Combe v Bank of Queensland (No 3)

[2012] NSWSC 1172

Supreme Court

New South Wales

Medium Neutral Citation:

Combe v Bank of Queensland (No 3) [2012] NSWSC 1172

Hearing dates:

14 September 2012

Decision date:

28 September 2012

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

1. If Ms Combe wishes to pursue her claim in relation to the goods in question, she must file and serve any further motion and supporting affidavit within 28 days, failing which these proceedings will stand dismissed.

2. Ms Combe is to pay the Bank's costs of the two motions, as agreed or assessed.

Catchwords:

PROCEDURE - motion - leave sought to proceed on a statement of claim - leave sought to proceed on the proposed statement of claim refused - whether proceedings should be struck out - whether reasonable cause of action - pleading defective - final opportunity to replead in relation to the goods in question granted - costs

Legislation Cited:

Civil Procedure Act 2005
Copyright Act 1968 (Cth)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Personal Property Securities (Commonwealth Policies) Act 2009
Sale of Goods Act 1923
Uniform Civil Procedure Rules 2005

Cases Cited:

Combe v Bank of Queensland [2011] NSWSC 1347
Combe v Bank of Queensland (No 2) [2012] NSWSC 534
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Category:

Procedural and other rulings

Parties:

Faye-Diane Combe (Plaintiff)
Bank of Queensland (Defendant)

Representation:

Counsel:
Mr DJ Barnett, counsel
Solicitors:
In person (Plaintiff)
DibbsBarker Lawyers (Defendant)

File Number(s):

2010/373940

Publication restriction:

None

Judgment

1. Ms Combe, an artist, brought these proceedings in 2010, seeking various relief in relation to the Principality of Snake Hill, of which she claimed to be a citizen and in relation to certain personal property, which she claimed had been taken by the Bank when it took possession of a property, which she claimed formed a part of the Principality. Ms Combe claims that she had a working studio at the property where she kept not only personal items, but also her tools of trade, as well as artworks which were ready to be exhibited and others which she was preparing for an exhibition soon due to be held.

1. Ms Combe's summons was struck out in November 2011 and she was also then refused leave to proceed on a then proposed amended summons (see Combe v Bank of Queensland [2011] NSWSC 1347). She later pressed an application for costs, which was also refused (see Combe v Bank of Queensland (No 2) [2012] NSWSC 534).

1. Ms Combe now seeks leave to proceed on a statement of claim. The Bank opposes such leave being granted and seeks an order under s 56 of the Civil Procedure Act 2005 and Rule 13.4 of the Uniform Civil Procedure Rules 2005, that the proceedings be dismissed and an order under s 91 of the Civil Procedure Act, preventing Ms Combe from bringing fresh proceedings against it in relation to the relief claimed in these proceedings.

Leave to proceed on the proposed statement of claim must be refused

1. In November 2011, Ms Combe was refused leave to proceed on the proposed amended summons because it was not in proper form and did not comply with the applicable Rules. The Bank then accepted that Ms Combe should have an opportunity to put her pleadings into proper form, but not in the terms which she proposed. Ms Combe was given leave to put on amended pleadings on a limited basis. Firstly, in relation to her personal property, which she claims that the Bank took, retained and eventually wrongly disposed of and secondly, in relation to a claim of negligence causing personal injury. I then concluded that they were claims about which, on the material, it seemed that she could conceivably have a cause of action.

1. Certain difficulties ensued and on 9 March 2012, the Registrar ordered that Ms Combe serve a draft statement of claim. Ms Combe later filed a motion seeking leave to file that statement of claim, as well as an application that she be referred for pro bono legal assistance. At the hearing she explained that this was in relation to the drafting of the statement of claim. The application for referral for pro bono legal assistance was refused by Adamson J.

1. Ms Combe pressed her application, even though her proposed statement of claim was not confined to the matters in respect of which she had been given leave. It included claims in the torts of conversion, detinue, trespass to goods, defamation, negligence - nervous shock, as well as claims under the Copyright Act 1968 (Cth), the Sale of Goods Act 1923, the Personal Property Securities (Commonwealth Policies) Act 2009, the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth). Exemplary and aggravated damages were sought, of some $40 million.

1. The proposed defamation claims relate to allegedly derogatory statements made in Court, which Ms Combe claims influenced judgments given in other proceedings against her and others, including the Principality of Snake Hill.

1. In the first judgment given in 2011, I observed:

"22 In advancing claims in relation to the two matters in respect of which Ms Combe has been given leave, like any other litigant, Ms Combe must ensure that her amended pleadings adhere to the requirements of the Uniform Civil Procedure Rules 2005. For example, while pleadings ought to be brief (r 14.8.), they must disclose that Ms Combe has a reasonable cause or causes of action; they must include the material facts on which reliance is placed (r 14.7), as well as providing all necessary particulars of the claims which are pursued (r 15.1). Any claim in negligence must comply with the requirements of r 15.5. The pleadings must be sufficient to enable the Bank to put on a defence to each claim. Unintelligible, imprecise, ambiguous pleadings, which do not give proper notice of the substance of any claim, may not be permitted. As discussed by Bongiorno J in Gunns Limited v Marr [2005] VSC 251 at [57]:

"It is not the function of the Court to draw or settle a party's pleading. The Court is confined to the function of ensuring that pleadings are within the rules and fulfil the functions for which they exist. In particular, it must ensure that one party is not placed at a disadvantage by the failure of another to provide a proper, coherent, and intelligible statement of its case. In this case, it would be unfair to the defendants to require them to plead to this amended statement of claim. It is embarrassing within the meaning of RSC r 23.02. 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. Finally, the trial judge must, in due course, have some firm basis for making rulings on relevance. This is a very substantial set of claims and any trial will be a very complex one. The Court must ensure that the only claims which go to trial are those which the plaintiffs are able to set out in a coherent and detailed form." "

1. It is clear that the proposed statement of claim does not adhere to these requirements.

1. Ms Combe complained that the Bank had not indicated to her what its concerns about her statement of claim were, as it had been ordered to do by the Registrar on 9 March 2012, so that she could address them. This was in dispute. The Court record indicates only that Ms Combe was that day ordered to serve a draft statement of claim and that the matter was adjourned to 25 May.

1. Given the orders made in November 2011, Ms Combe was obliged to confine herself to the leave she had been given and to ensure that any pleading on which she wished to proceed, adhered to the requirements of the Rules. It is evident that the Bank never consented to Ms Combe's proposed pleading. That it was obliged to advise Ms Combe as to the difficulties with her pleading, or how to produce a properly pleaded statement of claim, has certainly not been established.

1. Ms Combe is unrepresented and so, it must be accepted that the obligation to adhere to the requirements of the Rules, which falls equally upon all litigants, no doubt presented her with considerable challenges. Confining herself to the leave which she had been given, did not.

1. At the hearing Ms Combe explained that she had sought to provide information about her claim in relation to the goods in question by way of annexure K to the statement of claim. That document contains an 'estimated list of goods', with an estimated total value of some $411,150, including things generically identified for example as 'tools of trade' and 'original works of art'. Ms Combe explained her difficulty in providing greater particularisation, because the Bank had not provided her with an inventory, as it was obliged to do, of the goods which it had taken.

1. Even accepting this, for the moment, that does not overcome the problems with the way in which the statement of claim is pleaded.

1. It does not adhere to the requirements of the Rules in various ways, all of which it is unnecessary to detail. So far as the defamation claim is concerned, apart from a failure to adhere to the leave given and to the applicable Rules, what is claimed does not reveal any genuine or reasonable cause of action. Nor has the claim sought to be advanced in relation to alleged negligence identified the facts upon which it is claimed a duty of care existed. What it is claimed was suffered, has also not been properly particularised.

1. It is apparent that the leave sought in relation to this proposed pleading cannot be given.

Should the proceedings be struck out?

1. The Bank's case was that the pleading revealed that various of the claims raised were frivolous and vexatious and that Ms Combe had no reasonable cause of action against it.

1. The Bank argued that Ms Combe had been given a proper opportunity to formulate her case in relation to the goods in question. Her extravagant claims were patently absurd, given the $40 million in damages sought. There was no reason to expect that if given a further opportunity to replead, she could produce a properly pleaded statement of claim which complied with the requirements of the Rules and accordingly, the orders sought under s 91 would be made. It had already expended more than $15,000 in these proceedings prior to the hearing of the motion. On Ms Combe's account she had no means to meet any costs order and given that she had made no genuine attempt to avail herself of the opportunity earlier given to replead, she should not be given a further opportunity.

1. The proposed pleading is clearly defective and goes impermissibly beyond the leave which Ms Combe was earlier given to replead. From what is now pleaded, it is difficult to see that she has any claim in negligence for personal injury. That Ms Combe has no reasonable cause of action in relation to the goods which she claims were removed from the property and later disposed of by the Bank, rather than being returned to her as she had been promised, is not, however, apparent.

1. The real question, it seems to me, is whether Ms Combe should be given a final opportunity to properly plead her claim in respect of that property, or whether the proceedings should be struck out. As discussed by Cross J in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944, prima facie a plaintiff is entitled to have the case sought to be advanced go to trial and that it will only be in the clearest of cases, that he or she will be deprived of this right.

1. The test is that discussed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. The Bank has the onus of establishing that Ms Combe's claim is so obviously untenable that it cannot possibly succeed, that it is manifestly groundless and does not admit of argument. Also to be considered is the requirements of the Civil Procedure Act, which by s 56 obliged the Court in exercising its discretions to have regard to the overriding purpose, the just, quick and cheap resolution of the real issues in the proceedings. What they are must be identified by a properly pleaded initiating process. The considerations raised by s 57 as to the objects of case management also arise for consideration, as do the provisions of s 60 as to proportionality of costs. The Court must seek to act in accordance with the dictates of justice (s 58).

1. It seems to me, on balance and not without some hesitation, that the Bank's submissions may not yet be entirely accepted and that justice requires that Ms Combe must be given one final opportunity to replead her claim as to the goods in question, failing which the matter must be struck out. In the present circumstances, she may not justly be granted leave to pursue any other claims. If she does not now produce a properly pleaded claim in relation to these goods, the proceedings must be dismissed.

1. This is a considerable indulgence in the circumstances, the price of which must be an order that Ms Combe bear the Bank's costs of the two motions, if justice is to be done between these parties.

Order

1. For these reasons I order that:

1. If Ms Combe wishes to pursue her claim in relation to the goods in question, she must file and serve any further motion and supporting affidavit within 28 days, failing which these proceedings will stand dismissed.

2. Ms Combe is to pay the Bank's costs of the two motions, as agreed or assessed.

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