ANTHONY ALBERT TWINING v JACQUELINE ANNE CURTIS
[2011] ACTSC 3 (31 January 2011)
PRACTICE AND PROCEDURE – pleading – application to amend statement of claim – tort – causes of action in misfeasance in public office and in injurious falsehood – pleading not capable of establishing misfeasance in public office – unrepresented plaintiff – leave granted to amend pleading of injurious falsehood counts
PRACTICE AND PROCEDURE – res judicata – estoppel – application for leave to file amended statement of claim having been heard and determined – application by plaintiff to reopen prior application – application refused
Court Procedures Rules 2006 (ACT)
Twining v Curtis [2008] ACTSC 3
Twining v Curtis [2009] ACTSC 106
Twining v Curtis [2010] ACTSC 115
No. SC 178 of 2007
Judge: Master Harper
Supreme Court of the ACT
Date: 31 January 2011
IN THE SUPREME COURT OF THE )
) No. SC 178 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ANTHONY ALBERT TWINING
Plaintiff
AND:JACQUELINE ANNE CURTIS
Defendant
ORDER
Judge: Master Harper
Date: 31 January 2011
Place: Canberra
THE COURT ORDERS THAT:
The plaintiff’s application in proceeding dated 24 November 2010 be dismissed.
The plaintiff pay the defendant’s costs of that application.
The plaintiff is to file and serve within fourteen days the further amended statement of claim for which leave was granted on 22 October 2010.
The action be listed for directions on 28 February 2011.
I am required to determine an application in proceeding filed by the plaintiff, who is unrepresented, on 24 November 2010. I heard the application on 10 December 2010. The plaintiff appeared in person. The defendant was represented by Mr Crowe of senior counsel.
The application seeks an order that paragraphs 2 and 21 to 25 of the plaintiff’s further amended statement of claim be reinstated. The ground for the application is expressed in the document in the following terms:
The defendant’s objection to paragraphs 2 and 21 to 25 of the plaintiff’s further amended statement of claim, made without notice at hearing on 22 October 2010, was founded in falsehood and caused a miscarriage of justice i.e. Master Harper’s order that paragraphs 2 and 21 to 25 be excised.
The plaintiff commenced this action by originating claim in March 2007. The cause of action was in negligence. In August 2007 the defendant applied for an order that the statement of claim be struck out as disclosing no cause of action. Crispin J in September 2007 directed that the plaintiff file and serve any proposed amended statement of claim by 4 October 2007. It is evident that Crispin J contemplated that the court and the defendant should have an opportunity to examine the proposed statement of claim before it was permitted to be filed and served.
On 3 October 2007 the plaintiff filed an amended originating claim and an amended statement of claim. He did not obtain leave. Leave at that time was probably not required. The application to strike out the originating statement of claim remained undetermined,…
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- Case
- [2011] ACTSC 3
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether Twining should be granted leave to amend his pleadings, particularly in light of the fact that his initial pleading did not adequately establish a cause of action in misfeasance in public office. The court also needed to consider whether Twining should be allowed to reopen his application to amend the statement of claim after it had already been heard and determined.
The court found that Twining's initial pleading was not capable of establishing a cause of action in misfeasance in public office, but granted leave for him to amend the pleadings to include a cause of action in injurious falsehood. However, the court refused Twining's application to reopen the prior application for leave to amend his statement of claim, citing the principle of res judicata. The court ordered Twining to file and serve the further amended statement of claim within fourteen days and listed the action for directions.
The court dismissed Twining's application in the proceeding dated 24 November 2010 and ordered him to pay the defendant's costs of that application. The action was to be listed for directions on 28 February 2011.
Orders
Orders of the court
1.
The plaintiff’s application in proceeding dated 24 November 2010 be dismissed.
2.
The plaintiff pay the defendant’s costs of that application.
3.
The plaintiff is to file and serve within fourteen days the further amended statement of claim for which leave was granted on 22 October 2010.
4.
The action be listed for directions on 28 February 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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