Clarke v State of New South Wales (No 4)

[2015] NSWSC 1054

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Clarke v State of New South Wales (No.4) [2015] NSWSC 1054
Hearing dates:	21 July 2015
Date of orders:	31 July 2015
Decision date:	31 July 2015
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Order, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 that the Further Amended Statement of Claim filed on 17 March 2015, be struck out. (2)   Otherwise dismiss the Notice of Motion filed by the defendant on 2 June 2015. (3) Order that, if the plaintiff seeks to file any further Amended Statement of Claim, he is to seek leave of the Court to do so, by filing and serving a Notice of Motion on or before 11 September 2015 accompanied by the proposed version of his pleading and any affidavit that may be appropriate in support of his notice of motion, in accordance with the Uniform Civil Procedure Rules. (4)   Grant leave for any such Motion to be returnable before the Court on 25 September 2015. (5)   Order the plaintiff to pay the defendant’s costs of the Notice of Motion. (6)   Stand the proceedings over for further directions before the Common Law Registrar at 9am on 25 September 2015.
Catchwords:	PROCEDURE – civil – pleadings – motion to strike out further amended statement of claim – plaintiff self-represented – two previous versions of statement of claim struck out – further amended statement of claim largely identical to previous versions – does not comply with UCPR – further amended statement of claim struck out – PROCEDURE – civil – summary disposal – dismissal – whether failure to prosecute with due dispatch – plaintiff has complied with time limits imposed by the court for filing – proceedings not dismissed
Legislation Cited:	Civil Procedure Act 2005 Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Uniform Civil Procedure Rules 2005
Cases Cited:	Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 Clarke, Dallas v State of New South Wales (No 2) [2014] NSWSC 578 Clarke, Dallas v State of New South Wales (No 3) [2014] NSWSC 593 Dare v Pulham [1982] HCA 70; (1982)148 CLR 658 Gunns Ltd v Marr [2005] VSC 251 Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 McGuirk v The University of NSW [2009] NSWSC 1424 Northam v Favelle Favco Holdings Pty Ltd (Bryson J, 7 March 1995, unreported) Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331 Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 Young v Hones [2013] NSWSC 580
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	Dallas Clarke (P) State of New South Wales (D)
Representation:	Counsel: In person (P) R Lee (D)   Solicitors: Crown Solicitor (D)
File Number(s):	2013/111803
Publication restriction:	Not Applicable

___________________________________________________________________

Judgment

1. Mr Clarke alleges that on 8 December 2009, he was arrested by police officers on a charge of intimidation, or annoyance by violence or otherwise, contrary to s 545B of the Crimes Act 1900.

2. On that day, he was issued with a Court Attendance Notice for an offence under s 60E of the Crimes Act. An amended Court Attendance Notice was issued on 3 December 2010, for an offence contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007, namely stalking or intimidation with attempt to cause fear of physical or mental harm.

3. Ultimately, in May 2012, all charges against Mr Clarke were dismissed in the Local Court.

4. In 2013, Mr Clarke commenced proceedings against the State of New South Wales (“the State”) claiming, amongst other things, damages for false imprisonment and malicious prosecution.

5. It will be necessary in due course to describe some of the history of the proceedings. It is presently sufficient to note that on 17 March 2015, Mr Clarke filed a Further Amended Statement of Claim (“FASoC”).

6. On 2 June 2015, the State filed a Notice of Motion seeking the following relief:

“1. The proceedings be dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005.

2. In the alternative, the Further Amended Statement of Claim filed on 17 March 2015 be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005.

3.   In the event that the Court dismisses the proceedings, costs of the proceedings.

4.   The plaintiff to pay the costs of this Motion.”

7. This judgment deals with that Motion.

8. For the reasons which follow, I am not satisfied that the Court ought dismiss the proceedings pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (“UCPR”), but I am satisfied that the FASoC ought be struck out pursuant to r 14.28 of the UCPR.

History of the Litigation

9. Proceedings were initially commenced on 11 April 2013 by Mr Clarke. He did so by commencing three separate proceedings. They were:

1. conspiracy proceedings against a magistrate in the Local Court numbered 2013/111053;

2. a wrongful arrest proceeding against the State numbered 2013/111036; and

3. a proceeding for malicious prosecution against the State numbered 2013/111083.

10. After filing an appearance, the State filed a Notice of Motion in each matter seeking to strike out the proceedings and summary dismissal. Those Notices of Motion were heard before Harrison AsJ on 24 September 2013.

11. On 2 October 2013, for the reasons which she then delivered, Harrison AsJ determined that two of the three proceedings, namely, the conspiracy proceedings and the wrongful arrest proceedings, ought be dismissed. She also made this order:

“The causes of action of malicious prosecution and wrongful arrest are to be pleaded in one amended Statement of Claim in proceedings 2013/111083 Dallas Clarke v State of New South Wales, such Amended Statement of Claim is to be filed and served on or before 5pm on 6 November 2013.”

12. Her Honour also ordered that Mr Clarke be referred to a Registrar for pro bono legal assistance in redrafting his Amended Statement of Claim.

13. On 4 November 2013, in compliance with the Court’s orders, Mr Clarke filed an Amended Statement of Claim. On 13 December 2013, the State filed a Motion to strike out that pleading. The Motion came on for hearing before Harrison AsJ on 22 April 2014.

14. On that day the plaintiff made an application to her Honour that she recuse herself from hearing the proceedings on the ground of apprehended bias. For the reasons which she then delivered, her Honour declined to accede to that application: see Clarke, Dallas v State of New South Wales (No.2) [2014] NSWSC 578. Her Honour proceeded to hear the State’s Motion.

15. Her Honour delivered judgment on 21 May 2014. For the reasons which she then expressed, her Honour made orders striking out the Amended Statement of Claim. She granted leave to Mr Clarke to file a Further Amended Statement of Claim by 16 July 2014: see Clarke, Dallas v State of New South Wales (No 3) [2014] NSWSC 593.

16. In that judgment, her Honour set out the elements of the tort of false imprisonment and, in dealing with the Amended Statement of Claim, her Honour concluded with respect to the pleading of this tort, that it was difficult to discern precisely what the plaintiff’s case was. In particular, her Honour said:

“20. As can be seen from the above summary of this pleading, it is difficult to discern whether the plaintiff's case in relation to false imprisonment is based on (a) non-compliance with s 99(3) of LEPRA, or (b) that there was an early agreement between Ms Herd and Senior Constable Varlin and others to have the plaintiff wrongly arrested and their subsequent acts were in furtherance of that agreement, or (c) that he was not advised of the true grounds of his arrest.

21.   It may be that the plaintiff is relying upon all of these alternatives, or some combination of them. However, as the pleading presently stands, these propositions are internally inconsistent. While I accept that the plaintiff can plead his actions in the alternative, the case he seeks to make out is far from clear, as it covers irrelevant and confusing material.”

17. Her Honour went on to deal with the tort of malicious prosecution, and set out the elements of that tort.

18. With respect to the Amended Statement of Claim, her Honour noted that although it could readily be accepted, and discerned from the pleading that prosecution had been initiated against the plaintiff by a member of the Police Force, and that the proceedings had terminated in favour of the plaintiff, those matters nevertheless needed to be pleaded and, further, that Mr Clarke needed to identify the prosecutor or prosecutors who “… initiated and/or maintained the prosecution or prosecutions maliciously” and in relation to each prosecutor plead that they acted without reasonable and probable cause.

19. Her Honour also went on to make a finding that one of the defendants, namely the Police Commissioner, was not an appropriate defendant, and that part of the claim against him should be struck out.

20. Her Honour dealt with a pleading in the Amended Statement of Claim of the tort of collateral abuse of process, noting in respect of it, that the pleading was scant, and that it did not make it clear what the case was that the defendant had to meet in relation to that tort.

21. Her Honour also noted that the Amended Statement of Claim reproduced the earlier conspiracy pleadings, and ordered that those paragraphs should be struck out.

22. Her Honour went on to consider the exercise of her discretion with respect to whether the Court ought permit the plaintiff a further period to re-plead his Statement of Claim. Her Honour concluded that she should exercise her discretion to permit the plaintiff to re-plead.

23. On 5 August 2014, Mr Clarke filed a Summons in the Court of Appeal seeking leave to appeal from each of the three interlocutory decisions of Harrison AsJ.

24. That Summons for leave to appeal was heard by the Court of Appeal on 3 February 2015. On 24 February 2015, for the reasons which it then gave, the Court dismissed the Summons, holding that in each case the decisions of Harrison AsJ were correct: Clarke v State of New South Wales [2015] NSWCA 27.

25. After the conclusion of the proceedings in the Court of Appeal, Mr Clarke complied with the order of Harrison AsJ to file a Further Amended Statement of Claim. He did so within time, because on 19 August 2014, Hidden J had stayed the orders of Harrison AsJ pending the hearing and determination of Mr Clarke’s application for leave to appeal. Accordingly, on 17 March 2015, the FASoC was filed.

26. Further directions hearings then took place because it was apparent that the State did not regard the FASoC as an adequate pleading. An opportunity was given by an order of the Registrar on 14 April 2015, for Mr Clarke to serve a proposed second Further Amended Statement of Claim by 12 May 2015.

27. By way of email dated 12 May 2015, Mr Clarke served the State with a proposed second Further Amended Statement of Claim. The State indicated to Mr Clarke that the proposed second Further Amended Statement of Claim did not address any of the complaints made by the State in respect of the FASoC filed on 17 March 2015, and accordingly, pursuant to some further orders of the Registrar on 19 May 2015, the State filed the Notice of Motion on 2 June 2015 to which reference has been earlier made.

28. Both parties have filed written submissions in accordance with the Court’s orders.

29. The proceedings came on for hearing on 21 July 2015. The hearing of the Motion was conducted with considerable, and commendable, efficiency. The State read two affidavits of Ms Henschke, a solicitor employed in the office of the NSW Crown Solicitor. These affidavits essentially set out a chronology of the proceedings, and attached various documents. In addition, the State tendered a further exchange of email correspondence between the parties. Mr Clarke did not read or tender any evidence.

30. Both parties informed the Court that they were content to rely upon their written submissions, and did not seek to add any submissions orally to those which had already been provided.

31. Accordingly, the Court reserved its decision.

32. It is convenient in this judgment to commence with an analysis of whether the FASoC is properly pleaded. It will then be convenient to deal with the question of whether the proceedings should be dismissed for a want of due dispatch.

Legal Principles - Pleadings

33. The requirements of a pleading are in part addressed in the UCPR, and in part, in authorities as to the role which proper pleadings take in the prompt and inexpensive resolution of civil litigation.

34. A party who commences proceedings ought to have a reasonable opportunity to plead out an arguable case against another party. The other party also must have an opportunity, at an early point in the proceedings, to understand the case being made against them. It is in that way that the rules in the UCPR referable to pleadings, and the common law principles of pleading “… are the servants of the interests of justice”: Perpetual Trustees Victoria Ltd v Dunlop [2009] VSC 331 at [24].

35. I have in an earlier decision, set out comprehensively the legal principles of pleading which are also relevant here: see Young v Hones [2013] NSWSC 580 at [78]-[84]. I will for ease of reference reproduce here those principles and remarks.

36. The function of pleadings is to state with sufficient clarity the case that must be met by a defendant. In this way, pleadings serve to define the issues for decision and ensure the basic requirements of procedural fairness, namely that a party should have the opportunity to meet a case against him or her: Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286, 296, 302-3. As well, the issues defined in the pleadings provide the basis upon which evidence may be ruled admissible or inadmissible at trial upon the ground of relevance: Dare v Pulham [1982] HCA 70; (1982)148 CLR 658 at 664.

37. Proper pleading is of fundamental importance in assisting courts to achieve the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act; McGuirk v The University of NSW [2009] NSWSC 1424 at [24] per Johnson J.

38. As Hodgson JA (with whom Mason P and Handley JA agreed) said in Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at 142-143:

"The requirement for a pleading to state material facts which is to be found in the Rules includes the cause or causes of action which are relied upon. Materiality of facts means how those facts are material to a cause of action."

39. Bongiorno J said in Gunns Ltd v Marr [2005] VSC 251 at 57, in a passage with which, if I may say with respect, I entirely agree:

"Not only must the pleading inform the defendants of the case they must meet now, but it must clearly set out the facts which the plaintiffs must assert to make good their claim with sufficient particularity to enable any eventual trial to be conducted fairly to all parties. Vague allegations on very significant matters may conceal claims which are merely speculative. If this be not the case, the plaintiffs must put their allegations clearly."

40. As his Honour went on to say,

"A pleading is embarrassing where it is unintelligible, ambiguous, vague or too general."

41. In Shelton v National Roads and Motorists Association Ltd [2004] FCA 1393 at [18], Tamberlin J dealt with the concept of embarrassment, with respect to a pleading, in this way:

"Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. ..."

42. As Bryson J recognised, a pleading may be embarrassing if the material facts alleged are couched in expressions which leave difficulties or doubts about recognising or piecing together what is referred to: Northam v Favelle Favco Holdings Pty Ltd (Bryson J, 7 March 1995, unreported).

43. Section 56 of the Civil Procedure Act 2005 (“the Act”) places on a party to proceedings, a statutory duty to assist the Court to further the overriding purpose to which I have just made reference. As the Court of Appeal noted in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [161] per Allsop J:

“The need for clarity, precision and openness in the conduct of litigation and the responsibility of parties and their legal representatives therefore, flows most clearly from the statutory duty of a party and his, her or its legal representatives in civil proceedings to assist the Court to further the overriding purpose … These principles can be seen to be reflected in the longstanding rules of pleading requiring any matter that may cause surprise to be pleaded.

…

The clear statutory duty to assist the Court, and in a practical way, to cooperate to bring forward the real issues in dispute, encompasses the requirement to be clear and precise in the illumination of the issues for trial. The occasion for this is not merely pleading …, it extends to all aspects of the engagement in the Court’s processes.”

44. The Court expects, and is entitled to expect, that the parties and their legal representatives make clear what is, and what is not, legitimately part of the controversy.

45. The UCPR require that a statement of claim is a document which should plead, in a summary form, a statement of the material facts upon which the party relies, but not the evidence by which those facts are to be proved: r 14.7 of the UCPR. There is also a requirement that the pleadings should be as brief as the nature of the case allows: r 14.8 of the UCPR.

46. It is against these principles that it is appropriate to undertake an analysis of the FASoC.

Analysis of the FASoC

47. The pleading of false imprisonment is found in 12 paragraphs in the Statement of Claim.

48. These paragraphs are replete with references to case law, pleadings that contain statements of fact, conclusions, assertions of impropriety, and inadequacy of conduct, all in the same sentence. Reference is made to facts which seem entirely irrelevant to any element of the tort. By way of example, in paragraph 7 there is an assertion that the plaintiff overheard a conversation on a bus which he interpreted as being related to an individual, about whom it seems to be said, although that individual is not a defendant, that they made a complaint to police. Having recorded the fact that he overheard a conversation on a bus, the plaintiff then pleads that this event, amongst others, “… still did not prompt a response from the senior constable to pursue the investigation at this point either”. This non-sequitur and illogicality seems to be unconnected with any other fact or matter pleaded.

49. The pleadings include an allegation that a police officer committed an offence against s 86(1)(b) of the Crimes Act, which offence was aggravated by conduct identified in s 86(2)(a) of the Crimes Act. Nowhere does the Statement of Claim identify the aggravating conduct. The pleading includes allegations of direct knowledge on the part of some but not other police officers, and also refers to events well after the false imprisonment is, seemingly, said to have occurred – such as statements made in the course of cross-examination of police officers during the Local Court proceedings. These occurred over a year after the original false imprisonment is said to have occurred.

50. Each of these matters would, and the contents of these paragraphs of the FASoC would, without more, warrant an order striking them out as not being a correct, appropriate or proper pleading.

51. But there is an additional reason why the Court should make such an order with respect to the pleading of the tort of false imprisonment. The terms of the paragraphs alleging the tort of false imprisonment are exactly the same as the terms put forward by the plaintiff in the Amended Statement of Claim, which was the subject of the judgment of Harrison AsJ, which found that the pleading of this tort did not comply with the rules for, and principles about, a proper pleading. Her Honour’s judgment was the subject of an unsuccessful application for leave to appeal to the Court of Appeal. The Court of Appeal held that her Honour’s judgment was correct.

47. Where an order has been made by this Court striking out a pleading, and directing a party to file an amended pleading, it is an abuse of process for that party to simply file the same pleading once again.

48. The fact that the pleading is largely identical to the Amended Statement of Claim which was struck out is of itself, and without more, a reason to strike out this part of the FASoC.

49. In combination, I am satisfied that the pleading with respect to the tort of false imprisonment in the FASoC cannot stand, and must be struck out.

50. The submission in writing of the plaintiff, Mr Clarke, does not in any sense address the deficiencies in the pleading. He submits that the Court lacks jurisdiction to rehear the complaints against the pleadings. Clearly the Court does have jurisdiction under the UCPR. This jurisdiction is an ongoing one with respect to each version of a statement of claim as it is filed.

51. The plaintiff submits that in effect the current Motion is some form of an appeal against the decision of Harrison AsJ. That is not so. This is a Notice of Motion seeking orders with respect to a version of the Statement of Claim, namely the FASoC, which was first filed on 17 March 2015.

52. The plaintiff seeks in submissions to blame the defendant, the State, for the lack of specificity in his pleadings. There is simply no merit in that submission.

53. Next, the FASoC pleads the tort of malicious prosecution. Again, it does so in terms which refer to decided cases and contains quotations from judgments in decided cases. The pleading contains sentences which include statements of fact, assertions of impropriety mixed with adjectival descriptions of conduct and allegations of unlawful conduct.

54. Nowhere does the material which purports to set out a pleading of the tort of malicious prosecution do so in a logical fashion. It does not set out the basal facts in a way which complies with the UCPR. The elements of the tort are not set out in a way which identifies the facts relevant to each element. Nor does the FASoC provide any adequate pleading of loss or damage.

55. In particular, the pleading contains confusing and confused assertions about the identity of the prosecutor. The pleading contains allegations of behaviour by the Local Court Magistrate, which have no relevance to the cause of action sued upon, or to these proceedings generally.

56. Having set out these matters in a jumbled, confusing and prolix way, the pleading then goes on to set out “allegations of fraud and breach of statutory duty”. It thereafter names individual police officers and, with respect to each officer, either repeats or substantially repeats earlier pleadings, but in a way which confusingly contains inconsistent allegations.

57. Nowhere is it clear whom it is alleged was the prosecutor, or prosecutors, who acted against the plaintiff in a tortious way. The addition of a pleading which suggests that the prosecutor ought be regarded as “… a public prosecution by an organisation …” misunderstands and misquotes the law to which reference is impermissibly made in that paragraph.

58. It is worthwhile setting out these two paragraphs in full. They read:

“17.   Identifying who is the prosecutor is further complicated by the fact that the charges have been changed. In A v State NSW [2007] HCA10 at 38, the prosecutor, the person who effectively sets criminal proceedings in motion, accepts the form of responsibility, or accountability, imposed by the tort of malicious prosecution. In this matter the fact that the charge has been altered changes what was initially accepted by Senior Constable Marcus Varlin as an individual prosecutor and brings this into the context of a public prosecution by an organisation (ibid at 41).

18.   Further the prosecutor failed to comply with the NSW Bar Association rules to insure a fair hearing (2011 Bar Rule 26; 60; 68; 86; 88; and 89) as identified in Zreika v NSW [2011] NSWDC 67 at 141-144. Also pretrial discloser requirements s 138(f) Criminal Procedure Act (NSW) 1986 in the failure to provide copies of the 07/12/2009 Statements, 29/09/2009 triple-0 phone call and the identity of the third Police Officer present at OLMC during the interviews (21/12/2010 p73 ln23; 25/05/2011 p61 ln4; p105 ln23.” (sic)

64. As is self-evident from the terms of these paragraphs, they do not approach an appropriate form for a pleading of the tort of malicious prosecution.

65. Further pleadings assert that the leading of “quite contradictory evidence” described in detail is in some way relevant to the tort of malicious prosecution. Such a pleading ignores the obligation of a prosecutor to put all relevant evidence before a Court, even if some evidence contradicts other evidence. It may be that this contradictory evidence in some way reveals malice on the part of an identified prosecutor. If so, then that needs to be clearly pleaded.

66. The nature of the pleading with respect to the tort of malicious prosecution does not do that which Harrison AsJ in her judgment held was required, namely, to set out with clarity the identity of the prosecutor, the nature of the prosecution initiated by that person, that it terminated favourably to the plaintiff, and that the prosecutor acted with malice in bringing or maintaining the prosecution together with appropriate particulars, and finally that the prosecution was brought or maintained without reasonable and probable cause.

67. Nowhere does the pleading of the tort of malicious prosecution in the FASoC approach the minimum requirements, namely: a pleading of the relevant facts in summary form, and not pleading evidence; pleading the elements of the offence and identifying, in respect of each of those elements, the facts upon which they are founded, and in particular, the particulars of malice to be laid at the feet of the identified prosecutor who brought or maintained the unsuccessful proceedings. For these reasons the pleading is not an adequate one.

68. As well, it is appropriate to note that the pleading is largely identical in form and content to that which was put before Harrison AsJ in the Amended Statement of Claim. Some parts of the pleading before Harrison AsJ have been deleted as a consequence of her Honour’s ruling with respect to the dismissal of the conspiracy claim. Five paragraphs have been added, and some particulars added in the sixth paragraph.

69. There is nothing about the material which has been added in, which would result in a different view being taken of this pleading from that taken by Harrison AsJ in her judgment, which was held by the Court of Appeal to be correct.

70. For that reason as well, the repetition of large parts of an Amended Statement of Claim about which an order was made striking out the pleading is an abuse of process.

71. For these reasons I am satisfied that the pleading cannot stand.

72. It is necessary to observe, for completeness, that the pleading of damages is a nonsense. One pleading asserts that the plaintiff has been left with “… the realisation that he belongs to a minority group within the Australian society that will have their rights routinely denied”. He goes on to assert:

“this realisation has developed into a phobia of both NSW Police and judicial officers. It has been these events that compelled the plaintiff to return to weekly church services, just to remind him that not all Australians are this evil or willing to impose such tyranny.”

73. The plaintiff goes on to assert that such is his fear that he will be inappropriately and unjustly blamed for some future offence, that he has concluded that:

“He now knows that the Judicial System will refuse to honour even the most basic rights at law, the fact he will be exploited by the NSW Police Force and as such feels no alternative to leave his family, friends, work colleagues, references, own business and the country of birth – forced to restart life over again alone in a foreign land.”

74. Whilst it may be observed that, at least according to his pleadings, the plaintiff still lives in Sydney, the fact is that this pleading of damages does not adequately plead or particularise the loss and damage required to constitute the minimum requirement of a claim in tort.

75. I conclude that an order should be made pursuant to r 14.28 of the UCPR striking out the FASoC filed on 17 March 2015 on the basis that it discloses no reasonable cause of action, and has a tendency to cause embarrassment or delay in the proceedings. It is also otherwise an abuse of the process of the Court. Such an order will be formally made at the conclusion of this judgment.

Dismissal of Proceedings for Want of Due Dispatch

76. The State submits that the proceedings ought be dismissed for want of due dispatch.

77. The State relies upon the provisions of r 12.7 of the UCPR, which relevantly is in the following form:

“(1)   If a plaintiff does not prosecute the proceedings with due dispatch, the Court may order that the proceedings be dismissed or make such other order as the Court thinks fit.”

78. In support of this part of its application, the State calls attention to the history of the proceedings, in particular the passage of time and events since the judgment of Harrison AsJ in 2014.

79. The State submits that the filing of the FASoC which largely reproduces the Amended Statement of Claim which was the subject of the orders of Harrison AsJ on 21 May 2014 “… has caused further delay in the proceedings and is conduct, which it is submitted, constitutes prosecuting with want of due dispatch”.

80. The State points to correspondence between the parties which invited the plaintiff to consider a further draft of the Statement of Claim, noted that the plaintiff had forwarded a further draft which was the subject of further criticism by the lawyers for the State and to the filing of which the State did not consent to.

81. Finally, the State notes the remarks of Harrison AsJ in [42] of her judgment of 21 May 2014, in which she indicated that she was prepared to allow the plaintiff “one more opportunity to seek legal advice and re-plead these causes of action”.

Discernment

82. The first Statement of Claim was filed in 2013. There were then three proceedings. As a consequence of the initial orders of Harrison AsJ, the reasons for which were contained in her first judgment, two of those Statements of Claim were dismissed with the intention that the remaining Statement of Claim be amended to incorporate the malicious prosecution cause of action.

83. Those orders produced the Amended Statement of Claim which was the subject of criticism, appropriately so, in her Honour’s third judgment.

84. The FASoC, the subject of this Motion, is an attempt by the plaintiff, who represents himself, doing his best to set out the causes of action upon which he relies. He was unsuccessful in so doing. But, it needs to be borne in mind that the plaintiff has not had the benefit of a lawyer in the drafting of this Statement of Claim. The pleading of torts of false imprisonment and malicious prosecution can be complex, and both legally and factually difficult.

85. In my assessment it cannot be said that there has been a lack of attention by the plaintiff to the pleading of his claim, and in good time. He has, so it seems to me, complied with the time limits, generally, imposed by the orders of the Court, particularly with respect to the time by which his FASoC was to be filed, and submissions in response to the State’s submissions on this Notice of Motion.

86. True it is that the plaintiff has not responded in the way the State thought appropriate to their correspondence, but I do not think that that of itself indicates that the plaintiff is not addressing his claim with due dispatch.

87. The difficulty for the plaintiff is that he has not yet been able to formulate and plead a claim in a way which complies with the Rules, and the authorities, with respect to pleadings. But I cannot conclude that there has been any want of due dispatch as that phrase is used in r 12.7 of the UCPR.

88. I am not prepared to make an order dismissing the entirety of the proceedings as sought in the State’s Notice of Motion.

Summary

89. I have concluded that the plaintiff’s present version of a statement of claim, namely the FASoC filed on 17 March 2015, does not comply with the rules and authorities with respect to pleadings and must be struck out.

90. I have not been satisfied that the plaintiff has conducted his case with a want of due dispatch and, accordingly, I have declined to dismiss the entirety of the proceedings on that basis.

91. Clearly, if the plaintiff wishes to progress this claim he will need to produce a pleading which adequately pleads his claim in a way required by the Rules and the authorities. Whether he can do so, and how he may do so, is a matter in his own hands.

92. Having regard to his failure to do so adequately on two occasions, the appropriate procedure is for the Court to make an order striking out the existing pleading, and directing that if he wishes to file a further version of his Statement of Claim, he can only do so by seeking the leave of the Court by a notice of motion in which he sets out the form of his proposed pleading, and should he think it appropriate for the success of that motion, to accompany it by an affidavit setting out the facts and matters upon which his application is based.

93. This is a preferable approach to that of simply giving the plaintiff an unfettered opportunity to file a further version of the Statement of Claim, and placing the onus on the defendant to move for an order striking out any further version.

94. I will fix a reasonable period to enable the plaintiff to re-plead his causes of action. In my view, six weeks is sufficient.

Costs

95. The State has succeeded in obtaining one of the two alternative orders sought in the Notice of Motion. The usual rule is that costs should follow the event: r 42.1 UCPR.

96. No reason has been shown which is sufficient to depart from the usual rule. Here the State has been the successful party. It is entitled to its costs.

Orders

97. I make the following orders:

1. Order, pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 that the Further Amended Statement of Claim filed on 17 March 2015, be struck out.

2. Otherwise dismiss the Notice of Motion filed by the defendant on 2 June 2015.

3. Order that, if the plaintiff seeks to file any further Amended Statement of Claim, he is to seek leave of the Court to do so, by filing and serving a Notice of Motion on or before 11 September 2015 accompanied by the proposed version of his pleading and any affidavit that may be appropriate in support of his notice of motion, in accordance with the Uniform Civil Procedure Rules.

4. Grant leave for any such Motion to be returnable before the Court on 25 September 2015.

5. Order the plaintiff to pay the defendant’s costs of the Notice of Motion.

6. Stand the proceedings over for further directions before the Common Law Registrar at 9am on 25 September 2015.

**********

Amendments

08 February 2016 - Consecutive number of Judgment added - "No.4".

Decision last updated: 08 February 2016