Adam Todd v State of NSW

[2007] NSWSC 751

CITATION:	Adam Todd & Anor v State of NSW & Ors [2007] NSWSC 751 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11 April 2007
JUDGMENT DATE :	6 July 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Latham J
DECISION:	1. The plaintiffs’ Notices of Motion of 31 October 2006 and 8 March 2007 are dismissed; 2. The whole of the Amended Statement of Claim is struck out pursuant to UCPR 14.28; 3. The plaintiffs to pay the costs of the First, Second, Third and Fifth Defendants on the Notices of Motion filed 12 February, 1 March and 9 March 2007; 4. The Summons and First Amended Summons in proceedings 13775/06 are struck out; 5. The plaintiffs have leave to file and serve a Statement of Claim in proceedings 13775/06 within seven days hereof. I note that the defendants to that Statement of Claim will be the First, Second, Sixth and Seventh Defendants named in the First Amended Summons ; 6. Proceedings commenced by way of such Statement of Claim are to be consolidated with proceedings 20119/06; 7. The proceedings against the Fourth and Fifth Defendants in 13775/06 are dismissed on the undertaking by the First and Second Defendants that no issue will be taken on the vicarious liability of their servants and/or agents.
CATCHWORDS:	PROCEDURE - UCPR 14.28 - Applications to Strike Out Amended Statement of Claim - Application by plaintiffs to join a party - Prolix and repetitious pleadings.
LEGISLATION CITED:	Civil Procedure Act 2005 Law Reform (Vicarious Liability) Act 1983 Crimes Act 1914 (Clth) Mental Health (Criminal Procedure) Act 1990 Injury Management and Workers Compensation Act 1998 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	William Todd & Anor. v Adam Todd & Anor. [2006] NSWSC 864 Vandervell Trustees Limited v White [1971] AC 912 News Limited v Australian Rugby Football League (1996) 64 FCR 410 State of Victoria v Sutton (1998) 195 CLR 291 Gordian Runoff Limited v Price [2004] NSWSC 535 Great Eastern Cleaning Services Pty Limited [1978] 2 NSWLR 278 Sky Channel Marketing Pty Limited v Hall [2006] FCA 854 Rajski v Powell (1987) 11 NSWLR 522 Mann v O’Neill (1997) 191 CLR 204 Wentworth v Wentworth (2001) 52 NSWLR 602 Fingleton v The Queen (2005) 79 ALJR 1250 ; [2005] HCA 34 Markisic v Department of Community Services of NSW & Ors (No. 2) [2006] NSWCA 321Workplace
PARTIES:	1st Plaintiff - Adam Todd 2nd Plaintiff - Suzanne Todd 1st Defendant - State of New South Wales 2nd Defendant - Baulkham Hills Shire Council 3rd Defendant - Bruce William Linton 4th Defendant - William George Todd 5th Defendant - Magistrate Peter Norton
FILE NUMBER(S):	SC 13775/06; 20133/06
COUNSEL:	1st Plaintiff - No Counsel 2nd Plaintiff - No Counsel 1st Defendant - Ms V Hartstein 2nd Defendant - Ms White 3rd Defendant - Ms White 4th Defendant - No Counsel 5th Defendant - Ms V Hartstein
SOLICITORS:	1st Plaintiff - Self Represented 2nd Plaintiff - Self Represented 1st Defendant - Crown Solicitor 2nd Defendant - McCabe Terrill Lawyers 3rd Defendant - McCabe Terrill Lawyers 4th Defendant - Self represented 5th Defendant - Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

6 JULY 2007

13775/06 ADAM TODD & ANOR. v STATE OF NSW & ORS.

20133/06 ADAM TODD & ANOR. v STATE OF NSW & ORS.

JUDGMENT

1 On 13 April 2006 the plaintiffs commenced proceedings (20133/06) by way of Statement of Claim against the State of NSW, Baulkham Hills Shire Council, the NSW Police Service, the NSW Ambulance Service, Western Sydney Area Health Service, Cumberland Hospital and a large number of individual defendants (21 in all), variously employed by those agencies, alleging, inter alia, negligence, false imprisonment, malicious prosecution, conspiracy, reckless endangerment, trespass, malfeasance and assault, arising out of interactions between those agencies, their employees and the plaintiffs over a number of days between mid April and early May 2003. The Statement of Claim also named a Magistrate as a defendant to these proceedings, arising out of a hearing by that Magistrate in which the First Plaintiff was a party, heard in the Local Court at Parramatta between May 2003 and January 2004.

2 On 2 August 2006 the plaintiffs commenced proceedings (13775/06) by way of Summons against the State of NSW, the NSW Police Service, Workcover NSW and four individuals, variously employed by those agencies, alleging trespass on the plaintiffs’ property on five occasions between October 2004 and October 2005.

3 A First Amended Summons was filed on 24 August 2006. The First and Second Defendants (with the consent of the Fourth and Fifth Defendants) in these proceedings seek the striking out of both Summons and consolidation of those proceedings with other proceedings (20119/06), in the event that the plaintiffs file a Statement of Claim. These orders are sought by way of Notice of Motion filed on 28 September 2006.

4 An Amended Statement of Claim in proceedings 20133/06 was filed on 17 January 2007. It reduced the number of the original defendants to four, namely, the State of NSW, Baulkham Hills Shire Council, an employee of the Council and the Magistrate. However, another defendant, the First Plaintiff’s father, was purportedly joined to these proceedings as the Fourth Defendant. (It is significant in this context to note that on 31 August 2006, Barr J delivered judgment in proceedings commenced by the First Plaintiff’s parents against the plaintiffs, in which the First Plaintiff’s parents were successful.) The defendants in these proceedings seek the striking out of the Amended Statement of Claim pursuant to UCPR 14.28. This order is sought by way of Notices of Motion filed on 12 February, 1 March and 9 March 2007.

5 The plaintiffs also move on Notices of Motion filed on 31 October 2006 and 8 March 2007, seeking, inter alia, the joinder of the First Plaintiff’s father as a defendant to the Amended Statement of Claim (by which I interpolate, as a defendant to the proceedings), the setting aside of the Notice of Motion filed on 12 February 2007 by the First Defendant, the grant of leave to the plaintiffs to issue separate Statements of Claim against each of the five defendants in 20133/06, and related orders. It is convenient to determine the outcome of the various Notices of Motion filed by the defendants in both sets of proceedings, before passing to a consideration of the plaintiffs’ Notice of Motion of 8 March 2007. In the event that the defendants are successful, that Notice of Motion necessarily falls by the wayside.

6 As noted above, the First Plaintiff’s father was not a party to the original Statement of Claim and an amendment of that Statement of Claim nine months later does not entitle the plaintiffs to add him as a defendant without the leave of the Court : Civil Procedure Act 2005, s. 64 ; UCPR 19.1, 19.2. The plaintiffs have not previously sought that leave, although the plaintiffs’ Notice of Motion filed on 31 October 2006 seeks to remedy that defect. The First Plaintiff’s father opposes joinder, arguing in effect that the application is vexatious and frivolous. It is expedient in the circumstances of this case to determine that discrete issue first.

The Amended Statement of Claim

7 Before dealing with the specific complaints directed to the Amended Statement of Claim, some general remarks about the structure and form of the pleadings are of assistance. In summarising the pleadings in this way, I do not overlook the fact that the plaintiffs are unrepresented and unfamiliar with the technicalities of pleadings. However, the history of this litigation and the correspondence between the plaintiffs and the defendants, including requests by the defendants for particulars, suggest that the plaintiffs (in particular, the First Plaintiff) are well aware of the shortcomings in the Amended Statement of Claim, but have chosen to adopt a combative and unco-operative stance in the face of legitimate criticisms.

8 The Amended Statement of Claim is 353 paragraphs in length. It is prolix and repetitious. It is divided into sections, relating to the events of nominated dates which are said to give rise to various causes of action. Pars. 5 to 23 refer to the events of 15 April 2003, pars. 24 to 144 refer to the events of 16 April 2003, pars. 145 to 189 refer to the events of 17 April 2003, pars. 190 to 197 refer to the events of 18 April 2003, pars. 198 to 207 refer to the events of 19 April 2003, pars. 208 to 224 refer to the events of 22 April 2003, pars. 225 to 238 refer to the events of 24 April 2003, pars. 239 to 246 refer to the events of 25 to 28 April 2003, pars. 247 to 260 refer to the events of 29 April 2003, pars. 261 to 268 refer to the events of 30 April 2003, pars. 269 to 297 refer to the events of 1 May 2003, pars. 298 to 308 refer to the events of 2 May 2003, pars. 309 to 323 refer to the events of 3 May 2003, and pars. 324 to 343 refer to the events of 5 May 2003.

9 Each section contains a large number of paragraphs that consist of a narrative, generally followed by two or three paragraphs wherein the relevant causes of action are pleaded against various organisations and defendants. These causes of action are often replicated across a number of sections of the pleadings, essentially repeating what has gone before. More importantly, there are a significant number of duties said to be owed generally by the defendants that are not known to the law. In some sections of the pleadings, duties are asserted without specifying whether they are owed to the First Plaintiff and/or the Second Plaintiff and without alleging a breach of those duties.

The Plaintiffs’ Notice of Motion filed 31 October 2006.

10 The full context within which the events of April and May 2003 unfolded are set out in Barr J’s judgment of 31 August 2006 (see William Todd & Anor. v Adam Todd & Anor. [2006] NSWSC 864) at [7] to [11]. Put shortly, there had been a long-running dispute between the plaintiffs and the First Plaintiff’s parents (in particular, the father, William Todd) concerning the plaintiffs’ occupation of the premises in Rockleigh Crescent, Baulkham Hills, purchased by William Todd in 1998. The plaintiffs had, according to William Todd, refused to pay rent since early 2000 and reneged on their agreement to pay Council rates and pay for all repairs to the property. By April 2003, the property had fallen into disrepair and a large amount of rubbish had accumulated in the yard of the property.

11 Complaints were made by neighbours which ultimately attracted the attention of the Council. Police were called to the property a number of times, either at the request of the Council officers, or because both the Second Plaintiff and the First Plaintiff’s parents were fearful that the First Plaintiff might harm himself (the Second Plaintiff denies any such fear on her part and the plaintiffs dispute that such fears were genuinely held by his parents). It was in the latter context that Ambulance officers attended on one occasion and that the Cumberland Hospital admitted the First Plaintiff.

12 The relationship between the plaintiffs and William Todd deteriorated throughout 2003 and 2004, culminating in the service of a notice to quit upon the plaintiffs in mid 2004, with which they refused to comply. William Todd took proceedings, unsuccessfully, in the Residential Tenancies Tribunal. In the proceedings before Barr J, the plaintiffs maintained that the property had been purchased by William Todd in trust for the plaintiffs and that they were entitled to possession. Barr J resolved these issues against the plaintiffs and gave William Todd an order for possession of the property.

13 It is against that background that the plaintiffs’ efforts to belatedly join the First Plaintiff’s father, William Todd, to these proceedings stands to be assessed. I have concluded that the application for joinder in these proceedings arises directly out of the plaintiffs’ loss in the earlier proceedings. That conclusion is fortified by the following factors.

14 Firstly, the events underlying the Amended Statement of Claim are integrally linked to the plaintiffs’ refusal to vacate the property when asked to do so by the First Plaintiff’s father. They represent a chapter in the history of that dispute.

15 Secondly, the basis upon which the plaintiffs seek to join the First Plaintiff’s father to these proceedings may be derived from a number of Affidavits filed in support of the Notice of Motion. It is not necessary to relate the matters deposed to in those Affidavits in any detail. It is sufficient to note that the Affidavits refer to the proceedings before Barr J as the impetus for the present application, in that an Affidavit sworn by William Todd for the purposes of those proceedings revealed that he had called 000 on 16 April 2003, resulting in the arrival of Police and Ambulance personnel at the Rockleigh Crescent premises.

16 The thrust of the Affidavits filed in support of the Notice of Motion is that William Todd made false and misleading statements in the course of that phone call, to police officers and ambulance personnel upon their arrival, and to Cumberland Hospital personnel during the period of time that the First Plaintiff was detained. It is alleged that William Todd also gave false and misleading evidence to the Fifth Defendant during the course of Local Court proceedings.

Principles Relating to Joinder

17 The following summary of the principles to be applied when the issue of joinder arises represents a convenient departure point.

18 (i) The relevant test is one of necessity. Something more is required than merely that joinder is just or convenient : Vandervell Trustees Limited v White [1971] AC 912. Moreover, necessity must be interpreted in the context of s 56 of the Civil Procedure Act 2005, whereby the Court must exercise its powers in order to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(ii) ”The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party’s rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent … The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential”.

News Limited v Australian Rugby Football League

(1996) 64 FCR 410 at [524-525]

(iii) In State of Victoria v Sutton (1998) 195 CLR 291 at 316-317 [77]-[78], McHugh J said :

[77] The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order : News Ltd v ARLLtd (1996) 139 ALR 193; Grovenor v Permanent Trustee Co of New South Wales Ltd (1966) 40 ALJR 329. This rule is derived both from the common law and by implication through the power of courts to join parties who are necessary and proper for hearing, for example, New South Wales Supreme Court Rules Pt8 r8, High Court Rules O16 r4. That practice also assists in avoiding duplication of hearings on the same issues and in avoiding the spectre of inconsistent decisions by courts or the judges of the same court.

[78] The test for determining whether a person is a necessary party has usually arisen in the context of a person seeking to join proceedings rather than a failure to join a relevant person. But the same principle must apply in both situations. Thus, in News Ltd v ARL (1996) 139 ALR 193, the Full Federal Court held that an order "which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside." (at 298).

(iv) a matter of significance in the determination of an application is whether there will be an effective contradictor without the joinder : Gordian Runoff Limited v Price NSWSC 535 at [21]; Re Great Eastern Cleaning Services Pty Limited [1978] 2 NSWLR 278 at 280.

(v) attention is to be directed at the orders that are sought in the proceedings : Sky Channel Marketing Pty Limited v Hall [2006] FCA 854 at [11]

Resolution of the Joinder Issue

19 According to the Amended Statement of Claim, the plaintiffs seek damages for trespass to land, false imprisonment, economic loss and “any other damages, or remedies that the Court may order.” Declaratory relief is also sought in relation to the surrender of Council records, medical records, fingerprint records and transcripts of the Local Court proceedings, concerning the First Plaintiff and the Second Plaintiff. There is no head of damage specified in relation to the alleged misrepresentations by William Todd.

20 None of these orders, assuming that any of them could be made, could directly affect William Todd’s rights against or liabilities towards another party to the proceedings. To the extent that it is alleged that William Todd gave false or misleading information to various agencies, that conduct does not give rise to any tort, as against the plaintiffs or those agencies. Not only is it unnecessary to join William Todd to the present proceedings, but his joinder would, in my view, be inimical to the just, quick and cheap resolution of the issues, again assuming that the Amended Statement of Claim discloses triable issues.

21 I would refuse leave to the plaintiffs to join William Todd as a defendant. It necessarily follows that those parts of the Amended Statement of Claim that refer to William Todd as the Fourth Defendant ought be struck out.

The Allegations Against the First Defendant (the State of NSW)

22 Whilst the Amended Statement of Claim names the First Defendant as the State of NSW, it alleges various wrongs by the NSW Police Service, the NSW Ambulance Service and the Cumberland Psychiatric Hospital (the Hospital) without pleading any basis upon which the State of NSW could be said to be vicariously liable pursuant to the Law Reform (Vicarious Liability) Act 1983. For present purposes, those parts of the Amended Statement of Claim that are directed to these entities, and/or their unidentified individual employees, are set out below in the order in which they appear.

23 Following some introductory and largely irrelevant material in pars. 1 to 4, pars. 5 to 20 purport to deal with “The Events of 15 April 2003” by way of a lengthy recitation of alleged facts. They relate to the entry upon the land occupied by the plaintiffs by police officers, without the consent of the plaintiffs, allegedly following a telephone conversation between staff at Baulkham Hills Shire Council and Castle Hill police station. At par. 21, it is alleged that the NSW Police Service committed trespass, assault, false imprisonment and caused the plaintiffs economic loss.

24 At par. 22, it is alleged that certain un-named police officers owed the plaintiffs a duty to :-

“a) not enter the plaintiffs’ land without reasonable excuse.

b) obey the instructions of the plaintiffs.

c) not remain on the plaintiffs’ land.

d) not interfere with the plaintiffs’ use of the land.

e) avoid causing economic loss to the plaintiffs.

f) avoid causing injury to the plaintiffs.”

25 Pars. 24 to 144 (the ‘’Events of 16 April 2003”) contain repeated assertions of the existence of a duty to act or to refrain from acting in the ways set out at par. 22, and in other ways, as against the NSW Police Service and the Hospital. It appears from the Amended Statement of Claim that police and ambulance personnel entered the plaintiffs’ property on that day and the police ultimately took the First Plaintiff to Cumberland Hospital, where he was admitted and treated over the following days. The plaintiffs make corresponding allegations of trespass to land and to the person, deceit, “intentional negligence”, misrepresentation, medical negligence, professional negligence, “supply of false information with malicious intent”, “mental assault”, nuisance, assault and battery and false imprisonment against those entities (pars. 37, 38, 69, 70, 71, 72, 74, 75, 76, 78, 79, 84, 85, 86, 87, 93, 94, 95, 101, 102, 103, 119, 120, 121, 126, 127, 128, 130, 131, 142 and 143).

26 It would occupy many pages of this judgment to set out in full the paragraphs of the Amended Statement of Claim enumerated immediately above, in order to demonstrate the breadth and scope of the pleadings. Some examples of the type of duties alleged by the plaintiffs against police, both individually, (eg. pars. 86 and 93, although not identified by name) and collectively, and against the Hospital (in addition to those set out in par. 22), include a duty not to use excessive and unreasonable force, a duty not to deceive, a duty not to misrepresent the intentions of the police, a duty not to detain or arrest the First Plaintiff unlawfully, a duty not to remove the First Plaintiff from his land, a duty not to defame or slander the plaintiffs, a duty not to misrepresent the First Plaintiff, a duty to inform the First Plaintiff the reason for his arrest, a duty to enquire as to the relationship between the First Plaintiff and his father, a duty not to cause the First Plaintiff to be admitted pursuant to the Mental Health Act knowing he did not suffer a mental illness, a duty to convey the First Plaintiff to the Cumberland Mental Hospital for assessment on 15 April 2003, a duty not to conduct a medical examination of the First Plaintiff without explaining the purpose and procedure of the examination, a duty to ensure the First Plaintiff understood the medical procedure, a duty to avoid making a finding of mental illness “based on cultural, political or religious beliefs, .. [or] perceived illegal acts”, a duty not to imprison the First Plaintiff when an alternative of less restrictive care was available, a duty to “make due enquiry as to whether the plaintiffs were to appear on Channel 7”, a duty to release the First Plaintiff into less restrictive care, and a duty to enable a second opinion.

27 Pars. 145 to 223 include a recitation of the events of 17, 18, 19, and 22 April 2003, during which time, the First Plaintiff was detained in the Hospital and examined by various doctors. This part of the Amended Statement of Claim repeats virtually all of the alleged causes of action and duties that have gone before, albeit this time relevantly confined to the Hospital. In addition, it is alleged that the Hospital owed a duty to “act in the best interests of the First Plaintiff”, to “act in compliance with the reasonable and informed requests of the First Plaintiff”, and not to “disclose or communicate medical or legal information to parties to whom the First Plaintiff denied access” (par. 223).

28 At par. 237 it is pleaded that the Hospital owed a duty to “ensure all medical witnesses were present to give evidence pursuant to s 41 of the Mental Health Act, [and] to allow the First Plaintiff access to any medical records relating to the First Plaintiff in the possession of any other person pursuant to s 45 of the Mental Health Act”, in the context of a hearing conducted before the Fifth Defendant on 24 April 2003. Leaving to one side the fact that such duties are unknown to the law of negligence, the Hospital was not responsible for the carriage of proceedings under the Mental Health Act.

29 Pars 239 to 337 set out in detail the events said to have occurred over the days between 24 April and 3 May 2003 whilst the First Plaintiff continued to be detained in the Cumberland Hospital. Littered through out this part of the Amended Statement of Claim are numerous paragraphs which duplicate the allegations of assault, false imprisonment, deceit, misrepresentation, medical negligence and “intentional negligence” against the Hospital, that appear in foregoing sections. Similarly, the existence of numerous duties already canvassed in these reasons are repeated at length.

30 At par. 349 claims of malicious prosecution, misrepresentation, false imprisonment, “intentional negligence” and deceit are made against the NSW Police Service in connection with the dismissal of charges against the First Plaintiff in the Local Court. It is impossible to discern the precise nature of the proceedings, to which this claim relates, from the pleadings. There is a reference to a non-existent provision in the Crimes Act 1914 (Clth) and to proceedings under the Mental Health (Criminal Procedure) Act 1990.

The Allegations Against the Fifth Defendant (Magistrate Peter Norton)

31 Pars. 225 to 238 are said to relate to the events of 24 April 2003 and the proceedings before the Fifth Defendant, presumably pursuant to the Mental Health Act although the pleadings lack precision in this respect. At par. 229 it is alleged that the First Plaintiff was denied procedural fairness and natural justice by the Fifth Defendant, for which the remedy lies elsewhere. At par. 235 the First Plaintiff alleges negligence, false imprisonment and misfeasance against the Fifth Defendant. At par. 236 it is pleaded that the Fifth Defendant had a statutory duty to release the First Plaintiff, release him into less restrictive care, avoid contravention of the Evidence Act, reject hearsay evidence, “challenge the evidence on behalf of the First Plaintiff if the magistrate did not feel that the First Plaintiff was capable of conducting the proceedings in person”, avoid procedural unfairness and denial of natural justice, together with other duties which repeated or re-stated this part of the Amended Statement of Claim.

32 Disregarding the fact that all of these alleged statutory duties are unknown to the law, the doctrine of judicial immunity provides a complete answer to these allegations (see Rajski v Powell (1987) 11 NSWLR 522 ; Mann v O’Neill (1997) 191 CLR 204 ; Wentworth v Wentworth (2001) 52 NSWLR 602). The immunity from civil liability ensures, together with other features of judicial office, the protection of judicial independence. Accountability is achieved chiefly through the process of appellate review. Were it possible for disappointed and displeased litigants to bring civil suits against individual judicial officers, judges and magistrates would inevitably feel constrained from determining matters “without fear or favour”. (See also Fingleton v The Queen (2005) 79 ALJR 1250 ; [2005] HCA 34.)

33 Accordingly, those parts of the Amended Statement of Claim against the Fifth Defendant ought to be struck out on that basis alone.

The Allegations Against the Second (Baulkham Hills Shire Council) and Third Defendants (Bruce William Linton)

34 The Third Defendant is an employee of the Second Defendant. Their respective liability for giving false and misleading information to police, misrepresentation and malicious prosecution is said to variously arise out of the events of 15 April 2003, 17 April 2003 and 5 May 2003.

35 As to the first date, the allegation is that the Second Defendant provided false and misleading information to the police. No particulars are provided allowing for any identification of what information was given to police, how it was false and misleading, nor what it was that the Council misrepresented. When solicitors for the Second Defendant requested particulars by way of letter dated 19 January 2007, the plaintiffs responded “it is not our position or desire to provide heresay about what your client and a third party did or did not do” and “we reserve a right to alter our answer to this set of items in the future and without notice” (Annexure G to the Affidavit of Kevin Allan Gibbons of 9 March 2007).

36 As to the second date, the allegations are that the Second Defendant is liable for deceit, negligence, misrepresentation and the supply of false and misleading information in relation to the First Plaintiff’s examination by doctors at Cumberland Hospital during the morning of that day. It is not alleged that the Second Defendant owns or operates the Hospital, nor could it be. Rather, if liability exists, it exists in the First Defendant. Despite the apparent error in the pleadings and a request by the Second Defendant’s solicitors that the mistake be acknowledged, the plaintiffs have refused to amend the pleadings.

37 As to the third date, this relates to the appearance in the Local Court of the First Plaintiff. It is pleaded that the First Plaintiff was prosecuted under s 85ZE of the Crimes Act 1914 (Clth) and that the informant was the Third Defendant. No such provision exists within that Act. It is further alleged that the Second and Third Defendants owed a duty not to pursue a frivolous allegation against the First Plaintiff, and not to conspire with the First Defendant to bring about criminal proceedings that were doomed to fail. In addition, the Second Defendant is said to owe a duty to know the acts and omissions of its employees, to supervise its employees, and to comply with the statutory requirements of the Local Government Act. It is also alleged that the Third Defendant owed a duty not to pursue the First Plaintiff in criminal proceedings. Apart from asserting the existence of such duties, the Amended Statement of Claim does not in terms allege breaches of those duties, or how the breaches were constituted. A request for particulars in respect of this aspect of the pleadings was met with a similar response from the plaintiffs as appears above.

The Defendants’ Notices of Motion

38 Rule 14.28 (UCPR) provides that the Court may, at any stage of the proceedings, order that the whole or any part of a pleading be struck out where the pleading discloses no reasonable cause of action, has a tendency to cause prejudice, embarrassment or delay or is otherwise an abuse of process. The power should only be exercised in the clearest of cases. This is one of those cases.

39 In Markisic v Department of Community Services of NSW & Ors (No. 2) [2006] NSWCA 321, Giles JA said :-

Under the UCP Rules , replacing the Supreme Court Rules …… but to the same effect, a pleading must contain only a summary of the material facts on which the party relies and not the evidence by which those facts are to be proved (Pt 14 r 7). There must be pleaded specifically any matter which, if not pleaded, may take the opposite party by surprise (Pt 14 r 14). A pleading must give all necessary particulars to enable the opposite party to identify the case the pleading requires him to meet (Pt 15 r 1), and in particular must give particulars of fraud or misrepresentation (Pt 15 r3). Where there are allegations of negligence or breach of statutory duty, the facts and circumstances constituting the alleged negligent act or omission or the alleged breach of statutory duty must be given, so far as possible separately for each alleged negligent act or omission or breach of statutory duty (Pt 15 r 5).
These are particular requirements, but more generally it is necessary that the pleading be intelligible and enable the defendant to know the case which the defendant is called upon to meet, to plead to it and to respond to it by evidence at a trial. That is essential if justice is to be afforded to the defendant, and underlies in part summary dismissal of proceedings and striking out pleadings for vexatiousness, failure to disclose a reasonable cause of action or tendency to cause prejudice, embarrassment or delay (the UCP Rules are Pt 13 r 4 and Pt 14 r 28).
It is often convenient, and may be appropriate in order to provide clarity and avoid surprise, to plead the effect in law of the facts pleaded, see Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at [20]-[22] per Hodgson JA. Where that is done, as his Honour said at [22], the pleading “should convey just what cause or causes of action are being relied on”, and it follows that it should also enable it to be seen with clarity what facts are said to make out the cause or causes of action. It is not sufficient simply to assert conclusions of law, such as that a common law duty of care is owed; the pleading must intelligibly state the facts on which the plaintiff relies for the existence of the duty of care (see also Ashrafi Persian Trading Co Ltd v Ashrafinia [2001] NSWCA 243, (2002) Aust Torts Rep 81-836, in which Heydon JA says at [47] that it is not enough for the plaintiff “merely to mouth general phrases current in analysing the tort of negligence and leave it to the defendant to establish why those general formulae would be insufficient to bring the plaintiff success”.) (original not in bold)

40 The Amended Statement of Claim is almost wholly unintelligible. It baldly states the existence of numerous duties which are unknown to the law and, where recognised duties are asserted, it fails to particularise how they arise, in what ways were they breached and by whom. As Heydon JA noted in Ashrafi (above), it is not sufficient to mouth platitudes or incant the law of negligence and leave it to the courts and/or to the defendants to try to find a path through the maze. Much of what the First Plaintiff said in correspondence with the defendants and in the course of submissions to this Court suggested that it was incumbent on the defendants to redress the alleged defects in the pleadings. That is, of course, the fundamental responsibility of the plaintiffs and one which they have wholly failed to carry out. None of the defendants are in any position to discern from the pleadings the case they each have to meet. No further amendment of the pleadings can cure the multifarious defects inherent in it.

41 Accordingly, I am satisfied that the whole of the Amended Statement of Claim ought be struck out on the grounds enumerated in rule 14.28, with the possible exception that the proceedings may not yet amount to an abuse of process, although in my opinion they are perilously close to acquiring that character.

The Notice of Motion filed 28 September 2006 for the First (State of NSW) and Second Defendants (Workcover NSW) in 13775/06.

42 The Summons and First Amended Summons, to which this Notice of Motion relates, seeks liquidated sums for the tort of trespass, allegedly committed by members of the NSW Police Service, employees of the Workcover Authority and two process servers, all of whom individually attended the plaintiffs’ premises on various occasions in order to serve process on the plaintiffs. The Affidavit in support of this Notice of Motion, which is uncontradicted, establishes that there are proceedings on foot (20119/06) initiated by the plaintiffs, which also seek damages for trespass allegedly committed by other employees of the Crown, in reliance upon the same warning notice erected by the plaintiffs at the entrance to their property.

43 The contention that the proceedings should be initiated by way of Statement of Claim for unliquidated damages is a sound one. I accept that the issues in these proceedings appear to be identical to those arising out of proceedings 20119/06 and that both sets of proceedings should be consolidated, in the interests of the parties and in the interests of justice.

44 The Fourth and Fifth Defendants named in the First Amended Summons are employees of the Second Defendant, the Workcover Authority. The First and Second Defendants undertake to accept vicarious liability, in the event that the plaintiffs are ultimately successful against agents or employees of the Crown and Workcover. In those circumstances, I see no need for proceedings to be pursued against those individuals, particularly where s 240 of the Workplace Injury Management and Workers Compensation Act 1998 absolves individuals from personal liability for acts carried out in goof faith and under the direction of the Authority. Nor is there any purpose to be served by proceeding against the NSW Police Service when the State of NSW is named as a defendant.

45 There are ample grounds for the orders sought in this Notice of Motion and nothing to the contrary has been submitted by the plaintiffs

Orders

46 The orders of the Court are :-

1. The plaintiffs’ Notices of Motion of 31 October 2006 and 8 March 2007 are dismissed.
2. The whole of the Amended Statement of Claim is struck out pursuant to UCPR 14.28

3. The plaintiffs to pay the costs of the First, Second, Third and Fifth Defendants on the Notices of Motion filed 28 September 2006, 12 February, 1 March and 9 March 2007.

4. The Summons and First Amended Summons in proceedings 13775/06 are struck out.
5. The plaintiffs have leave to file and serve a Statement of Claim in proceedings 13775/06 within seven days hereof. I note that the defendants to that Statement of Claim will be the First, Second, Sixth and Seventh Defendants named in the First Amended Summons.
6. Proceedings commenced by way of such Statement of Claim are to be consolidated with proceedings 20119/06.

7. The proceedings against the Fourth and Fifth Defendants in 13775/06 are dismissed on the undertaking by the First and Second Defendants that no issue will be taken on the vicarious liability of their servants and/or agents.

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24/08/2007 - Date (28 September 2006) inserted in Order No. 3 - Paragraph(s) 46