1 HER HONOUR: Originally on 18 October 2004, the plaintiff filed a statement of claim seeking damages and costs for personal injury, medical negligence and defamation caused by the defendant. That document was poorly drafted and incomprehensible. On 8 February 2005, I requested that the plaintiff be given pro bono assistance for the redrafting of her statement of claim.
2 By notice of motion filed on 3 December 2004, the defendant seeks firstly, to have the proceedings dismissed or stayed pursuant to Part 13 r 5 of the Supreme Court Rules 1970 (NSW) (SCR); in the alternative, the defendant seeks that the statement of claim be struck out pursuant to Part 15 r 26 of the SCR.
3 The plaintiff claims that she suffered personal injury caused by the defendant's actions. She pleads causes of action in tort, contract and defamation. Part of the statement of claim (between paragraphs [32] to [35]) pleads a claim for defamation. The defamation claim is not the subject of this strike out application.
4 Part 13 r 5 of the SCR provides that the Court may dismiss the proceedings in three situations. These include: firstly, where no reasonable cause of action is disclosed; secondly, where the proceedings are frivolous or vexatious; and thirdly, where the proceedings are an abuse of the process of the Court.
5 Part 15 r 26 of the SCR provides that the Court may at any stage of the proceedings strike out the whole or any part of the pleading in three situations. These include: firstly, where no reasonable cause of action, defence or case is disclosed; secondly, where the pleadings have a tendency to cause prejudice, embarrassment or delay in the proceedings; and thirdly, where the proceedings are an abuse of the process of the Court.
6 In an application to have the statement of claim dismissed or struck out before trial, the onus on the defendant is high. As noted by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 130:
"Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91], in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
7 Barwick CJ also said at 129:
"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; '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'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense.'"
8 Similar statements have been made in Air Services Australia v Zarb (NSWCA unreported, 26 August 1998); Dey v Victorian Railways Commissioners (1949) 78 CLR 62; and Webster & Anor v Lampard (1993) 177 CLR 598.
9 The amended statement of claim (ASC) is a marked improvement upon the original statement of claim. The plaintiff was enrolled as a student at the defendant between 1996 and 2000 in the social work faculty. During 1998 the plaintiff undertook a course of study towards the degree known as a placement under the auspices and direction of the defendant at the Royal Newcastle Hospital (the placement).
10 In mid August 1998 a meeting between representatives from the defendant and the plaintiff took place. Subsequently on 26 August 1998, at a meeting Flynn, a lecturer in the Department of Social Work and Nicole McLauren, a field educator were allegedly critical of the plaintiff. On the same day (26 August 1999) Gaha (Head of Department of Social Work) allegedly wrote and circulated an email critical of the plaintiff.
11 In mid 1999, Bryant (Director of the University Counselling office) diagnosed the plaintiff as suffering from PTSD and informed Ramsland and the Dean of Students of that diagnosis. A further meeting between the plaintiff and the employees of the department was pleaded but it is not necessary to refer to it in details.
12 At paragraph [31.3-6] it is pleaded that the defendant owed the plaintiff a duty of care to protect her from conduct of an abusive, defamatory or otherwise harmful nature; to protect her from conduct such as to cause injury to her in the course of her studies; to provide her with appropriate and proper medical assistance for difficulties being experienced by her as a consequence of the actions of the employees, servants and agents of the defendant and otherwise; and to provide her with a procedure and process for the resolution of her complaints that did not expose her to risk of injury.
13 The breaches of duty of care or the terms of its contract with the plaintiff are specified as being by (a) failing to provide the plaintiff with a safe place of study; and (b) failing to provide the plaintiff with a course of study permitting her to complete the requirements necessary for the award of the degree of Bachelor of Social Work. Although the introductory paragraphs of the ASC refer to the plaintiff as being an employee of the defendant the balance of the ASC does not plead a case in negligence as between employee/employer.
14 The defendant submitted that the cause of action was statute barred. As the cause of action arose in about 1998, the causes of action in personal injury appear to be statute barred. This impediment may be overcome by the plaintiff applying for an extension of the limitation period. I make no comment on the success or otherwise of any potential application. At this stage, I would not strike out the ASC on this ground alone, but rather, allow 2 months for the plaintiff to file a notice of motion seeking that the limitation period be extended.
15 The defendant submitted that there is no recognised duty of care between a student and a university unless the university has specific knowledge of a danger to the student. The defendant, by way of example, submitted that the University would owe a duty of care to a student if it was aware that a darkened staircase caused night students to trip and hurt themselves but did not take any steps to have the staircase illuminated.
16 However, New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; (2003) 195 ALR 412; (2003) 77 ALJR 558; (2003) 24(3) Leg Rep 2; (2003) Aust Torts Reports 81-684; [2003] HCA 4 at [100] and [102] Gaudron J stated: