Anthony Albert Twining v Jacqueline Anne Curtis - [2011] ACTSC 3

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] ACTSC 3
Decision Date: 31 January 2011

CaseChat Overview and Summary

The plaintiff, Anthony Albert Twining, filed a suit against Jacqueline Anne Curtis in the Federal Circuit Court of Australia. The dispute involves claims of misfeasance in public office and injurious falsehood. Twining, unrepresented in the proceedings, sought to amend his statement of claim to include these causes of action.

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

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.

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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