Francis v Cole

Case [2019] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

FRANCIS v COLE & ANOR

[2019] SASC 179

Judgment of Judge Bochner a Master of the Supreme Court

30 October 2019

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS

Application seeking to dismiss or alternatively strike out the plaintiff's statement of claim.

Held: statement of claim dismissed.

Supreme Court Civil Rules 2006  (SA); Motor Vehicles Act 1959 (SA) s 80, s 148; Post and Telegraph Act 1901-1973  (Cth) s 139B; Criminal Law Consolidation Act 1935  s 20, s 251; Defamation Act 2005  , referred to.
Plenty v Attorney-General of South Australia [2013] SASC 35; Proude v Visic & Ors (No 4) [2013] SASC 154; Pillay v Lloyd [2000] SASC 208; Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279; Anders v NACS Nominees Pty Ltd [2013] SASC 152; Holcon Australia Pty Ltd v Corporation of Town of Walkerville [2007] SASC 437; Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303; Australian Telecommunications Commission v Elmec Pty Ltd (1993) 117 FLR 185; Pacific Century Production Pty Ltd v Watson [2001] FCA 1139; The Ten Group Pty Ltd & Ors v Cornes [2012] SASCFC 99; ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274; White v Johnston [2015] NSWCA 18; Ferguson v State of Queensland [2007] QSC 322, considered.

FRANCIS v COLE & ANOR
[2019] SASC 179

  1. I have two interlocutory applications before me, from each of the defendants, seeking to dismiss or alternatively strike out, the plaintiff’s statement of claim, FDN2, (SOC) pursuant to Rules 193 and 104 respectively of the Supreme Court Civil Rules 2006 (SA) (SCR).

    Background

  2. On 16 January 2018, the plaintiff incurred an expiation notice alleging she had exceeded the speed limit when driving her motor vehicle.[1]

    [1]    FDN13(p), Second Affidavit of Janette Gail Francis, Ex JGF15(1) p 85.

  3. On or about 14 February 2018 the plaintiff lodged a request for review of the expiation notice.[2] The reasons cited for exceeding the speed limit included:

    I don’t have cruise control on my 1998 Holden Barina.

    I have a illegal implants in the shin of my right leg which make it very painful to press the accelerator accuratly.

    These illegal implants have been detected by radiologists.

    [2]    FDN13(p), Second Affidavit of Janette Gail Francis, Ex JGF15(3) p 88.

  4. The review was not successful.[3] On 7 March 2018, the Licence Regulation Manager of the Department of Planning, Transport & Infrastructure (DPTI) received a ‘Referral for Medical Review for SA Driver’s Licence’ from the South Australia Police (SAPOL). It stated:

    Francis has written in the Review Section of Expiation Notice Branch that the speed was due to having illegal implants placed in the shin of her right leg which controls her leg movements as well as having illegal implants in her head. Francis states that doctors decline to remove the implants…

Continue reading Francis v Cole

Sign in free to access the full text

Details
AGLC
Francis v Cole [2019] SASC 179
Case
[2019] SASC 179
Decision Date

CaseChat Overview and Summary

The case of Francis v Cole involves two interlocutory applications from the defendants seeking to dismiss or strike out the plaintiff's statement of claim. The plaintiff, Janette Gail Francis, claims against the defendants, who are the Registrar of Motor Vehicles and the Licence Regulation Manager, for various reasons including the alleged unlawful suspension of her driver's license. The dispute arose from the plaintiff's attempt to contest a speeding ticket she received in 2018, which led to a medical review and subsequent concerns about her fitness to drive. This matter was heard in the Supreme Court of South Australia.

The primary legal issues before the court were whether the plaintiff's statement of claim complied with the Supreme Court Civil Rules 2006 (SA) and whether it constituted an abuse of the court process or prejudiced the proper conduct of the action. The defendants argued that the plaintiff's claims were not in accordance with the rules and that they were an abuse of process, given that the actions of the defendants were protected under s 148(3) of the Motor Vehicles Act 1959 (SA). The court had to determine if the statutory protection extended to the defendants and if the plaintiff's claims were valid despite this protection.

The court ruled that the defendants' applications to dismiss or strike out the plaintiff's statement of claim would be dismissed. The court found that while the defendants had a statutory defence under s 148(3) of the Motor Vehicles Act, the plaintiff's claims were not frivolous or vexatious. The court held that the statutory protection was not absolute and that the plaintiff's claims could proceed, albeit with some amendments to ensure compliance with the rules. The court emphasized that the protection afforded by the statute did not absolve the defendants from all liability but rather provided a shield against civil liability where certain conditions were met.

The final orders of the court were that the defendants' applications to dismiss or strike out the plaintiff's statement of claim were dismissed, with directions for the plaintiff to amend her pleadings to comply with the Supreme Court Civil Rules 2006 (SA). The plaintiff was given leave to amend her statement of claim within 28 days of the judgment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I have two interlocutory applications before me, from each of the defendants, seeking to dismiss or alternatively strike out, the plaintiff’s statement of claim, FDN2, (SOC) pursuant to Rules 193 and 104 respectively of the Supreme Court Civil Rules 2006 (SA) (SCR). Background On 16 January 2018, the plaintiff incurred an expiation notice alleging she had exceeded the speed limit when driving her motor vehicle.[1][1] FDN13(p), Second Affidavit of Janette Gail Francis, Ex JGF15(1) p 85. On or about 14 February 2018 the plaintiff lodged a request for review of the expiation notice.[2] The reasons cited for exceeding the speed limit included:I don’t have cruise control on my 1998 Holden Barina.I have a illegal implants in the shin of my right leg which make it very painful to press the accelerator accuratly.These illegal implants have been detected by radiologists.[2] FDN13(p), Second Affidavit of Janette Gail Francis, Ex JGF15(3) p 88. The review was not successful.[3] On 7 March 2018, the Licence Regulation Manager of the Department of Planning, Transport & Infrastructure (DPTI) received a ‘Referral for Medical Review for SA Driver’s Licence’ from the South Australia Police (SAPOL). It stated:Francis has written in the Review Section of Expiation Notice Branch that the speed was due to having illegal implants placed in the shin of her right leg which controls her leg movements as well as having illegal implants in her head. Francis states that doctors decline to remove the implants and that the Labor Party have intervened to have her criminally defamed.Believe Francis’s mental comprehension to drive may be impaired and that she is not fit to drive.[3] FDN13(p), Second Affidavit of Janette Gail Francis, Ex JGF15(4) p 89. On 7 March 2018 an officer of DPTI wrote to the plaintiff indicating that SAPOL had raised concern that she may no longer meet the medical standards required to drive a motor vehicle. The letter required her to ‘undergo a medical examination and provide a medical report from [the plaintiff’s] medical practitioner’ pursuant to s 80(1) of the Motor Vehicles Act 1959 (SA) (MVA).[4][4] FDN13(q), Second Affidavit of Janette Gail Francis, Ex JGF16(1) p 91. Section 80 of the MVA states: If in the opinion of the Registrar it is desirable that the ability or fitness of an applicant for the issue or renewal of a licence or learner's permit, or of the holder of a licence or learner's permit, to drive a motor vehicle should be tested, the Registrar may require the person to undergo such tests or to furnish such evidence of ability or fitness to drive as the Registrar directs.…Medical tests required by the Registrar under this section must be conducted in accordance with guidelines published or adopted by the Minister by notice in the Gazette and the results of the tests must be applied by the Registrar, in accordance with any policies published or adopted by the Minister by notice in the Gazette, in assessing the person’s competence to drive motor vehicles or motor vehicles of a particular class.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Rule 104 empowers the Court to strike out a pleading, in whole or in part, if the pleading does not comply with the SCR and is an abuse of the process of the Court or prejudices the proper conduct of the action. As explained by White J in Holcon Australia Pty Ltd v Corporation of Town of Walkerville,[18] both of these criteria must be satisfied for Rule 104 to operate.[18] [2007] SASC 437.Consideration Before I address each of the causes of action pleaded by the plaintiff, it is necessary to examine the operation of s 148(3) of the Act, to determine the extent of the protection afforded by it to the defendants. Both defendants submit that Dr Cole completed the certificate of fitness based on a genuine and reasonably held belief, such that s 148(3) of the MVA is a complete defence to the causes of action pleaded. I note that, despite making this submission, neither of the defendants addressed me on the operation of s 148(3), and how it should be applied in this matter. The plaintiff did not address the operation of the MVA at all. Section 148(3) provides a shield against civil and criminal liability for health professionals where they carry out their duty under s 148(1). The duty under s 148(1) (as is relevant to this matter) requires a legally qualified medical practitioner to provide the Registrar of Motor Vehicles with certain information once the medical practitioner: ·Has examined a person who holds a driver’s licence; and·Has reasonable cause to believe that the person is suffering from a physical or mental illness, disability or deficiency so as to be likely to endanger the public of she drove a motor vehicle. It appears that this section has not previously been subject to judicial scrutiny. In determining its meaning, I have gained assistance for authorities dealing with similarly worded legislation. In Australian Telecommunications Commission v Krieg Enterprises Pty Ltd,[19] Bray CJ considered the terms of the Post and Telegraph Act 1901-1973 (Cth), the relevant section being s 139B, which reads:139B. (1) Subject to this section, where-(a) a person does work (whether by himself or by his servants) in circumstances in which the person or a servant of the person has reasonable cause to believe that the doing of the work is likely to interfere with or damage property under the control of the Postmaster-General; and(b) in the course of doing that work, the person or a servant of the person acting in the course of his employment by the person interferes with or damages (whether by a negligent act or omission or otherwise) the property under the control of the Postmaster-General referred to in the last preceding paragraph, the person is liable to pay the Commonwealth compensation for that interference or damage.[20][19] (1976) 14 SASR 303.[20] (1976) 14 SASR 303, 307. In discussing the meaning of “reasonable cause to believe”, Bray CJ said:Clearly the words are objective and the actual state of mind of the person in question is immaterial. The question is whether there was in fact a reasonable cause to believe, ie whether a reasonable man in the circumstances and with the knowledge and means of knowledge of Field would have believed that the doing of the work in question was likely to interfere with or damage property under the control of the Post-Master General.[21][21] (1976) 14 SASR 303, 309.