Radford v State of New South Wales; Radford v Justice Health, New South Wales

Supreme Court of NSW|2011-06-29|Before: Johnson J, Health J, Health Claim J

Judgment 1JOHNSON J : Before the Court are two sets of proceedings brought by the Plaintiff, Steven Radford. The Plaintiff is unrepresented. He commenced the proceedings in this Court himself, and the Statement of Claim in each case is in handwritten form. 2On 24 December 2010, the Plaintiff filed a Statement of Claim naming the State of New South Wales as the Defendant (2010/427094) ( "the Police Claim" ). Put shortly, in these proceedings, the Plaintiff alleges assault and negligence and other tortious conduct arising from his arrest by New South Wales Police on 15 December 1999. 3On 6 January 2011, the Plaintiff filed a Statement of Claim naming Justice Health, New South Wales as the Defendant (2011/4865) ( "the Justice Health Claim" ). Put shortly, in these proceedings, the Plaintiff alleges medical negligence and other mistreatment towards him during a period when he was in custody in New South Wales prisons between 1999 and 2004.

The Present Applications 4On 2 March 2011, the Defendant filed a Notice of Motion in the Police Claim seeking summary dismissal of the proceedings, or, alternatively, an order striking out the Statement of Claim, or, alternatively, an order that the proceedings be dismissed under s.18A Limitation Act 1969 . 5On 21 April 2011, the Defendant filed a Notice of Motion in similar terms in the Justice Health Claim. 6These Notices of Motion are proceeding to hearing today. In addition, a Notice of Motion was filed by the Plaintiff in the Police Claim which raised an application under the Limitation Act 1969 (s.62B), and a similar claim was contained in the Statement of Claim with respect to the Justice Health Claim. There are overlapping issues before me which pick up some features, at least, of the Limitation Act 1969 . 7The primary submission of the Defendants is that the proceedings in each case ought be dismissed under Part 13 Rule 13.4 Uniform Civil Procedure Rules 2005 ( "UCPR" ) upon the basis that they are frivolous and vexatious and constitute an abuse of process of the Court. The Defendants apply as well to strike out the Statements of Claims on pleadings grounds, and contend that the proceedings ought be dismissed under s.18A Limitation Act 1969 . 8The Defendants read affidavits of Lisa Munro, affirmed on 5 and 6 August 2009 in District Court proceedings (concerning prejudice arising from death, illness or retirement of relevant police officers). The primary evidence of the Defendants at this hearing is constituted by further affidavits of Ms Munro sworn 28 April 2011 in each set of proceedings. A volume of documents accompanying Ms Munro's affidavit in the Police Claim was admitted as Exhibit LM1. 9The Plaintiff sought to tender a range of documents and items at the hearing. For reasons given earlier today (T14-15), I declined to admit the great bulk of that material. I admitted, subject to relevance, a report of Mr Peter Rawling, clinical neuropsychologist, dated 21 April 2009 (Exhibit 1) and a report of Dr Paul Darveniza, neurologist, dated 4 May 2009 (Exhibit 2), to which further reference will be made.

The Justice Health Claim 10On 17 November 2008, the Plaintiff filed a Statement of Claim in the District Court of New South Wales alleging medical negligence and other mistreatment on the part of the State of New South Wales, arising from the Plaintiff's period in custody from 1999 and 2004. The history of those proceedings is recited in Ms Munro's affidavit of 28 April 2011 concerning the Justice Health Claim. 11It appears that the Plaintiff had some legal advice, and occasional representation, in those District Court proceedings. The subject matter of the claim was, for all relevant purposes, the same as the subject matter of the claim brought against Justice Health, New South Wales in this Court in the Statement of Claim filed on 6 January 2011. 12On 14 May 2009, the Plaintiff wrote to the solicitor for the Defendant offering to settle this District Court claim upon the basis that the proceedings be dismissed with no order as to costs. On 21 May 2009, the Defendant accepted the Plaintiff's offer. 13On 29 May 2009, a consent order in these terms, signed by the parties, was filed in the District Court. Accordingly, the District Court proceedings were concluded. 14On 6 January 2011, as I have said, the Plaintiff filed a Statement of Claim in this Court against Justice Health New South Wales. 15The Defendant submits that this is an attempt to relitigate the proceedings settled in the District Court and thus constitutes an abuse of process. I will return to this issue.

The Police Claim 16The affidavit of Ms Munro in the Police Claim reveals an extensive history of an earlier claim by the Plaintiff against the State of New South Wales, with respect to events surrounding his arrest by police in 1999. 17On 16 December 2005, the Plaintiff filed a Statement of Claim in the District Court of New South Wales against the State of New South Wales alleging assault, false imprisonment and other tortious conduct on the part of certain police officers with respect to his arrest in 1999. 18The District Court Statement of Claim in the Police Claim was amended thereafter on no fewer than five occasions. At one point in 2007, the District Court Statement of Claim in the Police Claim was amended to incorporate a claim (and particulars) with respect to misdiagnosis by Justice Health while the Plaintiff was in prison. It seems that a decision was made thereafter that this amendment to the Police Claim should become separate proceedings. Thus, as I have said, on 17 November 2008, the Plaintiff filed a Statement of Claim in the District Court claiming medical negligence and other matters with respect to his period in custody between 1999 and 2004. 19Accordingly, there was a degree of overlap between the two sets of proceedings, brought some years ago in the District Court. 20The Plaintiff came to be legally represented in the Police Claim in the District Court. Indeed, the proceedings reached a point where his Honour Judge Levy SC, on 30 October 2009, dismissed a motion brought by the Defendant in those proceedings (the State of New South Wales) seeking to strike out and dismiss the Plaintiff's Statement of Claim. His Honour granted the Plaintiff leave to amend his fifth Proposed Further Amended Statement of Claim: Radford v State of New South Wales [2009] NSWDC 278. By that stage, the litigation already had a somewhat chequered history. 21The State of New South Wales successfully appealed from the decision of Judge Levy SC. On 28 October 2010, in State of New South Wales v Radford [2010] NSWCA 276, the Court of Appeal struck out the Statement of Claim and made other orders unfavourable to the Plaintiff, including an order for costs. 22The next step in the District Court saw the matter coming before a Judicial Registrar on 22 November 2010. There was no appearance by or on behalf of the Plaintiff. Counsel appeared for the Defendant and noted the orders of the Court of Appeal. The District Court records contain a notation to the effect "Statement of Claim dismissed by the Court of Appeal on 28 October 2010" . 23Whether that is an entirely accurate summary of the orders made by the Court of Appeal on 28 October 2010, it is entirely clear that the state of the litigation at that time was that the Plaintiff's latest version of the Police Claim had been struck out, and there was no further step taken by him in those proceedings. In practical terms, the proceedings had come to a conclusion. 24It would seem that, in 2010, the Plaintiff had sought to remove his solicitor from the matter, and he filed certain documents himself. The fact is, however, that the Court of Appeal made the orders which it did on 28 October 2010 and the Plaintiff did not take any further step, if indeed any further step was available to him, in the District Court proceedings in the Police Claim. 25There things stood, until the Plaintiff commenced proceedings in this Court in December 2010, and then January 2011, with respect to the same subject matter, being the Police Claim relating to his arrest in December 1999 and the Justice Health Claim relating to his period of imprisonment between 1999 and 2004.

Applicable Principles on Summary Dismissal or Strike-Out Application 26Before turning to resolve the matters which have been argued, I should say something about the nature of the present application. The principles applicable upon an application for summary dismissal of a civil claim, or to strike out a Statement of Claim on pleading grounds, are well known. 27With respect to a summary dismissal application, I approach the application upon the basis that a very clear basis is required before summary dismissal is granted, and that the power to make such an order should be sparingly employed: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129. 28With respect to an application to strike out a Statement of Claim on pleading grounds, the essential test is one of intelligibility. The test turns upon the question of whether the nature of the case the Plaintiff wishes to make has been stated with sufficient clarity so as to allow the Defendants to know what it is that they must meet: Banque Commerciale SA (In Liquidation) v Akhil Holdings Limited [1990] HCA 11; 169 CLR 279 at 286. 29Amongst the arguments advanced on behalf of the Defendants is that the Statement of Claim in each case contains embarrassing pleadings. 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 it. As to the purpose of pleadings and the concept of embarrassing pleadings, see generally McGuirk v University of New South Wales [2009] NSWSC 1424 at [21]-[35].

Abuse of Process 30The principal submission of the Defendants is that both Statements of Claim ought be summarily dismissed under Part 13 Rule 13.4(1)(c) UCPR as the proceedings are an abuse of the process of the Court. 31There are no closed categories of abuse of process for the purpose of civil procedure: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at 265 [9]. 32In Walton v Gardiner [1993] HCA 77; 177 CLR 378, Mason CJ, Deane and Dawson JJ said at 393: "... proceedings before a court should be stayed as an abuse of process if, notwithstanding the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings." 33Authority cited for this fundamental principle is Reichel v McGrath (1889) 14 App Cas 665 at 668. 34This principle has been applied more recently in this State. In Rippon v Chilcotin Pty Limited [2001] NSWCA 142; 53 NSWLR 198 at 201- 202 [15]-[16], the Court of Appeal applied the principle in circumstances where it was held to be an abuse of process to seek to relitigate a matter which had already been the subject of proceedings. 35A recent application of the same principle appears in White & Libut v Thompson [2011] NSWCA 161, where Handley AJA (Basten and Young JJA agreeing) referred to the principles in Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589, Reichel v McGrath and Rippon v Chilcotin . In the course of determining that case, it was held to be an abuse of process to attempt to relitigate a matter already the subject of earlier proceedings. 36In my view, the Justice Health Claim covers the same subject matter in this Court as that litigated by the Plaintiff in the District Court. Those proceedings were settled, at the instigation of the Plaintiff, with the proceeding being dismissed and with no order as to costs. In my view, the abuse of process principle has direct application to that matter. 37The Police Claim did not end up with an order of the same type of finality as that which resulted in the Justice Health Claim. However, what is entirely clear is that the nature of the case that was put in the District Court covers the same subject matter as that which the Plaintiff seeks to agitate in this Court. Even if there were additional factors that the Plaintiff seeks to raise in this Court, which were not raised in the District Court proceedings, they were matters which were clearly available to the Plaintiff to be put in the District Court proceedings. 38As Walton v Gardiner makes clear, the relevant abuse of process principle does not depend upon the application of estoppel principles. The question is whether it would be unjustifiably vexatious and oppressive because there is an attempt to litigate anew a case that has already been disposed of by earlier proceedings. 39I am satisfied that the effective outcome of the protracted litigation (extending over four years) in the District Court in the Police Claim is such that it ought attract the abuse of process principle. The Plaintiff's initiation of proceedings in this Court is an attempt to relitigate what was determined, in practical terms against him, in the District Court. 40I am entirely satisfied, in accordance with the demanding standard to which I have referred on a summary dismissal application (at [27] above), that the bringing of the proceedings in this Court, in both the Police Claim and the Justice Health Claim, constitutes an abuse of process of the Court, so that the Defendant is entitled to the first order sought in each Notice of Motion.

The Strike-Out Application 41Having so concluded, it may not be strictly necessary for me to determine the other parts of the Notice of Motion. However, as against the possibility that I have erred in some respect, I will say something with respect to those other matters. 42In each case, the Statements of Claim are clearly embarrassing, in the legal sense of the word. Making all due allowance for the Plaintiff preparing these pleadings himself, they are in substantial parts unintelligible. They do not comply with the requirements of the rules of pleading. In my view, the principles to which I have referred (at [28]-[29] above) would attract, if I was not otherwise to dismiss the claim, an order that the Statements of Claim be struck out. 43Having regard to the numerous attempts to plead and replead the Police Claim in the District Court, if an order was made here to strike out that Statement of Claim on pleading grounds, I would not be inclined to grant the Plaintiff leave to replead that claim. There have been many opportunities for that to happen in the District Court. If that point had been reached, I would have struck out that Statement of Claim and not granted the Plaintiff leave to replead it. 44The Justice Health Claim in this Court is clearly embarrassing and ought be struck out as well. Parts of it are unintelligible and it does not comply with even the basic rules of pleading. 45The Justice Health Claim in the District Court does not seem to have been marked with the number of applications to amend pleadings as occurred in the Police Claim. That said, the Justice Health Claim in the District Court is effectively the same as was advanced here. If I had reached the point where it was struck out because of its fundamental failure to comply with the rules of pleading, I would have made as well an order declining the Plaintiff leave to replead the claim in that matter.

The Limitation Act 1969 Issues 46That brings me to the Limitation Act 1969 . I mentioned earlier that I had admitted, subject to relevance, a psychological report and a psychiatric report tendered by the Plaintiff. 47There is before this Court evidence which touches in a number of respects upon the Limitation Act 1969 . 48There is a letter dated 4 June 2009 in which the Plaintiff's then solicitors informed the solicitor for the Defendant that they were instructed that the Plaintiff would not include any claim (in what was then the Fourth Further Amended Statement of Claim in the District Court Police Claim) for what was described as "section 18A Limitation Act damages" . Thus, that aspect was (apparently on instructions) not pressed by the Plaintiff's then solicitors. 49On the evidence, that is where matters stood until the filing of the Statements of Claim in this Court which refer to the Limitation Act 1969 (the long-stop limitation period). 50There is, as well, evidence before this Court on the question of disability. 51For the purpose of the Police Claim in the District Court, the Defendant retained Dr Jonathan Phillips, psychiatrist. After examining the Plaintiff, Dr Phillips provided a report dated 14 August 2008, which, amongst other things, made a direct assessment of whether the Plaintiff had suffered from a "disability" for the purpose of s.52 Limitation Act 1969 , which, of course, would have certain consequences for the purpose of the limitation period. 52Dr Phillips, a most experienced psychiatrist, having been asked that direct question, explained in some detail the conclusions he had reached concerning the Plaintiff's mental state and history. He expressed the view (page 12): "... it could not be said that at least from late January/early February 2000 Mr Radford was suffering from a disability (a recognised and definable psychiatric disorder) which prevented him from taking legal action in a normal manner." 53Dr Phillips referred to the Plaintiff's imprisonment which continued until 2004. As to the impact of imprisonment for the purpose of the issue of disability, see SW v the State of New South Wales [2010] NSWSC 966 at [196]-[197] (this issue did not help the Plaintiff). 54Dr Phillips said (page 14): "I do not believe that it could be said that as a consequence of an identifiable, diagnosable and enduring psychiatric disorder, that Mr Radford was suffering under a disability within the meaning of section 52 of the Limitation Act 1969." 55The doctor concluded (page 15): "More probable than not, Mr Radford's disability ceased when he made recovery from his brief reactive psychosis, probably in late January/early February 2000." 56A psychological report of Mr Steven Kreft was relied upon by the Plaintiff, and was served for the purpose of the District Court Police Claim. Mr Kreft's report of 18 January 2009 said nothing on the disability issue. 57Before the Court today there have been tendered reports of Mr Rawling, psychologist, and Dr Darveniza, neurologist, which apparently were in the hands of the Plaintiff's solicitors in April and May 2009, but were not served. The closest that either report comes to saying anything on the issue of disability, for the purpose of s.52 Limitation Act 1969 , is a sentence in the report of Mr Rawling (Exhibit 1) to this effect (page 6): "Schizophrenia, even when medication controlled, can still be associated with attentional problems (mental slow or information processing) and this and his longstanding literacy problems could well have compromised his ability to manage his affairs in regard to his intended legal action and his ability to understand legal advice." 58The report of Dr Darveniza does not express any view with respect to disability, but there are a number of statements which relate to the mental state of the Plaintiff which may, in some indirect way, bear upon that question. 59My conclusion, however, is as follows. The evidence that was available in 2009 (and indeed now) on the issue of disability, operates strongly against the Plaintiff. An eminent psychiatrist, Dr Phillips, expressed conclusions directly on point adverse to the Plaintiff. Beyond that, what was described as "section 18A Limitation Act damages" was not pressed in the District Court by his then lawyers. The submission on behalf of the Defendants on this application today (which I accept) is that the Plaintiff's attempted reliance upon the Limitation Act 1969 (long-stop limitation period) is misconceived. 60It is pointed out that the Civil Liability Amendment (Personal Responsibility) Act 2002 commenced on 6 December 2002, and that this creates a further fundamental problem for the Plaintiff. 61Had the point been reached and were it necessary to do so, I would have made an order dismissing the Plaintiff's claim in each of the Supreme Court proceedings on the Limitation Act 1969 basis as well.

Conclusion and Costs 62In my view, the Defendants have made good each of the arguments advanced on this application. The area of primary success, with fatal consequences, is the abuse of process argument, which is clearly made out. Even if I were not so persuaded, I would have granted the Defendant the relief sought in the Notices of Motion on the other grounds as well. 63Before parting with the matter, I should observe that the evidence reveals that in the Police Claim in the District Court, where cost orders have been made adverse to the Plaintiff, the State of New South Wales has so far incurred $185,000.00 in fees and disbursements. The orders made in the District Court and the Court of Appeal leave open to the Defendant an ability to pursue the Plaintiff for those costs. 64As I have noted, the Justice Health Claim in the District Court was dismissed at the request of the Plaintiff, upon the basis that there was no order as to costs. 65The Defendants have succeeded on the Notices of Motion entirely. In my view, the present proceedings ought not to have been brought in this Court because they constitute an abuse of process in each case. In addition, they are fundamentally defective for other reasons which I have explained. 66The ordinary order is that costs follow the event. As the effect of the orders which I will make will bring the proceedings to an end, in my view the appropriate order will be one that the Plaintiff pay the Defendant's costs of the Notice of Motion in each case, and that the Plaintiff pay the Defendant's costs of the proceedings in each case. 67In proceedings 2011/4865, Radford v Justice Health New South Wales : (a) I order that the proceedings be dismissed pursuant to Part 13 Rule 13.4 Uniform Civil Procedure Rules 2005 ; (b) the Plaintiff is to pay the Defendant's costs of the Notice of Motion; (c) the Plaintiff is to pay the Defendant's costs of the proceedings. 68In proceedings 2010/427094, Radford v State of New South Wales : (a) I order that the proceedings be dismissed pursuant to Part 13 Rule 13.4 Uniform Civil Procedure Rules 2005; (b) the Plaintiff is to pay the Defendant's costs of the Notice of Motion; (c) the Plaintiff is to pay the Defendant's costs of the proceedings.

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: 08 July 2011

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