"(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) no reasonable cause of action is disclosed,
(b) the proceedings are frivolous or vexatious, or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1)."
14 The effect of an order under Part 13 rule 5 is to bring the proceedings to an end at an interlocutory stage. Such an order may only be made where the plaintiff's claim is so manifestly untenable that it cannot succeed: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129 per Barwick CJ.
15 By the present pleading the plaintiff contends that he has suffered a great deal of emotional and psychological damage, and that he has lost all chance of becoming a well-rounded, emotionally sound, ordinary citizen. He pleads that his father failed to provide a proper "abuse and tension free education and family environment" and that he has lost all chance of becoming a decent family man, husband and father. As a result of the defendant's abuse, directions and behaviour, the plaintiff pleads that he has become a criminal, rather than a law abiding citizen, and he claims damages.
16 The statement of claim cannot be permitted to go forward in its present state. I understand the plaintiff to acknowledge so much from the stance that he has taken this morning. He seeks that I deal with the matter pursuant to the provisions of Part 15 rule 26, and that I strike it out, giving him leave to replead. This is the course that Studdert J took on the last occasion.
17 I am mindful that the plaintiff is in custody and that he faces the difficulty of seeking to articulate his claim without the benefit of legal advice.
18 To the extent that the plaintiff pleads a cause of action arising out of his father's failure to provide him with a sound upbringing, to my mind the claim is manifestly not tenable.
19 In Hahn v Conley (1971) 126 CLR 276, Barwick CJ observed:
"I think that the view for which there is most judicial support and the view which commends itself to me is that the moral duties of conscientious parenthood do not, as such, provide the child with any cause of action when they are not or badly performed or neglected."
20 To the extent that the plaintiff pleads a cause of action in trespass to the person, he makes unparticularised allegations of physical chastisement by his father from when he was a small child until when he was aged fourteen or fifteen years. Any claim of excessive physical chastisement amounting to trespass to the person is brought well outside the limitation period provided in the Limitation Act.
21 In Hillbrand v Penrith Council [2000] NSWSC 1058, Austin J said, at paragraph 27:
"There is an obvious distinction between the pleading of a cause of action and the application of a limitation period which means the cause of action is not maintainable. It is arguable that the words 'no reasonable cause of action' in the two rules" (a reference by his Honour to Pt 13 r 5 and Pt 15 r 26) "have no application where the defect relied upon is the expiry of a limitation period. However, in my opinion the better view is that, in an appropriate case, if a cause of action is clearly statute-barred, the Court may conclude that the cause of action is not reasonable for the purpose of these two rules and may act under the appropriate rule accordingly. The precondition to that conclusion is that on the pleadings, and without reference to any disputed question of fact, the limitation period clearly applies and has expired. Although counsel have been unable to refer me to any case in which either of the rules has been applied because of the expiration of the limitation period, in principle it seems to me, having regard to the underlying policies of the rules, as well as their wording, that they should be available in a very clear case."
22 This seems to me to be a very clear case.
23 To the extent that the claim that is propounded is one that the plaintiff has been schooled into a life of crime, I am of the view that it is manifestly untenable.
24 The plaintiff has been given an opportunity to replead his case. The claim filed in response to that leave suffers from the same defects as the pleading which Studdert J struck out. The plaintiff has still failed to identify a viable cause of action.
25 I have concluded that the appropriate course is for the proceedings to be dismissed generally, pursuant to the provisions of Pt 13 r 5, and I so order.