Barlow v Law Society of the Act
[2015] ACTMC 8
•1 December 2015
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Barlow v Law Society of the ACT and Ors |
| Citation: | [2015] ACTMC 8 |
| Hearing Date(s): | 13 October 2015 |
| DecisionDate: | 1 December 2015 |
| Before: | Magistrate Morrison |
| Decision: | The plaintiff’s claims are dismissed |
| Category: | Interlocutory application |
Catchwords: | CIVIL LAW – Court Procedures Rules 2006 (ACT) - defendants strike out application and application for judgment - form of originating proceedings - multifarious allegations and claims for relief by plaintiff – misfeasance in public office - negligence – breach of statutory duty – breach of fiduciary duty - conflict of interest – bias - breach of contract - conspiring to pervert the course of justice – breach of duty to court – defamation – acquisition of property other than on just terms – contravention of Human Rights Act 2004 (ACT) – earlier proceedings in the Supreme Court - res judicata – issue estoppel – abuse of process – defendants application granted – plaintiff’s proceedings dismissed and judgment entered for defendants. |
Legislation Cited: | Human Rights Act 2004 (ACT) |
Cases Cited: | Barlow v Law Society of the Australian Capital Territory [2013] ACTSC 68 |
| Parties: | Michaela Barlow (plaintiff) Michael Phelps (seventh defendant) |
| Representation: | Plaintiff Michaela Barlow in person |
| File Numbers: | AP 49 of 2015 |
MAGISTRATE MORRISON:
The plaintiff commenced proceedings against the defendants by way of originating application filed on the 22 July 2015.
The defendants are the Law Society of the Australian Capital Territory and six named individuals. Those individuals are the person who was the Chief Executive Officer of the Law Society at the time that the plaintiff says her cause of action arose, other persons who were the officeholders of the Society and the solicitor for the Society.
The relief sought by the plaintiff is set out in her originating application in the following terms:
1An order of prohibition/injunction to stop any further proceedings in respect of the Bill of Costs which the First Defendant has served upon the Plaintiff.
2A declaration under s261 of the Magistrates Court Act 1930 that:
2.1 s261(1)(a) the plaintiff is not indebted to the First Defendant at all
2An order to show cause that the actions of the first six Defendants have not constituted:
2. 1 Malfeasance in public office
2.2 Negligence
2.3 Breach of fiduciary duty
2.4 Breach of statutory duty
3An order that the seven Defendants have caused loss and damage to the Plaintiff.
4other orders that the Court considers appropriate.
It is relevant to note at this point that the relief sought in paragraph 1 and the first paragraph which is numbered 2 is relief against the first defendant only. The relief sought in the second paragraph numbered 2 is relief against defendants one through to six. The relief sought in paragraph 3 is relief against all seven defendants.
All of the defendants have applied for an order that the originating application be struck out or dismissed or that judgment be entered for them and for costs. The grounds of application are these:
1 The application is misconceived and discloses no reasonable cause of action.
2 The application is an abuse of the process of the Court.
A preliminary question arises about whether proceedings should have been commenced by way of originating application but that is overtaken by the very nature of the application under consideration.
The application was heard on 13 October 2015. The evidence before the court for the hearing of the application comprised the following:
(a)An affidavit by the plaintiff filed on 22 July 2015 with her originating application.
(b)An affidavit by Mr Michael Phelps filed on 3 September 2015 with the strikeout application. Mr Phelps is the 7th Defendant, and also represents all other defendants.
(c)A second affidavit by the plaintiff filed on 22 September 2015 in response to the material filed on behalf of the defendants.
No objection was raised to any of the affidavit evidence. No deponent was required for cross examination.
Some material by way of authorities intended to be relied upon and submissions had been filed before hearing. No directions had been made to that effect and the filing of the material in that fashion was probably the result of some confusion. The material so received is recorded on the transcript.
I heard oral submissions from Mr Beaumont SC for the defendants on 13 October 2015 and made directions for the filing of other written submissions. What has been received from the parties by way of submissions goes beyond the directions made but no party has placed on record any objection to what has transpired and so I have had regard to all of the material. For the record, that material comprises the following:
(d)a supplementary note of a submission filed 16 October 2015 on behalf of the applicants about a matter on which I asked for an additional submission;
(e)a second supplementary note of a submission filed 22 October 2015 on behalf of the applicants about the second matter on which I asked for an additional submission;
(f)written submissions by the plaintiff filed on 30 October 2015 and headed “plaintiffs further submissions in reply”;
(g)further submissions from the plaintiff filed on 2 November 2015 and headed “supplementary note to plaintiffs further submissions in reply”; and
(h)the applicants submissions in reply filed 18 November 2015.
The proceedings arise out of somewhat complicated background facts. The plaintiff obtained a Bachelor of Laws degree from the University of New England in 1999 and a Graduate Diploma in Legal Practice from the Australian National University in 2000. On 28 August 2011 she applied to the Law Society of the ACT – the first defendant - for the issue to her of an unrestricted practising certificate but that application was refused.
She appealed from the Law Society’s decision and what followed is relevantly set out in the reasons of the Full Court of the Supreme Court of the ACT (Refshauge, Burns and Marshall JJ) in Barlow v Law Society of the Australian Capital Territory (“Barlow No 1”). [i] At paragraph 53 of those reasons the Full Court referred to the plaintiff’s appeal under section 81 of the Legal Profession Act 2006 (ACT) as involving the conduct of a hearing de novo and at paragraph 74 of those reasons to the Full Court “... exercising ..... the jurisdiction of the Council of the Law Society ....”. The court declined to grant the plaintiff an unrestricted practising certificate because it was not satisfied that she fulfilled the requirements set out in the relevant regulation and her appeal was dismissed.
It is useful to identify at an early stage in these reasons what I assess to be at the heart of the plaintiff’s claims.
Both the first defendant’s rejection of the plaintiff’s application for an unrestricted practising certificate at first instance and the Full Court’s rejection of that application on appeal (at least insofar as what is described as the 2010 Appeal is concerned) were based upon the interpretation given to certain provisions of the Legal Practitioners Act 1970 (ACT).
Relevantly, part of Table 27 to that Act required the completion of a “prescribed course of training for the practice of law”. There had been an assumption, apparently shared by the first defendant, the plaintiff and many others that a course of training undertaken by the plaintiff (and many others) had been prescribed and so satisfied the requirement. The Full Court determined that the Act required that a relevant course of training be prescribed and that the course completed by the plaintiff had not been so prescribed, such that completion of it did not meet the requirement set out in Table 27.
In the appeal before the Full Court, the plaintiff had argued that the Act should not be construed in the manner ultimately decided by the Full Court. In the current proceedings she maintains that the construction given to the legislation by the first defendant and by the Full Court is wrong. At paragraph 5 of her written submissions filed 30 October 2015 the plaintiff described the issue of whether at the relevant time the legislation prescribed the course she completed as a course of practical legal training for the purpose of the Act as a “threshold question”.
At paragraph 49 of those submissions, in the context of referring to the legislative history of the relevant provisions, she says that legislative history “shows that the (first defendant’s) interpretation of the relevant legislation at the 2002 meeting, the interpretation being the cause of refusing practising certificates wrongly at law from 2002 to 2006, is actually the foundation of the plaintiff’s case”.
In the reasons which follow I refer to the plaintiff’s complaint that the legislation was wrongly construed by the first defendant and the Full Court as her “fundamental complaint”.
In support of the defendants’ application a range of submissions are made about this aspect of the plaintiff’s claims. Those submissions refer me to the remarks made by Refshauge J in Ezekiel-Hart v Law Society of the Australian Capital Territory and Ors[ii] on the principles of res judicata, issue estoppel and abuse of process.
As I understand her submissions, the plaintiff argues that, despite those parts of her submissions to which I have referred, her present claims comprise separate causes of action against the defendants and are unaffected by the principles to which I have just referred.
The effect of the relevant principles can be summarised in this way:
(a)a decision of a court of competent jurisdiction is binding between the parties to it and the same claim cannot be raised between them including all matters of fact and law which the prior decision established as the legal conclusion of the court: Blair v Curran; [iii]
(b)in addition a party cannot allege or deny a state of law or fact the existence of which is a matter necessarily decided by the prior judgment: Blair;
(c)and further, in addition, a court has an implied power to prevent an abuse of process in a range of circumstances, including if proceedings are clearly foredoomed to fail, or if, even though they do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that they seek to litigate anew a case which has already been disposed of by earlier proceedings: Walton v Gardiner[iv].
Against the background of the above, some parts of the plaintiff’s claims against the first defendant can be readily disposed of. I refer here to the relief sought by the plaintiff against the first defendant which is described in paragraph 1 and the first of the paragraphs numbered 2 of her originating application.
The bill of costs referred to in paragraph 1 and which gives rise to the indebtedness which is the subject of the first paragraph numbered 2 arises as a result of the decision of the Full Court on costs in Barlow v The Law Society of the Australian Capital Territory [No 2] (“Barlow No 2”).[v] The history of the delivery of the bill of costs and the assessment of the costs is set out in the unchallenged affidavit evidence of Michael Phelps. A certificate of costs assessment dated 13 August 2015 has been issued by the Deputy Registrar.
For present purposes it matters not whether the prohibition on re-agitating the plaintiff’s fundamental complaint is based on res judicata, issue estoppel or preventing an abuse of process. The effect of the application of the principles referred to above is that the relief sought by the plaintiff in relation to the bill of costs simply cannot be granted and any cause of action for that relief cannot be maintained.
I refer again later in these reasons to other aspects of the plaintiff’s claims in respect of which these principles also apply.
It has not been so simple to deal with the objections which are raised to the other aspects of the plaintiff’s claim. The relief sought by the plaintiff in the second paragraph numbered 2 and in paragraph 3 of her originating application is expressed in unusual terms. The other material put before the court appears to extend the basis upon which the plaintiff seeks to claim against the defendants. It has not been easy to determine what is intended as a pleading and what is intended by way of background information which the plaintiff apparently wished to put before the court. In addition, different terms are used by the plaintiff in some of her other material before the court. It has not been easy to determine whether, when a different term is used, the plaintiff intends to refer to a different cause of action.
In various places in her written submissions the plaintiff says that it is open to the court to amend her pleadings. I infer her to make that observation in contemplation of a conclusion that her pleadings may be defective. Her submissions go on to say that she “pleads for such an order” – presumably if such a conclusion is reached.
The court does have a duty to give such assistance to a self represented litigant as is necessary to ensure a fair hearing – Kenny v Ritter.[vi]
I comment here that no assistance can be given to the plaintiff by way of any amendment of her pleadings in relation to the relief sought in connection with the bill of costs as referred to in paragraph 24 of these reasons. An assessment of the bill of costs has taken place and a certificate has been issued by the Deputy Registrar of the Supreme Court. This court has no jurisdiction to grant the relief as sought or in any amended form.
I have done the best I can to try to identify, from what is contained in the various material put before the court by the plaintiff, whether and what causes of action the plaintiff brings before the court which may be valid if properly pleaded. The duty of the court is not however to provide some form of de-facto advice on liability.
In an attempt to give some structure to the analysis, I have started with what is set out in paragraph 16 of the plaintiff’s affidavit filed 22 September 2015. That paragraph reads as follows:
I understand that the particulars to a pleading must be stated in the pleading or, if that is inconvenient, in a separate document mentioned in, and filed and served with, the pleading. r433(1). I do so by way of attachment “A” and “B” to this affidavit.
The first annexure is headed “Statement of Claim”. I refer to it in these reasons by that name. The document comprises 15 pages. It contains a lengthy and somewhat rambling but chronologically accurate history of the plaintiff’s dealings with the first defendant in particular and with some reference to the other defendants also. It does contain some clear statements of criticism of the conduct of the first defendant in particular but largely does not plead any cause of action in any traditional manner. At the end of the document there is however a heading - “Precise form of orders sought”.
Despite how it is described in paragraph 16 of the plaintiff’s affidavit, the second document is headed “Outline of submissions”. It contains submissions going to some of the matters referred to in the statement of claim. In addition it includes submissions directed to matters not expressly dealt with in that document – e.g. a claim of bias and of breach of the Human Rights Act 2004 (ACT).
There are headings in the statement of claim but they do not help much in the analysis I have undertaken. By way of giving some structure to that analysis I have worked through the list which appears under the heading “Precise form of orders sought” at the end of the statement of claim. It is a more expansive list than what appears in the originating application and does appear to cover, in one way or another, almost all of the plaintiff’s complaints. At the end of the list I have also dealt with some other matters which appear to be the subject of comment or complaint even though they have not been pleaded as a basis for any claim as such.
The list which appears under the heading “Precise form of orders sought” indicates that what is sought is a declaration for what then follows. That is unusually pleaded but is useful in that it reinforces the view that what follows are the claims the plaintiff seeks to put before this court.
I turn to consider that list of orders sought. It appears at pages 14 and 15 of the statement of claim in these terms:
Precise form of orders sought
The Plaintiff seeks a declaration that:
1.the interpretation of the relevant legislation at the 2002 Council meeting was wrong in law given the existence of the 1971 Regulation, the 1986 Regulation and the 1986 Explanatory Memorandum.
2.the Defendants acted in conflict of interest and breach of their fiduciary to the Plaintiff placing their own interests for the model rules ahead of those of the Plaintiff, causing harm to the Plaintiff.
3.the Defendants, acted in breach of statutory duty towards the Plaintiff,
4.the Defendants acted in misfeasance in public office causing harm
5.the Defendants acted in breach of contract
6.the Defendants conspired to pervert the course of justice
7.the first and seventh Defendants failed in their duty to provide relevant evidence to the court thus leading the court into error.
8.the Defendant Larry King defamed the applicant in his recommendation to the Council, wrongly claiming that she was a person who sought special attention.
9.the first and second Defendants serially acted as a baton towards the Plaintiff in defence of their invalid decision of 2002.
10.the Defendant, pay the Plaintiff damages for economic loss
11.the Defendant pay the Plaintiff damages for non-economic loss
12.the Defendant pay the Plaintiff exemplary damages
13.the Bill of Costs to be set aside with injunction that no action is taken by the Defendant to enforce that bill of costs
14.and/or that the Defendant compensate the Plaintiff on just terms, as defined in section of the Commonwealth of Australia Constitution Act, for having deprived the Plaintiff of her property – to practice her profession
I deal with each in turn, putting aside for present purposes any consideration that the relief sough is expressed to be declaratory in nature.
Item 1 - the interpretation of the relevant legislation at the 2002 Council meeting was wrong in law given the existence of the 1971 Regulation, the 1986 Regulation and the 1986 Explanatory Memorandum.
The interpretation given to the relevant legislation by the Council is that determined by the Full Court to be the correct construction in Barlow No 1. This claim seeks to re-agitate the plaintiff’s fundamental complaint and cannot be maintained for the reasons given in paragraph 21 in its present form or any amended form.
Item 2 - the Defendants acted in conflict of interest and breach of their fiduciary to the Plaintiff placing their own interests for the model rules ahead of those of the Plaintiff, causing harm to the Plaintiff.
It may be that the plaintiff intends this claim to be based upon an assertion that the defendants saw benefits in the uniform approach available under what are described by the plaintiff as the model rules. She refers to the defendants as having acted “opportunistically” in paragraph 14 of her statement of claim. To that extent her claim is based upon the conduct of the defendants at or about the time that they became aware of the effect of the change to the legislative scheme. Her assertion that the defendants put “their own interests for the model rules ahead of those of the plaintiff, causing harm to the plaintiff” does not disclose a cause of action known to law as presently pleaded or in any other apparent form. To the extent that the plaintiff intends this claim to be based upon the conduct of the first defendant in refusing her application for an unrestricted practicing certificate I agree with the defendant’s submission that a decision-maker cannot owe any relevant fiduciary duty to an applicant for such a certificate because the duty is to decide the application in accordance with the legislation. Neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
In addition, and while it is difficult to be certain because of the lack of precision in what is asserted, it is likely that any claim would be statute-barred under the Limitation Act 1985 (ACT) in any event.
Item 3 - the Defendants, acted in breach of statutory duty towards the Plaintiff,
There are references to breach of statutory duty in the plaintiff’s statement of claim, such as in paragraph 17 where it is joined with allegations of conflict of interest, negligence, and misfeasance in public office as things said to be evidenced by the minutes of the 2002 Council meeting. I have been unable to locate in the material any particulars of what particular duty and what particular breach is asserted. I note the following appears under the heading of “Breach of Statutory duty” where it appears in the document headed “outline of submissions” which is annexure B to the plaintiff’s affidavit filed 22 September 2015:
17The first defendant has a statutory duty to act lawfully under the relevant legislative regime that establishes the Society. Through its actions it has breached that statutory duty. There was a duty of care. There was a breach of that duty of care. The breach caused foreseeable damage.
The extract to which I have just referred does not assist in identifying what duty and breach the plaintiff alleges. Not every breach of a statutory obligation gives rise to a cause of action for relief.
It is possible that the plaintiff intends this claim to extend to some duty alleged to be owed about the interpretation of the relevant legislation. If that is the case, then the claim seeks to re-agitate the plaintiff’s fundamental complaint. If so the comments made under Item 1 above and paragraph 24 apply and no cause of action can be maintained.
There are further hurdles for the plaintiff in any claim for breach of statutory duty. Even if her pleading established a basis for such a claim, and it does not, there are statutory protections which apply in some circumstances, and, again, any claim is likely to be statute-barred under the Limitation Act 1985 (ACT). In any event, against the background that the duty and alleged breach are unidentified, the conclusion I reach is that neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
Item 4 - the Defendants acted in misfeasance in public office causing harm
I accept the submissions on behalf of the defendants that the circumstances before me are relevantly indistinguishable from those in Henderson v Mc Cafferty,[vii] where Williams J concluded that the President of, and a solicitor employed by, the Queensland Law Society Incorporated were not the holders of public office for the purposes of the tort of public misfeasance. His Honour there adopted the statement in Tampion v Anderson[viii] (approved by Byrne J in R v McCann[ix]) that the tort may only be committed by the holder of an office who “owes duties to members of the public as to how the office shall be exercised”. No submission was made that there is any relevant difference between the duties imposed on the office holders of the Queensland Law Society and those imposed on the officeholders of the first defendant.
Neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
Item 5 - the Defendants acted in breach of contract
I understand this claim by the plaintiff to be based upon her membership of the Law Society and the principle that the charter of such a body takes effect as an implied contract between the body and its members and the body and its office holders. The charter of the Law Society is not in evidence before me. I have been unable to locate in the material any particulars of what implied contractual obligations are alleged to have been owed, and breached, by the first defendant and none are readily identified by inference from what is asserted. Insofar as the rejection of her application for an unrestricted practicing certificate is concerned no implied contractual obligation (if one would otherwise exist) can have the effect of over-riding the obligation on the part of the first defendant to determine the application according to law.
In addition, any such claim is again likely to be statute-barred under the Limitation Act 1985 (ACT). In any event, against the background that the obligation and alleged breach are unidentified, the conclusion I reach is that neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
Item 6 - the Defendants conspired to pervert the course of justice
This is a very serious allegation to make.
As I understand the plaintiffs claims under this heading they relate to her complaint about the evidence on the question of statutory interpretation which was put before the Full Court in Barlow No 1, and in particular her complaint that more information about the legislative history should have been provided to the court.
There are several difficulties with the plaintiff’s claim under this heading. The material before the court does not support the plaintiff’s allegation of the existence of any conspiracy, nor of any intent on the part of any defendant to pervert the course of justice. In addition, the plaintiff does not say what loss or damage to her has resulted from any such conduct on the part of the defendants. To the extent that the defendant asserts that she has suffered loss or damage because the outcome before the Full Court in Barlow No 1 would have been different but for the alleged conspiracy, her claim seeks to re-agitate her fundamental complaint and cannot be maintained for the reasons given at paragraph 21.
Neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
Item 7 - the first and seventh Defendants failed in their duty to provide relevant evidence to the court thus leading the court into error.
Insofar as this claim is made against the first defendant, it seeks to re-agitate the plaintiff’s fundamental complaint and cannot be maintained for the reasons set out at paragraph 21.
Insofar as the claim is made against the seventh defendant as solicitor for the first defendant it is doomed to fail because of the immunity from suit he enjoys as a matter of principle – see D’Orta-Ekenaike v Victoria Legal Aid.[x]
Neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
Item 8 - the Defendant Larry King defamed the applicant in his recommendation to the Council, wrongly claiming that she was a person who sought special attention.
An allegation of defamation is a serious allegation. The material before me includes only cursory support for the allegation in what appears at paragraph 38 of the plaintiff’s statement of claim in the following terms:
On submitting (her 2011 application) to the Council, the second Defendant Mr Larry King, wrote an exceedingly defamatory statement about the Plaintiff to the Council, causing the Council to not properly consider the application on its merits. He claimed that the Plaintiff was someone who wanted special consideration, demeaning her in the eyes of the Council. He made no reference in the recommendation to the merits of the application. There is no evidence on the record that the substantive aspect of the application was considered, and the Plaintiff came to the view that it was summarily dismissed as an act of cynical, procedural compliance with Refshauge J’s order.
An action for defamation in this jurisdiction is not maintainable if brought more than 1 year after the publication of the matter complained of – Limitation Act 1985 (ACT) section 21B. Against that background neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
Item 9 - the first and second Defendants serially acted as a baton towards the Plaintiff in defence of their invalid decision of 2002.
The use of the word “baton” in this heading is curious. I am unable to understand what the plaintiff means when she asserts that the named defendants “serially acted as a baton towards” her. Nor is it clear what is meant by “their invalid decision of 2002”. It may be that the plaintiff intends this claim to relate to the outcome of the meeting of the Law Society in 2002 which apparently recognised that no course of training had been prescribed by the ACT government for relevant purposes. In bringing a claim based on an assertion that the decision was “invalid” the plaintiff is denying a state of law the existence of which is a matter necessarily decided by the prior judgment of the Full Court. The claim seeks to re-agitate the plaintiff’s fundamental complaint and cannot be maintained for the reasons in paragraph 21.
Item 10 - the Defendant, pay the Plaintiff damages for economic loss
Item 11 - the Defendant pay the Plaintiff damages for non-economic loss
Item 12 - the Defendant pay the Plaintiff exemplary damages
I have brought these 3 headings together. They are statements of the damages claimed and do not assist in the analysis required to deal with the application.
Item 13 - the Bill of Costs to be set aside with injunction that no action is taken by the Defendant to enforce that bill of costs
I have already dealt with this aspect of the plaintiff’s claims. The relief sought here cannot be granted for the reasons given at paragraph 21.
Item 14 - and/or that the Defendant compensate the Plaintiff on just terms, as defined in section of the Commonwealth of Australia Constitution Act, for having deprived the Plaintiff of her property – to practice her profession
This claim appears to rely upon the protection given in section 51(xxxi) of the Constitution which empowers the Federal Parliament to make laws for the acquisition of property but only “on just terms”. The protection so given does not apply to State acquisitions but may apply to acquisitions under Territory laws – see Wurridjal v The Commonwealth[xi] and Concerned Citizens of Canberra v Chief Planning Executive[xii]. That does not however assist the plaintiff. The way in which this claim is expressed: “her property – to practice her profession” - suggests that the plaintiff is asserting that the property in question relevantly comprises what she says is her right to practice as a solicitor as the holder of an unrestricted practising certificate. The decisions of the first defendant and of the Full Court have been to refuse her the grant of such a certificate. Nothing in the material which is before me indicates how the plaintiff says that the conduct of the first defendant constitutes a relevant acquisition of property by the first defendant or discloses any basis upon which such a claim could be asserted.
Neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
To the claims above taken from the plaintiff’s statement of claim I add the following items on the basis that the plaintiff may be intending to plead them although they do not form part of her statement of claim. I do so for the sake of completeness.
Additional Item 15 – negligence
Some references are made in the material to negligence but no particulars are provided. There are references to a duty of care in connection with the plaintiff’s claim for breach of statutory duty and it may be that the plaintiff intends any allegations of relevant conduct on the part of the defendants to be considered under that heading. I have already determined that no cause of action is disclosed on the basis of an allegation of breach of statutory duty.
It is possible that the plaintiff intends any claim under this heading to be based upon her criticisms of the defendants conduct in connection with what is described as the 2002 decision; or the interpretation given to the relevant legislation by the first defendant, or what she says is the failure to put relevant evidence before the Full Court. To the extent that any claim in negligence is intended to be based upon any of those things, that does not alter the conclusions reached about those claims in paragraphs 38, 43 and 53. Again, neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
Additional Item 16 - Bias
This heading actually appears at page 4 of annex B to the plaintiff’s affidavit filed 22 September 2015. What follows are unparticularised allegations that “the defendant” has since 2002 demonstrated bias. No specific relief is sought. The allegation of bias itself gives rise to no separate cause of action which can be maintained against any of the defendants. To the extent that the plaintiff intends the allegations of bias to be taken into account by way of background in consideration of her other claims I have done so to the limited extent possible given the absence of particulars. Neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
Additional item 17 - Human Rights Act 2004
This heading appears at page 4 of annex B to the plaintiff’s affidavit filed 22 September 2015. What follows is an allegation that “the defendant” has breached the Act. The breach is particularised, by implication, by the reference to the Act as being that “which demands that a person should not be attacked in her reputation”. Later under this heading the plaintiff refers to “the Defendants” as having “discriminated against the plaintiff, defamed her and in the course of perverting the course of justice deprived her of the equal protection of the law without discrimination...” I need not comment on this aspect of the plaintiff’s claim beyond observing that the Human Rights Act 2004 (ACT) does not provide any remedy for her. Again neither the evidence nor the pleading discloses that the plaintiff has a reasonable cause of action under this heading.
What I have set out deals with all claims the plaintiff appears to wish to bring before the court insofar as I have been able to ascertain her intent from what is before me. The conclusions I have reached lead inevitably to the conclusion that her proceedings cannot be maintained.
The relief sought by the defendants is that the plaintiff’s originating application be struck out and that the proceedings be dismissed and/or judgment be entered for the defendants pursuant to rule 425; or alternatively an order for summary judgment for the defendants pursuant to rule 1147.
Rule 425(3)(a) provides for relief by way of an order staying or dismissing the proceedings or entering judgment. I note that on the one hand it is expressed to apply if a court makes an order under subrule (1)(a) – which is the rule dealing with striking out because a pleading discloses no reasonable cause of action. On the other hand rule 425(3) is expressed in inclusive and not exhaustive terms generally – saying that if a court makes an order under rule 425 it can make any other order it considers appropriate including what is set out in subrule (3)(a). I note that in Ezeikel-Hart His Honour Refshauge J made orders striking out the originating claim, dismissing the proceedings and entering judgment for the defendants.
Part of my considerations under each of the headings I have used in these reasons has been whether any amended form of what the plaintiff claims could be properly brought under the heading based upon the evidence before me. The conclusion I have reached in each case is that the answer is no.
The discretionary power under rule 425 is to be applied sparingly – Twining v Curtis[xiii]– but having regard to the conclusions reached the appropriate order is that the Plaintiff’s originating application be struck out, that the proceedings be dismissed and that there be judgment for the defendants. I order accordingly.
I did not receive detailed submissions on costs. I note that the defendants seek costs on an indemnity basis. I would not make an order for costs on an indemnity basis without evidence of the costs agreement in existence between the relevant parties because to do so would be to make an order without any knowledge of its practical effect. See Francis Pires v DibbsBarker Canberra Pty Ltd.[xiv]
In any event my preliminary view is that costs should be ordered on the usual basis, rather than that any special more extensive costs order in favour of the defendants should be made, although I will hear submissions from the parties if the defendants wish to pursue such an order.
I make an order now that the plaintiff pay the defendants’ costs on a party and party basis. I stay the order for 14 days and further order that it not take effect if the parties within that time notify my associate that they wish to re-list the matter to make submissions seeking some different cost order(s).
I certify that the preceding seventy-five (75) paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Anna Carlander
Date: 1 December 2015
[i] [2013] ACTSC 68.
[ii] [2013] ACTSC 103.
[iii] [1939] HCA 23.
[iv] (1993) 177 CLR 378.
[v] [2013] ACTSC 82.
[vi] [2009] SASC 139 at [23].
[vii] [2002] 1 Qd R 170.
[viii] (1973) VR 715.
[ix] [1998] 2 Qd R 56.
[x] [2005] 223 CLR 1.
[xi] 237 CLR 309.
[xii] [2014] ACTSC 165.
[xiii] (2009) 3 ACTSC 106.
[xiv] [2014] ACTSC 283.
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