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[2025] ACTSC 149
General information, not legal advice.
Supreme Court of the ACT
2025-04-14
Mossop J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Van Duren v ACT Citation: [2025] ACTSC 149 Hearing Date: 10 April 2025 Decision Date: 14 April 2025 Before: Mossop J Decision: See [56] Catchwords: PRACTICE AND PROCEDURE – WANT OF PROSECUTION – Non-appearance by plaintiff and failure to adhere to procedural orders of the court – whether pleadings inadequate in circumstances of a non-routine claim of personal injury – effect of pleadings on deciding upon want of prosecution – whether plaintiff affected by medical condition impacting ability to effectively prosecute proceedings – pleadings inadequate and medical conditions of plaintiff interfering ability to prosecute – proceedings dismissed Legislation Cited: Australian Federal Police Act 1979 (Cth), s 64B Civil Law (Wrongs) Act 2002 (ACT), s 59 Court Procedures Rules 2006 (ACT), rr 53, 275(1), 1110 Crimes Act 1900 (ACT), s 435 Human Rights Act 2004 (ACT) Parties: Owen Van Duren (Plaintiff) Australian Capital Territory (First Defendant) Commonwealth of Australia (Second Defendant) Representation: Counsel No appearance (Plaintiff) B Tan (First Defendant) J Cunliffe (Second Defendant) Solicitors No appearance (Plaintiff) ACT Government Solicitor (First Defendant) Ashurst (Second Defendant) File Number: SC 349 of 2023 MOSSOP J: Introduction
By amended application in proceeding dated 7 March 2025, the second defendant, the Commonwealth of Australia, seeks: (a) an order striking out certain paragraphs of the statement of claim filed 29 August 2023, with leave to replead against the Commonwealth refused; (b) alternatively, that the proceeding against the second defendant be dismissed for want of prosecution pursuant to r 1110 of the Court Procedures Rules 2006 (ACT).
The plaintiff, who is presently unrepresented, did not appear at the hearing of the application.
Failure to comply with directions
Rule 1110 provides: 1110 Default by plaintiff—dismissal of proceeding (1) A defendant in a proceeding may apply to the court for an order dismissing the proceeding for want of prosecution if the plaintiff— (a) is required to take a step in the proceeding required by these rules, or to comply with an order of the court, not later than the end of a particular time; and (b) does not do what is required before the end of that time. … (2) The court may dismiss the proceeding or make any other order it considers appropriate. (3) An order dismissing the proceeding for want of prosecution may be set aside only on appeal or if the parties agree to it being set aside. (4) However, the court may amend or set aside an order dismissing the proceeding for want of prosecution made in the absence of the plaintiff without the need for an appeal. Note Rule 6901 (Orders may be made on conditions) provides that the court may make an order under these rules on any conditions it considers appropriate.
Two points about the application of the rule in the present case may be noted: (a) the Commonwealth relies upon a failure to comply with orders of the court rather than steps required by the rules; and (b) subject to a point made at the end of these reasons, as the plaintiff did not appear at the hearing of the application, subrule (4) would apply to any order made under this rule.
The proceedings were commenced on 29 August 2023.
They were then held up as a result of the failure by the plaintiff to serve a personal injury claim notification under the Civil Law (Wrongs) Act 2002 (ACT).
On 10 November 2023, the solicitors for the Commonwealth pointed out in correspondence that the plaintiff’s statement of claim was, “in various respects, vague, ambiguous, lacking in particulars and may prejudice, embarrass or delay the fair hearing of the proceeding”.
On 23 November 2023, the solicitors wrote again, pointing out the inadequacy of the pleading.
On 9 February 2024, the plaintiff’s application for leave to proceed under s 59 of the Civil Law (Wrongs) Act was resolved by consent.
On 12 February 2024, an order was made that the plaintiff file an amended statement of claim or alternatively an application for leave to file an amended statement of claim by 1 March 2024. This was not complied with.
On 22 March 2024, the matter was listed for directions on 8 April 2024 at the Commonwealth’s request.
On 8 April 2024, the plaintiff was ordered again to file and serve an amended statement of claim by 6 May 2024. This order was not complied with.
There was a further directions hearing on 13 May 2024.
On 17 June 2024, the plaintiff was ordered yet again to file and serve an amended statement of claim by 12 July 2024. This order was not complied with.
By 16 July 2024, the solicitors for the plaintiff had indicated their intention to cease acting for the plaintiff in respect of the claims against the defendants.
On 14 August 2024, the matter was listed for directions on 26 August 2024 at the Commonwealth’s request.
At the directions hearing on 26 August 2024, the plaintiff’s solicitor reported that his client’s capacity had deteriorated and he intended to have his capacity assessed. The plaintiff was ordered to file and serve an affidavit outlining the steps taken to obtain a capacity report by 6 September 2024.
On 9 September 2024, the plaintiff was ordered to file and serve any application with respect to the continuation or stay or otherwise of the proceedings by 15 October 2024.
On 23 September 2024, an order was made that any expert evidence in relation to capacity was to be served by 25 October 2024. The date for any application in relation to the continuation or stay or otherwise of the proceeding was extended to 8 November 2024.
On 2 October 2024, the Commonwealth’s strike out application was filed.
A medical assessment scheduled for 4 October 2024, designed to determine whether or not he had capacity to instruct his lawyers, did not proceed because the plaintiff “could not make the financial requirements for the report”.
On 1 November 2024, the Commonwealth was ordered to file submissions and any further evidence, and the plaintiff was to file any application in relation to the continuation, or stay, or otherwise of the proceeding, by 22 November 2024.
The Commonwealth filed its submissions on 22 November 2024.
On 28 November 2024, the plaintiff’s solicitor notified the Commonwealth’s solicitor that his firm would be taking steps to cease to act for the plaintiff.
On 29 November 2024, there was a directions hearing at which the Commonwealth’s application was adjourned and the plaintiff’s solicitors were ordered to provide the court with the plaintiff’s contact details when filing its notice of ceasing to act.
A notice of ceasing to act was filed on 19 December 2024.
On 28 January 2025, the plaintiff’s former solicitor notified the court of the plaintiff’s contact details.
On 29 January 2025, the Commonwealth’s solicitor sent to the plaintiff by email and express post copies of the former solicitor’s notice of ceasing to act, the relevant form (form 2.74 — Notice that party acting in person) to be completed by the plaintiff if he was acting in person, and the Commonwealth’s strike out application, affidavit in support and written submissions.
On 31 January 2025, the plaintiff was ordered to file and serve form 2.74 by 7 February 2025. This order was not complied with.
On 4 February 2025, the Commonwealth’s solicitor sent by email and express post copies of the court’s orders made on 31 January 2025. The plaintiff responded by email to that communication attaching a letter concerning the plaintiff’s mental health diagnoses. This was a document prepared by a psychiatrist at the Canberra Hospital dated 4 August 2022. The doctor recorded: Mr Van Duren has been a patient of the service since the 24th of March 2022. Mr Van Duren has the following diagnoses and treatment. Diagnosis • Chronic Post Traumatic Stress disorder (PTSD) stressor, assault by police and later by a prisoner. Mr Van Duren first experienced symptoms in September 2020. The condition has stabilised and is unlikely to improve. Other diagnosis • Psychosis • Recurrent depressive disorder • Chronic back pain
The letter goes on to refer to treatment and the “disabling symptoms of PTSD” that he continued to suffer at this time.
On 10 February 2025, the Commonwealth’s solicitor emailed the plaintiff in relation to his failure to file and serve form 2.74.
On 28 February 2025, there was a directions hearing before a registrar and the plaintiff attended by telephone. The proceedings were listed before me on 6 March 2025. During the course of the directions hearing, the plaintiff made reference to being assisted by ADACAS which I understand to be ACT Disability, Aged and Carer Advocacy Service and to having the benefit of a grant of legal aid.
In advance of that hearing, the Commonwealth’s solicitor had sought information from the Legal Aid ACT as to whether or not that organisation was representing the plaintiff in the proceedings. On 28 February 2025, an employee of Legal Aid ACT had informed the solicitor for the Commonwealth that it had no information about the plaintiff’s representation. This was then passed on to the plaintiff on 4 March 2025 and the next day, the plaintiff sent an email to the solicitor for the Commonwealth saying, rather obscurely: Hello Perhaps they don’t trust you because of the conflicting interests that you have.
On 6 March 2025, the proceedings were listed before me for directions. There was no appearance by the plaintiff. The plaintiff was ordered to file submissions in response to the application and any evidence by 3 April 2025. The order in relation to written submissions was not complied with. No evidence was filed.
The proceedings were listed for hearing on 10 April 2025. The Commonwealth’s solicitor notified the plaintiff by email of the orders made and subsequently followed up with the perfected orders. An unsealed amended application in proceeding was sent by email and post on 7 March 2025. Sealed copies were only sent by email and express post on 7 April 2025.
The plaintiff failed to appear at the hearing on 10 April 2025.
The procedural history of the matter reflects a failure to prosecute the matter in any reasonable or methodical way. As pointed out later, this is likely to result from a combination of mental health problems and lack of money. It is also apparent that the solicitor for the second defendant has been fairly pointing out the difficulties of the plaintiff’s pleadings and communicating with him in a way designed to encourage him to properly address his role in the proceedings.
Although I have not recited the evidence about service in detail, I am satisfied that, following his solicitors ceasing to act, the email and physical address for the plaintiff provided by those solicitors was an accurate one and that the plaintiff has been adequately served at that address notwithstanding his failure to file a notice of acting in person (form 2.74) as he had been directed to do.
Inadequate pleading
In addition to seeking to have the proceeding struck out for want of prosecution, the amended application in proceeding sought that various paragraphs of the statement of claim be struck out and leave to replead them be refused. Having regard to the conclusion that I have reached in relation to striking out the claim against the Commonwealth for want of prosecution and the undesirability of dealing with the issues raised by this aspect of the application in the absence of a contradictor, it is not appropriate to finally determine whether or not those orders would have been made if the proceeding was not to be dismissed.
However, the apparent strength or otherwise of the claim made against the Commonwealth is a matter that should be taken into account in determining whether or not to dismiss the claim for want of prosecution.
The statement of claim involves the abbreviated form of pleading that is permitted in relation to personal injury claims and deemed to be adequate by r 53. It must be pointed out that just because r 53 can be relied upon does not mean that it should be if to adopt that form of pleading is unlikely to adequately explain the claim that is brought. Good professional judgment is required. In the present case, the use of this form of pleading has not resulted in any precision in the articulation of the claim intended to be made. That is both the result of the use of the abbreviated form of pleading and the manifest inadequacy of the pleading within that form. It is sufficient to note a number of the defects with the pleaded claim against the Commonwealth: (a) The pleading at [1.5] that on “no less than 5” occasions the plaintiff was arrested and “abused and interrogated” by police officers is embarrassing in that it involves a wrapped-up allegation which fails to identify what is alleged to have occurred. (b) The pleading of acts or omissions constituting negligence or breach of statutory duty on the part of the second defendant (at [7]) is embarrassing in that it does not differentiate between the particulars of negligence and the particulars of breach of statutory duty. (c) The pleading appears to include “Assault and battery” as a claim in either negligence or breach of statutory duty (at [7.2]) as distinct from a separate cause of action. (d) When articulating the three different claims for negligence or breach of statutory duty (at [7], [8] and [9]) it fails to differentiate between the arrest on 3 September 2020 and the occasions on which the plaintiff alleges he was “abused and interrogated” and, hence, identify which conduct relates to which cause of action. (e) It pleads as a particular a failure to comply with the Human Rights Act 2004 (ACT) (at [7.5]), but does not identify any particular provision that might inform a claim of negligence or breach of statutory duty. (f) It alleges a failure to comply with the Crimes Act 1900 (ACT) (at [7.6]), but does not identify any particular provision which might inform a claim in negligence or breach of statutory duty. (g) It then also pleads a breach of statutory duty by the second defendant of the Human Rights Act in circumstances where that Act has no direct application to the Commonwealth and where the pleading is inadequate to invoke the liability provision in s 64B of the Australian Federal Police Act 1979 (Cth).
The claim was manifestly in need of amendment. It provides a good example of how the use of the simplified form of pleading permitted in personal injury cases may encourage a lack of pleading rigour in a case which is not a completely routine claim of personal injury. The defective nature of the pleading appears to have been recognised as early as 12 February 2024, when an order was made for the plaintiff to file an amended statement of claim or application to amend by 1 March 2024. No amendment or application was ever made, despite that order having been repeated on two subsequent occasions.
So far as the underlying merits of the claim are concerned, if pleaded as a straightforward claim alleging assault by police officers for which the Commonwealth may be liable under s 64B of the Australian Federal Police Act, it would raise factual issues surrounding the various occasions of arrest and the reasonableness of police conduct. It is not possible to determine the likely merits of such a claim based upon the limited evidence before the court. Assuming the Commonwealth pleaded it, the case is one to which the limitation period in s 435 of the Crimes Act 1900 (ACT) appears likely to provide a defence, at least in relation to some of the claims made. However, it is not appropriate on an application such as this to reach any more definitive conclusion as to its application.
Therefore, the case is one which, if adequately pleaded, may have reasonable prospects. It is not, if it was properly pleaded, one which on the material before the court could be identified as obviously strong or obviously weak, although the limitation problem is potentially fatal.
Evidence about medical conditions
Why has the plaintiff failed to pursue his case against the Commonwealth? This is an issue which is relevant to the exercise of discretion as to whether or not to dismiss a proceeding for want of prosecution.
Although the evidence in the application was not specifically targeted at this issue, there was evidence that the plaintiff’s previous solicitors had concerns about the capacity of the plaintiff to provide instructions. It is a fact that the solicitors subsequently ceased to act on his behalf. Further, amongst the limited medical evidence in the material before the court, there is reference to the plaintiff suffering from post-traumatic stress disorder, schizophrenia and psychosis. These conditions are consistent with the rather strange terms in which he has corresponded with the solicitor for the Commonwealth.
There is also some evidence of an inability to pay for expert medical evidence referred to earlier in these reasons.
For the purposes of this application, I proceed on the basis that the plaintiff’s mental health conditions and limited financial resources are likely to be interfering with his capacity to conduct the proceedings himself, or to obtain further legal assistance so as to allow it to be pursued.
Decision
I have noted that the difficulties that the plaintiff has in taking the steps required to advance his claim are likely to result from mental health problems and lack of financial resources. Although r 275(1) requires that persons who are under a disability only proceed by litigation guardian, it is not an uncommon situation that the person with the disability either does not recognise that they have a disability or, if they do, because of that disability, or because of lack of legal representation, or because of the absence of a suitable person willing to fulfil the role, they are unable to arrange the appointment of a litigation guardian. It appears that the plaintiff has been unable to take the steps required to give instructions to his lawyers, which has led them to cease to act on his behalf, and he has been unable to retain further lawyers or take the steps himself required to advance the proceedings.
The Commonwealth, as the second defendant in proceedings, is entitled to have the case against it progressed in an orderly manner consistent with the rules and the procedural orders of the court. It is not required, in the context of adversarial proceedings, to remedy every difficulty that the plaintiff, due to his personal circumstances, has in accessing the legal system. The situation in which the Commonwealth has faced is that the plaintiff’s case has not progressed and the inadequacies in pleading have not been addressed in accordance with the orders of the court, notwithstanding an apparent recognition by the plaintiff’s former solicitors that they needed amendment. Having regard to the lack of progress during the period when the plaintiff has been unrepresented and the lack of any indication that he will become legally represented within a reasonable time, it is appropriate to dismiss the proceedings against the second defendant rather than require the second defendant to continue spending money on a case that appears for the indefinite future to be going nowhere.
It is therefore appropriate to make the order sought by the second defendant in relation to dismissal for want of prosecution.
I noted earlier in these reasons the operation of subrule (4). Notwithstanding that the plaintiff did not appear at the hearing of the application, he requested an audiovisual link for the purposes of the oral delivery of the decision and the making of orders. On that occasion, he made some very brief submissions about his attempts to obtain legal representation with the assistance of ADACAS. That may give rise to a question as to whether or not the order was made “in the absence of the plaintiff” for the purposes of subrule (4). I will make an order that confirms the application of that subrule notwithstanding that there may otherwise be room for debate as to its application.
It will therefore remain open for the plaintiff to attempt to have the court set aside or amend the order dismissing the proceeding. However, as any action by the court to set aside or amend the order involves a discretionary decision, it would be necessary, in this case, for the plaintiff to address the obvious difficulties with the pleadings.
The second defendant sought costs and that liberty be granted to apply for a lump sum costs order. Both of those orders are appropriate in the circumstances. Orders
The orders of the Court are: (1) The proceedings as against the second defendant are dismissed for want of prosecution pursuant to r 1110 of the Court Procedures Rules 2006 (ACT). (2) For the purposes of r 1110(4) these orders are taken to be made in the absence of the plaintiff. (3) The plaintiff is to pay the second defendant’s costs of the proceedings as agreed or assessed. (4) Liberty is granted to the second defendant to apply within 28 days for a gross sum costs order. (5) The second defendant is to serve a copy of the orders of the court upon the plaintiff within 7 days.
I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:
Van Duren
ACT [2025] ACTSC 149