Anthony Albert Twining v Jacqueline Anne Curtis - [2010] ACTSC 115

ANTHONY ALBERT TWINING v JACQUELINE ANNE CURTIS
[2010] ACTSC 115 (24 September 2010)

PRACTICE AND PROCEDURE – pleading – unrepresented plaintiff – application to amend statement of claim – tort – causes of action in misfeasance in public office and in injurious falsehood – whether pleading shows good causes of action – leave refused – plaintiff given further opportunity to redraft pleading

Administrative Decisions (Judicial Review) Act 1977 (Commonwealth)
Public Service Act 1999 (Commonwealth)

Ballina Shire Council v Ringland (1994) 33NSWLR 680
Barnes v Saal (Supreme Court of Queensland, 1 February 1991, Senior Master Horton QC, unreported)
Palmer Bruyen & Parker Pty Limited v Parsons (2001) 208CLR 388
Twining v Curtis [2008] ACTSC 3
Twining v Curtis [2009] ACTSC 106

No. SC 178 of 2007

Judge: Master Harper
Supreme Court of the ACT

Date: 24 September 2010

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:  24 September 2010
Place:  Canberra

THE COURT ORDERS THAT:

Leave to file the draft further amended statement of claim be refused.
The plaintiff may lodge and serve a further draft within twenty-eight days.
The defendant’s application for security for costs be dismissed.
The plaintiff’s application be stood over to 22 October 2010.

This is an application by an unrepresented plaintiff for leave to file a further amended statement of claim. The plaintiff commenced the action in March 2007 claiming damages for negligence. On application by the defendant for an order that the statement of claim be struck out as disclosing no cause of action, Crispin J in September 2007 permitted the plaintiff to file and serve a proposed amended statement of claim. The plaintiff did so in early October 2007. He did not pursue the claim against the defendant in negligence, but pleaded a claim against her for misfeasance in public office. The defendant again sought to have the statement of claim struck out. I made an order in those terms in January 2008. The plaintiff appealed from my decision. The appeal was determined by Penfold J in September 2009. Her Honour upheld the appeal in part, but ordered that the amended statement of claim be struck out for the reasons I had given as varied in her Honour’s reasons. She directed that the plaintiff would require leave to file a further amended statement of claim. The plaintiff has now drafted such a document and seeks leave to file it.

The new proposed statement of claim contains two counts in injurious falsehood and one in misfeasance in public office. Senior counsel for the defendant submits that the statement of claim does not support either cause of action and should be struck out.

The action arises out of the plaintiff’s employment on probation by the Australian Public Service Commission. He was employed on 7 June 2004. The probationary period was extended on 17 September 2004. His employment was terminated on 5 November…

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: [2010] ACTSC 115
Decision Date: 24 September 2010

CaseChat Overview and Summary

The case involved Anthony Albert Twining, who was unrepresented, suing Jacqueline Anne Curtis. Twining sought to amend his statement of claim to include new causes of action in misfeasance in public office and in injurious falsehood. The dispute came before the court as an application for leave to amend the pleadings. Twining's initial statement of claim did not clearly articulate these new causes of action, and the court was required to determine whether the proposed amendments demonstrated a valid basis for the claims.

The court had to decide whether Twining's proposed further amended statement of claim sufficiently outlined the new causes of action. The court considered the adequacy of the pleadings in relation to the legal requirements for misfeasance in public office and injurious falsehood. Twining argued that his proposed amendments sufficiently demonstrated the elements of these torts. However, the court found that the proposed amendments did not clearly or adequately set out the necessary facts and legal arguments to support the new causes of action.

The court refused leave to file the draft further amended statement of claim, noting that it did not demonstrate a good cause of action. Despite this, the court provided Twining with an opportunity to redraft his pleadings within twenty-eight days. The court also dismissed the defendant's application for security for costs and stood over Twining's application until 22 October 2010 to allow for the redrafting of the statement of claim.

Orders

Orders of the court

1. Leave to file the draft further amended statement of claim be refused.

2. The plaintiff may lodge and serve a further draft within twenty-eight days.

3. The defendant’s application for security for costs be dismissed.

4. The plaintiff’s application be stood over to 22 October 2010.

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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