Collier v State of New South Wales

[2014] NSWSC 776

Supreme Court

New South Wales

Medium Neutral Citation:

Collier v State of New South Wales [2014] NSWSC 776

Hearing dates:

12 June 2014

Decision date:

12 June 2014

Before:

Harrison J

Decision:

1. Direct that the matter proceed hereafter by way of pleadings.

2. Strike out the statement of claim filed on 28 April 2014.

3. Grant leave to the plaintiff if so advised to file and serve an amended statement of claim within 21 days.

4. Stand over the proceedings before me to 9.30am on Thursday 3 July 2014 for mention.

5. Reserve costs.

Catchwords:

PLEADING - application to dismiss proceedings or strike out pleadings - where statement of claim discloses no reasonable cause of action

Legislation Cited:

Uniform Civil Procedure Rules 2005

Category:

Procedural and other rulings

Parties:

Marion Collier (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
G Mahony (Defendant)
Solicitors:
Plaintiff self represented
I.V. Knight, Crown Solicitor (Defendant)

File Number(s):

2014/94670

Publication restriction:

Nil

ex tempore Judgment

1. HIS HONOUR: Marion Collier commenced these proceedings by summons filed on 28 March 2014. A statement of claim was subsequently filed on 28 April 2014. By amended notice of motion filed on 28 May 2014 the defendant seeks orders for the dismissal of the proceedings pursuant to UCPR 13.4(1), or in the alternative, for the striking out of the statement of claim pursuant to UCPR 14.28(1). In my opinion, for the reasons that follow, the statement of claim should be struck out and Ms Collier should be given leave to replead.

1. Ms Collier's statement of claim is a monumental document. Unfortunately, read as a whole, it is effectively incomprehensible as a pleading purporting to propound a cause or causes of action known to the law.

1. The statement of claim takes the form of a narrative of facts going back as far as 24 June 1987. It proceeds to trace a long and large series of miscellaneous and loosely interconnected events that defy description except by repetition. I do not propose even to attempt to summarise the matters to which the statement of claim extensively refers.

1. It is apparent that Ms Collier wishes to make several complaints. None of them is formulated in a way that permits the defendant to respond.

1. UCPR 13.4(1) is as follows:

"13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim."

1. It is clear that the statement of claim does not disclose a reasonable cause of action. As I have indicated, it does not in my opinion disclose anything vaguely capable of being so described. Whether or not there lies hidden or obscured somewhere in the mountain of facts collected in the statement of claim some arguably genuine and justiciable complaint is presently impossible to discern. Because that possibility exists, and particularly having regard to the fact that the proceedings were only commenced on 28 March 2014, it is not yet appropriate to dismiss the proceedings completely. I am not presently prepared to conclude that the proceedings are either frivolous or vexatious or an abuse of process.

1. UCPR 14.28(1) is in the following terms:

"14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court."

1. The statement of claim should be struck out in accordance with this rule. Against the contingency that Ms Collier is able, either with or without the benefit of professional legal advice, to replead her case in a proper and legally recognisable form, I propose to give her the opportunity to do so.

1. In the course of argument before me today Ms Collier has raised, in response to the defendant's notice of motion, concerns on her part that the subpoena issued by her has not yet been complied with. The documents sought by Ms Collier in that subpoena are contained in two paragraphs as follows:

"1. All written documentation, emails, telephone correspondence, notes COPS entry from 19 August 2008, including the sworn official statement of Marion Louise Collier taken by and witnessed by Detective Constable Gary Miller at Mudgee LAC, 19 September 2008.

2. All written documentation, emails, telephone correspondence, daily occurrence pads, official notebooks, records of 22 and 23 January 2014, including reason for Sergeant Rod Buhr's and a female named, Judy's attendance at the premises of 58 Arthur Street, Wellington on Wednesday, 23 January 2014."

1. Doing the best I can, it does not appear to me that anything sought by Ms Collier in her subpoena touches or concerns the issue with which I am presently dealing. Indeed, as I have indicated in the course of my discussion with Ms Collier, the relevance or otherwise of the subpoena can only accurately be analysed or determined in the light of an understanding of precisely what the proceedings are about. Short of the preparation of a statement of claim in proper form, that cannot be determined.

1. I make the following orders:

1. Direct that the matter proceed hereafter by way of pleadings.

2. Strike out the statement of claim filed on 28 April 2014.

3. Grant leave to the plaintiff if so advised to file and serve an amended statement of claim within 21 days.

4. Stand over the proceedings before me to 9.30am on Thursday 3 July 2014 for mention.

5. Reserve costs.

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