Anthony Albert Twining v Jacqueline Anne Curtis - [2008] ACTSC 3

ANTHONY ALBERT TWINING v JACQUELINE ANNE CURTIS
[2008] ACTSC 3 (29 January 2008)

PRACTICE AND PROCEDURE – statement of claim failing to disclose cause of action – facts asserted not capable of establishing cause of action pleaded – statement of claim struck out
TORT – misfeasance in public office – ingredients of tort – whether plaintiff must be “a member of the public” to whom officeholder owes a duty

Public Service Act 1999 (Cth)

Woolcock Street Investments Pty Limited v CDG Pty Limited (2004) 216 CLR 515
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Farrington v Thomson [1959] VR 286
Northern Territory v Mengel (1995) 185 CLR 307
Tampion v Anderson [1973] VR 715
Pemberton v Attorney-General (1978) TasSR 1
MacKenzie v MacLachlan (1979) 1 NZLR 670

Berry v Ryan (2001) 159 FLR 361

No. SC 178 of 2007

Judge: Master Harper
Supreme Court of the ACT

Date: 29 January 2008

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:  29 January 2008
Place:  Canberra

THE COURT ORDERS THAT:

The amended statement of claim be struck out.

The plaintiff, who is unrepresented, commenced this action by originating claim on 14 March 2007. The claim was originally framed as one in negligence. On 17 August 2007, the defendant applied for an order that the statement of claim be struck out as disclosing no cause of action, and seeking judgment in her favour. That application came before Crispin J who on 20 September 2007 directed that the plaintiff file and serve any proposed amended statement of claim by 4 October. Crispin J did not determine the application: it seems that a point was reached during argument where the plaintiff conceded that there were shortcomings in the statement of claim, and sought an opportunity to amend it. He was in fact in time to deliver an amended statement of claim without leave, but it is evident that Crispin J thought it appropriate in the circumstances that the Court have an opportunity to examine the proposed amended statement of claim before permitting it to be filed and served.

On 3 October 2007 the plaintiff filed an amended originating claim and an amended statement of claim. This was not the course contemplated by Crispin J but it was a course which was open to the plaintiff. The application to strike out the original statement of claim remains undetermined and came before me for hearing on 9 November and 23 November 2007. The hearing of the application was conducted as an application to strike out the amended statement of claim for failing to disclose a cause of action. Counsel for the defendant submitted that I should treat it as an application by the plaintiff for leave to deliver the amended statement of claim, but it seems to me that, the document having been filed and served with…

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: [2008] ACTSC 3
Decision Date: 29 January 2008

CaseChat Overview and Summary

The case of Anthony Albert Twining v Jacqueline Anne Curtis involved the plaintiff suing the defendant for misfeasance in public office. The dispute reached the court when the plaintiff's statement of claim was deemed insufficient, leading to its striking out. The plaintiff then sought to amend the statement of claim, but this too was found deficient and subsequently struck out. The plaintiff appealed to a higher court, arguing that the lower court had erred in its assessment of the claim.

The primary legal issue before the court was whether the plaintiff had correctly pled a cause of action for misfeasance in public office. Specifically, the court needed to determine if the plaintiff was a member of the public to whom the defendant owed a duty, as required by the tort. Additionally, the court had to consider whether the plaintiff's facts, as alleged, were capable of establishing the pleaded cause of action.

The court found that the plaintiff had not properly pled a cause of action for misfeasance in public office. The plaintiff failed to establish that they were a member of the public owed a duty by the defendant. The court also noted that the facts as alleged in the statement of claim did not support the pleaded cause of action. Consequently, the amended statement of claim was struck out. The court held that the plaintiff would require leave to file a further amended statement of claim, indicating that any subsequent attempt to amend the pleadings would need to be carefully scrutinised.

The final orders of the court were that the amended statement of claim was to be struck out, and the plaintiff would need leave to file a further amended statement of claim. This ruling effectively barred the plaintiff from proceeding with the action unless and until the necessary leave was obtained and the appropriate amendments were made.

Orders

Orders of the court

The amended statement of claim will be struck out. The plaintiff will require leave to file a further amended statement of claim.

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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