Ridgley v Oliver [2019] NSWSC 329 | Case summary

Ridgley v Oliver [2019] NSWSC 329 | Case summary | Zoe

Judgment

HIS HONOUR: This is a summary dismissal application by the two defendants in proceedings brought by Simon-Peter Ridgley (who has indicated a preference to be known as "the man").
In a statement of claim filed in this court on 25 September 2018 Mr Ridgley sought a sum of six million dollars "or portion thereof" as a result of events listed under a heading, "Particulars". To make clear some of the difficulties with the claim and the foundation for the defendant's application I will set out the entirety of the "particulars" verbatiim: "1 The facts stated in this claim are true and correct 2 On 25/11/14 the defendant (herein wrongdoer) G Oliver called me on the telephone and threatened me. He wanted me to meet him at a police station and read me my rights. He claimed he suspected i , had committed a punishable offence. 3 On 27/11/14 i , sent a letter to wrongdoer instructing him not to contact me by telephone or email that is to communicated by letter only 3 [sic] On 10/2/15 the wrongdoer called me on the phone and i , felt threatened so I called for witnesses to help me, they instructed the wrongdoer(s) to not contact me. 4 On 10/2/15 the wrongdoer(s) drove a car at high speed to chase me 5 On the 10/2/15 The wrongdoer(s) exited the car and chased me on foot through a park in Brunswick heads 6 On 10/2/15 i , continually tried to get away from the two wrongdoers and I yelled at them to get away from me 3 times 7 On 10/2/15 The wrongdoer G Oliver assisted by wrongdoer K Burge then shoulder charged me damaging my right shoulder 8 On 10/2/15 i , attended the Police station to make a statement 9 On 11/2/15 i , went to the doctors to attend to my injury 10 On 17/2/15 i , was forced to pay an unsubstantiated tax through fear of further harm and injury to myself, my family, friends and the vessel Blue Lotus. 11 The harm obtained to this day, continues in my body and has harmed my life experience 12 i, say here, and will verify in open court, that all herein be true "
The cause of action appears to be one of trespass to the person by way of assault. Perhaps it is in negligence. The damage said to have been suffered relates to an unspecified injury to the plaintiff's shoulder. It may also be that he claims to have been forced to pay an "unsubstantiated tax" out of fear of further harm or injury to himself or others. There is also some unspecified harm that is said to continue in the body of the plaintiff and which has harmed his "life experience".
On 14 November 2018 Registrar Bradford made orders including that the plaintiff serve a statement of particulars as required by r 15.12 of the Uniform Civil Procedure Rules 2005 (NSW) by 12 December 2018. There were also orders that the defendants file and serve any Notice of Motion seeking that the statement of claim be struck out or summarily dismissed by 21 December 2018 and that the plaintiff serve any evidence in response to such Notice of Motion by 29 January 2019. The matter was to be re-listed before the Registrar on 4 February 2019.
The plaintiff did not comply with the order to serve a statement of particulars.
[At this point in the delivery of ex tempore reasons there was the following intervention: "PLAINTIFF: There is one other thing I would like to do. HIS HONOUR: Yes? PLAINTIFF: I would like a trial by jury, I require a trial by jury, then I can present everything in a fair and unbiased manner. HIS HONOUR: All right. PLAINTIFF: I consider I have been treated unfairly at this venue."]
On 20 December 2018 the defendants filed a Notice of Motion seeking dismissal pursuant to r 13.4(1) or alternatively a strike out pursuant to r 14.28(1). The plaintiff did not file any evidence in relation to that Notice of Motion by 29 January 2019.
When the matter came back before Registrar Bradford on 4 February 2019 orders were made including that the plaintiff file any affidavit evidence in reply to the Notice of Motion by 18 February 2019. The Notice of Motion was listed for hearing on today's date, 25 March 2019. The parties were to file written submissions by 28 February 2019. Written submissions have been provided by counsel for the defendants but none have been provided by the plaintiff.
I should add that the plaintiff has commenced the proceedings and has pursued them, including appearing today in opposition to the motion, without the benefit of any legal advice or representation.
Read in support of the motion was an affidavit which annexed statements by the two defendants. It is important to bear in mind that in an application of this type I am not called upon to make findings of fact. In essence I should accept the plaintiff's case at its highest (Attorney General (NSW) v Markisic [2012] NSWSC 433 at [37]). However, it seems uncontroversial that within those statements it is made plain that the two defendants were Customs Officers employed by the Australian Customs and Boarder Protection Service and it is also plain that the relevant events referred to within the Statement of Claim occurred at Brunswick Heads which is in the State of New South Wales on 10 February 2015. One further matter that emerges is that the officers were acting in the course of their duty in whatever interaction there was on that day at Brunswick Heads between them and the plaintiff.
The principles relating to summary dismissal were helpfully summarised in the written submissions of counsel for the defendants. For example, it is settled that summary dismissal will only occur in cases where the court is satisfied that the case is one which cannot succeed; that there is a high degree of certainty about the ultimate outcome if the matter were to proceed to trial: see, for example, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129; Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at 575-6; Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at 131 [24] and 139-140 [54]. It is also necessary to bear in mind the mandatory requirement for a court to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) (see s 56(1) and (2)) "to facilitate the just, quick and cheap resolution of the real issues" in civil proceedings.
The defendants accept the need for them to demonstrate that the plaintiff's statement of claim discloses no reasonable cause of action or otherwise has no reasonable prospect of success. The primary basis of the defendants' application is concerned with limitation periods. They accept that to succeed in relation to that there needs to be established a clear case, not simply one that might be arguable: see, for example, Wardley Australia v Western Australia (1992) 175 CLR 514 at 533; Dougall v Melville [2017] NSWCA 309 at [64]-[66].
The first statutory limitation period relied upon by the defendants is that appearing in s 225 of the Customs Act 1901 (Cth): 225 Commencement of proceedings against officers Every proceeding against any officer shall except as mentioned in the next section be commenced within 6 months after its cause shall have arisen and not afterwards and the venue shall be local and the defendant may plead the general issue and give any special matter in evidence.
That limitation of six months would on the face of it apply in the present case. The reference to "the next section" is to s 226 which, on the face of it, does not apply in the circumstances of this case; but even if it did, it would provide for a limitation period of twelve months and in the present case we have a statement of claim that has been filed in excess of three years after the events in question.
It appears to me to be uncontroversial between the parties that the two defendants were acting in their positions as customs officers under the Customs Act and that the limitation within that Act would apply; but even if it did not, the defendants also rely upon provisions of the Limitation Act 1969 (NSW).
Although initially some reliance was placed on s 18A it was clarified at the hearing that the appropriate reliance is upon s 50C which provides (relevantly): 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. …
Specifically, reliance is placed upon the "three year post discoverability limitation period" (which is apt). Section 50D specifies the date a cause of action is discoverable: 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. …
In this case the defendants rely upon the material disclosed by the plaintiff in the statement of claim itself. The event that appears to be the subject of the proceedings occurred on 10 February 2015. It is said that on the following day the plaintiff attended upon a doctor in relation to an injury that he claims he sustained and then on 17 February, a week later, he perceived some fear which he claims forced him to pay an "unsubstantiated tax."
Thus, the defendants say it is apparent on the face of the statement of claim itself that the cause of action was discoverable (if there was one to discover at all) in February 2015. The three-year limitation period applies. The statement of claim was filed in excess of three and a half years later.
Accepting that the plaintiff might be at a disadvantage by a lack of any legal advice or representation, counsel for the defendants took me to the decision of Lonergan J in Jindal v Goel [2018] NSWSC 836 in relation to the limitation period in s 50C. He drew my attention specifically to [16] but invited me not to follow it with the explanation depending in part on a reference to the decision of Campbell J in Zaki v Better Buildings Constructions Pty Ltd [2017] NSWSC 1522. I simply record the fact but need not dwell upon it because I do not see the decision of Lonergan J in that case as providing a hurdle to the defendants' application that is before me.
I accept, as was submitted, that a claim for personal injury includes claims based upon a trespass to the person (see State of New South Wales v Radford (2010) 79 NSWLR 327 and 343 [78]). I also accept that the "fear" which is said to have resulted in the plaintiff paying an "unsubstantiated tax" is a form of harm that is an aspect of the claim for personal injury and is subject to the three-year limitation period (State of New South Wales v Radford at 349-350 [110]-[116]). That case was concerned specifically with s 18A of the Limitation Act but what is said there is equally applicable to a consideration of s 50C in the present case.
In opposing the application Mr Ridgley made submissions which, with respect, were not to the point. In short, he appears to have a fundamental issue about the jurisdiction of the Court to deal with the application and the standing of the defendants to bring such an application. For example, he referred to the Court as being "the Court of Ridgley". The submissions, again with respect, were difficult to follow in terms of their relevance to the merit of the application itself. For example, he sought to make a distinction which he contends is of significance between a "civil claim" and "common law claim".
I am satisfied that the claim that has been brought by the plaintiff in the statement of claim filed on 25 September 2018, on the basis of what is pleaded in the document itself, is clearly out of time. There is no doubt that it is on that basis doomed to fail. There should be a summary dismissal so as to no longer burden the defendants with this entirely unmeritorious litigation.
Even if the defendants had not succeeded in relation to that aspect of the application, the pleadings themselves are grossly inadequate and they would be struck out. Mr Knowles on behalf of the defendants accepted, however, that if that was the outcome he could not really oppose the plaintiff being given an opportunity to re-plead, but it is unnecessary to dwell on that because I am satisfied that the defendants have made good their primary basis for the application before the Court today.

[3]

Costs [A discussion ensued as to the appropriate order in respect of costs.]

I gave judgment earlier today in upholding an application by the defendants to dismiss the proceedings instituted by Mr Ridgley on the basis of them being foredoomed to fail because of limitation periods that apply in relation to the perceived subject matter of the claim. It would follow that the plaintiff would be ordered to pay the defendants' costs.
An application has been made for costs to be the subject of a specified gross sum pursuant to s 98(4) of the Civil Procedure Act. It appears that gross sum costs orders are more often made in matters more complicated than this to avoid the costs and delay of detailed costs assessment processes. This is a relatively straight forward matter in which bringing the matter to a conclusion at this stage of the proceedings would be advanced by my acceding to the application.
The plaintiff is unrepresented as I have indicated in the judgment given earlier. It seems to me that the manner in which the proceedings have been conducted and the fact of the plaintiff not having any legal training or legal advice, let alone representation, means it would be desirable to not put the defence to the further delay and expense of an assessment process in relation to costs.
I have an affidavit by a solicitor from the Australian Government Solicitor's Office, Ms Donna Robinson, affirmed today in which there is a detailed accounting of the costs that have been incurred. They appear to me to be appropriate amounts, some might say modestly calculated, and in addition there is a concession that the costs should be reduced by 25 per cent to more properly reflect the costs that might be assessed in the usual way.
The total amount excluding GST is $11,737.45. With that twenty-five per cent reduction, the amount sought is $8,803.09.
It is a rather broad brush approach that is taken in assessing the amount to be the subject of such an order and that has been referred to in authorities such as Harrison v Schipp [2002] 54 NSWLR 738; [2002] NSWCA 213 at 743 and Auspine Limited v Australian Newsprint Mills Limited (1999) 93 FCR 1; [1999] FCA 673 at 5.
It seems to me that a figure of $8,800, rounding off the amount sought, is an appropriate sum.

Ridgley v Oliver

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Cases Cited (15)

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