledged the matters raised in his statement of claim could be better defined and pleaded. He did not request a further opportunity to do so. Further, in light of the plaintiff's assertions that in the past he has been unable to find any satisfactory pro bono legal representation, it is my view that, without some legal assistance being provided, there is no utility in giving him a further opportunity to replead his statement of claim. 20Hence, it is my view that the statement of claim should be dismissed. I make that order. In these circumstances, the first defendant does not seek its costs. I reserve the second defendant's costs.
The Court orders that: (1) The statement of claim filed on 3 June 2011 is dismissed; (2) Costs of the second defendant are reserved.
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: 26 October 2011
Peter (Pedro) Le
Commonwealth of Australia