Charleton v The Department of Education and Training Victoria
[2024] VSC 141
•27 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2023 00968
BETWEEN:
| PETER ROBSON CHARLETON | Plaintiff |
| v | |
| THE DEPARTMENT OF EDUCATION AND TRAINING VICTORIA | Defendant |
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JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 February 2024 |
DATE OF JUDGMENT: | 27 March 2024 |
CASE MAY BE CITED AS: | Charleton v The Department of Education and Training Victoria |
MEDIUM NEUTRAL CITATION: | [2024] VSC 141 |
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PRACTICE AND PROCEDURE — Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic)— Whether the plaintiff’s claims have no real prospect of success — Application, alternatively, for judgment for the defendant pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Whether the plaintiff’s claims are frivolous, vexatious and/or an abuse of process of the Court — Application, in the further alternative, pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to strike out the Statement of Claim —Whether the plaintiff’s claim fails to disclose a cause of action, is scandalous, frivolous or vexatious, may embarrass or delay a fair trial or is otherwise an abuse of process —Application by the plaintiff for leave to file an amended Statement of Claim.
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APPEARANCES: | Representative | Solicitors |
| The Plaintiff in person | ||
| For the Defendant | Ms E Bardan | Lander & Rogers |
TABLE OF CONTENTS
Background......................................................................................................................................... 1
Procedural History and the Applications...................................................................................... 3
Defendant’s Application for Summary Judgment under s 63 of the CPA or r 23.01 of the Rules.......................................................................................................................................................... 5
Sections 62, 63 and 64 of the CPA............................................................................................... 5
Rule 23.01..................................................................................................................................... 11
Defendant’s Application to Summarily Dismiss/Stay/Strike Out the February SOC....... 13
The Plaintiff’s Amendment Application..................................................................................... 17
Conclusion and Orders................................................................................................................... 21
HER HONOUR:
Background
In this proceeding the plaintiff, who is self-represented, claims the defendant, the Department of Education and Training Victoria (the ‘Department’), breached a duty or duties of care owed to him by, amongst other things, failing to follow its enrolment policy which had the result that his daughter was enrolled at a new school without his consent, and by refusing to permit his daughter to be partially homeschooled, thereby causing him psychiatric injury.
In 2020, the plaintiff’s daughter was attending a primary school (the ‘Original School’) that was close to the home he formerly shared with his ex-partner. His daughter was also registered for home schooling with the Victorian Registration and Qualifications Authority from February 2020. The plaintiff’s daughter was enrolled at the Original School as a part time student until at least 4 December 2020 and was otherwise homeschooled. The plaintiff’s relationship with his ex-partner ended in April 2020, and whilst they continued to live in the same house for a period of time following their separation, in mid-2020 his ex-partner moved to a new home in another suburb, some distance from the plaintiff.
The core claims[1] that appear to be advanced by the plaintiff, which have been articulated in the various Statements of Claim filed and/or served, are as follows.
[1]Numerous other claims, described by the plaintiff as arising from ‘wrongs [done] by other people’ [Transcript of Proceedings (16 February 2024), 13.15 (the ‘Transcript’)] throughout 2021 and that impacted further on him were described in several versions of the Statement of Claim that the plaintiff has filed or sought to file since February 2023. However, the plaintiff stated during the hearing that he has ‘let them all go’ (ibid, 13). The ‘core’ claims, therefore, are those which remain in the further amended Statement of Claim that the plaintiff seeks leave to file.
(a) The plaintiff alleges that the defendant owes him (as a parent of a child enrolled in a government school) a duty (or multiple duties) of care to avoid causing an unreasonable risk of harm by:
(i) acting in accordance with its policies,
(ii) treating him fairly and equally to other parents,
(iii) not discriminating against him,
(iv) not unreasonably prejudicing the outcome of Family Court proceedings or disputes in which he and his ex-partner were involved;
(v) not infringing unreasonably upon his common law rights (including to ensure he was not defamed);
(vi) ensuring that its employees, servants and agents do not conspire with others in unreasonably supporting one parent over the other.
(b) the plaintiff alleges that, in December 2020, without his knowledge or consent, his ex-partner arranged for their daughter to be enrolled at, and attend, a new school (‘New School’) closer to her new home for the final two days of the school term. The plaintiff alleges that his ex-partner was assisted in effecting the enrolment by the Assistant Principal and unnamed administration staff of the New School. He alleges that in effecting the enrolment without his consent, the Assistant Principal and other staff acted in breach of the defendant’s policies;
(c) the plaintiff alleges that in January 2021 his ex-partner applied for, and obtained, orders in another jurisdiction which had the effect of continuing his daughter’s enrolment at the New School into 2021. The plaintiff also alleges that a teacher at the Original School voluntarily provided a letter in support of his ex-partner in those proceedings. The plaintiff alleges that by providing the letter, the teacher breached the defendant’s policies;
(d) the plaintiff alleges that in December 2020, the Assistant Principal of the New School provided him with incorrect advice to the effect that the New School could not offer part time enrolment spaces for its students, such that his daughter could not continue to be home-schooled while attending the New School. The plaintiff alleges that his daughter was denied a part time enrolment without reasonable explanation, in breach of the defendant’s policies;
(e) the plaintiff also alleges that on numerous occasions during 2020, a teacher at the Original School engaged in conversations with other persons regarding the plaintiff and made baseless accusations about the relationship between the plaintiff and his daughter. The plaintiff alleges that this conduct breached the defendant’s ‘policies and defamed the plaintiff.
(f) finally, the plaintiff alleges that a teacher at the Original School made an inappropriate Facebook post on his ex-partner’s Facebook page, which displayed her lack of impartiality towards him as a parent. The plaintiff alleges that this conduct breached the defendant’s policies; and
(g) the plaintiff says that the defendant has breached its duty (or duties) of care to him by reason of the above matters. The plaintiff alleges that, as a result of the breaches, he suffered significant psychiatric injury including major depressive disorder, anxiety disorder, post-traumatic stress disorder and other mood disorders. The plaintiff seeks damages from the defendant of over $1.6 million.
Procedural History and the Applications
The plaintiff filed a writ and his first Statement of Claim on 27 February 2023 (the ‘February SoC’).
Following discussions between the plaintiff and lawyers representing the defendant regarding problems with the February SoC, the plaintiff filed an amended Statement of Claim on 5 May 2023 (the ‘May SoC’). Attempts were also made by the defendant to direct the plaintiff to the Self Represented Litigant Co-ordinator of this Court and to see if the plaintiff could be considered for referral for pro bono legal assistance.
At a directions hearing on 23 June 2023, the defendant raised with the Court and the plaintiff its concerns regarding the filed Statements of Claim including that it was unable to file a defence in response to the May SoC in its present form. At that stage, the plaintiff had not obtained any legal assistance, and he deposes in his affidavit in support of his amendment application to a distrust of lawyers such that he was unwilling to obtain professional legal assistance.
The plaintiff provided a proposed further amended Statement of Claim to the defendant on 31 July 2023 (the ‘draft July SoC’). The defendant did not provide its consent to the filing of the draft July SoC because the defendant did not consider that the issues with the claim had been remedied. The defendant communicated this to the plaintiff at the time.
Using ‘AirTasker’, the plaintiff enlisted assistance to prepare a further amended Statement of Claim. On 29 August 2023, the plaintiff delivered his proposed further amended statement of claim to the defendant (‘draft August SoC’).
The defendant remained of the view that the draft August SoC was deficient and that it could not plead a defence to the claim. The defendant, by its solicitors, informed the plaintiff on 14 September 2023 of its intention to seek a return date for an application to strike out the pleading.
By its summons dated 18 October 2023 (the ‘Defendant’s Application’) the defendant applies for the plaintiff’s claim to be summarily dismissed pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’), alternatively, that there be judgment for the defendant or a permanent stay of the proceeding pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). The defendant also applies, in the further alternative, for the February SoC to be struck out pursuant to r 23.02 of the Rules. In addition to its written submissions, the defendant relied upon the affidavit of Elif Bardan sworn 18 October 2023.
The defendant seeks relief by its summons specifically in relation to the February SoC even though the May SoC, which amended it, was filed with the Court. I do not consider that this makes much difference in substance to the Defendant’s Application because it is readily apparent from a review of the amendments made to the February SoC as tracked in the May SoC that the amendments did not alter the expression or contents of the February SoC so as to remedy any of the deficiencies or irregularities in that pleading, but instead added several pages of new, unparticularised assertions, commentary, conclusions and argument and extracted extensive quotes from emails and other documents, and so, overall, worsened the condition of the pleading.
By his summons filed on 10 November 2023 (the plaintiff’s ‘Amendment Application’), the plaintiff seeks leave to amend his May SoC by filing a further amended Statement of Claim dated 10 November 2023 ( the ‘draft November SoC’), which is exhibited to the plaintiff’s affidavit sworn on that date. The plaintiff seeks consequential orders for the filing of a defence by the defendant in answer to the draft November SoC and for a referral of the proceeding for appropriate dispute resolution. In addition to his written submissions, the plaintiff relied upon his affidavit sworn 10 November 2023.
Defendant’s Application for Summary Judgment under s 63 of the CPA or r 23.01 of the Rules
Sections 62, 63 and 64 of the CPA
The defendant seeks summary judgment under s 62 of the CPA. The policy behind Part 4.4 of the CPA (in which s 62 and associated provisions are housed) is to enable the disposition of unmeritorious claims and defences so as to save the costs, time and resources of the courts. Section 62 of the CPA entitles a defendant to apply for summary judgment in a civil proceeding on the ground that the plaintiff’s claim (or part of a claim) has no real prospect of success, and the court can give judgment summarily under s 63 if it is so satisfied.
In the case of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (‘Lysaght’),[2] the Victorian Court of Appeal stated that the test of whether a claim ‘has no real prospect of success’:
…should be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[3]
[2](2013) 42 VR 27 (‘Lysaght’)
[3]Ibid [29] (Warren CJ & Nettle JA).
Although the changes to the summary judgment regime introduced by Part 4.4 of the CPA liberalised the test for summary judgment, the authorities urge caution, and that regard be paid to the overarching purpose under the CPA, when exercising the power to terminate a proceeding summarily given that, in consequence, the party against whom summary judgment is given will be deprived of the chance to pursue their claim.[4] Courts should, therefore, only exercise the power where it is clear there is no real question to be tried. This is so irrespective of whether an application for summary judgment is made on the basis that the pleadings do not disclose a reasonable cause of action, and no amendment could cure this error; or the action is frivolous, vexatious or an abuse of process; or the application for summary judgment is supported by evidence.[5]
[4]Ibid [35(d)] (Warren CJ & Nettle JA), [42] (Neave JA).
[5]Ibid [35(d)].
The sufficiency of the pleading is not the only consideration. Even where there is no real prospect of success of the case disclosed on the pleadings, and perhaps if there is any doubt about it, under s 64 of the CPA a court may nevertheless allow a matter to proceed to trial if:
(a) it is not in the interests of justice to summarily dispose of the proceeding;
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
Whether the Court should, in accordance with s 64 of the CPA, allow the proceeding to go to a full hearing on the merits, must be determined according to the circumstances of each case.
The defendant submits that the entirety of the plaintiff’s claim for damages is predicated upon the assertion that he has suffered a compensable psychiatric injury as a result of some wrongdoing by the defendant, however, the pleadings do not disclose the precise wrong doing and/or act of negligence and so they do not disclose a cause of action. The defendant submitted that, being the State of Victoria, it is immune from suit in tort except in the limited circumstances of the torts of its servants and agents in the course of their employment as provided under Part II of the Crown Proceedings Act 1958 (Vic) (‘CP Act’).[6] The defendant submits that the plaintiff alleges that the duty or duties of care are owed to him by the defendant and that nowhere in the February or May SoCs is there any identification of the duties allegedly owed by employees or agents of the defendant to the plaintiff.
[6]See Crown Proceedings Act 1958 (Vic) s 23(1)(b) (‘CP Act’).
The defendant complains too, that the plaintiff does not plead how any breach of any duty owed to him by any employee or agent of the defendant was in the course of that person’s employment, nor how such breaches were causative of the harm about which he complains. The plaintiff acknowledged this deficiency in his pleadings during the course of the hearing, explaining to the Court that these issues had been explained to him by the person he engaged using ‘AirTasker’. As a result, the plaintiff explains that he has attempted to address and cure the problem in his draft November SoC that is the subject of his Amendment Application[7] (which proposed amendments are considered later in these reasons).
[7]Transcript, 14–15.
The defendant submits that because his pleadings do not disclose any cause of action against the defendant, including because it is immune from suit for torts other than as provided in the CP Act, the plaintiff’s case enjoys no real prospect of success.
The defendant’s complaint is not one that could be remedied by the plaintiff making simple amendments to the pleading. Although the plaintiff refers[8] in his pleading to the concept of a duty of care and the seminal case of Donoghue v Stevenson[9] and to the fact that the relationship between teacher and student has been recognised at law as attracting a duty of care, in his 40 or more pages of pleading, the plaintiff does not plead the basis upon which he alleges that any of the numerous persons named in the pleading (from teachers at the New and Old Schools to the former Minister of the Department to lawyers working for the Department),[10] owed him, as a parent of a child enrolled in a school, any duty of care, nor the contents of that duty. Rather, the plaintiff alleges that the duty of care is owed directly by the defendant.[11] The plaintiff also complains about the conduct and effects of conduct of the plaintiff’s ex-partner who is entirely independent of the defendant, and of orders made by the Family Court in proceedings brought before it, without pleading any basis upon which the defendant is said to be responsible for those actions.
[8]February SoC [9], May SoC [10].
[9][1932] A.C. 562.
[10]Many of the persons named appear to be employees or agents of the defendant, including the named teachers or administrators at the New and Original Schools, the former Minister for Education, the lawyers working within the Department. The plaintiff does at other times refer to ‘others’ or ‘others in the DETV’ (e.g. May SoC [9], [9.12] [9.19], [9.22]) without specifically identifying them.
[11]See May SoC [16.3].
The existence of the duty owed by the defendant has been reasoned backwards, or even circularly. That is, the plaintiff alleges that because the conduct of the defendant was negligent and caused him harm it was reasonably foreseeable that the plaintiff would suffer harm such that the defendant owed him a duty of care to prevent the negligent conduct. For example, at paragraphs 11.3, 12.6 and 12.7 of the May SOC, the duty of care is said to exist because ‘the negligent conduct, decisions, omissions and/or failures of the teachers, schools, DETV’, or because ‘the various wrongs’, and ‘additional wrongs occurring on top of previous or other wrongs’, made it reasonably foreseeable that the plaintiff would suffer harm or be closely and directly affected by the negligent conduct.
The allegations of breach of duty exacerbate this problem, and expose the meandering nature of the claim. The pleaded wrongs go well beyond the core claims identified in paragraph 3 above, and slip between complaints about the specific conduct of certain named individuals, to more generic complaints about the conduct, at large, of ‘the teachers’ and ‘the schools’ and Department ‘staff and employees’. The conduct complained of ranges from alleged breaches of various, unidentified Department policies by various named and unnamed teachers and school staff, to the alleged failure of the New School in general to provide a safe environment free from bullying for the plaintiff’s child, to alleged prejudicial and discriminatory conduct towards the plaintiff by certain persons and to the alleged failure by the New School in general to ensure that school attendance records were accurate. The plaintiff also complains about allegedly unreasonable conduct of two lawyers employed by the Department, and of various, often unnamed, staff at the Department being unresponsive to and dismissive of, or providing irrelevant responses to, correspondence from the plaintiff. The plaintiff also complains about the former Minister and other unnamed staff within the Department allegedly failing to intervene to prevent the plaintiff from self-medicating which may have caused him physical harm.
The plaintiff’s allegation that the defendant alone owed him a duty of care, and his failure to plead:
(a) the existence of duties owed to him by each employee or agent of the defendant; and
(b) breach of those duties by each employee or agent,
means that s 23(b) of the CP Act is not engaged, and the defendant is immune from the suit.[12]
[12]See Hall v Whatmore [1961] VR 225, Stockwell v State of Victoria [2001] VSC 497, Salt v State of Victoria (2017) 52 VR 130.
None of the affidavit evidence filed by the plaintiff in support of his Amendment Application explained the basis for the claim he has initiated against the defendant, and how each duty he alleges is owed by, or has been breached by, the defendant or any of its servants or agents.[13]
[13]Rule 22.19 of the Rules permits the plaintiff to show cause by affidavit or otherwise against the defendant’s application. The affidavit evidence does not ‘show cause’ against the application.
For the above reasons, I conclude that the plaintiff’s claim enjoys no real prospect of success, and ought be dismissed under s 63 of the CPA.
Before making that order it is necessary to consider whether, in the circumstances of this case, the discretion in s 64 should be exercised to permit the proceeding to go forward in the interests of justice or because only a full hearing on the merits is suitable in this case. I am not satisfied that the circumstances of this case are such as to justify its continuing despite enjoying no real prospect of success. The plaintiff has been given numerous opportunities by the defendant to remedy his Statement of Claim. The defendant has also taken steps to help the plaintiff obtain legal assistance for that purpose. The plaintiff, for the reasons given in his affidavit of 10 November 2023, has continually refused to engage qualified legal assistance. The proceeding was commenced over a year ago and has not progressed past the filing of the February, and then the May, SoC. The defendant does not complain about cost, but there must be costs it has incurred as a result of the plaintiff’s conduct. The proceeding is also absorbing court time which ought be available to other litigants. As was held in by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd & Anor,[14] even self-represented litigants cannot continue to be permitted to file new pleadings and attempt to reformulate their claims:
…especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the court’s already limited resources. There comes a point at which a self-represented litigant must be required to take responsibility for his choices...[15]
It would be inconsistent with the principles for the just, timely, cost effective and efficient resolution of disputes as enunciated elsewhere in the CPA to allow the proceeding to continue.
[14][2012] VSCA 97.
[15]Karam v Palmone Shoes Pty Ltd & Anor [2012] VSCA 97, [36] (Nettle and Osborn JJA).
In the hearing the plaintiff conceded that there was no recognised duty as between the Department and parents of an enrolled student, but he submitted as follows:
But with a student in the Education Department, yes, there is. I’d submit that that's probably one of the reasons why this matter should go to court, because parents, when they enrol their child to school, they are reliant on the - the policies and the protections that they think they have when they enrol and entrust their child to attend a particular school.
And if - if teachers and, you know, the Department can just flagrantly breach policy, there has to be some, some consequence, or some - some option for parents to take action, especially if that causes financial loss, or in my case, harm and permanent psychiatric injury. So - so I understand it’s not established law, but, you know, I would submit that it perhaps needs to be looked at and tested.[16]
[16]Transcript, 29–30.
Despite this submission, I do not consider that this proceeding is an appropriate vehicle for considering whether the asserted novel duty as between the defendant and the plaintiff (as a parent of an enrolled student) exists, especially having regard to the application of the CP Act. There is nothing else in the submissions of the plaintiff which convinces me to allow the claim to progress under s 64.
Rule 23.01
Rule 23.01 of the Rules authorises the Court to stay a proceeding or give judgment to a plaintiff or defendant where any claim in the proceeding is scandalous, frivolous or vexatious or an abuse of the process of the Court. [17] In an application by a defendant, the contention is usually that by no proper amendment of the pleading can the plaintiff raise a good cause of action because the claim so completely lacks foundation in fact or law that no legitimate pleading amendment could save it.[18] Evidence by affidavit is admissible on such an application and the burden on this question lies on the party impeaching the claim.
[17]In Hoh & Anor v Frosthollow Pty Ltd & Ors [2014] VSC 77, Derham AsJ provided a useful explanation of the terms ‘scandalous’, and ‘frivolous and vexatious’ (at [12]), which may not be words immediately understood by the plaintiff given he is not legal trained and represents himself: ‘(a) Scandalous: Allegations made in a pleading for the purpose only of abusing or injuring the opposite party and allegations which are indecent or offensive are scandalous…; (b) Frivolous or vexatious: These words in combination have traditionally been used to describe a wide variety of circumstances in which a claim is found to be groundless, or lacking a legal basis or merit.’
[18]Annesley v Westpac Banking Corporation [2016] VSC 323 [68]–[69] (Derham AsJ).
For the following reasons, which overlap substantially with those identified above for my finding that the plaintiff’s claim enjoys no real prospect of success as formulated in the February and May SoCs, I find that the plaintiff’s claim is frivolous and vexatious and so completely lacks foundation in law or fact that it amounts to an abuse of process.[19]
[19]Walton v Gardiner (1993) 177 CLR 378, 393 (Mason CJ, Deane and Dawson JJ).
(a) there is no basis in law for finding that the defendant, which is immune from liability from suit for tort other than in limited circumstances in the CP Act, could be personally liable to the plaintiff for negligence. The pleadings also do not plead how any of the other persons referred to directly in the pleadings, or described generally within them, owed him, as a parent of a child enrolled in a school, any duty of care. There is also no pleading directed to the defendant’s potential vicarious liability for any breaches of those duties. Therefore, the pleadings do not disclose a cause of action that can be sustained as a matter of law against the defendant.
(b) even were the claims to have legal merit, essential elements of the causes of action are not pleaded, despite the pleadings being extremely prolix.
(vii) in so far as it is alleged by the plaintiff that the defendant owes the plaintiff a duty of care as a parent of a child enrolled at a government school, the material facts giving rise to that duty are not articulated and the allegation is conclusory, and based on reverse reasoning — namely that the various negligent acts of the defendant gave rise to a foreseeable risk of harm to the plaintiff such that the defendant owed a duty not to engage in that negligent conduct;
(viii) in its over 344 paragraphs/40 pages, the May SoC does not disclose the precise wrong doing and/or act of negligence complained of against the defendant. It meanders between alleged wrongs by various teachers, the New and/or Original Schools, the former Minister, and ‘others in the DETV’[20] as well as by the plaintiff’s ex-partner. Taking one example of the so-called ‘wrongs’ complained about in the pleading, being that a teacher at the New School breached a Department policy (that is not identified) and accepting that occurred, it is unclear how that in itself gives rise to a cause of action in tort for compensable injury that can be sustained by this plaintiff against the defendant. This exposes the difficulty for the defendant in understanding the basis of the allegations made against it, let alone to plead its defence.
[20]Referenced in n10 above.
(ix)the May SoC lists, in 24 paragraphs, the psychological and resultant financial injury that has allegedly been suffered by the plaintiff, but the pleading does not disclose how that harm has been caused by the alleged negligence of the defendant. In this way, another essential element of the cause of action asserted against the defendant is entirely absent from the pleading. For example, the plaintiff alleges that:
[The plaintiff] holds the teachers, schools and DETV responsible for the negligent and wrongful role they played in the plaintiff losing 50/50 shared parenting of his daughter from January 2021 until November 2021. The time lost with his daughter is time that can never be made up. This is something that the plaintiff will never be able to accept, get over or forgive.
…
[The plaintiff] suffers mentally with the thought that so many different people within the education system seemingly have and/or had something against the plaintiff…. [21]
It is, therefore, difficult for the defendant to understand the basis of the allegations made against it, let alone to plead its defence to those allegations.
[21]May SoC [15.7], [15.9].
The Court has power to dismiss or stay the proceeding under r 23.01. The defendant seeks dismissal and a stay in the alternative. Given the preference for dismissal and for the reasons above, I would dismiss the proceeding as against the defendant pursuant to r 23.01.
Defendant’s Application to Summarily Dismiss/Stay/Strike Out the February SOC
Under r 23.02 of the Rules, the objection taken by an applicant is to the manner of expression of the pleading. That is, the Statement of Claim does not disclose the cause of action or its contents are such that it is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process.[22]
[22]In addition to the terms set out at n17 above, the authorities describe the terms ‘prejudice, embarrass or delay’ as being where a pleading places the opposite party in the position that they do not know what is alleged against them, usually because it is vague, unintelligible or ambiguous (Hoh & Anor v Frosthollow Pty Ltd & Ors [2014] VSC 77, per Derham AsJ at [12(c)] and the authorities cited therein).
This rule is used by the defendant as a further alternative in this case, that is, if its bid to have the claim summarily dismissed or stayed fails. In that event, the defendant seeks that the whole of the February SoC (or, I surmise, the May SoC) be struck out and, in response to the plaintiff’s Amendment Application, that leave to amend be denied.
Here the defendant submitted that the Statement of Claim should be struck out because it does not disclose a cause of action. The considerations that are relevant on this ground overlap with those which apply in respect of the application for summary dismissal. The defendant must ‘establish that it would be futile to allow the statement of claim to go forward, because it raises a claim that has no real prospect of success in the sense of being “fanciful”’.[23]
[23]Uber Australia Pty Ltd v Andrianakis (2020) 61 VR 580 at [35] (Niall, Hargrave and Emerton JJA). See also 5 Boroughs NY Pty Ltd v State of Victoria & Ors; Roberts v State of Victoria & Ors [2021] VSC 785 at [10] per J Dixon J.
It is not necessary to set out all the rules of pleading in this case, however, I mention the following pleading principles as summarised by Dixon J in Wheelahan v City of Casey(No 12) (‘Wheelahan’)[24] to provide context for the grounds on which the defendant seeks to impugn the sufficiency of the plaintiff’s pleadings. Relevantly:
[24][2013] VSC 316 [25] (‘Wheelahan’), approved by the Court of Appeal in Uber Australia Pty Ltd v Adrianakis (2020) 61 VR 580 [50].
(a) the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the Court may conduct a fair trial;
(b) a pleading must state all the material facts to establish a reasonable cause of action (or defence), but not the evidence by which the facts are to be proved;
(c) the pleading must be presented in an intelligible form, that is, it must not be vague, ambiguous or inconsistent, so as to enable the opposite party to understand the case against it and respond;
(d) a pleading that contains irrelevant allegations may be embarrassing;
(e) it is not sufficient to simply plead a conclusion from unstated facts and a pleading which does so is usually embarrassing; and
(f) a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it.
The power to strike out a pleading is discretionary, and will only be exercised where there is a substantial objection to the pleading that is complained of, or some real embarrassment is shown. Where the objectionable part or parts of a pleading are so intertwined with the rest of it, then it may be appropriate to strike out the whole of the pleading.[25]
[25]Wheelahan [25(p)].
During the course of the hearing on 16 February 2024, the plaintiff (who represents himself and has no legal qualifications) conceded that his earlier filed Statements of Claim ought be struck out, however, he presses his application for leave to file the draft November SoC.
I would have found that the February and/or May SoC be struck out in any event and I only rely on the plaintiff’s concession to justify abridging my reasons for so finding. My reasons are as follows:
(a) the February and May SoCs make numerous allegations against persons who are not party to the proceeding, including his ex-partner, and the former Minister for Education — in this way, very significant parts of the pleadings are scandalous and embarrassing.
(b) the February and May SoCs make numerous vague, seemingly irrelevant and unparticularised statements and assertions, or commentary, such as:
The Plaintiff stood as an Independent Candidate for the seat of Casey in the 2016 and 2019 Federal Elections and had every intention of running in the 2022 Election.[26]
[26]May SoC [Background Facts t].
…
The said negligent conduct, omissions and/or failures of HAMMOND had a significant material and detrimental impact on the Plaintiff’s immediate mental health, aggravating and exacerbating the Plaintiff’s permanent psychological injury.[27]
[27]February SoC [8.5].
…
The Plaintiff emailed MERLINO on 23 March 2021 requesting an urgent face-to-face meeting.
a. MERLINO failed to respond.
b. The request for an urgent face to face meeting was ignored.[28]
[28]February SoC [9.2].
….
The plaintiff was an ABN holder, his ABN was [ABN].[29]
[29]May SoC [15.19].
….
The plaintiff is at a complete loss as to why JACOBS, DARLING and HADDOW would act so inappropriately, wrongfully and negligently. Whilst the Plaintiff cannot understand the “why” the plaintiff has and continues to feel the affects [sic] and impacts of JACOBS, DARLING and HARROW.[30]
[30]May SoC [15.10].
In this way these (and many other) parts of the pleadings are frivolous, scandalous, vexatious and embarrassing.
(c) the February and May SoCs do not alert the defendant to the case it needs to answer, and in this sense they are likely to prejudice, embarrass or delay a fair trial of the proceeding. This is because:
(x) they contain allegations of numerous wrongs done to the plaintiff by persons connected with the defendant (for example the teachers at the Original School, the Assistant Principal at the New School, a member of the legal team at the Department and the former Education Minister) without articulating how the alleged acts are acts for which the defendant can be liable;
(xi)they contain allegations that various persons failed to act in particular ways without articulating the basis for, and contents of, any alleged positive obligation to act, for example, because of a duty of care (see, for example, [1.14], [2.14], [4.9], [5.17], [7.11], [9.10], [9.40], [9.48], [9.62] of the February SoC ), nor how such obligation was borne by the defendant;
(xii) they contain allegations that the Original School’s negligence caused the plaintiff to lose joint custody of his daughter without any particulars or proper basis for the allegation.
For the reasons above, and because the SoCs fail to disclose a cause of action for the reasons considered in relation to the applications for summary dismissal, and because the deficient parts of the pleadings are so intertwined with the whole, the May SoC should be struck out in its entirety.
The Plaintiff’s Amendment Application
The Court should not permit a pleading amendment which would itself have no real prospects of success, as the amendment would be susceptible to summary judgment and so be futile. Thus, the summary judgment test also regulates when pleadings may be amended.[31]
[31]Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 at [42]-[43], [46] (Kyrou, Ferguson and McLeish JJA).
The draft November SoC the subject of the plaintiff’s Amendment Application is attached to his affidavit sworn on 10 November 2023. The plaintiff:
(a) gave evidence that he had amended the draft November SoC following the receipt of guidance from a non-lawyer on the online gig-economy site ‘AirTasker’ pointing him in the direction of the CP Act and the need to demonstrate that the defendant is vicariously liable for the torts of its servants or agents;
(b) submitted that he had fixed the pleading by identifying the cause of action as common law negligence under the Wrongs Act 1958 (Vic) (‘Wrongs Act’) for which the defendant was vicariously liable under the CP Act and by setting out the material facts to establish his cause of action before providing detailed particulars of the allegations of wrongdoing;[32] and
(c) submitted that by removing a range of complaints of which he had ‘let go’, he had reduced the length of the pleading by 15 or so pages.
[32]Transcript, 14–15.
I accept that the plaintiff has tried hard to address the deficiencies in his earlier pleadings by making these changes to the draft November SoC. Those efforts were, in the main, directed towards trying to ensure the pleading better conforms with the rules regarding pleadings. In certain, limited respects, this has been achieved. However, the test to be applied considers not only whether there is compliance with the rules of pleading, but whether the plaintiff’s claim as disclosed in the amended pleading enjoys any real prospect of success.[33]
[33]In Babcock & Brown DIF III Global Co-Investment Fund LP & Anor v Babcock & Brown International Pty Ltd & Ors (No 2) [2017] VSC 556, Hargrave J (as he then was) explained the interaction between the technical requirements of pleading, the discretionary nature of the power to strike out and the overarching purpose under the CPA as follows (at [15]): ‘the Court should consider the pleading under a challenge as a whole and adopt a practical case management approach to pleading objections, rather than accepting technical objections when the true nature of the case to be met is clear from reading the pleading as a whole and there is no embarrassment to filing a responsive pleading. Such an approach accords with the discretionary nature of the power to strike out and with the overarching purpose under the Civil Procedure Act.’
Even though the plaintiff has identified the limited exceptions to the Crown’s immunity under the CP Act, and even though he has identified the Wrongs Act as the statute pursuant to which he sues, the substance of the plaintiff’s claim has not changed, and I do not consider that the re-pleaded claim enjoys a real, as opposed to fanciful, prospect of success.
Throughout the pleading, where previously it was alleged ‘the defendant’ owes the plaintiff a duty of care, the plaintiff has added the words ‘and its servants’ in an attempt to fall under the CP Act. However, the basis upon which it is alleged a duty is owed, by either the defendant or its servants, and the contents of any such duty, remain absent. For example, the plaintiff pleads that:
the Defendant and its servants have a legal obligation to the Plaintiff (Parents (sic) generally) to not conspire with others in unreasonably supporting and/or assisting one parent over the other, to avoid causing unreasonable risk of harm to the Plaintiff, and to parents more generally. [34]
The existence of this duty is apparently reasoned backwards from the harm the plaintiff alleges he suffered, including temporarily losing joint custody of his daughter.
[34]Draft November SoC [2(o)].
Further, only certain of the defendant’s servants are ever identified in the draft November SoC. At other times the servants who allegedly owed and breached duties of care to the plaintiff are described collectively as ‘the Defendants’ (sic) [New School] servants’ or the ‘defendants (sic) servants at [the New School]’ or ‘[the Original School]’,[35] or simply as ‘the New School’ or ‘the Original School’.
[35]Draft November SoC, [3(c)], [3(e)–(h)].
The allegations of breach of duty also remain problematic. The draft November SoC continues to slip between complaints about the specific conduct of certain named individuals, to the more generic complaints about the conduct of the schools. The plaintiff alleges that the ‘various wrongful acts and or omissions identified in this lawsuit violated DETV Policy, Common Law Rights and/or Human Rights’.[36] Only the alleged breaches of DETV policy by certain named servants of the defendant are particularised in what is described as a non-exhaustive list in paragraph 2(p) which has the heading ‘The Breach of the Duty of Care’. At other parts of the pleading, conduct is attributed to ‘the Defendants’ (sic) [New School] servants’[37] or the ‘defendants (sic) servants at both [the New School] or [the Original School]’,[38] or simply as the New School or the Original School. For example, it is said that ‘[b]othe (sic) [the Original School] and [the New School] wilfully participated in violating’ various of the defendant’s policies.[39] The conduct complained of, however, ranges far beyond breaches of policy, to wrongful involvement in family breakdown and a parental dispute, to discrimination against a parent and conspiracy with the plaintiff’s ex-partner to ‘undermine the plaintiff.’[40]
[36]Draft November SoC [2(p)].
[37]Draft November SoC [3(c)].
[38]Draft November SoC [3(e)].
[39]Draft November SoC [3(e)].
[40]Draft November SoC [2(r)].
The pleading remains long, repetitive and jumbled. There are three parts headed as ‘Further and Better Particulars’ each comprising numerous paragraphs, which do not relate to any particular allegation, but seemingly to all allegations. The so-called particulars include additional allegations of fact, as well as commentary and conclusions. The pleading alleges a conspiracy between various teachers at the Original and New Schools, and the Plaintiff’s ex-partner, but does not provide the necessary particulars of the alleged conspiracy.
The draft November SoC identifies in 16 paragraphs and numerous sub-paragraphs a list of the psychological and resultant financial injuries allegedly suffered by the plaintiff, but the pleading does not disclose how that harm has been caused by the alleged breaches of duty by any of the defendant’s servants. In this way, another essential element of the cause of action asserted against the defendant, being causation, is absent from the pleading.
In all, even ignoring what might be described as technical deficiencies, the amendments that are proposed to be made to the pleading are insufficient to reveal the true nature of a case which, if advanced by the plaintiff, would have any real prospect of success.
Conclusion and Orders
Having regard to the above reasons, I will dismiss the proceeding.
By its summons the defendant sought orders that each party bear their own costs. The defendant has not sought its costs in respect of the plaintiff’s Amendment Application. I will, therefore, order that each party bear their own costs of the proceeding.
SCHEDULE OF PARTIES
| S ECI 2023 00968 | |
| BETWEEN: | |
| PETER ROBSON CHARLETON | Plaintiff |
| - v - | |
| THE DEPARTMENT OF EDUCATION AND TRAINING VICTORIA | Defendant |
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