Allen v The State of New South Wales

[2001] NSWSC 780

CITATION:	Allen v The State of New South Wales & Ors [2001] NSWSC 780
FILE NUMBER(S):	SC 20303/99
HEARING DATE(S):	27-28 August 2001
JUDGMENT DATE:	7 September 2001
PARTIES :	Anthony Richard Allen (Plaintiff) The State of New South Wales (First Defendant) Manly Council (Second Defendant) NRMA Insurance Limited (Third Defendant) Blessington Judd Freeman & Lazarus (Fourth Defendant) Miller Goddard (Fifth Defendant) The Commonwealth of Australia (Sixth Defendant) Stephen Freeman (Seventh Defendant) Gregory Russell Judd (Eighth Defendant)
JUDGMENT OF:	Newman AJ at 1

COUNSEL :	Plaintiff in person C.A. Webster (First Defendant) M.T. McCulloch (Second Defendant) J.G. Duncan (Third Defendant) G.W. Creighton (Solicitor) (Fifth Defendant) A.J. Melrose (Solicitor) (Sixth Defendant)
SOLICITORS:	In person Crown Solicitor (First Defendant) Phillips Fox (Second Defendant) Abbott Tout (Third Defendant) PricewaterhouseCoopers Legal (Fifth Defendant) Australian Government Solicitor (Sixth Defendant)
CATCHWORDS:	Practice - Pleading - Embarrassing and Prejudicial language - Failure to disclose cause of action - doctrine of judicial immunity.
LEGISLATION CITED:	Supreme Court Rules Building Services Corporation Act 1989 Crown Proceedings Act 1998 Limitation Act 1969
CASES CITED:	Wentworth v Wentworth & Ors [2000] NSWCA 350 ASIC v Edensor Nominees Pty Ltd & Ors [2001] HCA 1
DECISION:	para 38

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

Friday, 7 September 2001

20303/99 ALLEN v THE STATE OF NEW SOUTH WALES & 7 ORS

JUDGMENT

1   HIS HONOUR: This matter involves notices of motion taken out by five of the eight defendants nominated in the plaintiff’s statement of claim seeking relief of various kinds and a further notice of motion taken out by the plaintiff seeking other relief. The plaintiff originally commenced action by way of a statement of claim filed in this court on 2 July 1999. That statement of claim nominated three defendants, the present, second and third defendants and the present first defendant who was joined in a tripartite manner with the Building Services Corporation and the Department of Fair Trading.

2   On 1 September 2000 the plaintiff filed a document which is entitled Further Amended Statement of Claim. It is the contents of that document which is substantially the subject of the various notices of motions taken out by the parties. It increases the number of nominated defendants to eight. However, in relation to the first defendant, the State of New South Wales as nominated in this latter document, stands alone as a defendant the Building Services Corporation and the Department of Fair Trading who had been nominated in the tripartite language of the original statement of claim are no longer nominated as defendants.

3   I shall deal with the matters raised in the notices of motion taken out by the defendants and then turn to the relief sought by the plaintiff in his notice of motion.

4   Underlying the plaintiff’s allegations against all nominated defendants is damage caused to a house formerly owned by the plaintiff and his ex-wife at Balgowlah. That damage arose from faulty foundations. The house was built in 1958 on what appears to be a former quarry. It is the plaintiff’s allegation that the foundations were not set in bed rock but in uncompacted imported fill. The plaintiff and his wife purchased the house in 1986. The damage caused by the defective foundations had become apparent in 1992. The plaintiff then made a claim against the house’s insurer, the third defendant (NRMA Insurance Ltd). Repairs by way of inter alia underpinning were then undertaken by the third defendant using its powers of subrogation under the policy then held by the plaintiff with it. The underpinning work undertaken was completed prior to the 2 July 1993. It is the plaintiff’s allegation that the underpinning carried out work was ineffective. Indeed the house was ultimately sold as part of proceedings in the Family Court between the plaintiff and his ex-wife for land value only having regard to the failure of the attempt to underpin the house. Over the years the plaintiff has raised the question of the faulty foundations and their ineffective repair with a number of authorities including not only the local council which is the second defendant but also authorities under the control of the first defendant, the State of New South Wales, and the sixth defendant, the Commonwealth of Australia. It is the plaintiff’s allegation that the failure of the various authorities to whom he made complaint to assist him which founds of many of his allegations against both the State of New South Wales and the Commonwealth of Australia.

5   I turn then to the individual notices of motion.

1. The State of New South Wales.

6 By its motion the State of New South Wales seeks, pursuant to part 13 rule 5 of the Supreme Court Rules, that the proceedings be dismissed. In the alternative, pursuant to part 15 rule 26, the first defendant seeks to have these proceedings struck out.

7   In paragraph 2 in the statement of claim the plaintiff alleges that the first defendant is responsible ‘its own conduct and that of the relevant authorities including the Department of Fair Trading, the Department of Local Government, the Attorney-General’s Department, the Building Services Corporation, the Workcover Authority, the Legal Services Commissioner, the Law Society of New South Wales.

8 I turn first to the plaintiff’s claim that the first defendant is responsible for the conduct of the Law Society of New South Wales. In the body of the statement of claim references are made on numerous occasions particularly in paragraphs 49, 64, 68, 74 and 93 to the Law Society. As I made plain to the plaintiff during argument the Law Society is not a public authority under the control of the State of New South Wales. It is a public company limited by guarantee. The plaintiff’s claim that the State of New South Wales is liable in law for the acts of the Law Society of New South Wales is plainly not tenable. Accordingly to this extent the plaintiff’s action is entirely defective and should be dismissed pursuant to part 13 rule 5 insofar as it refers to the first defendant being responsible for the said Law Society of New South Wales.

9 Much of the plaintiff’s further amended statement of claim involves allegations that the first defendant is responsible for the acts of the Building Services Corporation. The Building Services Corporation was established pursuant to s 105 of the Building Services Corporation Act 1989. A plain reading of s 105 of that Act clearly indicates that the Building Services Corporation was during its lifetime a statutory corporation. By Act 122 of 1996 the name of the Building Services Corporation Act 1989 was changed by s 1 of Act 122 of 1996 to the Home Building Act 1989. Effectively the 1996 Act abolished the Building Services Corporation and transferred its assets, rights and liabilities to the Fair Trading Administration Corporation. Again a plain reading of s 107 and s 109 of Act 122 of 1996 indicates that the Fair Trading Administration Corporation is a statutory corporation.

10 The relevance of the Building Services Corporation or the Administrative Corporation being statutory corporations for the purposes of these proceedings may be illustrated by reference to s 5(1) of the Crown Proceedings Act 1998. Section 5(1) is in the following terms:

“1. Any person having or deeming himself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title ‘State of New South Wales’ in any competent Court.”

11 It follows that the nomination of the State of New South Wales as a defendant alleging that the said State is responsible for the acts or omissions of the Building Services Corporation or its successor, the Administration Corporation, must be incompetent. Accordingly, pursuant to part 13 rule 5 of the Supreme Court Rules, the plaintiff’s claim against the first defendant insofar as it refers to the Building Services Corporation is dismissed.

12   Paragraphs 55 to 57 of the plaintiff’s further amended statement of claim are in the following terms:

55. On 19 April 1996, in the Manly Daily, the local newspaper the Minister defamed the Plaintiff and misled the public in the article titled “$100,000 is not enough” in which the Minister is quoted as saying:
‘I would back their judgment on how much people are entitled to against Mr Allen’s any day,’ she said. ‘The people who were on the inquiry are people who have gone through these grievances from top to bottom’.

56. The ‘people on the inquiry’, referred to by the Minister, did not even inspect the property, had no powers as to evidence, ignored the Plaintiff’s rights to proper compensation under statute and tort and were selected, appointed and paid by the First Defendant, that had a vested interest both in minimising and trivialising its liability to the Plaintiff and to free up the BSC Insurance and Special funds into consolidated revenue.

57. The ‘people who have gone through these grievances from top to bottom’ further damages the Plaintiff as the BSC Inquiry panel members did not investigate the material which the Third Defendant’s 65 underpins were based nor did they inspect the sample of five fully exposed underpin locations where none of the Third Defendant’s underpins were founded on the specified bedrock and one was missing altogether nor did they investigate the bases of the remaining 60 underpin locations.

Paragraph 111 is in the following terms:

111. That at all relevant times the First Defendant defamed the Plaintiff before the community in which he and his children live.

Plainly enough the allegations of defamation contained in paragraphs 55 to 57 and paragraph 111 are contrary to part 15 rule 7(1) of the Supreme Court Rules. The absence of particulars is just one of the failings in this area.

13 Because of the liberality which this Court proffers to litigants in person in relation to matters of a legal, technical nature, I would not use the power vested in me by part 13 rule 5 to dismiss the proceedings but prefer instead to exercise the powers conferred by part 15 rule 26 and strike out those paragraphs.

14 There are other references to instrumentalities of the State of New South Wales in the further amended statement of claim. In terms of pleading references made are either embarrassing or prejudicial. I do not propose to go through each and every one of those references. My reason for so doing is that there are no less than 159 paragraphs in all in the document in question together with a further 50 paragraphs under the heading of ‘Particulars’. As I propose ultimately to make an order striking out the whole of the statement of claim and giving the plaintiff a limited right to replead I am of the view that I should not go through the various paragraphs which offend against the Supreme Court Rules but do not lead to the exercise of the Court’s power pursuant to part 13 rule 5. I have identified above the matters which the plaintiff’s claim has been dismissed pursuant to part 13 rule 5.

15   While I have taken account of the plaintiff’s submission that to order costs against him in relation to any of the defendants would be oppressive because of his impecuniosity I am of the view that a proper exercise of my discretion under the rules leads to no other course being available to me than order the plaintiff to pay costs. Accordingly in relation to the first defendant I order the plaintiff pay the first defendant’s costs of this motion.

2. Manly Council

16   The Manly Council is the second defendant in the matter. The plaintiff’s claim against the council is founded on two bases:-

1. The council’s failure in 1958 when the subject premises were constructed to properly inspect the works so that the faulty foundations were allowed to remain in place, and
2. The council’s failure to properly supervise the underpinning works carried out in 1993.

17   As I have mentioned in the short narrative at the commencement of these reasons the work of underpinning which founds the plaintiff’s second complaint against the Manly Council were completed prior the 2 July 1993. The plaintiff’s original statement of claim was filed in this Court on 2 July 1999. Indeed paragraphs 26 to 30 of the plaintiff’s affidavit sworn on 28 March 2001 indicate that the plaintiff was aware of deficiencies in the completed underpinning at least by the 15 June 1993 when he wrote to the council. This is not a case where either the original discovery of the deficiencies in the foundations in 1992 were of a minor kind or that the plaintiff was unaware that the deficiencies in the repairs undertaken were other than what they were.

18 The importance of these observations is that the second defendant principally relies upon the Limitation Act 1969 in support of its motion that the plaintiff’s action should be dismissed pursuant to part 13 rule 5. By s 14 of the Limitation Act 1969 an action not commenced within six years from the date when the cause of action first accrues in not maintainable. On the plaintiff’s own evidence the plaintiff was fully aware of the damage which founds any cause of action he had against the council more than six years before he issued his first statement of claim in this matter. While in the body of his statement of claim he makes generalised allegations which may described as fraud and deceit against all governmental bodies involved there is no suggestion in the body of the statement of claim that he was prevented in bringing action in time. Although the damage attributable to the building of the house in 1958 could properly described as latent damage the plaintiff again was fully aware of that damage by 1992, ie, seven years or more before he issued his statement of claim. Thus I am of the view that in relation to the second defendant s 14 of the Limitation Act 1969 applies and that his claim against the council is statute barred. There are other matters which were raised by the second defendant on its motion but in view of the view I have come to in relation to the Limitation Act applying here I do not need to deal with those matters. Accordingly, the order of the Court in relation to the second defendant is that the plaintiff’s action against the second defendant is dismissed. Similar considerations apply in relation to costs and again I am of the view that the second defendant is entitled to its costs of the motion against the plaintiff.

3. NRMA Insurance Limited

19   Different considerations apply to the content of the plaintiff’s allegations against this defendant. Firstly, there is no suggestion that the plaintiff is out of time in relation to his claim for negligence in relation to the inadequate underpinning of the foundation to which I have already made reference. Secondly, paragraph 155 of the further amended statement of claim raises a claim in contract. While I am of the view that the statement of claim in relation to these matters is in need of repleading I am of the view that the plaintiff should be allowed to continue to maintain his claim in negligence and contract against the third defendant. I should add that the third defendant in argument quite properly conceded that this is so.

20 However, the balance of the allegations contained in the further amended statement of claim against the third defendant falls squarely within the concept of prejudice and embarrassment contained in part 15 rule 26 of the Supreme Court Rules. While there are many examples of pleading of an offensive nature I illustrate what I am saying by referring only to paragraphs 12 to 15 of the further statement of claim. They are in the following terms:

12. At all relevant time the Third Defendant maintained a campaign to mislead and deceive the Plaintiff.
13. In 1993 and at all relevant times the Third Defendant contrived a false impact claim in an attempt to unfairly minimise their original liability and their builder-induced damage.
14. In 1993 and at all relevant times the Third Defendant’s engineer issued false and misleading certificates of a structural adequacy for the underpinning work.
15. In 1993 and at all relevant times the Third Defendant’s engineer defamed the Plaintiff in a letter to the Second Defendant.

The allegations contained in the paragraphs I have just quoted are clearly both prejudicial and embarrassing. Accordingly, they are struck out. The same comments apply to the contents of paragraphs 21 to 23, 27, 28, 31, 49, 88, 94, 96, 97, 104 to 106, 119 to 123, 153, 154, 157 to 159. Similar observations may be made as to the matter contained under the heading ‘Particulars’ in paragraphs 7, 8, 21 to 25, 31, 35 and 48 to 50. These paragraphs are struck out. In relation to the claims against the third defendant I make the following orders: That all allegations relating to the third defendant in the statement of claim are struck out. The plaintiff is to have leave to replead the matter contained in paragraphs 4, 11, 118 and 155. The plaintiff is to provide full particulars of his allegations in his amended statement of claim.

21   Similar considerations apply to the question of costs as arose in relation to the first and second defendants and I am of the view that I should make the same order, ie, the plaintiff is to pay the third defendant’s costs of the motion.

4. Miller Goddard

22   The fifth defendant is in fact one John Russell Miller. He appeared on behalf of the plaintiff in proceedings in the Family Court between the plaintiff and his wife. The matters involved in the Family Court, while of course involving questions of matrimonial property, are in my view completely distinct from the proceedings the plaintiff wishes to bring against the first, second, third and sixth defendants. Mr Miller has deposed and indeed the plaintiff does not deny that he was never instructed to act in relation to any claim the plaintiff may have in relation to the faulty foundations of his house. Accordingly, I am of the view that the fifth defendant’s motion that the proceedings against him or his firm be heard separately from the balance of proceedings is one that should succeed. My reason for so deciding is that the proceedings against the fifth defendant are so distinct from the proceedings the plaintiff wishes to bring against the other defendants are such that justice demands that such an order be made.

23   However, I am of the view that the plaintiff in issuing separate proceedings should replead the matters alleged against the fifth defendant. Once again the plaintiff’s pleadings are not only prolix but in my view in form embarrassing.

24   The plaintiff has also not replied to a request for particulars put on by the fifth defendant nor served affidavits to which he refers in his statement of claim, ie, affidavits in relation to action against the fifth defendant. However, because I am of the view that the plaintiff should replead his action separately against the fifth defendant, I believe it may be premature to make any other orders other than to order that the trial of the action between the plaintiff and the fifth defendant be heard separately from any other proceedings which may survive from the further amended statement of claim. The plaintiff is to separately plead a statement of claim in accordance with the rules of Court. I order that the plaintiff serve a fresh statement of claim against the fifth defendant within 28 days from the delivery of these reasons. Again I am of the view that the plaintiff ought to pay the fifth defendant’s costs of the motion.

5. The Commonwealth of Australia

25   Again the sixth defendant seeks by its motion that the proceedings against it either be dismissed or that the statement of claim be struck out. In the further amended statement of claim the plaintiff alleges the following prefatory matter in paragraph 7:

7. At all relevant time the Sixth Defendant is and was the Governments of the Day of the Commonwealth of Australia and was ultimately responsible for its own conduct and the conduct of all relevant Federal statutory authorities including the Trade Practices Commission (TPC), the Insurance and Securities Commission (ISC), the Australian Securities Commission (ASC), the Australian Broadcasting Authority (ABA), the Australian Broadcasting Commission (ABC), The Family Court of Australia (FCA), the Child support Agency (CSA), Centrelink, Australian Competition and Consumer Commission (ACCC) and the Human Rights and Equal Opportunity Commission.

It should be noted at the outset that in the body of the further amended statement of claim that there is not one allegation contained in the numerous paragraphs constituting that document which could be construed as an allegation against Centrelink, the Human Rights and Equal Opportunity Commission and the Australian Broadcasting Commission. I turn firstly to the plaintiff’s references to the Family Court of Australia. These allegations are contained in paragraphs 68 to 73, 75, 76, 80, 83 and 84 of the main body of the further amended statement of claim and in paragraph 43 under the heading of ‘Particulars’. In my view the allegations contained within those paragraphs disclose not only no cause of action against the Commonwealth of Australia in relation to the Family Court but also the doctrine of judicial immunity applies to the officers of that Court. Accordingly, the references to the Family Court are allegations which are not sustainable. I illustrate what I say by reference to paragraphs 68, 69 and 72 which I now set out:-


68. In 1997 and at all relevant times the Plaintiff asked the Sixth Defendant’s Family Court and the First Defendant’s Law Society of New South Wales to produce the complaints history against the Fifth Defendant as the Plaintiff was concerned particularly in relation to the Fifth Defendant’s conduct and billing practices but the Family Court and Law Society declined the information.

69. In 1997 and at all relevant times during the initial taxation of the Fifth Defendant’s bill to costs, which was conducted ultimately on written submissions without the parties present, and in which the Plaintiff had numerous disputes including misleading and deceptive conduct, the Family Court taxed off 52% of the Fifth Defendant’s bill in August 1998.

72. In 1999 several of the Sixth Defendant’s Family Court registrars dropped out of the second taxation obtained by the Fifth Defendant, the last deputy registrar conducting the taxation admitted to failing to have read the Plaintiff’s affidavits, upon which the Plaintiff specifically relied and as submitted to the previous taxation, and despite Deputy Registrar’s duty of care to apply the Family Court Rules and the Legal Professions Act he did not concede $1.00 to the Plaintiff despite the previous certification of 52% against the Fifth Defendant.

In Wentworth v Wentworth & Ors [2000] NSWCA 350 Fitzgerald JA at 58 having reviewed a number of authorities observed as follows:

In the paragraph numbered 3 in the passage from Kirby P’s judgment in Najjar (1991) 25 NSWLR 224, which is quoted above in para. 53, his Honour took it for granted that a master performing judicial functions in the exercise of the Court’s jurisdiction is entitled to the same immunity as a Judge. That is not surprising. If judicial immunity is afforded to a judge in respect of his or her exercise of the court’s power and jurisdiction, there is no rational justification for denying the same immunity to a master or a registrar when he or she performs judicial functions in the exercise of the court’s jurisdiction and powers. The rationale behind the doctrine of judicial immunity is equally applicable to Judges and court officers. See 4 Halsbury’s Law of England, vol. 1, para. 206; Najjar 25 NSWLR 224, 249 (Clarke JA). It is the nature of the function being performed and the connection of that function with the judicial process which determines whether or not immunity attaches. (1989) 18 NSWLR 48.

26 It may be said as judicial immunity applies to a master or a registrar he or she is performing judicial functions (and that includes taxation of costs) the doctrine of judicial immunity applies here. Accordingly, pursuant to part 13 rule 5 of the Supreme Court Rules, any allegations involving the Family Court contained in the paragraphs I have nominated are dismissed. As against the Child Support Agency the plaintiff pleads his cause of action in paragraphs 85 and 86 as follows:

85. The Fifth Defendant did not warn or assist the Plaintiff on the affect the Family Court orders had on the operation of the Sixth Defendant’s Child Support Agency (CSA) and its massive bias and detrimental effect on the Plaintiff’s potential income and ability to support the children and enjoyment of life.

86. The Fifth Defendant did not act or assist when the Plaintiff advised of the improper conduct of the ex-wife and the Child Support Review solicitor Turtons and the resultant misleading and deceptive report to the CSA.

27   In my view the verbiage of these paragraphs discloses no cause of action. Accordingly, they should be struck out. I should add that even if a cause of action were disclosed the verbiage used is prejudicial and embarrassing in the relevant sense and would lead to an order for the paragraphs to be struck out in any event.

28   Against the Australian Broadcasting Authority the plaintiff makes the following allegations:

53. The conduct of 2UE, the First and Third Defendants are matters which the Sixth Defendant’s Australian Broadcasting Authority (ABA) has also failed to properly investigate and act on in the Plaintiff’s submission to the ABA “Cash for Comments” Inquiry in 1999.
103. In 1999 the Plaintiff made a submission to the Sixth Defendant’s Australian Broadcasting Authority’s “Cash for Comments” Inquiry (ABA) complaining on the failure of 2UE to raise the Plaintiff’s problems with the Third Defendant and the disappearance of the BSC Insurance levies and the Special Fund by the First Defendant.
104. The ABA inquiry confirmed that large corporations including Third Defendant paid the media to suppress negative comment on their organisations, which in itself is failure of the Third Defendant to act in the utmost good faith and fair dealing.
47 (Particulars). The Plaintiff made a submission to the Sixth Defendant’s Australian Broadcasting Authority (ABA) “Cash for Comments” Inquiry but still nothing was done although the Inquiry found that large corporations such as the Third Defendants paid the media to suppress negative press about their organisations.

Again the verbiage of these paragraphs does not reveal any cause of action. The plaintiff’s allegations must be struck out and I so order.

29   Similar considerations apply to the plaintiff’s allegation involving the Australian Competition and Consumer Commission. In paragraph 101 he pleads as follows:

101. In 1992 the Sixth Defendant’s Trade Practices Commission failed to reveal the long term corrupt building culture acknowledged in the 1995/96 BSC Inquiry and that many unsuspecting ordinary Australian citizens had been subjected to great emotional and financial damage and that the risk was still there and into which the Plaintiff was trapped.

Again no cause of action is disclosed by the verbiage used in this paragraph and accordingly it too must be struck out.

30   As against the Australian Securities and Investment Commission the plaintiff pleads his cause of action in paragraphs 99 and 100 and gives particulars in paragraph 45 under that head as follows:

99. In 1996 the Plaintiff complained to the Sixth Defendant’s Insurance and Superannuation Commission (ISC) which advised him they would not act against the Third Defendant and had never taken up a complaint on behalf of a consumer under the Insurance Contracts Act.

100. When the Plaintiff complained to the Sixth Defendant’s Australian Securities Commission (ASC) about the failure of the Third Defendant directors to properly act he was advised that the Third Defendant’s director Lyn Ralph was also the Deputy Chair of the ASC and that action was unlikely.

45 (Particulars). The Plaintiff complained to the Sixth Defendant’s Insurance and Superannuation Commission(ISC) and the Australian Securities Commission (ASC) about the failure of the Third Defendant’s to act in the utmost good faith and fair dealing but the ISC failed to act.

Again no cause of action is disclosed by the verbiage of the paragraphs I have set out above and they should be struck out.

31   Finally the plaintiff makes allegations involving the Honourable Tony Abbott. In paragraph 98 in the further amended statement of claim and in paragraph 46 under the heading of ‘Particulars’ the plaintiff pleads as follows:

98. In 1996 and at all relevant times the Plaintiff complained to the Sixth Defendant’s local Federal member Tony Abbott who inspected the property and declared that ‘seeing was believing’ and obtained an article in the Manly Daily and wrote to the Third Defendant’s Donald Mackay and the ISC on the Plaintiff’s behalf but Mr Abbott then failed to act in the utmost good faith and fair dealing to assist the Plaintiff to resolve the issues with the First and Second Defendants despite his proximity and foreseeability of the special risk to the Plaintiff and the special duty of care the Sixth Defendant owed the Plaintiff.

46 (Particulars). The Plaintiff complained to the Sixth Defendant’s Tony Abbott who assisted at first but failed to properly press the matter with appropriate authorities in what was a recognised public interest issue.

Again the verbiage used shows no valid cause of action. Once more the paragraphs must be struck out.

32   In relation to the statutory authorities the ABA, the Australian Competition and Consumer Commission, the Australian Securities and Investment Commission the plaintiff alleges that as a consequence of what fell from the High Court in ASIC v Edensor Nominees Pty Ltd & Ors [2001] HCA 1 he is entitled to sue the Commonwealth in relation to their activities without joining those statutory authorities as a party. In this matter so he argues the situation is different from that which pertains in New South Wales under s 5 of the Crown Proceedings Act 1988 with which I have dealt above. In ASIC v Edensor Nominees Pty Ltd the High Court held that while ss 7 and 8 of the ASIC Act established it as a body corporate that circumstance of itself does not deny the proposition that ASIC falls within the scope of the expression ‘the Commonwealth’ in s 75(iii) of the Constitution. While it seems to me that the ruling of the High Court in ASIC v Edensor does give some support for the proposition advanced by the plaintiff that it was appropriate to nominate the Commonwealth as a defendant in the allegations he wished to raise against the various statutory corporations of the Commonwealth. It is not necessary for me to decide this point. I say this because of the view I have come to as to the validity of the plaintiff’s claim against the nominated Commonwealth authorities.

33 The upshot therefore I am of the view that the verbiage contained in the allegations made against the defendant, the Commonwealth of Australia, do not reveal any cause of action. I thus must dismiss the claims insofar as they apply to the Commonwealth pursuant to part 13 rule 5 of the Supreme Court Rules. It follows as I have in relation to the other motion brought by the other defendants that the plaintiff will have to pay the Commonwealth’s costs of this motion.

34   As I stated at the outset of these reasons the plaintiff himself sought relief by way of notice of motion. The orders he sought are as follows:

1. That a jury be appointed to hear all interlocutory and final hearing matters in these proceedings.

2. That this Notice of Motion be heard at the same time as those of the Defendants currently before the Court.

3. That the applications for orders by the Defendants be dismissed.

4. That a Status Conference be convened and the process outlined in Practice Note 88 be employed without hearing any further Motions so as to clarify the status of the Defendants, pleadings and particulars to promote fair, quick and cheap justice.

5. That the First and Third Defendants provide the Applicant with legal assistance as prompted as ‘a particular onus’ by the First Defendant’s Auditor-General of New South Wales in 1996 and the Third Defendant’s undertaking in their 1992 Australian Quality Awards submission so as to ensure quick, cheap and just proceedings.

6. That he Plaintiff file a further amended statement of claim pursuant to the Status Conference.

7. That the action against the Fifth Defendant be heard together with the other Defendants.

8. That the Defendants fully indemnify the Plaintiff against any costs, loss and damage resulting from these proceedings as the case is a test case and is a matter in the public interest.

35   As to request that a jury be appointed to hear all interlocutory and final hearings in these proceedings it should be said at the outset that juries at common law do not hear interlocutory matters. As far as a jury being appointed to hear a final hearing in the matter it seems to me that, as the only remaining defendants in this action are NRMA Insurance Limited and two of his former solicitors, until the plaintiff repleads against NRMA Insurance Limited it seems to me to be premature to consider the question of appointing a jury to hear the matter. Again as far as a separate action involving Mr Miller solicitor is concerned once again until the matter is repleaded it is premature to consider whether a jury should hear the final matter.

36   I will deal with the remaining requests seriatim. Request 2 in the notice of motion in fact occurred. Request 3: Unfortunately for the plaintiff the reverse result has occurred. Request 4: In view of the orders I have made it is too early to have a Status Conference being convened until the pleading against NRMA Insurance Limited and Mr Miller are complete. Request 5: It seems to me that the Court has no power to make the order requested. Request 6: The plaintiff has already been granted leave to file a further amended statement of claim in relation to the third defendant and fifth defendant in these proceedings. Request 7: I have already ordered that the action against the fifth defendant be heard separately. Request 8: This is not an appropriate time for such an order to be made - being an order in the nature of final relief. Accordingly, the plaintiff’s motion is dismissed with costs.

37   As I have indicated above the effect of the orders I have made is to leave three defendants remaining. The seventh and eighth defendants did not take part in the proceedings initiated by notice of motion before me. Thus they remain in the matter. However, the matters pleaded against patently suffer from the same deficiencies in pleading which I have identified in relation to the other nominated defendants. Because the plaintiff in repleading will have to substantially recast his statement of claim I believe that in fact the present pleading, that entitled ‘Further Amended Statement of Claim’, should be struck out in its entirety. In repleading the plaintiff should take care to avoid framing his allegations against the three remaining defendants in embarrassing or prejudicial language. The same remarks apply to the plaintiff’s action against the fifth defendant, which I have severed.

38   I summarise my orders as follows:-

1. The plaintiff’s claims against the first, second and sixth defendants are dismissed with costs. Those defendants may enter judgment forthwith.

2. Save for the allegations founded in negligence and contract the plaintiff’s claims against the third defendant are dismissed with costs. The plaintiff is granted leave to replead the surviving causes of action within 28 days of the delivery of these reasons.

3. The action against the fifth defendant is severed from action 20303 of 1999. The plaintiff is to replead his action against the fifth defendant within 28 days from the delivery of these reasons. The fifth defendant is awarded the costs of his motion.

4. The plaintiff’s notice of motion is dismissed with costs.
oOo

Last Modified: 09/25/2001