Solicitors:
Plaintiff in Person
McCabes - Defendant
File Number(s): 2014/003768
[2]
Judgment
HOEBEN CJ at CL:
Nature of proceedings
There are two Notices of Motion before the Court. The first in point of time is from the plaintiff, Mr Pi, filed 26 February 2016 seeking a review of a costs order made by Registrar Kenna on 30 September 2015.
The second is a motion by the defendant, filed 19 April 2016 which seeks the following orders:
1. That the plaintiff's Amended Statement of Claim be struck out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (UCPR).
2. That pursuant to 12.7 of the UCPR the proceedings be dismissed due to the plaintiff's failure to prosecute the proceedings with due dispatch.
3. That the plaintiff pay the defendant's costs on an indemnity basis.
Factual background
The factual background of this matter was set out by Harrison J in Pi v State of New South Wales [2015] NSWSC 324 and to a lesser extent, by Beech-Jones J in Pi v State of New South Wales (No 3) [2015] NSWSC 1413. In summary, it is as follows.
Police attended premises at Morton Street Lakemba in response to a police radio message in the early evening of 12 January 2011. There they found the plaintiff and his landlord in the final stages of a physical altercation that resulted in injuries to each of them. The plaintiff was armed with a power drill and his hand was injured when it was bitten by his opponent.
On 17 September 2012 the matter came before his Honour Stone LCM on a charge of assault occasioning actual bodily harm brought against the plaintiff. Magistrate Stone was unable to conclude beyond reasonable doubt that the plaintiff was guilty of the offence with which he was charged. The charge was dismissed.
There is no issue that those criminal proceedings terminated favourably to the plaintiff. This apparently encouraged him to bring proceedings against the police and ultimately the defendant for malicious prosecution, wrongful arrest, false imprisonment and damages for personal injury. There were also originally claims for defamation and under the Compensation to Relatives Act 1897 (NSW).
The result of the proceedings before Harrison J on 27 March 2015 was that his Honour dismissed the claim in defamation. His Honour noted that the plaintiff had abandoned his claim under the Compensation to Relatives Act. Harrison J struck out the plaintiff's Statement of Claim and directed that any further Statement of Claim should be filed by 4pm on 23 April 2015. His Honour ordered that the plaintiff pay the defendant's costs of the motion which it had filed seeking those orders.
In some versions of the Statement of Claim the plaintiff's daughter, Holly Tan, appears as a second plaintiff. The application to join her to the proceedings and for the plaintiff to be appointed her tutor was heard by Beech-Jones J on 18 September 2015. His Honour rejected the application to join her and for the appointment of the plaintiff as her tutor. Despite that ruling, Ms Tan incorrectly appears as a second plaintiff in the Further Amended Statement of Claim filed by the plaintiff on 22 October 2015. That Statement of Claim appears to be the most recent filed by the plaintiff and is the subject of the application by the defendant. There is also a proposed Amended Statement of Claim which was served in December 2015 but has not been filed.
The matter came before Registrar Kenna on 30 September 2015 when the plaintiff by three Notices of Motion sought to set aside three subpoenas issued by the defendant. One was directed to the plaintiff seeking financial records in relation to his claim for economic loss. Another was directed to the State Transit Authority, his previous employer, for the same purpose. The third related to a claim for economic loss by Holly Tan.
By the time the matter came before Registrar Kenna, the defendant had agreed to withdraw the three subpoenas. The reason for that decision was that the plaintiff advised that he would not be making a claim for economic loss. This rendered the first two subpoenas otiose. The third subpoena was not necessary because of the outcome of the proceedings before Beech-Jones J.
Before Registrar Kenna the position adopted by the parties was that the plaintiff sought that the defendant pay his costs of applying to have the subpoenas set aside. Although his submissions are not altogether clear, they seemed to be based on the fact that he was put to the trouble of filing Notices of Motion which were ultimately successful and that he should receive his costs. The plaintiff gave no reason why he should be entitled to costs in circumstances where he was self-represented.
The position of the defendant was that the issuing of the three subpoenas had been legitimate and necessary at the time they were issued. The circumstances changed when the plaintiff abandoned his claim for economic loss and Beech-Jones J delivered judgment in relation to the joinder of Holly Tan as a plaintiff. After the situation changed in that way, the defendant had within a reasonable time advised the plaintiff that it consented to the withdrawal of those subpoenas. The defendant submitted that in those circumstances it should not have to pay the plaintiff's costs.
Registrar Kenna delivered a brief judgment in the following terms:
"REGISTRAR: So in respect of the three Notices of Motion filed by the plaintiff on 21 September 2015 by consent the subpoenas issued to Guang Hua Pi, the State Transit Authority and Holly Tan are set aside.
In respect of the costs of the motion Mr Pi has asked the Court to order costs in his favour. Mr Pi says that he has asked the State of New South Wales to withdraw the subpoenas and has been put to the expense of filing three motions.
Mr Hutchings, who appears on behalf of the State of New South Wales, has submitted to the Court that when the matter was before Justice Beech-Jones his Honour indicated that Mr Pi would need to discuss the withdrawal or setting aside of the other subpoenas with the State of New South Wales and that the next step was the filing of the motions and that the State of New South Wales, upon receipt of those motions has taken all steps necessary to inform Mr Pi of their position.
Further, that at the time of issuing the subpoenas, based upon Mr Pi's claim at that time they were relevant.
The Court in granting costs in favour of another party does so to compensate a party, not to punish a party an the Court cannot grant costs to a self-represented party except for disbursements that have been incurred.
As each side has a valid claim and opposition to costs I am of the view that the only just order to make would be that the disbursements of the three notices of motion filed on 21 September 2015 are the plaintiff's costs in the cause. I will ask the Registry to send a copy of these orders to Mr Pi. Thank you both."
In support of its motion, the defendant relied upon an affidavit of James Thompson sworn 5 May 2016 which set out the history of the matter from its commencement by way of Statement of Claim on 8 January 2014. The original Statement of Claim joined the individual police officers. Since that date there have been a number of amendments to the Statement of Claim and difficulty has been experienced by the defendant in obtaining responses to its requests for particulars from the plaintiff. It would be fair to say that between February 2014 and the present time, apart from the filing of a Defence and the provision of some particulars by the plaintiff, albeit still not complete, the matter has not progressed.
Submissions and consideration
The plaintiff's motion
When the effect of the order of Registrar Kenna was explained to the plaintiff, i.e. that if he were successful in the principal proceedings he would obtain his costs of challenging the subpoenas, he withdrew his application to review the order.
Defendant's motion
The defendant pointed to over two years of this matter being regularly before the Court and orders being made with which the plaintiff was very slow to comply. The defendant noted that as recently as December of last year, a proposed Amended Statement of Claim was served. The defendant submitted that although the plaintiff had purported to make a response to the request for particulars, the response had been inadequate and it was still not clear how the plaintiff put his claim and what that claim was.
By reference to the Amended Statement of Claim filed 22 October 2015, the defendant accepted that it was clear that part of the plaintiff's claim was that he had been wrongfully arrested and prosecuted. An allegation of false imprisonment was made but when and how that imprisonment was said to have occurred was not clear. By way of illustration, the defendant noted that following the arrest of the plaintiff after the arrival of police, he was taken to hospital by ambulance. He was not taken to the police station or into custody.
The defendant submitted that although "neglect of duty" and "serious misconduct" were alleged, no particulars or detail were provided. The defendant noted that despite the refusal of Beech-Jones J to allow the joinder of Holly Tan as a party, allegations of injury to her were made in the Statement of Claim. No detail was provided as to how the harm allegedly suffered by Ms Tan was connected to the wrongful arrest or wrongful prosecution of the plaintiff.
By reference to the detail in the Statement of Claim, the defendant submitted that what appears to be alleged against the police is that they wrongfully accepted what they had been told by two persons who had assaulted the plaintiff, i.e. Zhou and Zhao, and it was as a result of them receiving that information that he was charged. The defendant submitted that these allegations unless further explained are somewhat exculpatory of the police if, in fact, the plaintiff was wrongfully arrested.
The defendant submitted that this case was different to situations where proceedings had been commenced and nothing, or very little, had been done to advance them over a long period of time. The defendant accepted the plaintiff has been reasonably active but submitted that this activity had been substantially misdirected and that the form of the October 2015 Statement of Claim was no better and no more helpful than that of February 2015 which had been struck out by Harrison J. The defendant submitted that unless the plaintiff received legal advice, the situation was unlikely to improve in that any future Statements of Claim were likely to contain the same vices as those already struck out or liable to be struck out. The defendant submitted that unless legal advice was obtained, the whole process would be self-defeating with no real improvement in the form of the Statement of Claim such as would enable it to know the case which it had to meet.
The defendant submitted that in those circumstances, the Court should accept that the situation was unlikely to improve and dismiss the proceedings for want of prosecution, not because the plaintiff had been inactive but because the situation was unlikely to improve and it was unfair to require the defendant to meet the vague and contradictory case currently pleaded against it.
Consideration
When the plaintiff made his submissions, it was clear that he did not appreciate the significance of the criticisms and complaints which the defendant made against the October 2015 Statement of Claim. It was also clear that he did not understand the problem created by the lack of particularisation of the series of claims set out in that document.
This is not to be unduly critical of the plaintiff in that he is not legally trained and was attempting to deal with complex concepts in a language with which he was not familiar. In that regard, it should be noted that throughout the proceedings the plaintiff was accompanied by a competent Mandarin interpreter.
In the various exchanges between the Court and the plaintiff, I tried to make it clear that it was important that he obtained legal advice so that the claim which he wished to make could be set out simply, accurately and succinctly rather than the rambling document which was currently before the Court. It would be fair to describe both the October and December 2015 Statements of Claim as very discursive and made up of a series of factual allegations without particularisation.
I advised the plaintiff that the Statements of Claim in their present form had to be struck out and that unless he obtained legal advice, future Statements of Claim if they were in a similar form were also liable to be struck out and that eventually if matters did not improve, a court would dismiss the entire proceedings. I recommended that he obtain legal advice as a matter of urgency and foreshadowed the orders which I now make.
1. The Amended Statement of Claim filed 22 October 2015 is struck out.
2. I grant leave to the plaintiff to file and serve a Further Statement of Claim upon which he intends to rely by no later than 4 pm on 15 June 2016.
3. The plaintiff is to pay the costs of the State of New South Wales of and incidental to the State's Notice of Motion.
4. The matter is to be listed before Registrar Bradford for further directions on 20 June 2016.
[3]
Amendments
12 April 2018 - changed judgment number in Medium Neutral Citation from (4) to (5)
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Decision last updated: 12 April 2018